NEW YORK // Donald Trump’s executive order suspending the US refugee programme and entry of travellers from seven mainly Muslim countries is likely to end with an appeal to the Supreme Court, according to legal experts.
Whatever the outcome of the government’s emergency appeal in San Francisco on Tuesday afternoon against a decision to suspend the ban, both sides will have the right to take their case to the highest court in the land.
At issue are how far the president’s power extends and whether his order banning the entry of people from Iran, Iraq, Syria, Libya, Sudan, Somalia and Yemen has “unleashed chaos”.
Many believed Mr Trump’s inflammatory agenda would end up in the Supreme Court eventually, but few expected it to be challenged so soon.
Jeanne Zaino, a professor of political science at Iona College, said a higher appeal was inevitable but that it might be difficult to persuade four of the eight sitting justices to agree to hear the case, which is the required threshold for a hearing.
“On the one hand it makes sense for the court to hear the case, because you have had conflicting decisions from the lower courts, but on the other the court is going to be very, very cautious of stepping into the political fray right now,” she said. If the Surpreme Court justices decline to hear the case, the ruling of the appeal court will stand.
The legal crisis came to a head on Friday when US district judge James Robart blocked Mr Trump’s order.
Within a day, 60,000 people who had been told their visas were revoked were informed they could now travel to the US after all.
That triggered an immediate appeal by Mr Trump’s administration to the Ninth Circuit Court of Appeals in San Francisco.
The justice department’s position is that the president has the authority to “suspend the entry of any class of aliens” to the US on national security grounds, according to the arguments filed in court.
Sean Spicer, White House spokesman, told reporters aboard Air Force One on Monday that the government was poised to reintroduce the restrictions as soon as possible.
“Once we win, it will go right back into action,” he said.
But a powerful alliance stands against the Trump administration. States challenging the ban have been backed by technology companies, who filed legal papers saying it hinders their ability to recruit skilled, foreign workers.
And a number of national security and state department officials – including John Kerry and Madeleine Albright, who served as secretaries of state under Barack Obama and Bill Clinton, respectively — said the executive order does nothing to make the US safer.
Jack Goldsmith, a law professor at Harvard who served in the George W Bush administration as legal counsel said the ban’s weakness lay in its implementation.
“The Immigration EO has a surprisingly strong basis in law but was issued in haste, without proper inter-agency coordination, without proper notice, without adequate consideration of its implications, and with a media strategy, if it was that, that suggested that the EO was motivated by discrimination against Muslims,” he wrote on the Lawfare blog.
Whatever happens in the appeals court, both sides could ask the Supreme Court to take up the case. Even if the court does decided to hear it, there is no guarantee of clarity.
With one of its nine seats still vacant after the death of justice Antonin Scalia in February last year, it will be difficult for the court to break a 4-4 deadlock with the bench balanced between conservatives and progressives. In the event of a tie, the decision of the lower court in San Francisco will stand.
Meanwhile the clock is ticking. The seven-nation ban was only set to last 90 days from the date the executive order was signed.
Erwin Chemerinsky, dean of the Irvine School of Law at California, said the system — the constitutional series of checks and balances on presidential power – was working as intended, meaning the case would not drag on.
“It could end very quickly,” he said.
foreign.desk@thenational.ae
