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Trump team starts appeal on immigration order

March 18, 2017 by Lyle Denniston

 

The Trump Administration notified a federal judge in Maryland it is appealing his order blocking enforcement of revised restrictions on immigration from Mideast nations.  The appeal, the notice said, will go to the U.S. Court of Appeals for the Fourth Circuit.

At issue is a temporary order issued early Thursday morning by U.S. District Judge Theodore D. Chuang of Greenbelt, MD, imposing a nationwide ban on enforcing the Trump Administration’s 90-day suspension of entry into the U.S. of foreign nationals from six Mideast nations that have Muslim majorities.

Judge Chuang was one of two federal trial judges to act against the new version of the immigration restrictions.  U.S. District Judge Derrick K. Watson of Honolulu had barred not only the suspension of entry from those six nations but also the 120-day suspension of immigration by refugees from any nation.

As of late Friday night, no formal notice of an appeal of the Watson order had been filed in Honolulu.  If one were to be pursued in that case, it would go to the U.S. Court of Appeals for the Ninth Circuit — the same tribunal that had blocked the first version of the executive order last month.

The fact that the appeal that was filed was set for the Fourth Circuit Court does not necessarily mean that the Administration had decided not to try to go directly to the Supreme Court to test Judge Chuang’s ruling.   Under federal court rules, an appeal must already be actually filed and pending in an appeals court before a move to bypass that level can be made in the Supreme Court.

The Administration has the option of asking the Fourth Circuit Court to put Judge Chuang’s decision on hold briefly to give the Circuit Court time to consider a further order to forbid enforcement of the 90-day suspension.  That is the tactic it tried unsuccessfully in the Ninth Circuit Court last month when a Seattle judge had blocked the original Trump executive order.

Meanwhile, the Seattle jurist — U.S. District Judge James L. Robart — on Friday night put on hold two separate requests pending before him to block at least parts of the revised executive order.

He did so on the expectation that the Administration would be appealing in the Hawaii case.  He based that on public comments made by President Trump and by White House Press Secretary Sean Spicer after they had learned of the Hawaii decision by Judge Watson.

One of the cases before the Seattle judge was a challenge by five states seeking to stop enforcement of both the 90-day and 120-day suspensions.  The other is a lawsuit by several individuals who are either U.S. citizens or legal permanent residents, along with their children, some of whom are not citizens.

In two similar 12-page opinions, Judge Robart said an appeal of the Hawaii case to the Ninth Circuit Court would mean that guidance “is likely to be available soon” that would affect the issues before him in the two pending cases.  So, acting on his own without a request from either side in either case, he imposed a stay on the requests for an enforcement ban in each.

He said that stay would remain in effect as long as the Hawaii judge’s order remained, thus saving time and effort in his court on similar legal questions.  Any decision by the Ninth Circuit Court on those issues would be binding on the Seattle judge.

If the Administration chooses not to appeal the Hawaii order, after all, the judge might have to move ahead on one or both of the cases in his court.

The indicated plan by the government to appeal the Maryland case to the Fourth Circuit Court would not have an impact on the Seattle cases, because that Circuit Court does not make decisions binding on the Seattle court.

One possible explanation why the Administration had not filed an appeal notice in the Hawaii case emerged very late Friday in Honolulu when government lawyers asked Judge Watson to clarify and narrow the scope of his order.  Until that is resolved, the government presumably would not decide whether to appeal.

The motion asked the judge to limit his ban on enforcement to the 90-day suspension of entry of foreign nationals from the six Mideast nations.  The motion argued that the challengers had done little to challenge the executive order’s provisions regarding refugees, and had not challenged several provisions about administrative steps the government planned under the executive order.  The judge’s order, the motion argued, thus swept more broadly than it should have.

The motion noted that the challengers would oppose the motion, on the premise that clarification was not necessary.  The motion asked that the dispute be resolved early next week.

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.

 

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