A few things stood out for me with the appellate court decision on the Trump Muslim ban. The first is the most obvious, that it was a 3-0 decision, with even the Republican Bush-appointee Richard Clifton voting with the two Democrats. Unanimity here is exceedingly important with such a noteworthy and potentially-divisive issue as this.
[Slight digression: Last night I was with a friend who had also gone to New Trier High School, though he was a year ahead of me. He mentioned that not only had the aforementioned Richard Clifton gone to New Trier, as well -- and not only had he been there with both of us -- my friend had been on the debate team with him! He said Clifton was a good guy, and my friend had been surprised to learn he was a Bush appointee. We now return you to our regularly-scheduled article...] More to the point though than just 3-0 was how emphatic the court was in why they voted 3-0. Some cases can be unanimous, but hinge on minor issues of law. This however was not only blunt, but almost scathing in its reasoning, on point after point. That's critical since it speaks to the burden the administration has to get over this hurdle when they try to argue why the temporary restraining order should be lifted. And third, what was especially so notable is how basic and easily understood to even schoolchildren many of the court's reasons were for upholding the Washington State ruling. Things like: when the administration argued that the court's ruling was wrong because there were classified issues the court couldn't possibly know -- to which the appellate judges wrote that it's long-established that federal courts get classified material all the time, so if there was anything actually classified that was valid to the case, it would have been presented. Or when the administration argued that the judges should ignore one part of the initial ruling because the president's lawyer had since said the administration wasn't going to enforce it, so it was therefore moot -- and the judges wrote in response that this was an Executive Order from the president, and his lawyer is not the president and therefore what a lawyer says will be done is totally meaningless, since only the president can countermand his own Executive Order.. Because Trump has grandiosely tweeted "SEE YOU IN COURT" in response to the unanimous decision, it the seems likely the administration will try to argue again for the ban, rather than rewrite a new, fixed order. The big challenge is that if they re-argue it in Washington State, they'll be dealing with the same judge and an appellate ruling that was unanimous and emphatic. But if they take it directly to the Supreme Court...that court still only has eight Justices and is still split with four liberals and four conservatives. So, at best, a draw seems probable, and that keeps the earlier court decision in place. Given how unambiguous the courts have been so far -- and now unanimous -- it might be difficult for the administration to even get those four (which, again, wouldn't even be enough to overturn the decision), and end up being an even bigger embarrassment. Trump has said that national security is at stake. And he's right -- it's important to block an empty, power-hungry, despot, and the courts thus far are upholding the Constitution and Separation of Powers. Moreover, the Executive Order itself is what puts national security at risk, on a lot of levels -- it shreds the Constitution and gives significant ammunition to terrorists for recruiting by showing an America at war with Muslims. So, it's wonderful thus far to see the courts protecting national security. And doing so by 3-0 across political lines is an especially good step.
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AuthorRobert J. Elisberg is a political commentator, screenwriter, novelist, tech writer and also some other things that I just tend to keep forgetting. Feedspot Badge of Honor
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