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SAN FRANCISCO The most consequential legal
challenge to U.S. President Donald Trump’s travel ban will
proceed on two tracks in the next few days, including a U.S.
appeals court vote that could reveal some judges who disagree
with their colleagues on the bench and support the arguments
behind the new president’s most controversial executive order.
In a Seattle federal courtroom, the state of Washington will
attempt to probe the president’s motive in drafting his Jan. 27
order, while in the 9th U.S. Circuit Court of Appeals, judges
will decide whether to reconsider an appeal in that same case
decided last week.
Trump’s directive, which he said was necessary to protect
the United States from attacks by Islamist militants, barred
people from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen
from entering the country for 90 days. Refugees were banned for
120 days, except those from Syria, who were banned indefinitely.
The ban was backed by around half of Americans, according to
a Reuters/Ipsos poll, but triggered protests across the country
and caused chaos at some U.S. and overseas airports.
U.S. District Judge James Robart in Seattle suspended the
order after its legality was challenged by Washington state,
eliciting a barrage of angry Twitter messages from Trump against
the judge and the court system. That ruling was upheld by a
three-judge panel at the 9th U.S. Circuit Court of Appeals in
San Francisco last week, raising questions about Trump’s next
At a Seattle court hearing on Monday, Robart said he would
move forward with discovery in the case, meaning the request and
exchange of information pertinent to the case between the
Meanwhile, an unidentified judge on the 9th Circuit last
week requested that the court’s 25 full-time judges vote on
whether the temporary restraining order imposed on Trump’s
travel ban should be reconsidered by an 11-judge panel, known as
en banc review. The 9th Circuit asked both sides to file briefs
Since judges appointed by Democrats hold an 18-7 edge on the
9th Circuit, legal experts say it is unlikely a majority will
disagree with the court’s earlier ruling and want it
Arthur Hellman, a professor at the University of Pittsburgh
School of Law who has studied the 9th Circuit, noted that one of
the three judges who issued the original ruling was appointed by
George W. Bush.
Even if the en banc vote fails, however, judges on the 9th
Circuit who disagree with last week’s ruling will be able to
publicly express their disagreement in court filings, which
could help create a record bolstering Trump’s position.
Meanwhile, the government has signaled that it is
considering issuing a new executive order to replace the
original one. In that case, it could tell the 9th Circuit later
this week that it does not want en banc review, because the case
would be moot.
“You would think Jeff Sessions would do whatever he had to
do to get this case ended as soon as possible,” Hellman said,
referring to the recently appointed U.S. attorney general.
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