Whichever side loses is sure to take the fight to the Supreme Court. That traditionally has been solid ground for the chief executive.
Justices often defer to the executive branch on matters of immigration and national security, because of the president’s constitutional powers and an additional grant of authority from Congress.
Congress in 1952 said the president “may by proclamation and for such period as he shall deem necessary, suspend the entry of all aliens and any class of aliens as immigrants or non-immigrants” whenever he thinks it “would be detrimental to the interests of the United States.”
But those battling Trump’s executive order also point out that the law has been amended to ensure that “no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of race, nationality, place of birth, or place of residence.”
The states of Washington and Minnesota say courts must take note of Trump’s campaign promises to impose a Muslim ban and what they call changing motives for imposition of the travel ban.
Quoting another Supreme Court precedent, they say, “The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.”
The politically divisive fight comes as the Supreme Court remains shorthanded following the death of Justice Antonin Scalia nearly a year ago; the four Democratic-appointed liberals and four Republican-appointed conservatives often split.
They faced a similar issue last term, when a Texas judge imposed a nationwide halt to an executive action from President Barack Obama that would have shielded more than 4 million immigrants in the country illegally but who met certain requirements to get work permits.
Texas and other states had challenged the order, same as in this new test from Washington, and the federal government argued that states did not have legal standing to challenge the president’s action. The federal government also argued that the court should abide by its precedents and defer to the president’s customary power over immigration.
But the justices split 4 to 4 on the issues, without revealing the specific votes or which issues had caused the deadlock.
If the 9th Circuit turns down the administration’s appeal and refuses to lift the judge’s order, the administration will almost surely move immediately to the Supreme Court.
But the argument would be only on the temporary restraining order, and it would require five justices to reverse the lower court’s actions.
If five justices do not agree to take that action, the case would return to U.S. District Judge James L. Robart to decide whether Trump’s order should be permanently enjoined. And the fight up the legal ladder would begin again.
It could take months for the case to return to the Supreme Court, giving the Trump administration time to change the order to meet judicial objections. Or it could return to a court that by then likely would be back to nine justices, including Trump’s nominee, Judge Neil Gorsuch.