On Thursday, the 9th Circuit Court of Appeals ruled against Mr. Trump and the Government’s request to lift the travel ban stay, pending an appeal. In upholding the lower court’s decision, which ended the ban, the federal appeals court gave an elementary school civics lesson to the President and the Department of Justice lawyers arguing the case.
The Department of Justice lawyers argued that the judiciary branch of the government had no authority to end the executive order. It argued as if the President has full authority over the courts, our judicial branch of government. The appellate court made it clear that there was no precedent for that part of the Government’s argument–ever, even if based on national security. The appeals court gave Mr. Trump a nice civics lesson. There are three branches of government under the U. S. Constitution—executive, judiciary and legislative. No one branch of government is superior to the other. For Mr. Trump to misunderstand the checks and balances of democracy is appalling.
The court further found there was no evidence or facts that even supported the Government’s claim of a security need based on terrorism—or bad things happening as Mr. Trump asserts. The Trump lawyers failed to provide any evidence or facts that would support the alleged need for the travel ban to the seven countries of primarily Muslim background. The Government failed to show any of the seven countries were involved in any terrorist attacks on the U. S. There was no irreparable harm shown to exist if the travel ban were lifted. The law, as Mr. Trump found today, is based on evidence and facts. It’s not what you say or tweet out to the public. It’s what you can prove in a court of law. The Government was all talk but no substance.
The State of Washington, on the other hand, through hard evidence and facts showed the harm committed by the travel ban as it affected its public universities, including faculty and students, research abroad, reducing its tax base and restricting travel to and from the U.S., leaving persons stranded without any recourse.
And the other civics or constitutional law lesson given to Mr. Trump is that any taking of life, liberty and property must be afforded due process under the U.S. Constitution. This means the government cannot take away rights unilaterally without due process, a hearing, means for redress and an appeal process. The travel ban went into effect immediately—depriving persons of the right to travel from those seven countries to the U.S. without affording them any rights of due process to redress it. The right to due process applies regardless of whether the persons affected are citizens or non-citizens. While some of Mr. Trump’s supporters may complain, they too should read the U.S. Constitution.
The 9th Circuit decided the sole issue of whether to lift the stay and place the travel ban back in effect pending the appeal. In making its decision, it stated the Trump administration was not likely to win the issue on appeal. The three judges on the panel that decided the case were appointed by Presidents Carter, Bush and Obama.
For now, the travel restrictions against the seven countries remain lifted. According to the President’s early evening tweet following the latest court action, Mr. Trump spoke to his base with bald allegations and no substance to back up his national security needs as the reason for the ban. It would do the President good if he were to pick up a copy and read the entire U.S. constitution—thereby saving taxpayers’ money on frivolous appeals and other legal actions. In the words of singer James Brown, he needs to stop “talking loud and saying nothing.”
To read the entire court opinion, click here
Washington, DC based Debbie Hines is a lawyer, legal analyst and member of the Supreme Court.