The unanimous decision of the 9th Circuit to uphold the stay on Trump’s immigration ban reminds me of this moment during Khizr Khan’s speech at the Democratic Convention last year:
In arguing their case, Trump’s DOJ lawyers didn’t attempt to justify why the executive order banned immigrants and refugees from seven predominantly Muslim countries. Instead, they claimed that the President had the legal authority to do so. The court did not agree.
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. 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…
Their ruling points to the Constitution.
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. There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy.
In the end, this led the court to uphold the stay – even though it didn’t decide whether or not here is proof that the executive order discriminates against Muslims. They basically said that the administration needs to support their claims that it doesn’t.
The States’ claims raise serious allegations and present significant constitutional questions. In light of the sensitive interests involved, the pace of the current emergency proceedings, and our conclusion that the Government has not met its burden of showing likelihood of success on appeal on its arguments with respect to the due process claim, we reserve consideration of these claims until the merits of this appeal have been fully briefed.
Josh Gerstein does a good job of describing how the Trump administration’s incompetence in handling this executive order and their dismissal of the role of the courts played a crucial role.
The claim that the issue was beyond the province of the courts essentially invited the judges to do just what they did at oral arguments on Tuesday: raise Trump’s “Muslim ban” comments and ask whether the courts would have no role in reviewing an immigration-related action explicitly taken to discriminate against a religion or for some other highly dubious reason.
The court’s opinion makes short work of that argument. “There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy,” the judges wrote.
And while the judges made no reference at the arguments or in their opinion to Trump’s extraordinary public attacks on them and the judge who issued the restraining order at issue, this is where Trump’s statements may have come into play.
Whether or not you think that Donald Trump has been a good businessman, the fact of the matter is that a CEO is able to play the role of authoritarian and call all the shots. The 9th Circuit just told the president that’s not how our constitutional democracy works. There are three co-equal branches of government. And while a Republican majority in Congress might not be willing to stand up to him — the three judges on this court just did.
