Slapped down by U.S. District Court Judge James Robart in Seattle Feb. 3, 70-year-old President Donald Trump hopes to reinstate his Jan. 27 travel ban extending to seven Mideast and North African countries. Promising during the campaign to stop refugees from entering the U.S. without “extreme vetting,” Trump claimed his ban was not about Muslims, only protecting American citizens from possible terrorist attacks. Citing the June 12, 2016 Orlando, Fl. Pulse Nightclub terrorist massacre and the Dec. 2, 2015 San Bernardino, Calif. terrorist slaughter, Trump warns of growing prospects of terrorism to justify his 120-day travel ban. Getting injunctive relief in federal court, the state of Washington and Minnesota convinced Judge Robart to stay Trump’s immigration order from Syria. Yemen, Somalia, Sudan, Iraq, Iran and Libya, all countries with active terrorist insurgencies.
Robart’s stay agreed with state attorneys general that Trump’s ban harmed Washington State and Minnesota, depriving both states of necessary refugees to fill needed employment demands. While that’s a stretch, Robart said Trump’s Justice Department did not meet the burden-of-proof demonstrating immigrants a clear-and-present danger to U.S. citizens. “We’ll win. For the safety of our country, we’ll win,” Trump told reporters at his Mar-a-Lago resort in Palm Beach, Fl. Trump hopes to get Robart’s stay reversed in the liberal U.S. Ninth Court of Appeals in San Francisco. Robart ruled that the Justice Department did not meets its burden of proof, claiming Mideast and North African refugees present a clear-and-present danger to U.S. citizens. Robart disagreed, asking the Justice Department to show proof that Mideast and North immigrants were part of terror groups.
Trump’s executive order banning travel from seven Mideast and North African countries mentioned the Sept. 11 terror attacks on the World Trade Center and Pentagon, killing nearly 3,000 U.S. citizens. “The opinion of this so-called judge, which essentially takes law enforcement away from our country, is ridiculous and will be overturned,” Trump said, ignoring the substantive legal issues related to the U.S. Constitution. Trump tweeted he wants “extreme vetting,” something he promised during the campaign. When he had former New York Mayor Rudy Giuliani help draft the executive order travel ban, Trump forgot Rudy hadn’t been U.S. Attorney for New York’s Southern District since Jan. 1, 1989. Rudy’s rust showed itself with Judge Robart when he didn’t buy that Mideast and North African refugees were a clear-and-present danger to commit terrorist acts in the U.S.
Filing an appeal with the 9th Circuit Court of Appeals in San Francisco today, the Justice Department hoped to get Judge Robart’s ruling overturned. Unlike the Justice Department that didn’t meet its burden-of-proof in Robart’s courtroom, it’s doubtful that the same facts will be any different in the 9th Circuit Court. Citing an obsolete 1962 law that gives the president the discretion to block entry of groups deemed undesirable to the U.S., Trump’s argument doesn’t meet the minimum threshold. No federal judge would be willing to suspend habeas corpus or defer Constitutional rights without a compelling reason. Citing Orlando, San Bernardino, Boston Marathon, Fort Hood or any other terrorist incident isn’t enough for the 9th Circuit to reverse Robart’s ruling. Trump’s Justice Department can’t rehash campaign talking points in federal court, they have to show compelling legal arguments.
Trump paints Robart’s stay as inappropriate judicial activism, usurping the commander-in-chief’s authority to implement U.S. national security. Trump officials accused Robert of interfering with presidential decision-making. No presidential decision-making can run afoul with the Constitution without consequences like Robart’s stay. When a three-judge panel meets on the 9th Circuit Court, they’re going to have to see more than campaign rhetoric to suspend Constitutional rights. Telling the court that it usurped Trump’s Constitutional duty won’t play well without offering coherent legal arguments. “It’s hard for the president to demand that courts respect his inherent authority when he’s disrespecting the inherent authority of the judiciary. That certainly tends to poison the well of litigation,” said Georgetown University law professor Jonathan Turley.
Facing the 9th Circuit Trump of Appeals, Trump’s arguments about Sept. 11 or other domestic terrorist attacks don’t hold enough water to reverse Judge Robat’s ruling. If Trump gets slapped down in the 9th Circuit, he’ll have little legal recourse until his Supreme Court nominee Neil Gorsuch gets Senate confirmation. “I think the American people are very accustomed to this president speaking his mind and seaking very straight to them,” said Vice President Mike Pence giving no reason why the Circuit Court would rule differently. Without some sound logical legal case, it’s doubtful the Circuit Court would reverse the district court ruling. U.S. citizens and foreigners opposed to Trump’s travel ban must take satisfaction in knowing how the U.S. rule of law prevails over arbitrary-and-capricious authority. Trump can’t argue before the law with old campaign talking points.
