9th Circuit to President Liar: Nope
Oh dear, poor Lying Don, another harsh blow. 9th Circuit says a big no to Don’s Excellent Travel Ban.
Another federal court has ruled against President Donald Trump’s revised executive order limiting travel from six predominately Muslim countries — and like other courts, used his tweets against him.
The ruling from a three-judge panel of the Ninth Circuit Court of Appeals is yet another stinging loss from a court that similarly refused to reinstate Trump’s original executive order on travel in February.
“We conclude that the President, in issuing the Executive Order, exceeded the scope of the authority delegated to him by Congress,” the three judges, all appointed by President Bill Clinton, wrote. “(I)mmigration, even for the President, is not a one-person show.”
The judges cited Trump’s latest tweets in the travel ban saga.
“That’s right, we need a TRAVEL BAN for certain DANGEROUS countries, not some politically correct term that won’t help us protect our people!” Trump tweeted on June 5.
Everybody warned him about that tweet. He doesn’t listen very well, does he.
They also cited White House press secretary Sean Spicer’s confirmation that the President’s tweets are “considered official statements by the President of the United States.”
Sad.
Not only sad; intentionally or not, he’s setting up thousands (to millions) of people against the very concept of the courts. That isn’t going to lead anywhere good.
Yes. It’s hideously reckless and dangerous…or just plain outright fascist. I remember paling with fear that Saturday of the travel ban.
The interesting thing to me about the Ninth Circuit opinion is that it only cites to Trump’s statements that one time (I believe), and even there it’s in a footnote, because the opinion ducks the constitutional issue in favor of deciding the case on statutory grounds.
Mark Joseph Stern at Slate has a good explanation here, but to summarize: the 9th Circuit found that it didn’t need to reach the question of whether the ban is unconstitutional discrimination against Muslims, because the plaintiffs were entitled to an injunction on the grounds that the ban was not a valid exercise of the authority granted to the President by Congress in the Immigration and Naturalization Act.
Among other flaws, the Executive Order (the second one, though you could obviously say the same about the first) was not the result of actual factual findings by the administration. Basically, the Trump Administration didn’t “show its work” that it had actually looked at this question and determined based on evidence that a ban on persons from these particular countries would protect American security, etc. Instead, Trump just declared those “facts.”
The reason I think this matters is that, as Stern writes, it’s a useful road map for the Supreme Court to follow. The Court can uphold the injunction against the ban without having to write an opinion that says that Trump is discriminating against Muslims, and that we know so because of his campaign statements and post-inauguration tweets. That last bit is something that I think the Court will particularly want to avoid, because it really does raise a lot of complicated questions for future cases: sure, it’s easy to figure out what Trump’s motivations were on this issue, but what about when we (hopefully) get a “normal” President again? Will litigants be able to attack executive decisions based on campaign rhetoric?
Justice Kennedy has shown in gay rights cases, as well as the recent abortion TRAP case, that he isn’t willing to pretend to ignore the prejudice or hidden agenda behind a law or executive order. I’m hopeful that he would not uphold such a blatant prejudicial order as this travel ban. But he’d probably like to avoid creating bold new precedent, so this kind of approach might appeal to him. You might even see the Chief Justice sign off on this reasoning, too. So I would not be at all surprised to see the Supreme Court grant cert in both this case and the 4th Circuit one, affirm the 9th’s ruling on similar grounds, and vacate the opinion of the 4th.
If so, it would still be just desserts: once again, the Trump Administration’s incompetence and laziness would save us from its malevolence.