WASHINGTON – In office only three weeks, President Donald Trump got a lesson Thursday in how this three-co-equal-branches-of-government thing works when a federal appeals panel unanimously blocked his travel and refugee ban.
Obviously, this is a loss for Trump, though its magnitude may not be great nor lasting, because there are many more acts to this play. The court fight is not over.
The setback would be embarrassing — if Trump could be embarrassed.
The rollout of the bans affecting travelers and refugees from seven majority Muslim countries – and lawful permanent residents of the U.S. known as green-card holders – was a mess.
It was certain to be challenged in court and it was. A U.S. district court judge in Seattle – appointed by a GOP president – issued a temporary restraining order.
On Thursday, a three-judge panel sitting in California kept the TRO in place. Two of those judges were tapped by Democratic presidents’ and the third by a Republican.
What is the most important, most immediate impact of this adverse ruling?
Trump’s inclination since Jan. 20 has been to act as if the executive branch he heads is the boss of Congress and the judicial system. Thursday’s Ninth Circuit Court ruling shows that Trump can’t just call the shots.
Trump can’t exist for four or eight years by signing executive orders every day that are tantamount to fiats, written to avoid dealing with Congress.
Federal judges, appointed for life, who are immune to his bullying and taunts, can rule against Trump if they find cause.
The court fight over the travel ban comes as Trump is pushing the Senate to confirm his Supreme Court nominee, Judge Neil Gorsuch, who sits on the Tenth Circuit Court of Appeals.
The two matters are interrelated, at least in the short term.
Trump during his campaign attacked a judge hearing his Trump University lawsuits. He slammed the Seattle judge as a “so-called judge.” He suggested that something had to be wrong with judges if they went against him because even a “bad high school student” could see he was right.
So it’s no wonder that Gorsuch was asked about Trump’s comments regarding judges as he is calling on senators. It came out that Gorsuch said, according to two senators, that Trump’s attack on judges was “disheartening and demoralizing.” Trump said on Thursday Gorsuch’s “comments were misrepresented.”
Gorsuch himself will be pressed on this during his confirmation hearing.
But now Trump has in front of him the potential that even his own nominee may advocate for an independent judiciary — and implicitly criticize the man who tapped him for the high court.
One of the interesting legal arguments Trump’s lawyers made is that his executive order is not subject to a constitutional challenge in the courts.
Trump’s lawyers said the president has the “unreviewable authority to suspend the admission of any class of aliens” and the district court had no power to intervene.
The judges didn’t buy it.
“There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure to our constitutional democracy,” the appellate panel concluded.
“Within our system, it is the role of the judiciary to interpret the law, a duty that will sometimes require the resolution of litigation challenging the constitutional authority of one of the three branches. . . . We are called upon to perform that duty in this case.”
The named plaintiffs on the lawsuit are states of Washington and Minnesota. Illinois, represented by Attorney General Lisa Madigan, a Democrat, was one of 17 states and the District of Columbia filing “friend of the court” briefs.
Washington and Minnesota argued, successfully so far, that they had legal standing to go to court. The states argued that the executive order, signed to bolster national security, violated the Constitution because it harmed the residents of those states by restricting travel. The order also damaged the state economies and public universities, those states said.
The Illinois argument: The University of Illinois would be impacted because it has more than 300 students from the seven nations subject to the travel ban, with 20 students expected this fall from those countries.
“In Illinois alone, for example, 22.1 percent of entrepreneurs are foreign-born, and immigrant and refugee-owned businesses employ more than 281,000 people,” the amicus brief stated.