What’s Next For President Trump’s Travel Ban Case

4 minute read
By Tessa Berenson Rogers

A federal appeals court dealt a blow to President Trump Thursday when it declined to lift a nationwide suspension on his travel ban.

But what exactly does that mean, and what happens now? Here’s what you need to know about the court’s decision and where Trump can go from here.

What did the court rule?

In a 3-0 decision, the Ninth Circuit, based in San Francisco, kept in place a restraining order put on Trump’s travel ban by a judge in Washington state. In other words, travelers who had been stopped by Trump’s executive order, which suspended the U.S. refugee program and banned citizens of seven Muslim-majority countries, can continue entering the country.

“We hold that the Government has not shown a likelihood of success on the merits of its appeal,” the decision said, “nor has it shown that failure to enter a stay would cause irreparable injury, and we therefore deny its emergency motion for a stay.”

The judges wrote that the executive order could violate the Fifth Amendment’s due process clause by denying lawful permanent residents entry to the country or barring refugees seeking asylum.

“The public has a powerful interest in national security and in the ability of an elected president to enact policies,” the judges wrote. “The public also has an interest in free flow of travel, in avoiding separation of families, and in freedom from discrimination.”

What comes next?

In the wake of the decision, Trump tweeted “SEE YOU IN COURT,” and the Justice Department said it was “considering its options.” Trump then elaborated to reporters, saying, “It’s a political decision, we’re going to see them in court, and I look forward to doing that. It’s a decision that we’ll win, in my opinion, very easily.”

If Trump wants to go back to court, he has a few options.

  • He could appeal to the Supreme Court. If he does and the Supreme Court decides to hear the case before a ninth justice is confirmed to the bench, there’s a chance the highest court in the land could deadlock 4-4. In that case, the Ninth Circuit’s decision would stand.
  • He could make an en banc appeal to the full Ninth Circuit. In this case, the decision made by a three judge panel would be reviewed by judges on the full circuit, USA Today reports, who would re-hear the case and then issue a ruling.
  • He could wait until the next ruling from the judge in Washington state. District Judge James Robart issued a temporary restraining order on Trump’s travel ban, which is what the 9th Circuit just upheld. But temporary restraining orders are brief, and Robart is beginning to arrange a hearing for a preliminary injunction, which could stay in place much longer, according to USA Today. If Robart holds those hearings and puts a preliminary injunction in place, Trump could appeal that decision. (And finally, Robart could hold a third hearing after that to decide the case on the merits, which would determine whether the order is legal. And Trump could once again appeal that decision.)

    • When will this all take place?

    The timing differs depending on which recourse the Trump Administration decides to take. It could take a while for the case to wind up to the Supreme Court on the merits (the final of phase outlined above)— there’s a good chance Trump’s nominee Neil Gorsuch would actually be on the Court by then to hear the case. An en banc appeal on the Ninth Circuit would move faster. The Administration has just 14 days to request that appeal. And waiting for the wheels to roll on the next round of Robart’s decisions could come soonest of all; both sides have to file their motions for a preliminary injunction hearing by Feb. 17.

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    Write to Tessa Berenson Rogers at tessa.Rogers@time.com