Ninth Circuit ruling: Why it doesn't signal end of road for Trump travel ban

Update: This story was updated at 6:14 p.m.

Within minutes, the unanimous ruling by the Ninth Circuit Court of Appeals to continue blocking President Trump’s temporary travel ban was being both hailed and excoriated.

The legal language left no doubt. It was a major blow. The court ruled decisively against the White House.

But Mr. Trump was undaunted. “See you in court,” Trump tweeted within minutes of the ruling. “The security of our nation is at stake!”

Friday night, White House chief of staff Reince Priebus told The Washington Post and other outlets that the White House is “reviewing all of our options in the court system,” including possibly going to the United States Supreme Court.

To be sure, Thursday's ruling was significant. But the reality is that the 29-page opinion is relatively narrow in its scope. While it continues to block implementation of Trump’s executive order, it did not rule on the merits of the challenge. That will come later. And that decision, even critics of the executive order point out, may be very different.

“The opinion leaves a lot of questions unanswered, and doctrinally I think there are some problems with the decision that may be addressed,” says Jonathan Adler, a professor at Case Western University School of Law, “but it’s very significant.”

“I’m not surprised by outcome, and I’m not surprised that the court tries to adopt a very narrow holding in a necessarily preliminary opinion,” he adds, though “I’m not sure the court succeeded in issuing an opinion that’s as narrow as they tried to do.”

For now, the ruling may carry more symbolic than legal significance. With a flurry of the president’s executive orders heading to court, and with Trump personally attacking the judiciary, the ruling represents an important marker, wrote Steve Vladeck, a law professor at the University of Texas School of Law who co-authored a friend-of-the-court brief supporting Washington and Minnesota’s challenge, in a New York Daily News column.

In keeping the temporary restraining order (TRO) in place, he added, “the 9th Circuit reaffirmed not just the independence of the courts, but the reason for that independence – to ensure that government claims of necessity are subject to dispassionate, sober analysis.”

The president’s executive order bars citizens of seven Muslim-majority countries from entering the United States for 90 days, suspends entry for all refugees for 120 days and for Syrian refugees indefinitely. Its signing led to chaos and confusion at airports around the world, protests around the country, and widespread litigation in the courts. Many experts have criticized the order as poorly written and implemented on the ground.

Dozens of lawsuits have been filed challenging different parts of the executive order, but the case before the Ninth Circuit – brought by the states of Washington and Minnesota – has become the flagship suit.

No precedent for 'unreviewable' authority

Top of mind in the court’s opinion was the Trump administration’s argument that the order is “unreviewable” by the courts, given Trump’s national security authority.

“There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy,” the judges wrote.

The Ninth Circuit also made comments suggesting that sloppy drafting and implementation of the order, and Trump’s public comments during the presidential campaign about a “Muslim ban,” could weigh against the government.

Specifically, the judges highlighted the confusion over whether the order applied to lawful permanent residents from the seven countries. The government said the point was moot because the administration eased restrictions on those residents days after the order went into effect.

The judges responded that they “cannot rely” upon that contention in part because of “the Government’s shifting interpretations of the Executive Order.”

“Things like lawful permanent resident [issues] should have been anticipated, and should have been taken care of beforehand,” says Professor Adler.

“The administration could not have done a better job of trying to lose a potentially winning legal hand,” he adds. “From the way it was implemented, to the way the administration’s tried to address the problems in it, to the way the administration has continued to talk about it during litigation.”

The court also suggested that past comments from Trump and his advisers about implementing a “Muslim ban” could be pertinent, saying that evidence “beyond the face of the challenged law may be considered.”

When it comes to claiming that a facially neutral order – which the executive order is – has, or could have, a discriminatory impact, past statements made by political officials are usually fair game. What the government is claiming is that this case is different, because most of those statements were made while Trump was still a candidate.

The 9th Circuit has said it doesn’t make a difference, but other courts could rule another way.

“The line to me is utterly hazy,” says Steven Schwinn, a professor at the John Marshall School of Law in Chicago. “I think the judges or justices deciding this are going to have a really hard time distinguishing between statements [Trump’s team] made as a candidate and statements made as an official.”

Unanswered questions remain

Indeed, several fundamental questions about the executive order’s legality and unconstitutionality remain unanswered.

The opinion, for example, never cites a key statute the government is using to validate Trump’s order – a statute in the Immigration and Nationality Act passed by Congress in 1965.

“That’s a pretty big omission over 29 pages,” wrote Benjamin Wittes, a senior fellow at the Brookings Institute, in a post on the Lawfare blog. While Mr. Wittes writes that he believes decision to uphold the TRO is correct, he adds, "It’s worth emphasizing that the grounds on which this order was fought are not the grounds on which the merits fight will happen.”

Furthermore, the judges took arguably broad legal views of certain issues.

Some of the court’s writings on Fifth Amendment guarantees of due process – including that they extend to all persons within the US, including aliens in the country unlawfully – are “potentially quite far-reaching,” according to Adler. Other courts, including the Supreme Court, could take a narrower view.

Given that the Ninth Circuit is the court most often overruled by the Supreme Court, it’s certainly a possibility that parts of Thursday’s opinion could be reinterpreted by other judges in ways friendlier to the government.

Yet while the court’s opinion may have flaws, it has shown that the executive order likely has flaws of its own. This, Professor Schwinn says, gives the Trump administration options.

“Having a ruling like this on the books now tells the White House that there may be another option, other than pursuing this particular executive order to the death in the courts,” he adds. “Go back to the drawing table and rewrite it and do it right, or go back to drawing table and don’t do it at all.”

Whether Trump would be willing to concede defeat like that – particularly to what many consider the most liberal appeals court in the country – is an open question. What is clear is that in a moment where the president's hostility to the judiciary is raising eyebrows, even from his own Supreme Court nominee, this opinion is further evidence that the courts will be an unflinching check on Trump’s disruptive style of governance.

“By requiring the government to actually present such evidence [of security threats], rather than simply accepting its invocation of national security at face value,” wrote Professor Vladeck, “the court reaffirmed the role that independent, life-tenured judges can play in cases tugging at the nation’s emotional and rhetorical heartstrings.”