Next steps in the travel ban legal fight
(CNN) — Legal briefs and court rulings are flying in the battle over President Donald Trump’s travel ban, but the war is just getting started.
A federal judge in Seattle upended Trump’s executive order nationwide on Friday by temporarily suspending the key provisions restricting travel for foreign nationals from seven Muslim-majority countries and refugee admissions.
The Ninth Circuit Court of Appeals denied the US government’s emergency request to resume the ban early Sunday morning — and instead asked both sides to submit their arguments before a three-judge panel issues a final ruling.
Here are the next steps as this legal fight continues:
1. Court filings
Early Monday morning, attorneys general for the states of Washington and Minnesota who filed the lawsuit submitted their brief urging the appellate court to keep the travel ban suspension in place.
The states say that the temporary restraining order should remain in place because the President had “unleashed chaos” by signing the order.
The government has until 6 p.m. ET Monday evening to submit its own brief in response.
It is likely that Justice Department will continue to argue that a district court judge does not have the right to second-guess the President’s national security judgment in the immigration context.
Other parties also have the option of seeking permission to file what’s known as an amicus (“friend of the court”) brief in the case. Several have been filed already — including from nearly 100 tech companies who claim the travel ban is inflicting significant harm on their business operations.
2. Ninth Circuit review
Once all the papers are in, the Ninth Circuit can: (a) schedule a hearing (either by telephone or in person); or (b) rule quickly on the legal briefs alone.
The randomly assigned three-judge panel includes Judge William C. Canby Jr, an appointee of President Jimmy Carter; Judge Michelle T. Friedland; who was appointed by President Barack Obama; and Judge Richard R. Clifton, an appointee of President George W. Bush.
The judges have a variety of options at their disposal in terms of reaching a decision, but it is unlikely that they would rule on whether the ban is constitutional (since that is not the question before them) — the central issue is whether the executive order should remain suspended for now.
After the three-judge panel publishes its decision, the losing party has 14 days to file a petition for rehearing the case by the full appellate court (but is not required to do so in order to get the case in front of the Supreme Court).
3. Supreme Court review
Given the high stakes involved in this lawsuit, it is expected that whomever ultimately loses before the Ninth Circuit will most likely appeal to the US Supreme Court.
At the moment, there are only eight justices on the court, which means if there is a 4-4 split then the Ninth Circuit’s ruling will be the law of the land.