Yesterday Friday 10th February 2017 I wrote a brief analysis of the Judgment of the appeal court of the 9th circuit in the case involving US President Trump’s ‘travel ban’ Executive Order.
In that analysis I pointed out that the problems the appeal court appeared to have identified with the Executive Order seemed to concern issues of procedure and due process, which it would be comparatively easy for the President and his advisers to put right. I also said that in the light of this Judgment I thought a petition to the Supreme Court of the United States was less likely since it seemed that the President could what he wanted without it.
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.
Just a few hours after I wrote those things the President himself speaking to journalists in Airforce One confirmed that the administration is indeed taking the route I predicted: it is unlikely to petition the Supreme Court but is instead working to correct the problems the courts have identified. Contrary to what I thought might be the case, it seems that the President’s lawyers have advised him that the Executive Order should be rewritten and reissued, and an announcement to that effect is expected early next week.
There is nothing at all unusual in any of this. In public law cases in Britain and it seems also in the US it is common in Judicial Reviews of executive acts for the courts to suspend their operation and to suggest changes in order to bring them into better conformity with the law. That is all that has happened in this case.
It would have been a very different matter if the appeal court of the 9th circuit had intimated that the whole Executive Order was illegal, either because it contradicted existing statute or because the President had acted unconstitutionally or beyond his powers. However that is not what the appeal court of the 9th circuit said.
The whole media reporting of this affair from start to finish has been appalling, reflecting the extreme media bias against Donald Trump. The only mainstream newspaper which I have read which seems to be reporting this case properly is the Financial Times, as for example in this article here.
Instead, in place of a measured discussion of what from the perspective of England looks like a fairly commonplace public law case, there is nonsense about some epic battle between the Trump administration and the judiciary, with the President accused – absurdly – of questioning the independence of the judiciary and seeking to set himself up as a dictator.
None of this is to be taken to mean that the ‘travel ban’ Executive Order is a good or proper measure. If one puts aside claims about it being unconstitutional or discriminatory, it is possible to see far more valid criticisms that might be made of it. It seems that travellers to the US from the countries affected by the ban already go through stringent checks before they can enter the US. I cannot help but wonder if when the reviews ordered by the President are done, it will be found that there is no practical way to make these checks any more stringent than they already are, so that the US ends up with a border control regime that is essentially the same as the one it had previously. In the meantime much unnecessary hurt and hardship will have been caused.
That argument however is being lost because under the ocean of false claims that the Executive Order is unconstitutional and discriminatory it is barely being made. The result is that at the end of the process the President will get what he wants, with travellers to the US from the seven countries affected still suffering from a ‘travel ban’ that looks too much like political posturing.
The cruel truth however is that no-one in the US political system is really interested in these people. What the President’s neoliberal opponents who criticise the Executive Order are really interested in is not helping the travellers to the US from the seven countries affected. It is doing as much political damage as they can to President Trump. The travellers from the seven countries affected are simply the people caught in the middle.