The decision by the federal appeals panel of the 9th circuit to uphold James Robart’s decision that President Trump’s Muslim ban is unconstitutional was another piece of good news for the resistance. It is a welcome development that the people who make up the judiciary, unlike the Republican leadership in Congress, appear to be committed to their role in maintaining checks and balances. It is also significant that the President did not respond to the court’s decision with an attack on the three judges, as he did when Robarts initially deemed the ban unconstitutional. Instead, he promised to challenge their decision, presumably at the Supreme Court.
Despite this, it is apparent that President Trump is neither daunted by this decision or a sudden convert to the notions of judicial independence or institutional checks and balances. Moreover, the specter of a Jeff Sessions led Department of Justice and a Supreme Court that will almost certainly very soon go back to having a conservative majority should make us understand that the federal judiciary is not going to remain a bulwark, and certainly not a consistent one, against presidential overreach, or in less polite but more accurate terms, Bannonite authoritarian aspirations.
There are some details of the case that provide insight into the dysfunctions of the current administration, as well as the political strategies of President Trump. First, several legal analysts have argued that advocates for the ban lost the case largely because they used a poor legal argument. Rather than focus on the details of the case itself and whether or not the ban was genuinely discriminatory or too excessive, they chose to argue that the judiciary has no right to rule that an executive order is unconstitutional. This is an argument that would be disappointing if made in a middle school mock trial about presidential power, but was appalling coming from lawyers representing the President.
Questioning the right of the judiciary to review an executive order may have been an extremely poor legal strategy, but it reveals the contempt with which the President, and many of his senior aides, view the judiciary. It is not clear whether the decision to use such a flimsy argument was discussed with the White House or that the Justice Department lawyers who argued the case did it on their own, but either way it suggests that the White House was either not engaged or not concerned about this process.
It is also not likely to happen again. As the new Attorney General takes office, the Justice Department will likely become more able to marshall legal arguments in support of Bannonite democratic rollback. The new Attorney General may be snowflake who is too sensitive to suffer through a frank discussion of his record on racial issues, but unlike many others in the administration, he has landed in a job for which he is well prepared. Rex Tillerson may have no government experience; Betsy DeVos may have never taught a class, administered a school or run a school system; and Ben Carson may be a doctor and author with no experience in government or housing policy, but Jeff Sessions was attorney general of the state of Alabama for two years and a US Attorney in Alabama’s Southern District for 12 years before being elected to the US Senate. Sessions is one of the few people in the administration who is both a true Trump believer and qualified for the position he now holds-and that is not good news for the resistance. The next time Justice Department lawyers have to argue a case supporting an important Trump policy, they will get all the resources they need and will not be permitted to present the judges, at any level, with a half-baked argument.
We are now at a place politically where if the President goes a few days following a legal decision without sending an abusive Tweet, we see it as a victory for democracy, but we should be a little cautious here as well. The White House has suggested there will be another executive order that will reflect the court’s decision. While this order is being crafted, Trump will continue to rally his base, the 35 or so percent of the population that matter for Trump’s short term political future, by saying that if the courts continue to rule against him, it is proof of the liberal conspiracy against him and, implicitly, for the terrorists.
When that order is challenged, as it inevitably will be, the judges will be caught between the rock of opposing the order and very likely unleashing the wrath of Trump’s Twitter, and possibly worse from his supporters, or the hard place of supporting the order and giving the President, who thinks more in terms of power than law, the impression that the judiciary is caving in to him.
In this political climate it is important to recognize the good news for democracy, and last week the courts gave us some, but we cannot let that good news lull us into thinking that the administration is going to change. Trump ran on the promise of limiting democracy, began trying to do that during the transition period, has continued during his first weeks in office and is not going to change because of one, or even ten, legal decisions that do not go his way.
Photo: CC/ Matt Wade