By Lydia Wheeler - 05-28-17 06:00 AM EDT
President Trump's travel ban faces an uncertain future.
Trump's second attempt at a travel ban was supposed to avoid the legal challenges faced by his first travel ban. But the latest iteration of the ban has itself been blocked in several courts, with the latest attack coming in a public rebuke from a Richmond-based federal appeals court.
The 4th Circuit Court of Appeals not only refused to reinstate Trump's temporary ban on nationals from six majority-Muslim countries from entering the United States, but dressed down the government in its decision for asking the court to "blindly refer to executive power" and uphold an order that "drips with religious intolerance, animus and discrimination."
The administration is now waiting for a ruling from the 9th Circuit Court of Appeals, with court watchers saying that the chances of Trump prevailing in a court that ruled against his first order are slim to none.
The Department of Justice has already announced its plan to appeal to the Supreme Court, but even conservatives aren't sure the court will take the case without a lower circuit court split. Only one court, a Virginia district court, upheld Trump's revised order.
"If the 9th Circuit issues an opinion and there's no circuit split, there's the distinct possibility the court will decide not to take the case," said Josh Blackman, a constitutional law professor at the South Texas College of Law in Houston and a member of the conservative Federalist Society.
"It would be insane because there have been so many errors made in the lower court."
But Blackman said the high court refused to take the case challenging same-sex marriage until at least one lower court had ruled that it was lawful, creating a split.
Even without a lower court split, Blackman claims the government has a number of options to choose from on how to proceed.
"The government said they want to appeal to the Supreme Court, but they didn't say when," he said. "The statement was somewhat open ended."
He claims the administration could seek a rehearing in the 9th Circuit "not if, but when they lose," petition for a Supreme Court review of the 4th Circuit's decision now, ask the Supreme Court for an emergency stay of that ruling or ask concurrently for a stay and for the court to take its case.
But if the court were to take the government's case, liberals say it's going to be tough to persuade Justice Anthony Kennedy - the high court's regular swing voter - to rule in Trump's favor.
Carl Tobias, a professor of law at the University of Richmond School of Law, noted that the 4th Circuit used Kennedy's concurring opinion in a 2015 immigration case to defend its 10-3 decision to break with court precedent and consider Trump's campaign statements about banning all Muslims in finding the order discriminatory.
The majority said Kennedy explained in Kerry v. Din that when a plaintiff makes "an affirmative showing of bad faith" that is "plausibly alleged with sufficient particularity," courts may "look behind" the challenged action to assess its "facially legitimate" justification.
But Judge Paul Niemeyer claimed in his dissent that the majority "relied on a scattershot string of quotations" to "conceal the decisions' faithful application" of court precedent that prevents the court from considering Trump's remarks.
Blackman called the majority's reference to Kennedy's opinion "borderline disingenuous."
Hans von Spakovsky, a senior legal fellow at the Heritage Foundation, argued that the Supreme Court could easily strike down the 4th Circuit's ruling.
"You get the bias that basically poisons the opinion when you read the first page when [Judge Roger] Gregory says the executive order in 'context drips with religious intolerance, animus and discrimination.' Excuse my language, but that is bullshit," he said.
"You can read the executive order from front to back. There isn't anything in there that authorizes any government agency to discriminate on the basis of religion."
von Spakovsky said he's hopeful the court will side with the administration and "slam" the lower courts for ruling against the president.
"That's what needs to happen," he said. "They need to get slammed for not following previous Supreme Court precedent and they should also be slammed in essence for substituting their judgment for that of the president on national security issues."
But not everyone's expecting the case to reach the high court.
"I don't think the Supreme Court will want to hear this case unless they want to affirm it," said Reaz Jafri, an immigration lawyer who heads the global immigration practice at Withersworldwide.
Jafri argued the case is already moot since the revised 90-day ban would have ended Saturday.
"It's been proven there is no emergency, so why not let Congress go back and legislate the issue of vetting," he said.