Donald Trump has told reporters on Air Force One that he’s considering signing a “brand new order” after a federal appeals court refused to reinstate his ban on travellers from seven predominantly Muslim nations.
He has also promised more legal action (remember the “SEE YOU IN COURT” tweet? Of course you do), but exactly what he has in mind remains to be seen.
For now, refugees and people from the seven nations the order was aimed at – Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen – can continue entering the United States. Here’s a look at where the legal fight goes from here.
What exactly did Trump say to Air Force One reporters?
The US president told them he expected his administration to win the legal battle over his original directive.
But he also said the White House was considering other alternatives – according to Trump, this includes making unspecified changes to the order, which could address some of the legal issues.
So, what could happen next at the appeals court?
The Trump administration could decide to ask the 9th US Circuit Court of Appeals to reconsider the three-judge panel’s ruling. But Margo Schlanger, a law professor at the University of Michigan, said the odds of success seem low.
She noted that the three-judge panel was unanimous and included a judge chosen by a Republican president.
Right. And what about the Supreme Court – how likely is it that the government will file an emergency appeal to restore the ban?
Well, it would take at least five justices to overturn the ruling from the 9th US Circuit Court of Appeals – so that may be a long shot.
The high court still has only eight members since the death of Justice Antonin Scalia – four conservative and four liberal justices.
“There are almost surely four votes to deny an emergency request to reinstate the order,” said Peter Spiro, a law professor at Temple University.
The last immigration case to reach the justices ended in a 4-4 deadlock last year, suggesting a similar split over Trump’s order – this would let the 9th Circuit ruling stand and keep the freeze in place.
So, what else could happen next?
Well, if the Supreme Court declines to intervene right away, the case would remain in the 9th Circuit and ultimately be considered on its legal merits.
It also could return to US District Judge James Robart in Seattle, who temporarily blocked the ban after Washington state and Minnesota urged a nationwide hold on the January 27 order.
The lower court action so far is temporary – it simply halts deportations or other actions until judges can more fully consider whether the order violates legal or constitutional rights.
By the time a ruling on the merits comes down, the Senate may have confirmed Judge Neil Gorsuch to the Supreme Court. That may improve Trump’s chances to prevail on appeal.
But just how the issue might reach the Supreme Court is not clear. Several other challenges have been launched in courts around the country, and the court could opt to wait before stepping in.
And how could Trump revise the executive order?
The White House could amend the executive order to expressly carve out existing green card holders and other people that already have some ties to the United States.
Up to 60,000 visas were initially cancelled in the wake of the ban – affecting the lives of students, professors and workers.
White House counsel Donald McGahn had issued guidance days after the executive order saying it didn’t apply to legal permanent residents of the US, but the appeals court said that was not enough.
“The government has offered no authority establishing that the White House counsel is empowered to issue an amended order superseding the executive order signed by the president,” the opinion said.
Revising the order “shifts the legal boundaries so that it becomes a tougher constitutional target”, Spiro said.
What’s being said about the court’s decision to halt the ban?
SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!— Donald J. Trump (@realDonaldTrump) February 9, 2017
“We’ll be doing things to continue to make our country safe,” Trump pledged at a news conference with Japanese prime minister Shinzo Abe.
“It will happen rapidly. We will not allow people into our country who are looking to do harm to our people.”
Meanwhile, Senate minority Leader Chuck Schumer tweeted that Trump “ought to see the writing on the wall” and abandon the proposal. He also called on the president to “roll up his sleeves” and come up with “a real, bipartisan plan to keep us safe”.
Pres Trump ought to see the writing on the wall, abandon proposal, roll up his sleeves & come up w/ a real, bipartisan plan to keep us safe.— Chuck Schumer (@SenSchumer) February 9, 2017
House of Representatives Democratic leader Nancy Pelosi promised: “Democrats will continue to press for President Trump’s dangerous and unconstitutional ban to be withdrawn.”
The most talked-about reaction though was from his former presidential rival Hillary Clinton – she took to Twitter to post about the unanimous appeal court vote, simply writing: “3-0.”
3-0— Hillary Clinton (@HillaryClinton) February 10, 2017
Congress’ Republican leaders, House speaker Paul Ryan and Senate majority leader Mitch McConnell, declined to comment.