The Supreme Court will have the final word, but for now, the Ninth Circuit Court of Appeals has issued the country’s most resounding rejection of Trumpism (PDF).
This is not because the court affirmed the temporary injunction against Donald Trump’s travel ban. It is not because travel continues as normal, pending the litigation over the ban’s constitutionality. Rather, the significance of the court’s opinion is in its careful, measured reaffirmation of the rule of law, in the face of an administration that has challenged it at every turn.
There are four major holdings in the order, all about the rule of law taking precedence over executive fiat.
First, Trump had denied that the judiciary can review his discretion at all, when it comes to national security. On Twitter, he called the judge who first put a hold on the ban a “so-called judge.”
The Ninth Circuit utterly rejected that argument, saying that “although courts owe considerable deference to the President’s policy determinations with respect to immigration and national security, it is beyond question that the federal judiciary retains the authority to adjudicate constitutional challenges to executive action.”
The president’s views on national security, in other words, do not trump the Constitution—or the courts’ power to interpret it. No one is above the law.
Second, the Trump administration denied that it had to produce any evidence to support its claim that the seven-nation ban was essential for national security. It is so because we say so, they argued.
The court slapped down that argument. “Despite the district court’s and our own repeated invitations to explain the urgent need for the Executive Order to be placed immediately into effect, the Government submitted no evidence to rebut the States’ argument that the district court’s order merely returned the nation temporarily to the position it has occupied for many previous years. The Government has pointed to no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States. Rather than present evidence to explain the need for the Executive Order, the Government has taken the position that we must not review its decision at all. We disagree.”
That is a searing indictment of the unprecedented, rushed way in which the executive order was put together. Just like Trump’s baseless claims of voter fraud, his false claims of seeing Muslim Americans rejoice on 9/11, his spokesman’s alternative facts regarding inauguration attendance, and his false statements about crime in America—among many, many other such claims—there was no evidence offered to support the position that were the travel ban to be lifted, disaster would result. It would because we say so, they argued.
Wrong, said the court. Unsubstantiated claims may fly on Fox News, but not in a court of law. And with the government not only providing no evidence, but arguing that it didn’t need to, the court dismissed its baseless warnings of imminent doom.
Third, the Trump administration argued that aliens have no rights. No one has any right to travel to the United States, after all, so suspending some people’s ability to do so is not an infringement on any rights. In the court’s words, “the Government argues that most or all of the individuals affected by the Executive Order have no rights under the Due Process Clause.”
Wrong again, said the court. In fact, the Fifth Amendment, which requires the government to provide due process before depriving people of their life, liberty, or property, applies to everyone, including undocumented persons—not to mention green card holders, who were part of the initial order.
Believe it or not, “illegals” have rights too.
Finally, the Trump administration denied that the state of Washington had standing to bring this challenge in the first place.
The court rejected that argument too, noting that Washington’s universities, among other departments, have already suffered from the ban. The result is a neat inversion of federalism: this time, it’s liberal states using federalism against a conservative government. That’s the exact opposite of Texas’s wave of litigation (some initiated by EPA director-designate Scott Pruitt) against the Obama administration over immigration, environmental rules, and Obamacare.
Now, for a change, the shoe is on the other foot.
Interestingly, the only place where the court did not rule against the government was on the question of religious discrimination. There, the court held, “In light of the sensitive interests involved, the pace of the current emergency proceedings, and our conclusion that the Government has not met its burden of showing likelihood of success on appeal on its arguments with respect to the due process claim, we reserve consideration of these claims.”
That is an admirable act of judicial conservatism, which is also a response to Trump’s overbroad order. We’re not saying more than we have to; we’re not making any grand pronouncements. We’re not getting involved in politics.
But perhaps the court order’s most dramatic rejection of Trumpism is its tone.
The order is not fiery; it has none of the rhetorical flourishes of, say, the late Justice Scalia. Nor, for that matter, does it have the lofty language of liberty that Justice Kennedy used in his same-sex marriage opinion, which at times read like a manifesto. Appropriately for the serious matter at hand, it is measured, moderate, and mild.
And that, itself, is a powerful rejoinder to a president who every day finds new lows of mudslinging rhetoric. In a system of laws, power derives not from bluster, nor from bullying, but from the rule of law and the constitution. The court doesn’t need to couch its order in braggadocio or insult. It relies on reason instead: calm legal reasoning, calm legal rhetoric.
Indeed, the very reasonableness of the court’s opinion—which, no doubt, President Trump will immediately assail as stupid, political, dangerous, or “sad”—should cheer the heart of everyone, liberal and conservative alike, who has been understandably shaken in recent weeks.
Reading the court order, one is reminded that we are not living in some fascist dystopia. The rule of law has not gone away. The separation of powers still works, with the courts as guardians of civil rights and civil liberties. Indeed, even federalism—which liberals have assailed in recent months, in their attacks on the electoral college and the Senate—now provides a check on executive power. As, for conservatives, it did in the Obama era as well.
On the surface, the Ninth Circuit affirmed the district court’s injunction. But more importantly, it has affirmed the rule of law itself.