Thursday, February 9, 2017
What To Make of the 9th Circuit Court Decision.
Let's start with the good news:
First, the decision of the 9th Circuit Court of Appeals was unanimous. All three judges - one of whom was appointed by a Republican president - rejected the Trump Administration's request to stay the Temporary Restraining Order of the District Court. So much for this being a political decision. If it is, it's a political decision that apparently crosses party lines.
Secondly, on the issue of whether this executive order could be reviewed, the Administration was thoroughly rebuked in this decision. All three judges concluded that not only was this order reviewable, it was arrogant of the Department of Justice to even suggest that it wasn't.
Third, Donald Trump, himself, was his own worst enemy. The inflammatory language used by him and his surrogates - hello, Rudi Giuliani - throughout the campaign, came back to bite him. It was clear to even a blind man that this was a Muslim ban and that belied what the Administration was attempting to argue.
Fourth, the Administration was unable to prove that not staying the TRO would cause irrevocable harm to the country, which was the basis for the ban in the first place.
Fifth, should this end up at the Supreme Court, because there are presently only eight justices on the bench, in the event of a tie, a lower court ruling for the plaintiffs would stand. In other words, that's all she wrote. How much you wanna bet Mitch McConnell is praying that doesn't happen?
Now the not so good news:
First, the Circuit Court did not rule on the merits of whether the ban was constitutional or not; only that the District judge had standing to issue the TRO, which flies in the face of precedent. In fact, the majority of legal scholars are skeptical as to whether states have standing to even challenge executive orders.
Second, since their was no constitutional ruling on the merits, this case most likely will go back to the same District Court that issued the TRO, which means that the plaintiffs will then have to prove they have standing. That will be a steep legal hurdle.
Third, in the event that the Supreme Court agrees to hear the case, the final outcome may well hinge on whether the plaintiffs get a favorable ruling in the District Court. It would be presumptuous to assume that because one judge issued a TRO, that automatically means a repeat performance. But let's be optimistic and say lightning strikes twice, the Supreme Court could still reverse the lower court, even with four liberal justices on the bench.
Fourth, if the Trump Administration can drag this out till, say, April, Neil Gorsuch should be confirmed as the ninth Supreme Court justice, meaning it won't really matter if a lower court rules the ban unconstitutional, it would be reversed on appeal.
On balance, though, it was a good night for lovers of democracy and a bad night for autocrats. And while this win may feel good, I would advise caution. If history has taught us anything, it's that counting one's chickens before they are hatched is not a very good recipe for success.
But it is a very good way to starve.