Benjamin Wittes on Lawfare renders a quick opinion on the evening’s decision with regard to the Executive Order banning Muslim immigrants. He notes that there are two questions, and the court virtually ignored the one while dismissing the other, regarding national security necessity. It’s worth noting the lack of terrorism by immigrants in this nation, which weakens the government case.
Benjamin concludes:
The Ninth Circuit is correct to leave the TRO in place, in my view, for the simple reason that there is no cause to plunge the country into turmoil again while the courts address the merits of these matters over the next few weeks. Are there tea leaves to read in this opinion? There sure are, particularly with respect to the judges’ analysis of the government’s likelihood of prevailing on the merits and its blithe dismissal of the government’s claims of national security necessity on pages 26-27—a matter on which the per curiam spends only one sentence and one brief footnote.
But it’s worth emphasizing that the grounds on which this order was fought are not the grounds on which the merits fight will happen. Eventually, the court has to confront the clash between a broad delegation of power to the President—a delegation which gives him a lot of authority to do a lot of not-nice stuff to refugees and visa holders—in a context in which judges normally defer to the president, and the incompetent malevolence with which this order was promulgated.
That last sentence fascinates me. Do the courts have the privilege of (informally) assessing the competence of an entity in court and perhaps deny them a favorable ruling purely on that basis?
But this will probably stir up the emotional Trump Administration even more – and I do mean the Administration. His senior aides seem to function as much on emotion as does their figurehead (tongue only slightly in cheek), so this decision may lead to some more noteworthy remarks, full of bile, misspellings, and slightly agape agendas – which may, in turn, provide more ammunition for their enemies to use in court and in the court of public opinion.
For those who feel like the entire nation is dancing naked in front of hot pokers, it should be emphasized that the same vetting that kept the nation safe during the Obama era remains in place – unless the Trump Administration has decided to fool with it. The wise citizen will keep that in mind and, if something happens, first ask stinging questions of the Trump Administration, and not a judiciary which is merely interpreting the laws.
