By Barrington M. Salmon
(TriceEdneyWire.com) – Barely two weeks into his presidency, Donald Trump signed a travel ban targeting Muslims in seven countries effectively blocking citizens, visitors, students, professionals, refugees and even those who worked with the US military in Iraq from entering the United States.
On Feb. 8, that ban was blocked by a three-judge panel of the Ninth Circuit Court of Appeals. It is a ruling that the Trump Administration could appeal to the U. S. Supreme Court or the executive order could be re-written as an attempt to meet legal and constitutional muster.
Before the court ruling, the order denied entry to anyone from Iran, Iraq, Sudan, Syria, Libya, Somalia, and Yemen for 90 days. Trump’s action drew widespread condemnation and fierce opposition from civil rights and immigrant groups, national security experts and analysts and others deeply angered by the discriminatory nature of the ban and their concerns about the ethical and constitutional implications of the executive order. At the same time, Americans spooked by Trump’s constant assertions of an impending terror attack by praised the executive order and are pushing for stricter controls.
Black leaders, including National Urban League President Marc Morial, say the ban opposes American values.
“With the easy stroke of a pen, and a messy rollout, President Trump summarily stopped an entire class of people from entering the country, throwing airports into chaos and confusion, sparking spontaneous protests, delaying or halting family reunions and disrupting the lives of lawful immigrants both within and outside our nation’s borders,” wrote Morial in a statement.
While the executive order fulfilled an oft-repeated campaign promise, administration officials and pundit acknowledged that the hurried nature of the rollout of the order and the decision by the president not to consult with affected agencies or members of Congress created unforeseen problems. This included confusion among those responsible for enforcing the order and chaos at airports as Customs and Immigrations officials detained men, women and children, put others on airplanes back to their points of origin and revoked travelers’ visas.
The ruling of the three-member panel of judges from the US Court of Appeals, based in San Francisco, brought a semblance of calm and order by refusing to lift the emergency stay that a Seattle judge had earlier imposed.
During oral arguments, the federal judges were unconvinced of the administration’s argument, citing among other issues, “the government’s shifting interpretations of the Executive Order and assertions of the president’s broad authority superseding that of the judiciary,” the three-judge panel wrote in the 29-page ruling. “The government has pointed to no evidence that any alien from any of the countries named in the order has perpetrated a terror attack in the United States. (And) 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.”
The panel’s ruling continued, “National defense cannot be deemed an end in itself, justifying any exercise of legislative power designed to promote such a goal. It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties … which make the defense of the Nation worthwhile.”
Other critics of the travel moratorium – some of whom described it as “Un-American, counterproductive and possibly illegal – hailed the victory. Nihad Awad, national executive director of the Washington, DC-based Council on American-Islamic Relations, while praising the ruling, warned opponents of the measure not to get complacent.
“We applaud this ruling as a reaffirmation of the strength and independence of our system of justice,” he said in a statement. “The decision adds to a long list of federal judges – both Republican and Democratic appointees – who found reason to block this discriminatory order. While this decision is critical, it is not the end of the legal process. Other courts across the country will be passing judgement on the order, and the US Supreme Court will likely weigh in at some point.”
Hillary Clinton, who Trump bested to become president, posted a Twitter message saying simply, “3-0”.
Prior to the ruling, Trump railed against judges in general and decried the politics he said suffuses the judicial system. He also blamed any judges who might rule against him as being responsible if there’s a terror attack against the United States.
“SEE YOU IN COURT. THE SECURITY OF OUR NATION IS AT STAKE,” he tweeted immediately after the verdict.
And to reporters at the White House Trump said: “It’s a political decision. We’re going to see them in court. It’s a very, very serious situation, so we look forward, as I just said, to seeing them in court. It’s a decision we’ll win, in my opinion, very easily.”
Justice Department officials said in a statement that they were reviewing the decision and contemplating options. The case could be headed to the US Supreme Court which is short one justice. With the 4-4 liberal-conservative split on the High Court, it’s quite possible that the 9th Circuit ruling would reaffirm the lower court ruling. Perhaps this reality led administration officials to say that they would eschew going to the Supreme Court and pursue redress in federal courts.
This legal saga portends what could be the first of any number of legal challenges to Trump’s controversial policies and pushback against his view that the executive has primacy over the judiciary despite constitutional checks and balances.
The swift and furious public response to the travel ban caught authorities and activists observers by surprise.
“The spontaneous support has been amazing. We called for a rally in Boston and 20,000 people came out. Normally, it’s like pulling teeth,” said Ibrahim Hooper, national communications director for the Washington, DC-based Council for Islamic-American Relations. “I’m not surprised at all that this has happened. He’s been telegraphing his intention to impose a complete ban since last year. We’d been expecting, anticipating some type of ban. This has had a tremendous impact on travelers, visiting grandmothers, students, and people coming and going home. It’s been a nightmare.”