I thought I’d summarize why the appeals court refused to overturn the stay halting President Trump’s Executive Order banning muslims entering the country with visas from selected countries, and suggest what is likely to happen next.
WHAT EXACTLY DID THE JUSTICE DEPARTMENT WANT?
Donald Trump’s Executive Order banned people with legitimate visas from seven specific mostly-muslim countries from entering the country. Numerous judges across the country issued stays (cease and desist orders) against it. The stay issued by Judge James Robard is the first one to come before a federal appeals court. The Justice Department asked the appeals court to overturn the stay and reinstate the Executive Order.
WHY DID THE JUSTICE DEPARTMENT LOSE THE APPEAL?
Neither the constitutionality of the Executive Order nor its legal merits were under consideration. The only issue under consideration was whether Judge James Robard’s stay should be overturned, thus bringing the Executive Order back into effect.
The three-panel court rejected the government’s claim that the Executive Order was necessary to safeguard the United states from terrorist attacks. “The government has pointed to no evidence,” they said, “that any alien from any of the countries named in the order has perpetrated a terrorist attack in the United States.” In other words, they government has failed to show that leaving the stay in place represents any immediate danger to Americans.
The court also rejected the government’s claim that the courts in general do not have the right to review a president’s national security determinations. “It is beyond question,” the court said, “that the federal judiciary retains the authority to adjudicate constitutional challenges to executive action.” In other words, neither the President nor his executive actions are above the law.
WHAT ELSE DID THE COURT SAY?
Although the court did not rule on the constitutionality or legal merits of the President’s Executive Order, they did say that the states bringing the law suit that resulted in the stay were likely to succeed in their suit against the government because Trump’s order appeared to violate the due process rights of lawful permanent residents, people holding visas, and refugees.
They also noted that the Executive Order appears to run afoul of the First Amendment’s ban on government establishment of religion by disfavoring Muslims. They noted that the suit “offered evidence of numerous statements by the president about his intent to implement a ‘Muslim ban.’” In other words, even though Muslims’s are not specifically mentioned in the Executive Order, there is evidence that a muslim ban is the intent of the Order. The court did not make a ruling on this issue, choosing instead to let it work its way through the normal judicial process.
HOW DO THINGS STAND NOW?
The President’s Executive Order is on hold and cannot be legally enforced by the Department of Homeland Security.
WHAT HAPPENS NEXT?
Predictably, President Trump respond angrily in a shouted tweet: “SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!”
The appeals court’s refusal to overturn Judge Robard’s stay means that the case now goes back to his court, where the litigants will presumably argue the constitutionality and legal merits of the case. I am unsure about this, but I do not think the Justice Department can appeal directly to the Supreme Court, because the law suit in question has not been adjudicated by a lower court yet.
WHAT’S REALLY AT STAKE HERE?
The most important thing about all this is not the Executive Order itself, although that too is important. The most important thing is the reminder of limits the constitution places on the President’s power; in particular, the constitutional right of the Judiciary to review and rule on the Executive’s actions. What’s really at stake here is the balance-of-power the constitution establishes between the Executive Branch, the Legislative Branch and the Judicial Branch.
The message to Donald Trump is: “Mr. President, you are not above the law.”