The following is an opinion piece by a contributing author.
Donald Trump never made any secret about the fact that he wanted to be a different sort of president – and indeed, three weeks into his administration, he has already shaken things up and exceeded expectations, for better or for worse. He is already testing the limits of checks and balances between the branches with his executive order on immigration. It has wound its way up through the court system, when on February 9, 2017, the U.S. Court of Appeals for the 9th Circuit unanimously upheld the suspension on the President’s ban, reminding the court of their power to check the executive branch.
The major issue the court had with the government’s argument that the court had no power to limit the executive authority of the President. The court wrote that any suggestion they could not “runs contrary to the fundamental structure of our constitutional democracy.” The 9th circuit thus has begun flexing the muscles of the judiciary in advance of potentially even more legal battles associated with executive orders from Mr. Trump. Importantly, the court has not yet touched the merits of the ban – that is, whether it is in violation of the Establishment Clause. The Establishment Clause prevents any part of the government from favoring, or disfavoring, one particular religion over the other. The court did not reach the merits of the argument of whether the ban was meant to disfavor Muslims, but they did consider in the oral argument that Mr. Trump had declared a Muslim ban in his campaign speeches, as well as his intentions to favor Christians. The court also questioned the need for a ban, finding that the government had not pointed to any strong evidence to support the need for such a ban, instead simply saying that the court had no right to request any such evidence in the first place.
So, what does this mean? Well, it’s an interim ruling, despite it being a 29-page opinion. The court was deciding whether the government had made a strong showing of likely success in lifting the suspension on the ban. The three judges decided they had not. However, the government could request for the entire panel to hear arguments, before appealing to the Supreme Court. This would be a shrewd move, given that the Supreme Court is still one judge down – so there could very well be a 4-4 split, which would leave the injunction on the ban in place. Executive orders are powerful tools, and the executive branch has a lot of power when it comes to immigration control. The law allows the president to bar entry if he finds that the entry of aliens would be detrimental to the country. It remains to be seen if his power extends to the lengths of the executive order as written and implemented.
The most fascinating part of this all is that Trump himself, via Twitter and social media, has blasted the court and its judgment like no other President has. Shortly after the decision from the 9th circuit was released, Mr. Trump got on his personal Twitter account and posted “SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!”, indicating perhaps an unfamiliarity with how the actual appellate process works. There is no testimony or calling of witnesses before the Supreme Court; indeed, the lower court’s judges do not actually appear to defend their ruling. The appointment of a new Attorney General, revamping of the Justice Department, tweets, a partial Supreme Court, and appellate court rulings all within the first month of a new Presidency can lead to only one logical conclusion: this administration will be nothing like anything that has come before it.