The Trump administration will almost certainly appeal to the Supreme Court.
By Jared Keller
Yemenis who were among those stranded in Djibouti when President Donald Trump ordered his travel ban arrive to Los Angeles International Airport on February 8th, 2017. (Photo: David McNew/AFP/Getty Images)
It took a single decision, 1803’s Marbury vs. Madison, to establish the Supreme Court as the finalauthority on the United States Constitution, the single body whose “province and duty … [is] to say what the law is.” That decision elevated the judicial branch to its role as primary rival to the executive branch in terms of legal power — a centuries-old conflict that may finally come to a head under the presidency of Donald Trump.
On Thursday, a U.S. appeals court ruled against reinstating the broad travel ban put in place by Trump’s executive order two weeks ago. The decision came after lawyers from the Department of Justice (DOJ), amid “intense questioning” from a three-judge panel (per Reuters), asked the Ninth U.S. Court of Appeals to nullify a previous ruling by a Seattle federal judge that suspended the Trump administration’s ban on refugees and visa holders from seven majority-Muslim countries.
The opinion itself is relatively straightforward: The court concluded, among other things, that government concerns over national security were overwrought. “The Government has not shown that a stay is necessary to avoid irreparable injury,” the three-judge panel wrote in its opinion. “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.”
None of the attackers who have carried out a terror plot on American soil since 9/11 came from the seven countries named by the Trump administration.
In the lawsuit originally brought against the Trump administration by Minnesota and Washington, the state attorneys and solicitors general argued that the rollout of the travel ban had “unleashed chaos” across the country, citing damage to sales tax revenue from lack of tourists, costs to local corporations like Amazon and Microsoft, and brain drain at public universities. Businesses agree: More than 120 companies, many of them high-tech firms based in San Francisco and Washington state, signed an amicus brief rebuking Trump’s travel order on Tuesday.
Regardless of the uneven implementation and economic impact of the travel ban, lawyers for the Trump administration argued that the president was within his authority to authorize his controversial ban in defense of the American people—the sort of blanket national security rationale that’s become the hallmark legal catch-all of post-9/11 bureaucrats. “Congress has expressly authorized the president to suspend entry of categories of aliens,” DOJ special counsel August Flentje said in an oral argument, conducted over telephone and broadcast live on television and the Internet. “That’s what the president did here.”
During the public hearing, the three judges on the appeals court panel probed the constitutionality of Trump’s executive order under the national security imperative, interrogating Flentje as to whether there’s “any reason to think there is a real risk” from the countries affected by the travel ban. The truth is, there isn’t. None of the attackers who have carried out a terror plot on American soil since 9/11 came from the seven countries named by the Trump administration. (It’s worth noting that the countries exempt from the ban, including those that did give us the 9/11 terrorists, have business ties to the new president.)
Then there’s the religious discrimination question which, as the Los Angeles Timespoints out, seems like perilous ground for the Trump administration, thanks to the president’s more bombastic habits:
Asked for evidence to support that claim [of religious discrimination], the lawyer for Washington pointed to “the public statements from the president and his top advisors,” which he described as “rather shocking.”
Trump called for a “Muslim ban” during his presidential campaign, Noah G. Purcell said. And the day he signed the order, he gave an interview to a Christian television network in which he said he wanted to give priority to Christian refugees.
The evidence indicates that the order was “intended to favor some religious groups over others,” Purcell said, which would be a violation of the 1st Amendment’s ban on an established religion.
It’s likely (going by Trump’s Twitter feed) that amid the many imminent court battles over Trump’s travel, this one will go to the Supreme Court. Of all the stays and restraining orders offered up by local judges since Trump first signed his executive order on immigration in January, this case was the first challenge to rise to the appeals level — and, according to the New York Times, the broadest.
While the courts tend to be deferential to the executive branch during times of national peril (from Abraham Lincoln’s suspension of habeas corpus in defiance of the courts during the Civil War, to the Supreme Court’s decision in Korematsu v. United States),it’s unclear how the nation’s highest judicial body will respond to the constitutional crisis brewing under the Trump administration’s watch. The case will reach a court currently hobbled by Antonin Scalia’s vacant seat — a court that, as I observed in May, is being forced by 4–4 deadlock into abdicating its responsibility to decide what the law actually is.
Civil rights advocates are itching for a Supreme Court showdown, as they should be: Should the Court deadlock after hearing a Trump administration appeal, the 9th Circuit Court’s ruling would become de facto law of the land — until, that is, another challenge elevates the question of the travel ban to the court.
But they’re not the only ones. Trump himself confirmed during a White House meeting with police chiefs Tuesday that the administration was “gonna take [the ban] through the system” regardless of the appeals court ruling. “It’s very important for the country,” he said. “Regardless of me or whoever succeeds at a later date.” Those words came just days after the president lashed out at the “so-called” federal judge who put the nationwide stay on his travel ban in the first place.
“Some things are law, and some things are common sense,” Trump said on Tuesday. “This is just common sense.” Unfortunately for him, that’s not within the president’s authority to decide: Thanks to Marbury vs. Madison, it’s the Supreme Court’s.