Will Gorsuch Have to Rule on Trump’s Travel Ban?

Pres­id­ent Trump’s con­tro­ver­sial travel ban might be sig­ni­fic­antly weak­er by the time his Su­preme Court nom­in­ee has a chance to weigh in on it, leg­al ex­perts said.

Trump nom­in­ated Neil Gor­such to the Su­preme Court just as a na­tion­wide leg­al battle was un­fold­ing over the pres­id­ent’s ex­ec­ut­ive or­der bar­ring all refugees and many Middle East­ern vis­it­ors from the U.S. And Sen­ate Demo­crats have said the on­go­ing leg­al fight will raise new ques­tions about Gor­such’s in­de­pend­ence—wheth­er he would be will­ing to strike down a sig­na­ture policy of the pres­id­ent who nom­in­ated him.

Gor­such will all but cer­tainly duck spe­cif­ic ques­tions about the travel ban dur­ing his con­firm­a­tion hear­ings, and the court will likely have to re­solve the first phase of the lit­ig­a­tion without him. But wheth­er he would have to rule on the travel ban if he’s con­firmed—and, if so, when—will de­pend in part on how ag­gress­ively the Justice De­part­ment de­cides to fight for the policy now.

There are no guar­an­tees Gor­such would vote to up­hold the travel ban, leg­al ex­perts said. His re­cord on the 10th Cir­cuit Court of Ap­peals has shown him to be a skep­tic of ex­ec­ut­ive power and a staunch sup­port­er of re­li­gious free­dom.

“I think it’s hard to pre­dict how he would rule. He’s pretty strong on sep­ar­a­tion of powers,” Geor­getown Uni­versity law pro­fess­or Susan Low Bloch said.

But if the White House does want Gor­such to rule on its ex­ec­ut­ive or­der, it will have to wait—and even then, ex­perts said, there’s a good chance the ad­min­is­tra­tion would end up mak­ing sub­stan­tial re­vi­sions to its policy or suf­fer­ing sig­ni­fic­ant leg­al set­backs in the mean­time.

The next phase in the rap­idly de­vel­op­ing leg­al drama could be­gin as early as this week, when a pan­el of the 9th Cir­cuit Court of Ap­peals de­cides wheth­er the ad­min­is­tra­tion should be al­lowed to im­ple­ment its ex­ec­ut­ive or­der while the de­bate over its con­sti­tu­tion­al mer­its works its way through the leg­al sys­tem. Most leg­al ex­perts ex­pect the 9th Cir­cuit—gen­er­ally con­sidered the most lib­er­al cir­cuit court in the coun­try—to keep the policy on ice.

If that hap­pens, the Justice De­part­ment’s most likely next step would be an ap­peal to the Su­preme Court. What it seeks from the high court now could de­term­ine wheth­er and when Gor­such would need to weigh in.

Many leg­al ob­serv­ers ex­pect the Justice De­part­ment to ask the Su­preme Court to stay the 9th Cir­cuit’s de­cision—ef­fect­ively block­ing the block on en­force­ment, and al­low­ing of­fi­cials to carry out the ex­ec­ut­ive or­der while the fight over its mer­its con­tin­ues. Five justices must agree to grant a stay, and Gor­such al­most cer­tainly won’t be on the high court by the time it has to make that de­cision. If five justices voted to deny a stay, or if the short­han­ded court split 4-4, the 9th Cir­cuit’s de­cision would re­main in ef­fect. And be­cause so many ex­perts be­lieve that de­cision will be a loss for the Justice De­part­ment, they say there’s a good chance Trump won’t be able to im­ple­ment the policy while the courts sort out wheth­er it’s con­sti­tu­tion­al.

It could take a year or more for the mer­its of the travel ban to per­col­ate back up to the Su­preme Court—plenty of time for Gor­such to be con­firmed and take his seat.

But the deni­al of a stay could cause lower courts to line up against the policy, said Josh Black­man, a con­ser­vat­ive leg­al ana­lyst and a pro­fess­or at South Texas Col­lege of Law.

“If the court denies the stay, that sig­nals to the lower courts the gov­ern­ment is un­likely to pre­vail on the mer­its,” he said. “That’s ba­sic­ally the case. They lose.”

Seek­ing a stay from the Su­preme Court might nor­mally seem like the ob­vi­ous next step. But in this case, Black­man said, it might be a stra­tegic mis­take. If the White House ac­cep­ted that its ex­ec­ut­ive or­der wouldn’t be im­ple­men­ted for now, it might be on stronger leg­al foot­ing as the courts de­bate wheth­er it’s con­sti­tu­tion­al, he said.

Trump, though, is not es­pe­cially known for his pa­tience, and has already launched a full-scale Twit­ter of­fens­ive at the “so-called judge” who first barred the ad­min­is­tra­tion from im­ple­ment­ing its policy.

Many of the ex­ec­ut­ive or­der’s most con­tro­ver­sial pro­vi­sions are tem­por­ary. It bars vis­it­ors from sev­en Middle East­ern, ma­jor­ity Muslim coun­tries for 90 days, and halts all refugee re­set­tle­ment for 120 days. (Its ban on Syr­i­an im­mig­ra­tion, though, is per­man­ent.)

Be­cause so much of the or­der was tem­por­ary, Black­man said, the White House could let those pro­vi­sions ex­pire without be­ing al­lowed to en­force them, then re­tool it in­to a “tight­er” policy with a more sol­id leg­al found­a­tion—and that re­vised meas­ure would be the one on its way to­ward the Su­preme Court.

Losses in the courts could help ac­cel­er­ate such changes, Bloch said.

Leg­al ex­perts are di­vided over the mer­its of the policy; some ar­gue that it’s well with­in Trump’s au­thor­ity to set lim­its on im­mig­ra­tion and refugee re­set­tle­ment, es­pe­cially if he is do­ing so for na­tion­al se­cur­ity pur­poses.

Bloch, though, said “I think it’s so clearly un­con­sti­tu­tion­al” that the White House will lose early cases on the mer­its and de­cide to come up with a new policy well be­fore the be­gin­ning of the next Su­preme Court term, when Gor­such would be hear­ing cases.

“I don’t see the Trump ad­min­is­tra­tion con­tinu­ing to lit­ig­ate this par­tic­u­lar ban all the way to the end,” Bloch said.