Does the Supreme Court even have to hear the Travel Ban case?

[KittyWampus]

Or could they decline?

[underpants]

1. They can decline but I doubt they will

There are Constitutional issues here

[metroins]

2. I think they might decline

I wouldn't want to rule on a shaky executive order such as this.

It was done so poorly that setting real precedent either way would be a bad thing for our country.

I bet Trump modifies the executive order and signs a new one.

[underpants]

6. Your probably right.

I skipped,over the fact that it's such a mess.

[elehhhhna]

3. I have a feeling they will turn it down

[toska]

4. Eventually yes, but they don't have to take it now.

Its still early in the case, they may decide to stay out until the appeals court has made a final ruling. Doesn't Anthony Kennedy get first the first pass at it?

[rug]

22. trump will have to appeal soon - before Gorsuch is confirmed.

It could tie, hence no appeal. The stay stands.

[lindysalsagal]

5. No.

[hatrack]

7. Nope, it's their choice

.

[The Velveteen Ocelot]

8. In this case I think they can take a direct appeal.

The relevant statute, 28 U.S. Code § 1253, says: "Except as otherwise provided by law, any party may appeal to the Supreme Court from an order granting or denying, after notice and hearing, an interlocutory or permanent injunction in any civil action, suit or proceeding required by any Act of Congress to be heard and determined by a district court of three judges." The 3-judge panel treated the appeal from the TRO as the equivalent of an appeal from a preliminary injunction, as the original order had no expiration date. If it's effectively a preliminary injunction, this statute should apply, and the government can make a direct appeal rather than having to petition for a writ of certiorari as in most cases.

[djg21]

13. If I'm not mistaken . . .

The Supreme Court held in MTM, Inc. v. Baxley that a direct appeal under 28 USC 1253 lies only where the three-judge panel has rendered a decision on the merits of a constitutional claim. http://caselaw.findlaw.com/us-supreme-court/420/799.html. The 9th Circuit made pretty clear in its decision that it was not addressing the merits of the constitutional claims at issue, but rather was addressing only the likelihood of success on the merits. I'm not saying you're wrong, but if SCOTUS doesn't want to take the case, it likely can avoid doing so. Trump's claim that courts can be political is not entirely incorrect, especially when it's SCOTUS that is involved. CJ Roberts had expressed concern over preserving the integrity of SCOTUS, and I can see him not wanting to become involved in this imbroglio. We'll have to watch.

[The Velveteen Ocelot]

16. You could be right. But it's not clear what the next procedural step will be.

Does it go back to the district court for a trial on a preliminary injunction? Or does El Orange-o petition for cert? It's been a long time since I had to think about these things.

[djg21]

20. Who knows?

Typically, once a court holds that there is a likelihood of success on the merits, a case ends because of the risk and downside to the party on the receiving end of the injunction becomes more obvious. Here, Trump can render the States' claims moot by rescinding his executive order and issuing a new one that comports with the 9th Circuit's decision and the Constitution. That seems to be the simplest and most rational approach, but probably is unlikely given Trump's ego and irrationality. If the case continues, the issue of a PI seemingly will have to be briefed and argued before the District Court if the Government won't consent, and an evidentiary hearing could be necessary. But maybe Trump petitions for certiorari, or maybe he proceeds under 1253 while also preparing a petition to file to the extent necessary. I'm speculating.

[The Velveteen Ocelot]

21. Even very conservative judges don't like having their role

as one of the three equal branches of government disrespected or infringed upon. If it goes to the Supreme Court, regardless how it gets there, I also think the states will win. I worked as a clerk for an appellate court once, many years ago, and I observed how all of them, even the conservatives, insisted on the independence of the judicial branch.

[djg21]

24. One of the most interesting things . . .

about the 9th Circuit decision from my perspective was that it is per curiam. You have more insight into appellate courts than me, but IME, this is pretty unusual. If SCOTUS does take the case here, I wonder if it too would issue a per curiam decision.

[The Velveteen Ocelot]

25. I noticed that, too.

I'm only speculating, but maybe it's because they wanted to make it clear that it was the decision of the panel and not that of individuals. I doubt the Supremes would issue a per curiam decision in this case even if they came to a unanimous decision, because those decisions typically tend to be short, with everybody agreeing on all, relatively straightforward points.

[Henry Krinkle]

9. I suspect the governments next move would be to ask for a full en banc hearing

then proceed from there.

