Written by Max Acardi

Last Friday, a federal appeals court voted unanimously to maintain the freeze on President Donald Trump’s executive order on immigration, which would have banned travel from Iraq, Syria, Sudan, Iran, Somalia, Libya, and Yemen – all predominantly Muslim countries, and all countries which Trump has accused of harboring terrorists. The freeze was initially ordered by Seattle judge James Robart due to concerns about the constitutionality of the ban.

What the ruling does

The decision is not as sweeping as many in the media have been quick to claim. The court did not find that the executive order was unconstitutional, nor did it make the freeze on carrying out the order permanent. The court convened to consider the Trump administration’s request for an emergency stay of the freeze due to national security concerns resultant from international travel to and from the targeted countries. The three-judge appellate panel wrote a unanimous decision finding that there were no pressing national security concerns due to the resumption of travel, and that the travel ban itself would likely cause inconvenience and confusion if implemented. In the decision, the judges also forcefully rebut President Trump’s recent attacks on the validity of court rulings, and assert the place of the justice system as a check on executive overreach. Equally important is what the decision did not contain: the judges did not rule on whether the ban is constitutional, nor whether it constitutes a discriminatory “Muslim ban.”

How Trump reacted

The Trump administration has several options moving forward. The President’s initial reaction to the decision seemed to suggest an appeal: shortly after the decision’s release, he tweeted

“SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!”

(the capitalization appears in the original). In this scenario, the Trump administration would appeal the appellate court’s decision to the Supreme Court. However, the outcome of such a scenario is not clear, as the Supreme Court could respond to such an appeal in several different ways.

First, the Court could simply decline to hear the case, in which case the appellate court’s decision would stand; in this case, there would likely be a new trial on the merits of the actual executive order, as opposed to the stay on the order, which could then be further appealed and might ultimately reach the Supreme Court again.

Second, the Court could hear the case, but make a very narrow and limited ruling that only applies to the stay on the executive order, rather than speaking to the constitutionality of the order itself.

Third, the Court could use the appeal as an opportunity to rule on the constitutionality of the order itself, which would likely settle the matter for good. The current Supreme Court is ideologically divided, with 4 liberal and 4 conservative judges; thus, what the Court would decide to do if the Trump Administration appealed the decision is uncertain. For this reason, the Trump administration is also considering other options – policy advisor Steven Miller implied that Trump may seek to issue another order with revamped language to avoid litigation. The next several weeks will be critical in deciding the outcome of this vital issue.