Unconstitutional, Amateurish

10 February 2017

Cogito Ergo Non Serviam

Trump's Muslim Ban Rejected by Ninth Circuit Court of Appeals

The Trump administration's ukase banning people from seven different Muslim nations from entering the US has taken another major blow. After a district court judge in Seattle granted a temporary stay preventing the government from implementing the ban nationwide, the White House appealed to a three-judge panel of the Ninth Circuit Court of Appeals. A few hours ago, the court handed the White House a 3-0 defeat. The next step is the Supreme Court, which is a strategic mistake for the administration that it will probably commit before the week-end.

The members of the three-judge panel were Judge Michelle T. Friedland, appointed by President Barack Obama, a moderate leftist; Judge William C. Canby Jr., appointed by President Jimmy Carter, a moderate; and Judge Richard R. Clifton, appointed by President George W. Bush, a hard right politico. While Mr. Trump will undoubtedly continue to complain that the courts are political, that is only true in the broadest sense that they exist to support the established order based on law.

The crux of the case was summed up "On the one hand, the public has a powerful interest in national security and in the ability of an elected president to enact policies," the decision said. "And on the other, the public also has an interest in free flow of travel, in avoiding separation of families, and in freedom from discrimination. These competing public interests do not justify a stay [of the district court order]."

The Trump administration has three options at this point. The one it will take is an appeal of this decision to the Supreme Court. The Supremes are divided 4-4 between reactionaries and moderates. In the event this case is argued before them, one can presume a 4-4 draw. If that happens, the rules hold that the Circuit Court decision stands. In other words, the Ninth Circuit will have had the final say.

A wiser path would be for another circuit more friendly to the White House to decide in favor of the ban. The White House could then follow that court's guidelines, and if the opposition were to appeal, it would need to win 5-3 or the White House gets its way.

However, all of these legal maneuvers take time. The ban was to have been in place for 90 days for most, 120 for a few more, and indefinitely in the case of Syrian refugees. Weeks can go by before a definitive decision comes out of the courts.

The smart thing to do would be to withdraw the current diktat and draft a new one. By carefully crafting the language of the ukase to address the concerns raised in court, a new order would be much tougher to overturn in court. However, in order for that to occur, the administration would have to admit that the first iteration of the order was not a glowing success. In truth, it has been a disaster start to finish and badly implemented on top of that. This administration is new, but it is clear that it is not a crew capable of admitting they did anything but perfect work.

Indeed, it is this insistence that they are always right that will cause them to lose the particular fight. They will run to the Supreme Court with this decision in their hands, and they will demand that the highest court in the land side with them. The trouble is that they don't have the votes, and they don't have the humility to take the path that doesn't require a single judge to make a single ruling in their favor.

An appeal to the Supreme Court today would be further proof that the executive is run by amateurs.

© Copyright 2017 by The Kensington Review, Jeff Myhre, PhD, Editor. No part of this publication may be reproduced without written consent. Produced using Ubuntu Linux.

Kensington Review Home


Follow KensingtonReview on Twitter