Guest post by Joe Hoft

Last night we reported that instead of messing with a long and drawn out court battle, President Trump is expected to draw up a new executive order next week to restrict immigration in order to keep America safe. Trump said on Air Force One –

We are actively considering changes or other executive orders that will keep our country safe from terrorism.”

NBC News reported that the Trump administration began working on a new executive order a few days before the Ninth Circuit Court ruled against it.

The reason Trump is doing this is because of the current vacancy on the Supreme Court. The current make up of the court is four liberal judges appointed by liberal Presidents Clinton and Obama and four judges appointed by Republican Presidents Herbert W. Bush and George W. Bush. The legal move President Trump is taking to keep the immigration orders in place is to not go to the Supreme Court yet because of the possibility that the lower court ruling will stay in place.

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With an eight-justice court, a majority decision requires a 5-3 vote. If the supreme court is deadlocked 4-4, the lower court’s decision in the case is upheld but it does not create a legal precedent. “The best way to say it, if it’s 4-4, it’s as if the court had never even heard the case,” said Russell Wheeler, a federal courts expert at the Brookings Institution. “The decision below stands, but it has no precedential value.

President Trump knows that if he waits until his Supreme Court pick, Judge Neil Gorsuch, is in place his executive order will be upheld because the law is on his side. The courts that have ruled against the President have done so not on the merits of the law, but on their own political beliefs.

President Trump noted that the entire opinion from the 9th Circuit Court of Appeals did not even once cite the statute that the President’s executive order was based upon.