It would actually be more to their advantage, even if the full court upholds the current ruling...

Gives them time to attempt and get Gorsuch confirmed before the case is heard by 8 justices.
As it is now, if they split 4-4 the lower court ruling stands

[Stallion]

12. Yeah but Just a Waste of Time in the 9th Circuit

in this unusual case it might be better for Trump to waste time on a an Application for Rehearing En Banc -even though likely to lose-to allow Trump to get the new Justice on the Supreme Court-so maybe

[Henry Krinkle]

14. Exactly!

Odds are, a full en banc hearing will be denied, but even filing a request allows him to stall for time until
he can get his boy on the bench...

Federal law provides that for courts with more than 15 judges, an en banc hearing may consist of "such number of members of its en banc courts as may be prescribed by rule of the court of appeals." [4] So far, only the United States Court of Appeals for the Ninth Circuit, with 29 judges, uses that procedure, and its en banc court consists of 11 judges. Theoretically, the Ninth Circuit can hear the case with all judges participating. In practice, however, such a hearing has only been requested five times; the requests have all been denied.

I also need to correct myself, when I posted full en banc in my previous post, I should have simply
posted 'en banc' (which will more than likely be allowed).

Only problem for trump is, he's already at odds with Gorsuch, and now that the events of this mess are in
full swing, Congress is going to grill him hard on this issue during nomination hearings.

[The Velveteen Ocelot]

23. But that would really undercut their argument that this is an urgent situation

that has to be dealt with immediately because of the yuuge waves of terrorists flooding the United States while the so-called judges play games with national security. And even if the process takes enough time to get Gorsuch confirmed, I don't expect him necessarily to rule in El Pendejo's favor. If he's an originalist like Scalia, it would be hard for him to argue convincingly that the president has unrestricted and unreviewable power over immigration and national security. The 9th Cir. panel cited a lot of authority for the point that even as to those matters the president can't disregard the constitutional rights of people affected by an EO.

[KittyWampus]

18. Ah, but 45 keeps saying it's urgent and a matter of national safety.

so I understand the political benefit of waiting. But it puts the lie to 45's claim of urgency.

[djg21]

10. It can decline.

Assuming that SCOTUS does take the case, I think Trump will lose and the TRO will be upheld. Kennedy likely will swing left, and Roberts might also given his concern for the integrity of the Court. Alito and Thomas I'm not so sure about, but the 9th Circuit's decision looks pretty sound and well-reasoned. I would bet on a 5-3 or 6-2 decision, but even a unanimous one is conceivable. If I'm Trump, I rescind the Executive Order and replace it with one that on its face withstands scrutiny and doesn't require a directive from White House Counsel to make it constitutional.

[former9thward]

11. Except for certain technical cases -- and this is not one of them --

the SC does not have to hear any cases. The Ninth Circuit made a mistake by taking the case. It is a Temporary Restraining Order case and that is all. The actual merits of the case have not been argued anywhere. The Ninth should have waited until the merits of the case were decided but they opted for publicity instead of good legal work.

[The Velveteen Ocelot]

17. I disagree. They explained why they regarded it as the equivalent

of a preliminary injunction, here:

We are satisfied that in the extraordinary circumstances
of this case, the district court’s order possesses the qualities
of an appealable preliminary injunction. The parties
vigorously contested the legal basis for the TRO in written
briefs and oral arguments before the district court. The
district court’s order has no expiration date, and no hearing
has been scheduled. Although the district court has recently
scheduled briefing on the States’ motion for a preliminary
injunction, it is apparent from the district court’s scheduling
order that the TRO will remain in effect for longer than
fourteen days. In light of the unusual circumstances of this
case, in which the Government has argued that emergency
relief is necessary to support its efforts to prevent terrorism,
we believe that this period is long enough that the TRO
should be considered to have the qualities of a reviewable
preliminary injunction.

[KittyWampus]

19. Thank you for your thoughtful responses. They are why I remain on DU. I learned from your posts

as from the others responding to your points.

[msanthrope]

15. Yes...they can decline. nt

[earthside]

26. This Executive Order was just for 120 days, right?

So, I actually would expect that they would decline to take up the case.

Why would they get involved when this specific case will be moot ... unless they would want to take up bigger constitutional issues. But we'll still have an 8 member Supreme Court at that point -- I doubt they will take this up.

But then it will be on to round two of what ever Trump can cook up.

[Gothmog]

27. Takes five votes

The SCOTUS can duck this case easily