The Ninth Circuit has just issued a unanimous opinion upholding the Temporary Restraining Order against the Trump Administration’s Executive Order known as the “Travel Ban.” The 3-judge panel unanimously recognized that without the TRO, the states of Minnesota and Washington were likely to be harmed as parens patriae (i.e., legal protector) for their citizens, and also by damage inflicted on “operations and missions of their public universities and other institutions of higher learning,” and their “operations, tax bases, and public funds.”
The U.S. Government can now appeal to the Supreme Court, and is expected to do so, with an application directed to Justice Kennedy, who is assigned to oversee the Ninth Circuit. Although Justice Kennedy has the authority to decide the issue himself, he is expected to refer the application to the entire Court. At least five Justices must agree on the decision either to grant or to deny the request for stay. With a 4-4 split, the Ninth Circuit’s decision would be left in place.