After 9th Circuit court Ruling Wisest Strategy Would Be to Wait For Final Decision, and Nine-Justice Court
– The federal Court of Appeals for the 9th Circuit has upheld a stay of President Donald Trump’s executive order restricting people from seven named countries.
Public interest law professor John Banzhaf, who believes such a ban would be constitutional, but who nevertheless publicly predicted today’s decision, suggests that the administration may be wise to avoid seeking immediate relief from the U.S. Supreme Court at this time.
If the matter goes to the Supreme Court now, Trump will find a court with only eight justices, with many experts expecting a 4-4 tie which would result in a loss for Trump.
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This is especially true since the ruling is not one on the constitutionality of the order nor on the state’s legal standing to challenge it, but rather a more difficult to overturn ruling on whether the stay should remain in effect for a brief period until the major and complex legal issues can finally be decided.
By the time that final decision reaches the Supreme Court, the focus will be on the main legal issues, not on more tenuous issues like balancing hardship, so Trump’s position will be stronger legal ground.
Much more importantly, adds Banzhaf, there will be one more justice, and, as a conservative Trump appointee, one very likely to side with Trump.
“Trump should concentrate on the end game – whether he will be able to exercise virtually unfettered authority to restrict entry on grounds of national security indefinitely or for longer periods of time, and to add additional countries if necessary – and not on what will happen during the next several weeks or months,” suggests Banzhaf.
The fact that several district judges, as well as one court of appeals, failed to back him should be clear evidence that the issues are not as clear cut as he may have been led to believe.
If the courts should prevent Trump from completely banning the entry from these countries, either temporarily or perhaps even later on a permanent basis, Trump may want to consider following the lead of Germany, and requiring entrants who cannot be blocked to at least wear an ankle tracking monitor.
Although even this order is likely to be challenged, it is more likely to be upheld because it is less intrusive than a complete ban.
Since Customs already uses thousands of them, even in non-criminal cases, the argument for extending their use to this new class of persons would be even stronger, suggests Banzhaf.