Whilst the decision of the appeal court of the 9th Circuit went against President Trump yesterday by refusing to reinstate immediately his ‘travel ban’ Executive Order, its Judgment strongly suggests to me that he will eventually get it reinstated.
I am not an expert on US constitutional or public law. The standard of legal argument – both on the part of the Department of Justice’s lawyers and on the part of the lawyers of the states of Washington and Minnesota – appeared however to me to be very high, and the Judgment the appeal court handed down looked to me clear and well thought out.
The Department of Justice made certain arguments – that the President’s decision is not subject to review and that the plaintiffs have no legal standing to bring the case – that governments always seem to make in cases of this sort, even though they are bad and invariably fail. However the decision did not ultimately turn on these questions.
Importantly the Judgment does not seem to call into question the President’s power to make the Executive Order (he clearly does have that power). Nor did it find that the Executive Order is discriminatory. The Judgment leaves this key question open, but does so in a way that to me strongly suggests skepticism. Rather the Judgment highlights what seem to me perfectly valid concerns about procedure and due process.
That the initial enforcement of the Executive Order was chaotic is indisputable. I have previously suggested that the reasons for this were confusion within the relevant departments at an early stage in the administration, and possibly a lack of guidance from the Department of Justice whilst it was being led by Sally Yates.
The appeal court’s Judgment almost reads like a lesson to the administration in what it needs to do in order to put these problems right, and over the next few weeks the administration will surely be working hard to ensure that they are put right.
I do not know whether this will require changes to the Executive Order itself (I doubt it) or (more likely) written guidance from the relevant departments and perhaps from the President himself as to how the Executive Order should be administered. Nonetheless, however it is done, done I am sure it will be.
Once the courts are satisfied that the problems of procedure and due process have been set right – a process that will probably take no more than a few weeks – it will be possible for the Executive Order to be put into effect again. I should say that the problems of procedure and due process which the appeal court has identified do not compromise the effectiveness of the Executive Order, or prevent it from doing the things the President says he wants it to do.
In light of all this I think it is less likely the case will end up in the Supreme Court. The President’s lawyers have not so far petitioned to take the case to the Supreme Court – as they are entitled to do – and I suspect they are advising the President that there is no need for him to do so.
This case reminds me more than a little of the recent ‘Brexit case’ in Britain. The Judgments of the High Court and the Supreme Court against the British government in that case led to inordinate expectations on the part of the opponents of Brexit that they would somehow prevent Brexit from taking place. In the event though the Judgments are of high importance for constitutional lawyers, their political effect has been minimal.
I expect the same to be true of the ‘travel ban’ Executive Order case.