For pithy commentary on the federal appeals court's decision to block President Trump's controversial anti-Muslim travel ban, the prize goes to David Cole, national legal director of the American Civil Liberties Union: "So much for your so-called executive order," Cole tweeted hours after the ruling.
Cole was alluding sarcastically to Trump's reaction to the initial judicial setback for the executive order that he issued on Jan. 27 ostensibly to block potential Islamic terrorists from entering the United States. In one of his signature tweets, Trump belittled the temporary restraining order issued a week later by U.S. District Court Judge James Robart by calling Robart "the so-called judge."
Robart, appointed to the U.S. district court in Seattle by President George W. Bush, is a life-tenured federal judge, while Trump has only a four-year lease on the presidency. The three federal appeals court judges who rejected the government's attempt to salvage Trump's executive order also have life tenure: a safeguard for their independence even in the face of verbal abuse from the White House such as Trump's description of their ruling as "disgraceful."
The three-judge panel heard oral arguments by telephone on Monday [Feb. 7] sitting in chambers in three different cities with the opposing lawyers themselves arguing from remote locations: Olympia for the solicitor general representing the state of Washington and Washington, D.C., for the Justice Department attorney representing the government. In a milestone for access to federal court proceedings, more than 170,000 people are said to have viewed or listened to the livestreamed audio of the hour-long proceeding.
In oral arguments, all three judges peppered both lawyers with probing questions. The two Democratic-appointed judges Michelle Friedland, an Obama appointee, and William Canby, a senior judge named by President Jimmy Carter seemed likely to rule on the side of the two states, Washington and Minnesota, challenging the order. Their Republican-appointed colleague Richard Clifton, named to the bench by Bush43 in 2001, seemed somewhat more supportive of the administration's arguments.
In the end, however, Clifton joined the unsigned 29-page opinion issued two days later [Feb. 9] that point by point rejected the government's arguments in favor of reinstating all of the executive order's provisions on hold since Robart's ruling. The ruling was aptly described by the New York Times's Supreme Court correspondent Adam Liptak as "a sweeping rebuke" of the administration's efforts to insulate the executive order from judicial review and to depict it as necessary for national security.
The government argued the states had no legal standing to bring their suit at all. The states strained a bit to show legally cognizable injuries, but at minimum the panel agreed that they have proprietary interests in their public universities' ability to receive and attract foreign scholars from the seven majority-Muslim countries included in the travel ban.
The panel was not at all tentative in rejecting the administration's position that the president's nationals security decisions are "unreviewable" even if they violate constitutional rights. That position, the court stated, "runs contrary to the fundamental structure of our constitutional democracy."
In any event, the court said that the administration had failed to show that the executive order was needed or even useful at all for national security purposes. Echoing a point emphasized not just in the court proceeding but in the wider public debate, the court noted that the administration had shown "no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States."
All of those points were sufficient for the court to greenlight the states' due process challenge for further proceedings before Judge Robart. Trump and White House aides argued that the appeals court panel had not ruled on the merits, but in upholding the temporary restraining order the appeals court seconded Robart's finding that the government had failed to show "likelihood of success" on the merits.
Even with the appellate judges deliberating, Trump tweeted that they were risking national security and that he would lay any terrorist attack on the courts' doorstep. Trump's verbal abuse of federal judges goes back to the presidential campaign when he criticized the ethnic heritage of the federal judge presiding over the suit against his so-called Trump University.
Trump's attacks are now a side issue in the coming confirmation fight over his Supreme Court nominee, federal appellate judge Neil Gorsuch. In private meetings with at least two senators, Democrat Richard Blumenthal of Connecticut and Republican Ben Sasse of Nebraska, Gorsuch said he found attacks on federal judges to be "disheartening" and "demoralizing." Trump accused Blumenthal of lying about the supposed exchange. But Gorsuch's confirmation handler, former New Hampshire senator Kelly Ayotte, confirmed the essence of the exchange even while trying to walk it back. Ayotte said Gorsuch was referring to attacks on federal judges in general, but Blumenthal countered that he had asked specifically about Trump's remarks.
As to the so-called executive order, Trump may or may not be be going back to square one, in unTrumpian fashion. Facing a likely 4-4 loss at the Supreme Court, Trump told reporters aboard Air Force One on Friday that he might issue a "brand new order." At one point, sources were quoted as waving off an immediate appeal, but later the White House appeared to signal an intention to appeal. The confusion in airports when the executive order was briefly in effect now appears to have spread to 1600 Pennsylvania Avenue itself.