Courtroom Fight Over Trump Travel Ban Is Just the Beginning

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David Pearce protests outside the 9th U.S. Circuit Court of Appeals courthouse in San Francisco on February 7, ahead of arguments inside on President Donald Trump's travel ban on people from seven Muslim-majority countries. Noah Berger/Reuters

No matter what happens with President Donald Trump's travel ban targeting seven majority-Muslim countries, the important thing to remember is that this case is unlikely to be settled quickly—and it's just the first of many, many explosive immigration cases that will slog their way through the courts.

Related: What could happen with President Trump's immigration ban

At issue in Tuesday night's extraordinary arguments before the 9th U.S. Circuit Court of Appeals was Trump's January 27 executive order that triggered chaos and protests around the world. The order suspended entry to the U.S. by persons from those countries—Syria, Somalia, Iraq, Iran, Libya, Sudan and Yemen—and sharply curtailed America's intake of refugees. While multiple courts struck down portions of the executive order, a federal judge in Washington state, James Robart, went further, allowing immigrants and travelers from those countries to again enter the U.S.

Did Robart, a George W. Bush appointee based in Seattle, overstep his bounds? Did the state of Washington, which brought suit against the Trump ban, have "standing"—a legitimate reason to be in court—to argue against it? And what kind of standard should the appeals court use to make its decisions? These were among the questions that lay before the three-judge panel of the 9th U.S. Circuit Court of Appeals, based in San Francisco. Given the emergency nature of the immigration crisis, the panel heard the arguments via telephone and allowed the arguments to be live-streamed via the web and television—a rare entrée of microphones into a federal court.

The judges were tough on both the U.S. Department of Justice lawyer who argued to overturn the temporary restraining order that blocked Trump's ban and on the solicitor general from Washington state. As a general matter, it's hard to definitively conclude from oral arguments what a court might actually decide.

The solicitor general, Noah Purcell, seemed to do a good job conveying that Washington state had a legitimate interest in the case because its citizens were affected by the ban and its businesses disrupted. Conversely, the Department of Justice lawyer, August Flentje, seemed to fumble when asked if the court had jurisdiction to review the case.

But Washington state faced some severe brushback from the court, the most important being in response to Purcell's argument that he could likely prove discriminatory intent on the part of the government. Purcell, who was also speaking for the state of Minnesota, which joined the case, pointed to Trump's comments during the presidential campaign that he wanted a ban on Muslims.

But Judge Richard Clifton, a George W. Bush appointee, was skeptical that that mattered, since the executive order was not specifically a ban on Muslims. "I don't think allegations cut it at this point," said Clifton, meaning that the mere charge of discriminatory intent had hardly been proved. Clifton also noted that the vast majority of the world's Muslims were unaffected by the ban. He said his "quick penciling" calculations determined that only 15 percent of Muslims reside in the seven countries named in the ban.

Purcell acknowledged as much but insisted that there was no need prove discrimination against all Muslims, only the intent to discriminate against some, and that there was an extraordinary amount of evidence in the public record already, even without an exhaustive investigation that might take place at trial. Clifton also noted that the U.S. government under President Barack Obama had tightened visa requirements from these countries—something he suggested meant the case was more about national security than religious discrimination.

The court has plenty of options. It could allow the temporary restraining order on the Trump ban to remain in effect but send the case back to the lower court for a more fulsome hearing and discovery. It could also kick the matter up to the Supreme Court—where it appears likely to land at some point. What seems the least likely option is that circuit court would reinstate the Trump ban, reigniting airport chaos and protests, while ordering a longer trial at the lower-court level. "That's not how courts work," said Harvard law professor Alan Dershowitz on MSNBC moments after the hearing ended.

If all of this is confusing, get used to it.

In all likelihood this is not the last immigration order that will come out of the Trump White House. And after Senator Jeff Sessions is confirmed as attorney general—by all accounts he will be—the Justice Department will revamp many aspects of how we treat those entering the country. There are bound to be not only more bans such as this one but a revamping of Obama-era orders like the Deferred Action for Childhood Arrivals rule that allows undocumented immigrants who came to the U.S. to stay here, assuming they have no criminal record.

That means more court battles and more fights like this one. After all, when the court heard these arguments, Trump had been president for only 18 days, with 1,443 to go in his four-year term.

Courtroom Fight Over Trump Travel Ban Is Just the Beginning | U.S.