The Ninth Circuit has ruled that it will not enjoin the order of Judge James Robart, granting a worldwide temporary restraining order on the implementation of Trump’s travel ban Executive Order. Noting the limits of what this decision addressed, because the procedure is fairly convoluted, it merely keeps the EO on ice for now. Trump ordered it. Robart said no. The 9th said not good enough to reverse Robart.
There is much for very thoughtful lawyers to take away from the Ninth Circuit’s per curiam opinion. If you want to take a deep dive into the arguments in support of the decision, read lawprofs Will Baude and Ilya Somin. For the less than supportive views, check out Josh Blackman and Eugene Kontorovich.
The decision has many moving parts, from the standing issue (is the State of Washington “injured” sufficiently to be able to assert its challenge to the EO?) to the “plenary power” doctrine (that decisions as to immigration and national security reside exclusively in the President, and are not reviewable by the courts). None of it is simple or obvious, though people assert them as if they are, and “it is because it is.”
And with that limitation, the difficult job of the Ninth Circuit can be best understood. Courts deal with serious arguments, serious logic, serious precedent and serious issues. This EO was unserious. In campaigning for president, Trump made appeals to a portion of this country’s understanding of serious issues. His appeals were unserious, because people’s understanding of issues are unserious.
For normal people, this is fine.* They don’t need to know the complexities of law and governance to make their way through their day. They know Obamacare sucks, which it does, but they don’t know how to fix it. They may think they do, but they don’t. But that’s fine, because no one expects Joe to fix the Affordable Care Act. The guy who wants to be president says the same thing Joe says, and Joe nods in agreement. The difference is that the guy who wants to be president is expected to actually fix it, even though he has no better idea of how to accomplish it than Joe does.
For the purpose of getting elected, Trump needed only to appeal to Joe’s sensibilities. For the purpose of running a country, Trump needed an entirely different skillset. Granted, he’s got departments filled with people who could help him to be the big picture guy while they manage the actual implementation details, but that would require that Trump appreciate his limitations and allow the serious people to do their job. That would be a serious understanding on Trump’s part. But Trump is not a serious person.
The travel ban EO is a functional disaster on many levels, not the least of which were some pretty obvious, yet huge, screw ups in its roll out. A serious person would have been able to pull it off far better. An unserious person doesn’t realize what he doesn’t know, so just closes his eyes and pulls the trigger.
Of the many jokes that went viral after the adverse decision from the Ninth Circuit and Trump’s reaction by twit, there was the Judge Judy reference.
Tears off bathrobe. Storms into Bannon’s lair.
“Get Judge Judy on the phone.”
While obviously funny, there is a more serious element of truth below the surface. It wasn’t long ago that CNN released a poll, of dubious value, claiming that 10% of college grads thought Judge Judy is on the Supreme Court. Regardless, it’s funny, and so Trump was swept up with the dumbest of Americans. While hyperbole, because it’s a joke, it reveals the unserious nature of Trump’s basis for the EO.
Assume, arguendo, that the 55% of registered American voters who support the EO think this way:
There are terrorists out there who want to kill Americans. They are all Muslim. Not all Muslims are terrorists, but those people from Muslim countries where the Muslim terrorists come from should clean up their own mess. I’ve got my own problems here to deal with, and their religious war isn’t my problem beyond the fact that some Muslims are terrorists who want to kill Americans.
I don’t want to be killed, have my family killed, or have a bunch of Syrian refugees to deal with who may or may not be terrorists. Frankly, they just don’t matter enough to me to overcome my daily problems. So, a pox on all of them, Keep them all out. Let them sort out their own affairs, and eliminate any risk of terrorism to me and my family. Why? Because they’re not my problem and there is no reason why they should have to be my problem.
Simplistic, xenophobic and outrageously prejudiced against Muslims. But lest we be unduly insensitive toward Americans who are prejudiced, there is a value judgment involved: They value their problems over the problems of others. We all do that, to some extent.
The argument in support of the president’s authority was based on two contentions. First, the plenary power doctrine, that the decision of the President is not subject to judicial review. This was argued to avoid having to justify the simplistic xenophobic value judgment, because it would remove the First Amendment problem, that it was based on religious prejudice.
The argument was criticized because the plenary power doctrine doesn’t go as far as some would have it. It may be broad, although how broad is unclear, but it’s not absolute. A president can’t, for example, proclaim that no Lutherans are allowed to enter our borders because he just can’t stand those damn Lutherans.
Judge Judy is famous for saying, “don’t pee on my leg and tell me it’s raining.” That’s the alternative argument proffered when the plenary power doctrine evoked unpleasant facial expressions at the telephone oral argument. Trump’s position was that there was an immediate and grave threat of terrorism, and that it was his duty, and authority, as president to safeguard America and prevent it. This was the “irreparable harm” that demanded reversal of Judge Robart’s order.
On the one hand, Trump made plain on the campaign trail and after his election that he would ban Muslims from entering until he could make sure they were the “good” Muslims and not the “bad” Muslims. On the other hand, the government could offer no fact to demonstrate the existence of an imminent serious threat to America that required such extreme and extraordinary action as the Executive Order. Trump’s mere say-so was good enough for the electorate, but not for the judges.
