Make us your home page
Instagram

Today’s top headlines delivered to you daily.

(View our Privacy Policy)

Republican refusal to fill Supreme Court vacancy looms large in travel-ban fight

WASHINGTON — The legal challenge to President Donald Trump's executive order barring citizens of seven Muslim nations from entering the United States is moving quickly toward the Supreme Court, where Republicans' yearlong refusal to fill a vacant ninth seat could determine the outcome.

As soon as today, a panel of the 9th U.S. Circuit Court of Appeals will decide whether to overturn a Seattle-based trial judge and put Trump's order back into effect.

But the panel's initial decision, whatever it is, will be only an intermediate step for the challenge now led by the states of Washington and Minnesota. The case is destined for the Supreme Court, whose eight members are evenly split between liberals and conservatives because of the vacancy created last year by the death of Justice Antonin Scalia.

"They don't have a comfortable majority," Yale Law School professor Harold Koh, a former State Department official in the Obama administration, said in an interview Sunday, referring to the Trump administration.

The case could be in front of the Supreme Court by the end of the week or next week, said Leon Fresco, the head of the U.S. Justice Department's Office of Immigration Litigation under President Barack Obama. The timing depends in part, on whether the 9th Circuit upholds the Seattle judge's restraining order, and whether the government immediately appeals or waits for other courts to act.

As long as the case remains undecided and the travel ban is blocked, the same tension that has surrounded the order since Trump signed it Jan. 27 is likely to continue. Thousands of travelers Trump intended to block are likely to arrive in the United States unhindered, protest demonstrations probably will continue around the United States, and Trump is likely to continue his Twitter attacks on the judge and his ruling.

At the very least, the Supreme Court's all-but inevitable consideration of the executive order challenge will lead to even more attention to Trump's nomination of Judge Neil Gorsuch to the seat Scalia held. Gorsuch can now expect larger and louder questions about the limits of presidential power, though it's unlikely he'll be seated in time to take part in any hearings on the case.

Substantively, the Supreme Court's court's empty seat creates the possibility of a 4-4 split, which would uphold whatever ruling the reputedly liberal 9th Circuit makes. It would take five justices to agree for the court to grant a stay.

The Supreme Court's and 9th Circuit's legal considerations, moreover, will occur under the scrutiny of a president who now has repeatedly challenged the legitimacy of judges who displease him. This could compel Justice Department attorneys to assure courts that the executive branch accepts the judicial branch's authority to rule on the law.

Vice President Mike Pence expressed confidence the administration's travel ban would eventually be upheld in a series of appearances on Sunday morning news programs.

"We'll accomplish the stay and will win the case on the merits," Pence said on NBC's Meet the Press. "We remain very confident that the president's actions are on solid constitutional and legal grounds."

A Republican appointee, U.S. District Judge James Robart, Friday night blocked executive order from taking effect on nationwide — adding his more sweeping order to a half-dozen rulings by other federal judges that backed more limited challenges.

The White House responded angrily. Press secretary Sean Spicer called the decision "outrageous" in a statement that was later withdrawn and revised.

Trump escalated the rhetorical fight via Twitter, with posts blasting Robart as a "so-called judge" who made a "ridiculous" decision.

"I don't understand language like that," Sen. Ben Sasse, R-Neb., said Sunday on ABC's This Week. "We don't have so-called judges, we don't have so-called senators, we don't have so-called presidents, we have people from three different branches of government who take an oath to uphold and defend the Constitution. So, we don't have any so-called judges, we have real judges."

Senate Majority Leader Mitch McConnell, R-Ky., said on CNN's State of the Union that "it is best not to single out judges."

Trump disregarded the advice, returning to Twitter Sunday afternoon to write that he "Just cannot believe a judge would put our country in such peril. If something happens blame him and court system. People pouring in. Bad!"

"Judges are people too," Koh said. "If a person doesn't show them respect they have a normal reaction."

Late Saturday, the Justice Department's Trump-appointed acting solicitor general, Noel J. Francisco, filed papers with the 9th Circuit asking that Robart's nationwide order be stayed.

