Two federal appeals courts have now ordered quick review of President Trump’s immigration restrictions, setting up the prospect that the controversy could reach the Supreme Court as early as this month. The last time the Justices faced a major constitutional dispute over immigration, last June, they split 4-to-4.
If that should happen again, even on a preliminary vote on enforcement of the revised Trump executive order, the stage could be set for a deciding vote to be cast by Neil M. Gorsuch – if, as is now expected, the Senate promptly approves his nomination to be a Justice.
There are significant differences between the deportation-delay decree issued by President Obama – the initiative thwarted by the Justices’ tie vote – and the Trump ordered curbing immigration of foreign nationals.
The Obama directive set up a regime to limit deportation of children and parents who had been living in the country for years, even if they had entered illegally. The Trump order would put a stop temporarily to entry of refugees and, separately, of foreign nationals living in six Mideast nations.
But there are some close similarities, too. In each case, a president acted without new authority from Congress, and without getting public reaction before taking the action. And, in each, one or more state governments had been granted the legal right to challenge the president in court.
In the Justices’ split vote last term on the Obama initiative, the eight Justices could not even agree on an answer to a question that they had added on their own to their review – that is, whether the president exceeded constitutional limits in taking the action at issue. That question is in the background on the Trump order, too.
If Judge Gorsuch wins swift Senate approval, a series of developments would have to occur on the Trump order in lower courts for him to find himself in a tie-breaking position – probably the most important issue he would face early as a new Justice. But those developments now seem set up to actually occur.
In two lower courts – the U.S. Court of Appeals for the Fourth Circuit and the U.S. Court of Appeals for the Ninth Circuit – have adopted schedules for review of the Trump executive order -- now blocked by separate orders from two federal trial judges. The Fourth Circuit Court expedited its review last month, and the Ninth Circuit Court did so on Monday.
The order under review in the Fourth Circuit Court, issued by a federal judge in Maryland, came in response to a challenge by two refugee resettlement groups. The order now under review by the Ninth Circuit Court, issued by a judge in Hawaii, came in response to a challenge by that state’s officials.
Neither of those appeals courts is likely to be fully finished with their reviews of the constitutionality of the Trump order until sometime in May, but each of those courts also has under review a separate request by the Trump legal team to allow the government in the meantime to start enforcing the executive order. And one or both of those courts could decide that preliminary issue this month, under the schedules they have set.
President Trump has vowed that his lawyers will take the immigration issue to the Supreme Court if necessary to salvage it. His lawyers have already made clear that the government is keenly interested in getting enforcement started, even if the appeals courts do not rule aa quickly on the immigration order’s legality until after hearings are held in each court in May.
If either one of the appeals courts were to issue an order on the prompt enforcement issue – for or against Trump on that point – the losing side could go immediately to the Supreme Court with a challenge limited to that point. The plea would be in the form of a request to put the appeals court’s order on hold until the Supreme Court could take up the controversy, or until the appeals courts issued final rulings on the constitutional question.
Both sides have been pursuing the controversy with dispatch in lower courts, and each seems almost sure to take the dispute on to the Supreme Court if they lose in one or both of the appeals courts.
It would take the votes of five Justices to overturn an order of either appeals court – either an order allowing enforcement, or one forbidding it for the time being.
Although most judges who have reviewed either the original version or the revised version of the Trump order have ruled against the president, a few have sided with the presidential initiative.
It seems likely that the Supreme Court’s more liberal members would be inclined to vote with the challengers and against President Trump’s initiative.
But, as a clue to how the more conservative Justices might react, five judges on the Ninth Circuit Court went to unusual lengths to demonstrate that they were fully on the president’s side in this instance, and some of them were skeptical of whether state governments even have a right to sue the president over the issue. They did so even though no formal case was before them at the time.
The Trump Administration has not particularly rushed to get this controversy before the Supreme Court, but rather has been willing to let it play out first in the appeals courts. At the same time, the government lawyers did ask for an expedited review at the appeals court level, and argued that the controversy involves threats to national security.
The challengers have argued that there is no real urgency, citing the pace of the actions in court of government lawyers, but they did support expedited review in the appeals courts.
Legendary journalist Lyle Denniston is Constitution Daily’s Supreme Court correspondent. Denniston has written for us as a contributor since June 2011 and has covered the Supreme Court since 1958. His work also appears on lyldenlawnews.com.