He peed on their leg and told them the terrorists were about to destroy America, and if they didn’t reverse the order below, people would die. They knew it was just pee. They used the campaign statements, a problematic evidentiary basis, to counter the baselessness of the allegation that there was a huge imminent threat of terrorists that demanded immediate and extreme action.
Support for Trump’s EO is grounded in support for the general proposition that some in America aren’t willing to suffer any needless risk (which they believe to be a serious risk, even if not exactly imminent or provable as to them) for the sake of Muslims. Bear in mind, we spent a decade after 9/11 vilifying Muslims and stoking fear of terrorism, so this may not be rational but it’s understandable.
The Ninth Circuit was faced with trying to issue a serious opinion, knowing full well that a nation was staring at it, about to leap down its throat if it came out the “wrong” way. This isn’t to suggest that the Court let politics dictate its decision, but that it wanted to dot its “I”s and cross its “T”s as much as possible. Make its ruling bullet proof.
But the courts and law are serious things. The views of the lawprofs cited above are serious views. The arguments of President Trump, however, are not serious. The system was never crafted to deal with an unserious executive, the kind who pees on a judge’s leg and tells them it’s raining.
The irony here is that serious judges are constrained to make a serious decision, to be parsed by serious academics, based upon the unserious decisions of the president, who believes that the power of the executive is so vast that if he says it’s raining, then it’s raining, even as he’s peeing on the court.
This wasn’t the way government was supposed to happen, and the law never developed to accommodate an unserious president. Whereas judges are constrained by law and fact, the president suffers no such limitations and, as long as the policy comports with the base desires of his supporters, can get away with any justification, no matter how baseless, that achieves the goals.
*This is not to make light of the concerns of ordinary people, even if they are simplistic. It is entirely fair for them to be more concerned about the issues that touch their lives than the distant issues of refugees. And it is similarly unfair of those who care more about children in Syria to be dismissive of the concerns of children in Kentucky.
Epilogue: Some would argue that Trump is an evil genius (or at least Bannon, his puppeteer, is) engaged in a deliberate scheme to destroy the judiciary, which stands in the way of his Imperial presidency. I reject this conspiracy theory because there is nothing to show that Trump has the depth of knowledge of government that would allow him to be so Machiavellian. That would be a serious, albeit awful, endeavor. Trump is not that serious. If you disagree, I urge you to start a subreddit to express your beliefs, but not here.
The presumption that the only conceivable reason one could want this ban would be anti-Muslim sentiment, while simultaneously recognizing that these seven countries are not the majority or even a lot of the Muslim-majority countries in the Middle East, is kind of silly and short-sighted. It’s easy to think that that is what President Trump intends, because of his idiot comments during the campaign.
I would only ask you to honestly look at the seven countries named in the EO and ask yourself: could there be any qualities OTHER than its Muslim majority that makes each or any of these countries stand out from the others in the region not included in the EO? Might their governments have, say, a less solid grip on their understanding of their populace or their borders? Is it possible that these countries’ security regimes are, in some manner, less stable or consistent than those of other countries – even than those of countries from which actual terror plots have been launched against us in the past? If we, for the sake of hahas, for a moment, remove avarice and prejudice from our consideration of why the administration might want to highlight these specific countries for any special attention, could we find ANY reason to highlight them not related to “They’re Muslims?”
And then there is a big question: Other than this, have you previously done any serious study of counter-terror policy and procedure in this country, and studied the indictments handed down over the last, say five years, to seek trends? Do you really know where the threats come from, or are you taking your lead from chortling journalists? Because If you haven’t considered this; if you haven’t done any serious STUDY of this issue; if you haven’t read a lot of these actual indictments, and if you’re allowing grinning reporters to provide your contextual understanding of “whence terror,” perhaps the argument isn’t that Trump is smart (I think he isn’t) but maybe it is that he is so offensive that everything he has his name on is immediately rejected for reasons of political correctness before it’s actually considered. It’s just a thought.
I’ve broken up your comment into smaller chunks for readability, because I think you offer some serious points.
Yours would be a sound contention for the general proposition of the ban, but for the surrounding details of how this EO happened. It was absurdly rushed. We survived under Obama, for better or worse, without this travel ban in place, and there is no factual basis that demanded it happen within days of assuming office. If, as you contend (and I don’t challenge your NatSec argument per se) there are sound reasons to take the potential threat from these seven countries seriously, was there a potential threat that was so differentially immediate that it demanded such immediacy? No factual basis has been suggested.
Second, the knowledgeable people in government involved in NatSec were left out of the decision making and implementation.
Third, I agree with you about both the “grinning reporters” and the knee-jerk everything Trump says or does is stupid and wrong, but as much as that provides no reason to rush to oppose his every move, it provides no reason to accept his every move either. As president, each thing he says or does gets scrutinized, just as every president before him. What he says is, almost invariably, problematic. Even if there is an intelligent argument in support of his actions, his statements, ranging from empty and vapid to offensive, create his own problems. Maybe he’s trolling America and is smarter than his words suggest, but we only have his words to work with, and so we scrutinize them. They fare poorly.
