It didn’t take a three-judge panel of the Ninth Circuit Court of Appeals very long to rule against the government and uphold a temporary restraining order issued by District Court judge James Robart on January 27. Because of the scope of Judge Robart’s order, the Department of Homeland Security and the State Department announced the very next day that they would suspend enforcement of Trump’s executive order banning immigrants from 7 Muslim countries.
“The Government has pointed to no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States,” the panel wrote. “Rather than present evidence to explain the need for the Executive Order, the Government has taken the position that we must not review its decision at all. We disagree,” they said.
On behalf of the federal government, Justice Department lawyers were forced to argue that the courts have no power to review the Executive Order. That put a bee in the bonnets of the panel members. “The Government indeed asserts that it violates separation of powers for the judiciary to entertain a constitutional challenge to executive actions such as this one,” they wrote. “There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy.”
Take that, your Trumpness!
So what happens next? Judge Robart’s order is a temporary restraining order. Further hearings before the trial court will be necessary in order for the court to make the restraining order permanent. The Justice Department can file an emergency appeal with the US Supreme Court, but that court is not in the habit of hearing appeals involving cases in which no final ruling has been issued. Under ordinary circumstances, the Supreme Court would decline to hear an appeal of a temporary order.
But The Supremes have fooled us before. In 2000, despite two centuries of precedent stating that the court would not involve itself in political issues, it did precisely that when it ordered the State of Florida to stop recounting votes and installed George W. Bush as the next president of the United States by a vote of 5 to 4.
As of this moment, the Court is evenly divided — 4 conservative justices and 4 liberal ones. If the Court did agree to hear the appeal, the likely outcome would be a tie vote, which would leave the decision of the 9th Circuit intact. If the District Court decides to make the restraining order permanent, the case would then be in order for Supreme Court review. By that time, Neil Gorsuch will most likely be a member of the Court and inclined to vote with the other conservative justices.
But how would the conservatives decide the appeal? They may be staunch supporters of conservative values — the US Supreme Court is the most highly politicized court in the nation — but would they cut off their noses to spite their own faces and rule that courts must abdicate their Constitutional duty? That seems a stretch even for such committed conservative activists as Thomas and Alito.
No one knows how Gorsuch might rule on such a challenge. He is part of the “originalist” wing of the court that says the Constitution means what it says and nothing more. By that analysis, nothing could be clearer than the Constitution set up three co-equal branches of government, each with its own powers and obligations to the citizens of the country.
Then there is Anthony Kennedy. He is no ideologue, although he does vote with the conservatives most of the time. Would he find reasons why the court should kowtow to the executive? We may get an answer to that question soon. His was the swing vote that put George W. in office.
Yes, you in the back of the room. “What does any of this have to do with clean technology?” I hear your cry. Simply this: Trump, the enfant terrible of Pennsylvania Avenue, has shown he intends to rule by decree like the dictator he presumes himself to be. That flies in the face of the Constitution and its system of checks and balances. If the Supreme Court rules against the Trumpies on the travel ban, that may stiffen the Court’s spine when it comes time to rule on the myriad legal challenges to Trump’s most outrageous executive orders rolling back environmental protections, mandating tariffs on goods from certain countries, and other issues brought before the courts by progressives.
The effect of an unchecked (and unhinged) chief executive may be too horrifying for even the most conservative justices to stomach. If could turn out that the judiciary is the counterweight to Trump’s tyrannical policies that progressives are so desperately in need of.
Following the ruling from the Ninth Circuit Court, Trump tweeted, “SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!” Notice the clever use of caps to substitute for his usual bellowing. He has already alienated some members of the judiciary by referring to Judge Robart as a “so-called judge.”
His contempt for members of the bench who don’t agree with him is legendary. He is going to need friends on the Supreme Court as his administration (or maladministration, as the case may be) moves forward. He would be wise to temper his remarks and shut off his Twitter tirades. But he won’t because he can’t help himself. He thinks he is Louis XIV, the French monarch who famously said, “L’etat, c’est moi.” It will be up to the courts to show him he is not the potentate he thinks he is.
Source: The Atlantic