The state of the travel ban remains in flux this morning. After U.S. District Court Judge James Robart placed temporary restraining order on Trump’s executive order on Friday, the White House began fighting back. The first stage of that fight was to challenge the restraining order and seek to have a stay placed on it. Unfortunately for the President, that initial fight had to take place in the Ninth Circuit Court of Appeals. Given the history of that court it should probably come as no surprise that the request for an immediate stay was, for the moment, denied. (CNN)
A federal appeals court early Sunday morning denied the US government’s emergency request to resume President Donald Trump’s travel ban.
The Ninth Circuit Court of Appeals has asked for both sides to file legal briefs before the court makes its final decision after a federal judge halted the program on Friday.
What this means is that the ruling by US District Court Judge James Robart suspending the ban will remain in place — for now.
The US Justice Department filed an appeal just after midnight Sunday, asking to pause a sweeping decision from the judge that temporarily halted enforcement of several key provisions of President Trump’s executive order.
The court didn’t reject the request entirely. All that’s really happened thus far is an order for both side to produce legal briefs for further consideration by Monday. At that point… who knows? But it’s worth keeping in mind that we’re talking about the Ninth Circuit Court of Appeals here. Out of the entire national bench, the Ninth has the reputation of being far and away the most liberal. (Some Republicans have been looking at ideas to break up the court this year.) If Trump’s opponents had any hope of shutting him down in the appeals process, this court was absolutely their best bet.
The next step beyond that may prove to be more challenging for Trump’s detractors, however. Robert Barnes at Law Newz came out this weekend with an analysis of why Trump will most likely prevail in the end. He does so by comparing the decisions of two judges ruling on the case, one in Seattle (who went against the White House) and one in Boston who largely debunked the complaints.
Just a quick review of the two written orders can tell you which one is likely to win. The Boston judge cited a wide range of precedents for his decision in his detailed written order. The Seattle judge issued a short order devoid of almost any reference to any precedent, which is the “evidence” for lawyers on the law. Add in comments made by the Seattle judge verbally, and if any aspect of that is correct, the Seattle judge’s opinion will lose, and Trump’s position will win…
Both judges appeared to reject the position of many critics: both appeared to reject the position the First Amendment prohibits the order; both appeared to reject the position the Fifth Amendment prohibits the order; both appeared to reject the position that Congressional statutes prohibit the order. Both appeared to reject claims the order discriminated on the basis of speech or religion in any way that immigration law precludes or forbids. Instead, both agreed all that mattered is whether the laws had a “rational basis.”
The fact is that the courts are supposed to strip all the politicization and social hyperbole out of such procedures and rule on the law using historical precedent as a guideline. In that light we’re forced to acknowledge that this executive order deals with questions of both national security and immigration policy. In both of these areas, the judgement and conclusions of the President are given the benefit of the doubt in the vast majority of cases and the White House has traditionally been given broad discretion in terms of making policy. I think Robert Barnes covers a lot of the major points in terms of the details, but it would be a major reversal of historical precedent in terms of how such questions are handled if the Trump lost this one.
I’m not ruling it out because we’ve reached the point where even our courts seem to be infected by partisan political influence more than ever. But I still maintain hope (perhaps foolishly) that the executive branch is in charge of these questions as long as they remain within the boundaries of the law and the Constitution.