That awkward moment when government checks and balances work.
In what will certainly become a landmark case, both for future immigration policy and the success (or failure) of the Trump administration, the U.S. Court of Appeals for the 9th Circuit ruled against Donald Trump’s immigration ban, which by design disproportionately affects Muslims and thus is a form of religious discrimination.
In the days since the executive order was passed, protest and resistance has been rampant and widespread. In addition to numerous protests at airports and cities across the nation, the strongest show of defiance has been through the judicial system. Initially a district court struck down the part of the ban that excluded green-card holders from entering the country.
Most recently, a Seattle district court struck down the ban. Since then, the ban has been legally unenforceable nationwide. Given the Trump administration’s vehement insistence that the ban is a legitimate exercise of executive authority, it is no surprise that the case was rushed to the Court of Appeals.
The judicial hierarchy in the U.S. hears cases at three levels. Cases originate in district courts. They can then be appealed to Courts of Appeals, which handle cases from defined multi-state regions as was the case here. The only court to which these decisions can be appealed the Supreme Court.
That, then, is the seemingly inevitable future of this case. The Trump administration has already publicly signaled its willingness to appeal the case to the Supreme Court. (For his part, the Tweeter-in-chief has gone to full-on ALL CAPS MODE to express his distaste for the ruling.) This raises a number of interesting questions. Will the Court choose to hear the case on an emergency appeal—in which the Supreme Court would have to act almost immediately—or will it pursue the slower and more standard method of case selection? Will the Trump administration force the issue now, or wait until Supreme Court nominee Neil Gorsuch has been voted on?
We can only speculate on how the Supreme Court might rule in this case. With Scalia’s seat still unfilled, another 4-4 tied ruling is possible, (this has been the result of several cases that have come before the Supreme Court since Scalia’s passing.) Even a split decision, however, would be a win for those championing an end to the ban. A tie in the Supreme Court leaves the lower Court’s ruling in place. Here, that would be mean a Supreme Court tie leaves in place the Ninth Circuit’s ruling, and thus the ban would stay unenforceable.
One could also be optimistic, and say that one of the conservative justices would vote against the ban. Given the backlash to Trump’s ban, including by major figures on the right like Marco Rubio, it’s not unthinkable that a conservative judge would find the ban blatantly unconstitutional. Anthony Kennedy, the Court’s swing justice (because he’s the least conservative of the four remaining conservatives), could vote against it. Perhaps even John Roberts, who has been less staunchly conservative over time, could also break with ideological lines for such a salient issue.
Of course, if Gorsuch is confirmed before the Court hears this case, it’s anyone’s game. The 4-4 ruling is off the table, and Gorsuch is so new it is difficult to imagine how he’d vote. One can extrapolate from past rulings, but like election predictions, these are fallible. Predictions like those from FiveThirtyEight’s Nate Silver put Gorsuch as slightly right of Scalia, already one of the most conservative justices. There is some indication, though, from Gorsuch’s voting record that he may oppose such broad executive power. As a Circuit Court judge, Gorsuch passed down a ruling expressing his commitment to the separation of powers. In the case of an immigrant who would be reclassified under new executive guidelines, Gorsuch wrote a concurrence indicating the need for separation of powers in the face of growing executive action. Given the broad scope of the President’s executive order, it would not be unreasonable to assume that Gorsuch could find the President overreaching. Moderate conservatives have, in fact, made the same arguments. For example, Rep. Justin Amash of Michigan, who argued that both Trump and Obama have illegally expanded executive authority regarding immigration.
It is extremely telling that this conflict is playing out in the courts. Trump’s ban was an executive order, which means it is enforceable but not the same as legislation. It was never voted on by Congress, never approved by it—the only one who signed off on it was Trump himself. In these scenarios, the courts are usually the only recourse. On several occasions, Obama’s executive orders were challenged (and, at times, overturned) by the courts. It’s checks and balances at work, even in a system that seems to have cast aside checks and balances altogether.