From John Hinderaker at Powerline on what might come next in the EO battle:
…[T]he administration might go straight to the Supreme Court. But bear in mind that all the 9th Circuit has done is to deny a motion for an emergency stay, based on “the limited evidence put forward by both parties at this very preliminary stage.” I think the administration could pretty easily tweak Trump’s order to meet the relatively minor objections the plaintiffs have put forward, and create a record in the trial court that would make it difficult for even the 9th Circuit (this is known as “judge shopping” by the plaintiffs, by the way) to stand in the way. In the meantime, let’s confirm Justice Gorsuch, just in case the Democrats try to execute a judicial coup.
From Paul Mirengoff, also at Powerline:
I would like to see the administration take this case directly to the Supreme Court. The law so clearly favors the administration that a win isn’t out of the question.
In any event, let’s have the Supreme Court speak. If it doesn’t overturn the Ninth Circuit, it can share responsibility in the event of a terrorist act the travel ban might have prevented.
Regardless of whether the injunction against the administration is lifted, the case is headed back to the courtroom of the strange judge in Washington State for a decision on the merits. That decision can be appealed. By the time this appeal makes its way to the Supreme Court, perhaps Judge Gorsuch will be on that bench, thus improving the administration’s chances of success.
Would a loss in the Supreme Court on a appeal now hurt the administration’s chances later? I don’t think so. A 4-4 ruling would have no impact later. And if the administration loses 5-3 because it can’t get Kennedy’s vote, it probably will lose 5-4 later.
So my initial take is that the administration should take this to the Supreme Court straight away.
The reason the government could have two chances at judicial review by SCOTUS (if the Court decides to hear them) is that we’re talking about two separate cases. The first would be a SCOTUS review of the TRO and the affirmation of the TRO by the 9th Circuit, and the second would be an appeal of Robart’s decision on the merits in a proceeding which will now most likely be going forward but has not yet done so. Trump could lose the first appeal and win the second, if Gorsuch is on the Supreme Court by the time that appeal arrives there.
[ADDENDUM: William Jacobson of Legal Insurrection disagrees with those who would advise President Trump to rewrite the executive order:
The Executive Order, as the Trump administration has said it would be enforced (for example, excluding green card holders from its reach), is perfectly lawful and within the President’s power and authority. To accept the 9th Circuit ruling is to accept that the President does not have the powers vested in him by the Constitution and Congress.
This legal dispute no longer is just about the Executive Order. Democrats have made clear that they will fight in court over almost everything the Trump administration does. The 9th Circuit has opened the door to this tactic on an issue that goes to the core of presidential authority.
If the Courts are to designate themselves the functional directors of the Department of Homeland Security, then such mandate must come from the Supreme Court, not the 9th Circuit.
But sometimes timing is of the essence. Rewriting the EO would merely clarify some things the administration has said it intended anyway—such as, for example, that green card holders will not be affected. It could be framed to the public as being a clearer and more explicit statement of what Trump intended anyway rather than a bow to the 9th Circuit (I’m not sure how widely that would be believed, of course). If the case goes to the Supreme Court at the moment, the best result I see possible is a 4-4 tie, which has the effect of letting the 9th Circuit decision stand. So it would be counterproductive as well as unnecessary at this point. Wait for a decision on the merits and appeal that to the full Court once Gorsuch has been seated.
It has also been pointed out in several articles I’ve read that nothing in this 9th Circuit decision stops the administration’s proposed vetting study and any resultant fine-tuning of the vetting procedure from going ahead, even without the several-months’ moratorium on immigration envisioned by the EO.]