By Tom Cushing
“See you in Court?”Uploaded: Feb 10, 2017
What would You do with the immigration order?
After yesterday’s unanimous federal appellate ruling that extended last week’s trial court injunction against the Trump Administration’s temporary immigration order (whew), some folks seem to think the Prez has tele-tweeted his next punch. Several options present themselves, however.
1 – Onward to appeal this interim ruling to the Supremes. This choice seems to be expected. It’s also in-line with that special feeling to which narcissists are prone, that whatever they want just has to come true. But it’s complicated (more so than a CEO’s -- or an Emperor’s -- unfettered discretion usually entails). To even get to the Court, one of the following must happen:
o The feds can seek an emergency review of the new ruling, but that requires Justice Kennedy and four others to agree to it.
o They can try for something called ‘certiorari before judgment’, which only needs four Justices, but requires that the “case is of such imperative public importance as to justify deviation from normal appellate practice.” Sounds good, but it has only been granted a few times in the last century or so. And this Order doesn’t fit neatly among those cases. Although it concerns international relations, such grants have related to the President’s War Powers, and we’re not there with anyone – not even Australia -- yet.
o They could wait for the trial court to issue a final judgment in this case, and appeal through normal channels (if necessary).
The Supreme Court is now divided 4 – 4 between its liberal and conservative leaners, but it must be acknowledged that Kennedy often departs from the Tories when Equal Protection claims are afoot. That puts both the first two options in-peril. The third way might not be heard this term. That could mean a friendly ninth Justice would be in-place to hear the appeal – but it also moots it for an Order, temporary on its terms, that would have expired.
2 – The feds could seek a re-hearing of the current judgment ‘en banc’ by a larger panel of the 9th Circuit. While it’s true that our home circuit tends toward the liberal, it’s not all ‘out-of-control’ Californians (but then, neither was this week’s court comprised of crazy San Franciscans, with an Arizonan, a Hawaiian and resident of San Jose). So, you have real uncertainty as to the outcome (recognizing that it’s a strong states’ case on the merits, signed-onto now by four judges from across the political spectrum), and you have those timing concerns, as well.
3 – Finally, the feds could take their briefs and go home. This option requires the Administration to claim that it just can’t get a so-called fair trial on this Order, and they’re so concerned about a Syrian invas – err, protecting us from those bad mullahs that they will terminate this Order, and then immediately redraft another one, more artfully phrased (one would hope).
For an Administration that shows no compunctions about changing its mind, that has a brand new Attorney General who may know more than his boss (he of the Roy Cohn school of law), that can spin it as set forth above, and do it soon, that has to be an attractive option.
But what do You think, ladies and gentlemen of the public? What should they do? What would You do? Your input is solicited.