Trump gets checked, balanced by America's judiciary

APTOPIX Trump Travel Ban Lawsuit
Karen Shore holds up a sign outside of the 9th U.S. Circuit Court of Appeals in San Francisco on Tuesday. A panel of appeals court judges reviewing President Donald travel ban hammered away Tuesday at the federal government's arguments that the states cannot challenge the order.

Tonight’s unanimous ruling from a three judge federal appeals panel thwarting President Trump’s travel ban targeting seven majority-Muslim nations was many things:  A stinging rebuke to a new president’s signature policy move, a victory for the thousands who flooded airports to protest it, and a happy reprieve for thousands of immigrants, refugees and foreign travelers seeking to come freely to America.

But in the end, the ruling from the 9th Court of Appeals panel  made an even more powerful statement: That the rule of law that holds up America’s 240-year-old experiment still works -- even at a moment of high anxiety over an unconventional new occupant of the White House with authoritarian tendencies and a bullying tone toward the judiciary.

The 29-page decision that experts viewed as complete repudiation of the Trump administration’s arguments for the ban even carried a strong stamp of bipartisanship – signed by judges appointed by one Republican president, George W. Bush, and two Democrats, Jimmy Carter and Barack Obama. And their decision upheld a lower court ruling by another appointee of the second President Bush, Judge James L. Robart.

“I’m just pleased the checks- and-balance system is working in our country,” Democratic Maryland Sen. Ben Cardin told CNN last night. “It showed the courts are going to be there when President Trump abuses his authority” on any future matters as well.

Still, the case and the fate of the travel ban is far from settled – a point that Trump himself drove home with the caps-lock button on his Samsung Galaxy when he tweeted moments  after the ruling: “SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!” A few minutes later, the president wandered into the White House press room and called the ruling “a political decision” – even as it was unclear whether the administration would appeal Thursday’s ruling to the Supreme Court or weigh other options, none of them promising.

In addition to the weighty immigration question at hand, tensions over the ruling rose over the course of the week after a series of unprecedented comments from Trump that came off as one branch of the American government, the executive branch, seeking to bully or intimidate another, the judiciary.

The president had implied that any judge blocking his policy might be blamed for a future terror attack, blasted Robard as a “so-called judge,” and added in a speech Wednesday, about the oral arguments in the case, “I listened to a bunch of stuff last night on television that was disgraceful.” Even the man Trump just nominated for the Supreme Court, U.S. Appeals Court Judge Neil Gorsuch, had to admit to senators on Capitol Hill that the president’s blasts at the judiciary were "disheartening" and "demoralizing.”

The anxious backdrop to the case prompted talk of a constitutional crisis along the lines of Richard Nixon’s Watergate scandal, when the nation held its collective breath to see if the 37th president would obey court orders to hand over his Oval Office tapes. And all this was happening less than three weeks into a frenzied, exhausting Trump presidency.

The three Western appeals judges -- Michelle T. Friedland, William C. Canby Jr., and Richard R. Clifton – rejected both the Trump administration’s argument that there was an urgent need to restrict travel from the seven nations,– none of which has seen its migrants responsible for a terror attack within the United States in decades.  

But more importantly in the long run, the justices shot down the argument – an essentially authoritarian one -- from the government’s attorneys that the judiciary lacked the power to review and to block Trump’s action.

“Rather than present evidence to explain the need for the Executive Order, the Government has taken the position that we must not review the decision at all,” the judges wrote in their decision. “We disagree.” 

Underlying the ruling was the panel’s conclusion that the plaintiffs in the case – the state of Washington and Minnesota, which had argued that the ban was harming college students and other state residents – would likely prevail if and when the merits of the case are fully argued. That seemed to offer tacit support to the states’ argument that Trump’s order was, in essence, an unconstitutional  religious ban that targeted nations with large Islamic populations

So the Trump administration must now weigh whether to appeal this ruling to the eight-member Supreme Court – evenly split between Democrats and Republicans, with a 4-4 tie upholding Thursday’s ruling – or to take it back to lower court for protracted arguments, or figure out a Plan B.

Trump aides are continuing to insist that the judges are ignoring Trump’s enormous responsibility to keep Americans safe, with top adviser Kellyanne Conway telling Fox News that the president has a “duty and responsibility” to act on the travel ban.

That would be disputed by the narrow majority of Americans who, according to polls, opposed the president’s order. That would include the folks who looked at the first chaotic days of the move and saw it affecting  doctors or college students who love America and want to study here, or refugees like a Syrian Christian family that had waited years to come to Allentown, and who wondered what happened to accepting refugees, “yearning to be free.”

Now, Trump’s judicial rebuke has given new vigor to the citizens most vehemently opposed to the new president – who worry not just about the president’s actions on Middle East refugees but also that his policies towards border immigration, longstanding environmental rules, ethics laws affecting Trump family businesses are other things that will bump up against the U.S. Constitution.

When Nixon gave way to Watergate in 1974, the national mantra was, “The system worked.

The system worked again in 2017, at least on this night.

“We are a nation of laws and as I have said, we have said, from Day One, these laws apply to everybody,” Bob Ferguson, the Washington state attorney general, told a news conference Thursday night. “And that includes the president of the United States.”

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