Because legal decisions are weightier than tweets: Readers have to bear down and reach the middle of Thursday’s 30-page federal appeals court ruling to appreciate the thrashing it delivers to President Donald Trump’s attempt to fight terrorism via executive order on immigration.
The three-judge panel’s repudiation begins with insertion of the word "merely." The ruling notes that Trump administration lawyers did not "merely" argue that the courts owe deference to the president on issues of immigration and national security, they also asserted that the president has "unreviewable authority to suspend the admission of any class of aliens."
LOL, replied the judges of the 9th U.S. Circuit Court of Appeals. Well, no, they didn’t include a Twitter-friendly "laugh out loud." But they were dismissive: "There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy."
And from there, the appellate panel — two Democratic appointees and one Republican – went off on the president. In a unanimous decision, the judges upheld a lower court ruling that put a temporary halt to Trump’s order keeping citizens of seven Muslim-majority nations out of the United States. The judges said the government offered no evidence of an urgent terrorist threat that would justify an immigration ban. Meanwhile, they said, the order didn’t provide due process for those caught in its web. Fighting terrorism is crucial, the judges summed up, but the government needs to do more than "reiterate that fact" to win this case.
The president thundered his reaction Thursday night on Twitter in capital letters: "SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!"
Indeed, Trump can appeal to the U.S. Supreme Court. "We will continue to go through the court process and ultimately, I have no doubt we will win that particular case," he reiterated Friday.
That would be a bad idea, though, and Trump seems to be coming around to that reality. With two courts ruling against him, his visceral response to protecting the country from terrorism is constitutionally on thin ice. His sweeping order was written hastily, implemented chaotically and smacks of targeting adherents of Islam. It’s wrong for America. We could see that the minute we read it.
There were suggestions Friday that the White House is in no hurry to appeal. Trump acknowledged to reporters on Air Force One that he was considering a revised or new order on immigration. Even that likely would be too aggressive.
The president needs to back off. He should rescind his order and start over: Assess the immigration vetting system and border controls to identify potential weaknesses. Then consider next steps.
Citing 9/11, the order would indefinitely block Syrian refugees and bar entry to the U.S. for 90 days for citizens of Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen. Yet the hijackers came from Saudi Arabia and other lands, none of which is on the list. Nor is Taliban-ravaged Afghanistan. Of recent attacks here, none was perpetrated by citizens of the seven countries. An American citizen was responsible for the Orlando attack. A U.S. citizen and a Pakistani staged San Bernardino.
Trump took office vowing to put "America first" and eradicate Islamist terrorism. He translated that pledge into harsh action without taking time to consider the implications or legality. Call it a rookie mistake or a fundamental misreading of American values and law. Either way, the courts played their role as a check on presidential power. They rejected Trump’s sloppy overreach. He should learn from this.
Whatever his path, he should move thoughtfully and transparently, explaining to the public and Congress why it’s appropriate and constitutional. Americans all want their country kept safe. But they won’t accept action at the price of liberty.
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