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Will Trump's Immigration Ban Find a Friendlier Audience in the Supreme Court?

By Casey C. Sullivan, Esq. on February 10, 2017 | Last updated on March 21, 2019

When a Ninth Circuit panel refused to reinstate President Trump's immigration ban executive order yesterday, the president went straight to Twitter. "We'll see you in court," he said -- in all caps.

We're presuming he means the Supreme Court here. It's possible that an emergency appeal to the highest court in the land will come within a day or two.

But if Washington v. Trump makes its way to SCOTUS, will the outcome change? That's not likely, according to some legal experts.

Will the Supreme Court Intervene?

The Ninth Circuit's opinion raises a host of fascinating, important constitutional questions. Do Washington and Minnesota have standing to sue? (Yes, according to the panel.) Can the president's campaign promises be used as evidence of discriminatory intent? (Yes again, the Ninth ruled, a decision that's bound to give the DOJ's lawyers a few ulcers.) How plenary are the executive's powers when it comes to immigration and national security? (They are bound at least by the Constitution and judicial review, the Ninth said.)

If the Supreme Court steps in, it could give a different answer to one or all of those questions, perhaps reinstating enforcement of the order, perhaps rejecting the government's arguments on other grounds. It could, too, approve of the Ninth's reasoning outright.

But first it has to take the case up.

John Yoo, law professor at U.C. Berkeley and the legal mind behind the George W. Bush administration's use of waterboarding, says he doesn't think the Court will take the dispute up at this stage. Such emergency appeals are rarely granted, Yoo told the Los Angeles Times.

U.C. Irvine Law School dean Erwin Chemerinsky also thought Supreme Court review might be less than certain. The Court will want to avoid a 4-4 split, which would leave the Ninth Circuit's ruling in place, he told the Times, "but they really like having the last word on high-profile cases," too.

Scholars Are Skeptical of Trump's Chances

If the Court does hear the government's appeal, most of the scholars the Times contacted thought it would not come out on the side of the administration. Jessica Levinson, of Loyola Law School, thought the Court would take the case, "but I don't think it's going anywhere good for Donald Trump."

Yoo, too, was skeptical of the administration's chances. The inclusion of green-card holders in the ban doomed it, he told the Times.

When the executive order was initially rolled out, the Department of Homeland Security said it would not allow entry to green-card holders from the seven nations affected by the ban. It has since pulled back on that and the White House counsel now interprets the EO as not applying to green-card holders. But their initial inclusion shows that the EO could have broader due process implications than under the current interpretation.

The Ninth, for example, rejected the administration's argument that the current interpretation is the definitive one. "The White House counsel is not the President," the Ninth wrote, "and he is not known to be in the chain of command for any of the Executive Departments. Moreover, in light of the Government's shifting interpretations of the Executive Order, we cannot say that the current interpretation by White House counsel, even if authoritative and binding, will persist past the immediate stage of these proceedings."

Trump's supporters, though, think they have a better shot. Senator Tom Cotton, one of the leading voices of "Trumpism" according to the Washington Post, called the ruling "misguided" and described the Ninth Circuit as "the most notoriously left-wing court in America and the most reversed at the Supreme Court."

"I'm confident the administration's position will ultimately prevail," he said.

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