“He can obviously appeal to the entire 9th Circuit if he wants to, or he can seek an emergency appeal to the Supreme Court of the United States,” John Malcolm, Director, Edwin Meese III Center for Legal and Judicial Studies at the conservative think-thank, the Heritage Foundation.
On Thursday (February 9) three appeals court judges, two Democrat and one Republican, unanimously refused to reinstate his executive order temporarily banning people from seven Muslim-majority countries from entering the United States.
In its ruling on Thursday, the 9th Circuit said the government had so far failed to show that any person from the seven countries had perpetrated a terrorist attack in the United States.
Malcolm also said Trump could offer a new version of the order which addresses some of the issues raised in the judge’s findings — among them the broad and non-specific wording used by the White House.
“The current executive order is very broadly phrased so it could be read for instance to apply to green card holders. It could also be read to apply to people who are already in this country illegally. The Supreme Court has said that green card holders, people who are in this country, even unlawfully, are entitled to certain due process protections before they can be deported,” Malcolm said.
The 9th Circuit ruling, upholds last Friday’s (February 3) decision by U.S. District Judge James Robart placing a halt on the Trump order.
Trump, a Republican who took office on Jan. 20, faces long odds in getting the ban restored while litigation over his executive order proceeds. To ultimately win, the Justice Department will have to present evidence that people from those countries represent a domestic threat, legal experts said.
But Malcolm cautioned not to draw premature conclusions about how future legal proceedings might play out for Trump.
“The question is whether or not that law is being implemented in a constitutional way. That is the issue that the 9th Circuit has raised. I actually think that the president has the better of the legal arguments, totally setting aside whether this is good policy or bad policy. But we’ll have to see how this plays out both in terms of the courts of law or in terms of whether that executive order is modified.”