Upholding the Rule of Law

(Photo: AP/Elaine Thompson)

Washington Attorney General Bob Ferguson speaks at a news conference about the federal appeals court's refusal to reinstate President Trumps ban on travelers from seven predominantly Muslim nations.

In ruling against President Trump’s travel ban, the United States Court of Appeals for the Ninth Circuit reaffirmed a fundamental aspect of the rule of law: No one, not even the president, is above the law. Courts can review the actions of all government officials to ensure their compliance with the Constitution.

The lawyers for President Trump argued to the Ninth Circuit that the president’s decisions on matters of immigration are unreviewable by any court. The court forcefully rejected that claim. The judges wrote:  “[T]he government has taken the position that the President’s decisions about immigration policy, particularly when motivated by national security concerns, are unreviewable, even if those actions contravene constitutional rights and protections. … There is no precedent to support this claimed unreviewability, which runs counter to the fundamental structure of our constitutional democracy.”

Long ago, in Marbury v. Madison in 1803, the Supreme Court ruled that courts can review the actions of Congress and the president to ensure their compliance with the Constitution. Chief Justice John Marshall explained that the Constitution exists to limit government power, and its limits are meaningless unless they are enforced. The Supreme Court concluded that “it is emphatically the province and duty of the judicial department to say what the law is.” President Trump’s position is at odds with this long-established principle of American government.

The actual issue before the Ninth Circuit was a narrow one. On February 3, a federal district court in the state of Washington issued a nationwide temporary restraining order that kept the travel ban imposed by Trump’s executive order from being implemented. The question before the Ninth Circuit was whether to lift this restraining order. In order to do so, the Court of Appeals would have needed to find that Trump had a substantial likelihood of ultimately prevailing in the lawsuit—and that the United States would be irreparably injured if the temporary restraining order remained in effect.

The Ninth Circuit explained that the U.S. government could meet neither of these requirements. As for the former, the Court of Appeals concluded that the Executive Order likely will be declared unconstitutional. It keeps those with green cards and proper visas from entering or reentering the country and provides them no due process with regard to this exclusion. 

Moreover, the First Amendment and equal protection prohibit the government from discriminating among religions. Although Trump’s executive order does not expressly exclude Muslims, that was unquestionably its purpose and its effect as it bans refugees from seven predominately Muslim countries while creating an exception for minority religions in these countries. In fact, Trump adviser Rudy Guiliani had said on Fox News that Trump’s goal was to create a Muslim ban. Trump himself told Christian Broadcast News that he intended to give priority to Christians seeking asylum over Muslims seeking the same. The Constitution does not allow such religious discrimination or permit the government to assume that a person is more likely to be dangerous because of his or her religion, national origin, or race.

The Ninth Circuit also found that the Trump administration failed to show how the United States would be harmed by continuing the temporary restraining order against the travel ban. The restraining order simply retains the situation as it has been for many prior years. The court noted that the Trump administration failed to offer any evidence of a threat to national security from keeping the travel ban from going into effect.

The Court of Appeals decision thus carefully applied well-established law. But what happens now? The Trump administration could ask the Ninth Circuit to grant en banc review, where 11 judges would review the decision of the three-judge panel.  I think Trump is unlikely to choose this path. The three judges included two (William Canby and Michelle Friedland) who had been appointed by Democratic presidents, and one (Richard Clifton) who had been appointed by a Republican president. It seems improbable a larger group of Ninth Circuit judges would come to any different a conclusion.

More likely, Trump will request the Supreme Court to intercede. He probably will ask Justice Anthony Kennedy, as the justice who oversees the Ninth Circuit, to issue an order lifting the temporary restraining order and allowing the travel ban to go into effect. Kennedy almost certainly will refer the request to the entire Court. 

At this stage, one can only guess whether the Court will choose to get involved at this time. On the one hand, this case is at a very early stage and the justices might prefer to wait until later in the proceedings to grant review. But this is also a Court that wants to have the last word on important legal issues and might want to take this high-profile case.

If the Supreme Court takes the case, I predict that it will decisively rule against Trump, with even conservatives like Chief Justice John Roberts and Justice Kennedy ruling to keep the travel ban from going into effect. They are very unlikely to accept Trump’s argument that there can be no judicial review of executive actions in this area. The Court may well take the case to reaffirm a basic principle: Everything the president does must comply with the Constitution and it is the role of the judiciary to enjoin those actions that violate it.

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