President Trump will likely file a prompt emergency appeal of the recent rulings in Hawaii and Maryland blocking his Executive Order, which attempted to suspend visas for people from six Muslim-majority countries. If anything, many observers—and very likely the plaintiffs who prevailed in these courts—expected the government to have filed the emergency appeal by now. While the delay in appealing is likely attributable in large part to the process of drafting legal arguments (which these days in the Trump administration does involve a meaningful review process), it is possible that there is a deeper strategic incentive not to move too quickly.
Some readers will be familiar with the classic Prisoner’s Dilemma, commonly used to teach game theory: Two suspects of a crime are put in separate rooms and are given two choices: (i) confess and betray the other or (ii) keep silent. Without going into the full details of the game here (but see here for a tutorial), it should suffice to say that the outcomes are designed such that each suspect, without any knowledge of what the other will do and considering his own self-interest, views it as rational to betray the other person. This is so even though they would obtain a better outcome collectively—and individually—if they both just stayed silent.
President Trump’s unilateral decision whether to pursue an emergency appeal does not map directly on to the two-dimensional Prisoner’s Dilemma—but it shares a few important qualities:
1. What Seems Like The Rational Next Step Could Lead To Worst Outcome
Upon failing to defend his Executive Order from emergency requests to block it, President Trump and his spokespeople vowed to appeal “soon” and “as far as it needs to go,” including to the Supreme Court. From a politically self-interested perspective, this may seem like the obvious rational choice: We tried to do something, we lost, we need to turn that into a win as soon as possible. To understand why this may not be the optimal outcome for President Trump, it is important to understand a few facts:
i. The first step for President Trump would be an emergency appeal to the Fourth and/or Ninth Circuits; if one of those courts upholds the decisions below blocking the Order nationwide, his order would remain blocked absent being overturned by the Supreme Court. That one of these two courts of appeals would uphold the decision below is not far-fetched, particularly given the Ninth Circuit’s prior ruling that refused to rescue Trump’s first Executive Order. In the event one of those courts upheld a nationwide injunction on the travel ban, Trump’s only option would be to petition to the Supreme Court.
ii. The quicker President Trump gets to the Supreme Court, the worse his odds seem to be there. The Supreme Court presently has eight justices, as the final seat remains vacant awaiting the confirmation of President Trump’s nominee, Judge Neil Gorsuch. Of the eight Justices presently on the Court, four are commonly viewed as liberal and four viewed as more conservative. While it is quite possible that the Supreme Court already has a majority of five or six judges that would find Trump’s Order violates the Constitution, it seems safe to say that Trump would have a difficult time persuading one of the four liberal judges to look past the discriminatory history associated with his Executive Order. If this is correct, President Trump’s best case scenario if he immediately finds himself in the Supreme Court may be a 4-4 split (in which case a ruling of the Fourth or Ninth Circuit blocking the ban would remain in place). The worse scenario would be a majority of votes against him, leading to a precedential opinion recognizing that he discriminated on the basis of religion.
iii. While it is no guarantee, the Supreme Court is likely to only get better for him if he delays in appealing. If Trump wants to improve his best-case scenario before the Supreme Court, it would be done by waiting until Judge Gorsuch is confirmed. While it is by no means certain that Judge Gorsuch would vote to uphold the Executive Order, having him on the Court, at the very least, creates a more likely path for President Trump to obtain the 5 votes that might be needed for an opinion in his favor. If President Trump declined to pursue emergency relief from the preliminary orders issued in Hawaii and Maryland, and instead appealed after a final disposition in his case, it seems likely that Judge Gorsuch would be on the Supreme Court in the event Trump were to end up there.
No one can safely assume that the Fourth or Ninth Circuits will uphold the rulings blocking the travel ban. But if that does occur, a strong case could be made based on the above that pursuing an emergency appeal would lead President Trump to his worst outcome: propelling him to a Supreme Court in which he has a much less clear path to victory than if he were to wait.
2. The Alternative Is Itself Problematic
While the suspects in the Prisoner’s dilemma would both be better off if they stayed silent, instead of both making the rational decision to betray, the problem teaches that the alternative of staying silent is not perfect either—in order for the problem to work, the alternative of staying silent always comes with some jail time (otherwise it would always be the rational choice to stay silent).
Likewise, President Trump’s alternative path of not pursuing an emergency appeal has its own dangers. President Trump has attempted to sell his Executive Order to the public on the basis of a national security crisis—indeed, immediately after the recent Hawaii ruling blocking his Executive Order, President Trump urged, “we need it very badly, for security.” National security is also a critical part of his lawyers’ arguments in court: Courts should stay out of it, because it is the President’s prerogative to deal with issues of national security.
If President Trump were to wait and not avail himself of an emergency appeal, while perhaps that would be in his best interest in terms of increasing his odds at the Supreme Court, he would be undermining the arguments he would make when he gets there: that there is a serious national security threat warranting the suspension of visas laid out in the order. Indeed, this countervailing consideration is likely so powerful that it would drive strong recommendations from his lawyers to file an emergency appeal, despite the potential downsides laid out above (and thus perhaps the better game theory is the Zugzwang, a lose-lose scenario in chess, in which any move made by the player acts to his disadvantage).
3. Trump’s Dilemma Is Made Worse By Incomplete Information
Of course, behind all of this is a third feature that President Trump shares with the isolated prisoner: incomplete information about the decisions that will be made by other actors that will impact the outcomes of the decisions he makes. It is difficult to predict what the Fourth and Ninth Circuits will do and there is no guarantee what the Supreme Court will do.
Like each of the prisoners, Trump has no choice but to decide with the information he has. While we should expect to see an emergency appeal any moment because it seems like the rational option, it may be rationality that leads to his own defeat