Ignoring President Trump’s efforts to intimidate federal judges the court focused on the law with the Muslim Ban being halted for now.
A federal appeals court panel for the 9th Circuit has maintained the freeze on President Trump’s controversial immigration order Muslim Ban, meaning previously barred refugees and citizens from seven Muslim-majority countries can continue entering the United States.
In a unanimous, 29-page opinion, three judges with the U.S. Court of Appeals for the 9th Circuit flatly rejected the government’s argument that the suspension of the Muslim Ban order should be lifted immediately for national security reasons and forcefully asserted their ability to serve as a check on the president’s power
The opinion tells us much about the hubris and sheer incompetence of the new administration as the court rebuked it at every turn, pointing to errors in law and lawyering in enacting the Muslim Ban.
The administration made the argument that the case was not even reviewable, despite ample precedent from the George W. Bush years. In its most memorable line of the opinion, the judges held,
“There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy.”
The court pointed out that even in the immigration and national security realms the political branches are subject to judicial review. Given the president’s recent public hectoring and threats to hold the court responsible for any terrorist attacks if it upheld the lower court’s order, the court had every reason to eviscerate the claim of what amounts to executive supremacy. (One wonders if the president’s noxious attack on the judiciary also encouraged the three-judge panel to make the ruling unanimous.
The executive order — drafted, we are told, during the campaign — was so sweeping and egregiously dismissive of constitutional niceties that the court made easy work of it. The most fatal flaw was the inclusion of green-card holders, which the Department of Homeland Security apparently warned the White House not to include. This gave the court a significant group of people with due process rights who would be subject to presidential whim without any procedural recourse. Both green-card holders here in the United States and those seeking to come back into the country were affected by the Muslim Ban.
The White House realized after the executive order was issued that green-card holders were a problem, but then made a stupid legal error. Rather than issue a new order, the White House counsel issued “guidance” to say the order was not intended to affect green-card holders. The court scoffed, “The Government has offered no authority establishing that the White House counsel is empowered to issue an amended order superseding the Executive Order Muslim Ban signed by the President.” The government lawyers failed to show that the modification was even binding. Along with green-card holders, the court found those with visas also are entitled to due process to challenge the Muslim Ban.
In what was a dazzling display of Presidential incompetency and arbitrary and capricious exercise of executive powers the rule of law was maintained by our federal courts temporarily halting the Muslim Ban.