President Donald Trump’s gut reaction to Thursday’s appeals court ruling against his national security executive order was to take the case to the Supreme Court, but there is good reason to think he should be hesitant.
Conventional wisdom is that the high court, short a justice since last year’s death of Antonin Scalia, would divide 4-4 on an appeal of a lower court restraining order blocking the administration from enforcing a temporary halt of the refugee resettlement program and travel from seven terrorism-plagued counties.
“Kennedy has decisions that go in both directions, as is often the case with Justice Kennedy.”
Such a result would leave Thursday’s ruling by the 9th U.S. Circuit Court of Appeals in place. But it could be even worse for Trump. Justice Anthony Kennedy’s record on the bench suggests he is no lock to side with the conservative bloc on the court, according to some legal experts.
“There’s certainly a possibility of that,” Andrew McCarthy, a former federal prosecutor who handled several high-profile terrorism cases in New York in the 1980s, said of the possibility of Kennedy siding with the other liberal justices against Trump. “Kennedy has decisions that go in both directions, as is often the case with Justice Kennedy.”
In addition to heightening the political embarrassment for Trump, a 5-3 decision would serve as precedent for judges considering similar challenges to executive authority — a lasting impact that could substantially affect further action from the administration.
McCarthy points to a 2008 case, Boumediene v. Bush, in which the high court held that enemy combatants held at the detention facility at Guantanamo Bay, Cuba, had a right to petition federal courts for their release.
Kennedy wrote the majority opinion in the 5-4 case, which McCarthy argues flipped the longtime constitutional understanding the courts should not second-guess national security decisions of the president. He noted that the plaintiffs in that case — foreigners who had no connection to the United States and were caught while making war — have far less of a claim to the judiciary than many of the people covered by Trump’s executive order.
The 9th Circuit ruling cited the Boumediene case as the basis for authority to review Trump’s executive order in the first place.
Others counseled a full-throttled response.
“This order is so outrageous and so ignorant of the separation of powers, I think the White House should appeal to the Supreme Court,” said Joseph diGenova, who served as U.S. attorney for the District of Columbia in the 1980s. “Trying to decide whether Anthony Kennedy is this, that, or the other is not something worth worrying about.”
DiGenova said he thinks there is a good chance that not only will the conservative bloc hold, but that liberal Justice Elena Kagan could be persuaded to keep Trump’s order in effect while lawyers litigate the case.
McCarthy said there is a good chance that the Supreme Court would not even take the case at this stage, anyway. Even as the 9th Circuit was considering the restraining order, the judge who granted it — U.S. District Judge James Robart — was moving forward with arguments about whether that order should be converted into a longer-term preliminary injunction.
McCarthy said the justices likely will avoid weighing in until that process is complete.
Dale Wilcox, executive director of the Immigration Reform Law Institute, indicated that his organization is preparing a legal brief in the case. He wrote in an email to LifeZette that slowing the case down, rather than racing to the Supreme Court, would be beneficial to the administration.
“It would actually be good for the case to be sent back to the district court so that the factual record can be developed and the burden shifts to the plaintiffs to prove that they deserve a preliminary injunction,” he wrote. “The burden of proof currently under the TRO scenario is on the Gov’t in seeking a stay.”
The better course may be for Trump to withdraw his executive order and replace it with one that is more narrowly tailored. CNN reported Friday that the administration is considering that very action.
McCarthy said a rewritten order likely would explicitly exclude legal permanent residents, whom the administration already has said would be exempt from enforcement. Other categories of travelers with stronger claims to entering the country might be dropped as well, he said.
“The Trump administration would be well-advised to take a timeout here, not a retreat,” McCarthy said. “I would look at this more like a boxing match … They could rewrite this thing, make a tighter executive order that would be a smaller target for the court.”
A revised executive order almost surely would be challenged again, and the 9th Circuit likely would move to block it, McCarthy said. But the government would be on firmer ground at the Supreme Court, he added.
Meanwhile, McCarthy said, there are plenty of steps the administration could take to improve security. He said one option is to “slow-walk” visa applications from the countries Trump identified with his executive order.