What just happened?
A few days after taking office, President Donald Trump signed an executive order titled, “Protecting the Nation From Foreign Terrorist Entry Into the United States.” The immediate effect of the order was a temporary ban on both the U.S. refugee program and on issuing visas to foreign nationals from seven Muslim-majority countries (see this explainer for more details about that executive order).
A few days after the executive order was signed, the State of Washington filed a lawsuit in federal court (Washington v. Trump) to “protect the State—including its residents, its employers, and its educational institutions—against illegal actions of the President and the federal government.” (A few days later the State of Minnesota joined this lawsuit. Several separate lawsuits were also filed in Massachusetts, New York, and Virginia.)
The lawsuit notes, among other allegations, that during the presidential election President Trump made numerous statements about banning Muslims from entering the United States and that his executive order was thus “motivated by animus and a desire to harm a particular group.” By attempting to ban a particular religious group (i.e., Muslim) the lawsuit claims that the president’s actions “violated the equal protection guarantee of the Fifth Amendment.”
On February 2, a federal judge in Seattle conceded that Washington state had a strong enough case that the court was willing to issue a temporary restraining order prohibiting the executive order. The restraining order prohibits the executive order from being enforced until the court decides whether the order is legal or unconstitutional.
On February 4, the Trump administration appealed that decision to the U.S. Court of Appeals for the Ninth Circuit. Five days later, a three-judge panel of the Ninth Circuit denied the Trump administration’s request to prevent the restraining order from taking effect.
What does this mean for the refugee ban and travel restrictions?
The temporary restraining order prevents the Trump administration from implementing the refugee ban and travel restrictions until the federal judge in Washington makes a final ruling in the case of Washington v. Trump.
Did the Ninth Circuit determine the ban was unconstitutional?
No, the court didn’t make any determination about the constitutionality of the executive order. As Dan McLaughlin explains, “At no point did the court decide that Trump violated the Constitution—but it telegraphed its view that there was enough to such claims to leave the lower court’s order in place, barring enforcement of the executive order, until those claims could be resolved in full.”
Can the Trump administration appeal to the Supreme Court?
Yes. The next highest court of appeals after the Ninth Circuit is the U.S. Supreme Court. In fact, President Trump initially signaled that he would indeed appeal the decision. On February 9, after hearing the restraining order had been upheld, Trump wrote on Twitter, “SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!”
However, the Trump administration appears to be rethinking that option. Trump would need five justices to side with him against the Ninth Circuit’s decision. If the court votes 4-4, then the lower court decision stands and the temporary restraining order would remain in place until the lower court rules in Washington v. Trump.
What happens next for the refugee ban?
There are four possible scenarios, almost all of which are either extremely unlikely or result in the refugee ban being discarded completely:
(1) Trump appeals to the Supreme Court and wins; the refugee ban stays in place pending the outcome of current lawsuits — This scenario is so unlikely that the Trump administration is not expected to even bother appealing to the Supreme Court.
(2) Trump wins Washington v. Trump, the refugee ban stays in place pending other lawsuits — This scenario is also unlikely since the reason the restraining order was allowed is because the Trump administration was unlikely to win this case. Even if Trump won this particular case, though, the other lawsuits could put a halt on the ban.
(3) Trump loses Washington v. Trump and appeals the case to the Supreme Court after his nominee (Neil Gorsuch) is seated — This is the most unlikely scenario. According to the executive order, the four-month suspension of the refugee program was a necessary measure pending the addition of new screening procedures for refugee candidates. But an appeal to the Supreme Court would take much longer than four months—especially if Trump wanted Gorsuch on the court first.
(4) Trump issues a new executive order, removing the refugee ban — Dubbed “moot and replace,” this is the approach the Trump administration is most likely to adopt. President Trump could issue a new executive order that replaces the current one and that removes the concerns that sparked the lawsuits. As the Wex Legal Dictionary explains, “Because Federal Courts only have constitutional authority to resolve actual disputes legal actions cannot be brought or continued after the matter at issue has been resolved, leaving no live dispute for a court to resolve. In such a case, the matter is said to be ‘moot.’” To make the lawsuits moot, however, would require removing the refugee ban.
The most likely outcome is that the refugee ban will never go into effect. The reason currently cited for the ban (i.e., pending the addition of new screening procedures for refugee candidates) will no longer be applicable by the time the courts determine its legality. The Trump administration would therefore need to come up with a new—and legally tenable—argument to justify implementing any future bans on refugees entering the United States.