After three strikes in the Ninth on Trump's Muslim ban, administration not rushing back to court

Rss@dailykos.com (kerry Eleveld) · Tuesday, March 28, 2017, 8:42 pm

The same anti-Muslim bigotry that helped Donald Trump on the campaign trail may have driven a stake through the heart of his anti-Muslim agenda. And Justice Department lawyers seem to know it.

After rushing into court within 24 hours of the initial order blocking most of Trump’s first Muslim ban attempt, government lawyers have been notably quiet since a federal judge in Hawaii dealt the latest blow to key portions of the Muslim ban.

Last month, the Justice Department filed an immediate appeal to the order from a federal judge in Seattle halting the ban and it followed up several hours later with an emergency motion at the Ninth Circuit Court of Appeals. The three-judge appeals panel handed government lawyers a unanimous defeat. Now the Justice Department has gone from a sprint to a crawl in the Ninth Circuit, writes Josh Gerstein.

But when a federal judge in Hawaii issued a broad block on the new order March 15, just hours before it was set to kick in, there was no immediate appeal. In fact, nearly two weeks later, the Justice Department is still tangling with Honolulu U.S. District Court Judge Derrick Watson and has yet to take the issue back to the 9th Circuit.

The delay has puzzled many lawyers tracking the litigation, particularly given Trump’s public warning that “many very bad and dangerous people may be pouring into our country” as a result of the courts’ interference with his first travel ban directive. A total of two months have now passed since Trump signed his first order.

Some court observers theorize that government lawyers may be looking for a more favorable composition in the makeup of the Ninth Circuit appeals panel—presently, two Obama appointees to one George W. Bush appointee—which changes monthly. The overall appeals court consists of 18 Democratic appointees to 7 Republican ones. But five of those GOP-appointed judges publicly issued an opinion earlier this month rebuking the original ruling by the appeals panel. Still, that panel included one Republican appointee who concurred with the original decision.

Government lawyers may be waiting to strike when they feel the panel favors their position, but the stall in activity completely undercuts their argument the court must move with urgency to prevent bad actors from entering the country. And it suggests the Justice Department has little-to-no confidence in the merits of their legal argument.

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