"The district court's order contravenes the considered national security judgment of the president that the admission of certain classes of aliens at this time to the United States, under the existing screening and visa-issuance procedures, is not in the national interest," the Justice Department's brief argued.

Two 9th Circuit judges, both Democratic appointees, denied the Justice Department's request for an emergency stay, and instead set a schedule to receive a brief from Washington and Minnesota by midnight Sunday, followed by another Justice Department brief by 3 p.m. PST Monday.

Whichever side loses at the 9th Circuit can then ask the Supreme Court for emergency action. Such a request would first go to Justice Anthony Kennedy, who handles such cases coming from the 9th Circuit; he, in turn, would likely refer the matter to the entire court. Four justices must agree for the court to take up the appeal; a stay of the 9th Circuit opinion would require a fifth justice to agree.

The case could be dragged out.

It took months for the 5th U.S. Circuit Court of Appeals to agree with a district judge in Texas that the Obama administration had exceeded the president's powers and issued a nationwide injunction against Obama's effort to defer the deportation of millions of undocumented immigrants who had been in the country since 2010.

Republican refusal to fill Supreme Court vacancy looms large in travel-ban fight 02/05/17 [Last modified: Sunday, February 5, 2017 9:15pm]
Photo reprints | Article reprints

Copyright: For copyright information, please check with the distributor of this item, Tribune News Service.
    

Join the discussion: Click to view comments, add yours

Loading...
  1. Rays journal: Homer-happiness returns against Blue Jays

    The Heater

    ST. PETERSBURG — The Rays are back to hitting home runs, which was the norm of the offense for much of the season before the offense went cold.

    Adeiny Hechavarria greets teammate Kevin Kiermaier after his home run during the third inning at the Trop.
  2. Jones: Stop talking and start building a new Rays stadium

    The Heater

    ST. PETERSBURG — It was good to see Major League Baseball commissioner Rob Manfred at Tropicana Field on Wednesday, talking Rays baseball and the hope for a new stadium somewhere in Tampa Bay.

    Commissioner Rob Manfred is popular with the media on a visit to Tropicana Field.
  3. Ousted to political Siberia by Corcoran, Kathleen Peters sets sights on Pinellas Commission

    State Roundup

    TALLAHASSEE — The perks of power in Tallahassee are a coveted chairmanship, a Capitol office in a prime location and a prominent seat on the House floor. Now Rep. Kathleen Peters has lost all three, but here's the twist: Her trip to "Siberia" might actually help her reach the next step on the Tampa Bay political …

    Rep. Kathleen Peters, R-South Pasadena, has been relegated to the back row in the State House chamber, moved to a fouth floor office and stripped of her job as chairwoman of a House subcommittee after a series of disagreements with House Speaker Richard Corcoran. [SCOTT KEELER | Tampa Bay Times]
  4. What do kids need to stay away from deadly auto theft epidemic?

    Public Safety

    ST. PETERSBURG — More than a dozen black teenagers told U.S. Congressman Charlie Crist on Wednesday that children need stronger mentors and youth programs to steer clear of the auto theft epidemic plaguing Pinellas County.

    Congressman Charlie Crist (center) listens as Shenyah Ruth (right), a junior at Northeast High School, talks during Wednesday's youth roundtable meeting with community leaders and kids. They met to discuss the ongoing car theft epidemic among Pinellas youth and how law enforcement, elected officials, and community organizations can work together to put an end to this dangerous trend. [DIRK SHADD   |   Times]
  5. Manhattan Casino choice causes political headache for Kriseman

    Growth

    ST. PETERSBURG — Days before the mayoral primary, Mayor Rick Kriseman's decision to let a Floribbean restaurant open in Midtown's historic Manhattan Casino has caused political angst within the voting bloc he can least afford to lose: the black community.

    Last week Mayor Rick Kriseman chose a Floribbean restaurant concept to fill Midtown's historic Manhattan Casino. But that decision, made days before next week's mayoral primary, has turned into a political headache for the mayor. Many residents want to see the building's next tenant better reflect its cultural significance in the black community. [JAMES BORCHUCK   |   Times]