And finally, the argument that this was NatSec and not Muslim would have far greater depth had he not included LPRs and visas. Even if he hadn’t included LPRs. There is no rationale for their generic inclusion. The reaction, that White House Counsel, post roll out and after the EO was tainted, clarified LPRs weren’t included undermines the argument that this wasn’t a knee-jerk, simplistic fulfillment of his campaign promise, but a thoughtful and knowledgeable way to address a serious NatSec issue. The shockingly incompetent roll out that included LPRs can’t be reconciled with a thoughtful and legitimate NatSec policy.
Either he was thoughtful and deliberate or he wasn’t. One requires blind faith in Trump’s not being as much of a bonehead as his own words and deeds make him appear. The other is fact based, demonstrated by his words and actions.
In their current state, with the exception of Iran, these are “countries” in name only. Probably better to describe them as conflict zones, that at one point may have resembled a functioning country.
That goes back to the post-WWII creation and subsequent destabilization of the middle east. Mistakes were made, but we have to deal with the situation that exists.
To some extent you’re right, but a case can be made that for 30 years after the war there was some semblance of stability in the region until the rise of Arafat and the ensuing conflicts with Israel as well as the Iran/Iraq war.
The real issue is what does “deal with the situation that exists” mean:
Send more Aid? – we’ve been doing that in spades for a very long time and the region has regressed
Depose the dictators – how exactly do we do this, targeted assassinations (I’ve had Assad in my annual deal-pool bet for the last three years) or troops on the ground. Neither one of these will play well at home or on the world stage
Sponsor a UN resolution – not worth the paper it’s printed on
Force/Shame the handful of stable M.E. countries into a more prominent role in dealing with the situation – Not sure why we aren’t hearing more about his route
Putting aside the fiasco with LPRs, Trump (and his admin…hopefully) appears to be keeping his powder dry with regards to the Middle East.
Africa in general is a whole different story
Do you see how you just took a giant leap further away from this post? No, we don’t put aside the fiasco with LPRs and Trump. That’s what my post is about. That’s what I chose to write about. You don’t get to hijack my post, my blawg, because you’ve connected dots in your head that take you down the rabbit hole. This is not, “well, you wrote about A, but that makes me think of M, which makes me think of T, and T IS THE REAL PROBLEM!!!”
If you can’t manage to stay on my topic, then you can’t comment here anymore.
Nick that was about aswell articulated response to this whole situation as I have read (SHG’s article not with standing). Kudos to your post for making me more aware of the issues and making this hearing less boring.
If Trump had articulated a justification as thoughtful as Nick’s, he might have won.
“that would require that Trump appreciate his limitations and allow the serious people to do their job.”
Do I hear Dunning-Kruger?
sounds more Belichickian to me
I can think of a few psychological explanations, but then, I’m just a lawyer, so what do I know?
That said, I’ve known a great many people who suffer from low self-esteem but have achieved success in some niche of business. They tend to extrapolate that small slice of success into some grander brilliance, that if they made a few million running a dry cleaning establishment, their views as to other things (like law or governance) are better than others who haven’t achieved business success. They conflate correlation with causation, and use inductive reasoning to overcome the imposter syndrome. And you can’t tell them otherwise, because that would be an attack on their self-esteem, which would be intolerable as it would reveal them to be lucky in business and otherwise a fraud.
Life tenure.
Trump can’t do anything to federal Article III judges who oppose him at any level. Time is on their side. The courts can easily obstruct him through an entire term, and maybe a second one (if he even gets it). He doesn’t have enough support to pass a switch-in-time “packing plan.” So there you have it – term limits v. life tenure. This is not a carefully calculated contest, nor one Trump is likely to win.
“Let them enforce it.” He’s got the guys with guns. Whether they will shoot for him is an open question. Then again, some fans might, and the judges life tenure could be brought to an end by a crazy. There are a lot of crazies out there.
Judges can be impeached, of course. No, an adverse (or even obviously wrong) ruling is not grounds for impeachment–but impeachment being a political process, and Washington being as polarized as it is, it’s hard to be confident that it couldn’t happen.
Yes, judges can be impeached, of course. But if Scott will allow me, let’s look at the facts. Only 15 federal judges have ever been impeached by the House. Of those, only 8 have been convicted by the Senate and removed from office. Only one more lofty than a district judge has been impeached. He was acquitted by the Senate.
smh
“courts can easily obstruct him through an entire term”
That may be, but the scary thing will be when he learns to more carefully craft his EOs.
Going on the record as copyrighting
“bad cases may make bad law, but bad Presidents make worse” (c)
It is somewhat worrisome that there is an increasing push toward executive governing. For years the legislative branch has been ceding power to the executive branch. Executive orders are all well and good, but it isn’t the place of the President to be making law, regardless of how one might feel about it. I was not a fan when Obama held the pen nor am I a fan now that Trump has it. The separation of powers is a thing that exists for a reason. Too many people are simply uninterested in why that particular fence was erected in the first place (Chesterton’s Fence if that wasn’t an obvious reference).
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