Americans by the tens of thousands — and perhaps hundreds of thousands — tuned in Tuesday to a dense one hour and eight minutes of legal and policy arguments about President Trump's executive order on immigration. The grainy audio served as a civics lesson for the digital age.
On Thursday evening, the 9th Circuit Court of Appeals gave America's 45th president a civics lessons of his own, ruling 3-0 to uphold the suspension of Trump's unilateral order that tried to keep refugees and travelers from seven Muslim-majority countries from entering the United States. Our president's response: raging in all-caps on Twitter.
Here are some key lessons and implications:
1. The decision was unanimous. One of the judges were appointed by a Republican, and two appointed by Democrats. There is no substantive argument to make that their ruling was small-p political.
2. The ruling was, however, large-P Political — a stinging slap-down of President Trump's efforts to influence or intimidate the judiciary — as much as it was a direct rejection of his assertion that the executive branch has virtually untrammeled authority to control who and how people get into the country.
3. The text of the decision includes citations from Trump advisers. This means, in essence, that everything Trump's advisers say about how policy gets made in the Trump administration is fair game for scrutiny.
4. The text of the decision includes Trump's own words about a Muslim ban. This means that everything Trump had said or will say about this policies is fair game for scrutiny.
5. The court looked at the merits of the argument, which means that, according to legal commentators, they wrote their opinion with an eye toward the Supreme Court, which seems like the ultimate destination for this fight.
6. The court did not cite public opinion, nor did it reference the massive protests against Trump's order. (They did mention the confusion at airports.) This suggests that they did not want to create the impression that they bent to the public outcry.
7. The decision will still fortify the Trump resistance, especially the activist groups who are organizing their entire business models around his policy decisions. I've already seen several memes online suggesting that the popular uprising worked, and that it should continue. Whether or not the demonstrations actually influenced the judges, the resistance movement will assume that, at the very least, their protests did not hurt the cause.
8. The Justice Department asked the court to lift the stay because it was "overbroad," but also (and primarily) because they believe the president has an inherent, broad power to determine what constitutes a national security threat. The scope of such power, the Justice Department asserted, is basically non-justiciable, absent extraordinary circumstances. Trump's DOJ lawyers effectively argued that Judges shouldn't second-guess the president's national security decisions.
The 9th Circuit disagreed.
"Although we owe considerable deference" to the executive branch on this matter, it is "beyond question that the judges have the authority to adjudicate constitutional questions on executive actions," the court wrote.
9. This argument between branches isn't new; it served as the point of debate for many cases that President Obama fought against the ACLU and other plaintiffs during his two terms. But Trump gives these disagreements a new dimension. His carelessness with the facts, his bullying, and his hectoring has now been used against him. His words and actions are responsible for the overreach and for the set of facts that caused the judges to assert their power.
Trump brought this upon himself.