Battle Over Trump’s Refugee Order Will Stay Out Of SCOTUS — For Now

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Kevin Daley Supreme Court correspondent
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The Trump administration is not likely to appeal a decision upholding a temporary suspension of President Donald Trump’s executive order on refugees to the Supreme Court in the immediate future.

The U.S. Department of Justice told U.S. District Judge James Robart in a new court filing that it will allow proceedings in the 9th U.S. Circuit Court of Appeals to continue unfolding instead of returning to the trial court or asking the Supreme Court to intervene. Robart’s order halted nationwide enforcement of the ban on Feb. 3. A three-judge panel of the 9th Circuit declined to overturn Robart’s ruling earlier in February.

“Further proceedings in the Ninth Circuit will likely inform what additional proceedings on a preliminary injunction motion are necessary in district court,” the government wrote in its filing. “Accordingly, at this time, defendants believe the appropriate course is to postpone any further proceedings in the district court.”

The 9th Circuit is currently considering invoking a rarely-used procedure called en banc review, in which a panel of 11 judges would review last week’s ruling upholding Robart’s order. It would be very unusual to grant en banc review on a temporary restraining order, as the procedure is used almost exclusively to correct matters of serious importance or decisions conflicting with existing precedent.

The move makes sense for the Department of Justice in several ways. In the first place, the government’s top appeals lawyer, Acting Solicitor General Noel Francisco, may prefer to take a more reserved course, as a Senate-confirmed SG will take over the case in the near future. In addition, it’s far from clear that the government would prevail if it asked the Supreme Court to intervene. Halting Robart’s ruling would require a stay, which can only be granted with five votes. Even if all four conservatives favor a stay, it’s unclear who among the four liberals would break ranks and provide a fifth vote.

If the 9th Circuit denies en banc review in the coming days, an appeal to the Supreme Court for a stay is still possible.

Robart said in a response to the government’s filing late Monday that the 9th Circuit’s considerations should not slow down proceedings in his court, and ordered both sides to continue preparing for future hearings before him.

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