It’s been a few days since the ninth circuit court of appeals unanimously rejected the Trump administration’s request to reinstate #MuslimBan. There’s been obviously a lot of commentary about where to from here but I wanted to look at the court’s actual ruling to see what arguments were used and whether they shed any interesting light on resistance to fascism in the USA and here in Australia.
You can check out the 29 page PDF of the ruling here. In the meantime here’s a quick summary of each section.
I. A. N. A. L.
- Background: A summary of what happened. Trump issued the Executive Order(EO). Some federal judges put a stay on it for a particular state. Federal judge Robart put a stay on it nation-wide based on filings by Washington and Minnesota (WA+MN). The Trump Administration (TA) appeals this hoping for the stay to be dropped (ie. for the EO to be reinstated).
- Appellate Jurisdiction: WA+MN argued that the court lacks jurisdiction to review a request to repeal a Temporary Restraining Order but the court decided to review it, partly because of TA’s insistence that this is urgent because of a terrorism threat.
- Standing: WA+MN originally argued for a stay on the grounds that their state universities are being injured by the EO. They already have been injured, for example losing the cost of sponsoring staff coming into the US who were denied entry. WA+MN have standing to file this.
- Reviewability of the Executive Order: TA argued that Trump has an “unreviewable authority to suspend the admission of any class of aliens”. This is rejected as being contrary to democracy and being unprecedented (in the literal, legal sense).
- Legal Standard: TA argued that mere injury to WA+MN is not enough reason for the EO to be suspended. While this is true, the court thought that WA+MN showed that the case is likely to succeed on merit if it went to a full hearing.
- Likelihood of Success – Due Process: WA+MN argued that without notice or possibility of hearing to people who have already been granted visas and green cards they have been denied due process. TA thinks these people have no right to due process. The court disagrees: permanent residents and visaholders clearly have due process under the Constitution, refugees have due process under existing US law and even someone who enters the US unlawfully has due process under the Constitution. TA argues that it “clarified” that the EO does not apply to visaholders so it should be ok. The court responds with some pretty heavy shade for a federal court: “[I]n light of of the Government’s shifting interpretations of the Executive Order, we cannot say that the current interpretation by the White House counsel, even if authoritative and binding, will persist past the immediate stage of these proceedings”. Finally TA argues that even if a stay is granted it should only be in WA+MN. The court rejects this because geographic uniformity is important w.r.t immigration law.
- Likelihood of Success – Religious Discrimination: The original stay said Trump’s own words (ie. tweets!) that it’s a “Muslim ban” shed light on the intent of this EO which would violate the constitution. The court doesn’t fully explore this because the previous section is already enough to show WA+MN are likely to succeed a full hearing. It does note that in-fact discrimination cannot be shielded by “mere compliance with the requirement for facial neutrality”. Meaning a law doesn’t have to mention a religion (or minority) by name – if it causes de facto discrimination it is likely to be unconstitutional.
- The Balance of Hardships and the Public Interest: TA argues that the danger of terrorism trumps all. More shade by the court: “Although we agree that ‘the Government’s interest in combatting terrorism is an urgent objective of the highest order,’…the Government has done little more than reiterate that fact.” [instead of providing actual arguments]. The court notes that TA failed to explain the urgency to resume EO (eg. specific credible threats), failed to name anyone from these countries who has perpetrated attack etc. TA argues that the possibility of waivers in the “national interest” will redress any actual injury. The court doesn’t buy this because no process for defining “national interest” or obtaining waivers has been outlined.
- Conclusion: The order to reinstate the ban is denied.
Some thoughts on the ruling and the arguments presented:
- I think this shows pretty well that Trump and Bannon are not playing 14th dimension Darth Vader chess. This administration’s malevolence is matched by its incompetence. When the EO came out I wondered why they didn’t just create one to stop issuing new visas since that would have been a lot more bulletproof. Of course having people stranded in airports and ruining people’s lives was part of the point but Trump’s reaction to this ruling (and the constant changing of his mind about what he’ll do) suggests he was genuinely not expecting this. Which makes sense because nobody competent appears to have a key role in the administration. And his own words and tweets were used against him — this is his key weakness that must be attacked as much as possible.
- Yes they did try to argue that Trump should be dictator, trying to argue that his decisions should be beyond judicial review if they concern national security. Luckily they got shot down but this spells out their trajectory. Unfortunately Trump is just going in the direction that Bush AND Obama started in. It’s arguable that Obama was worse than Bush on civil liberties and the rest so Trump’s policies are the logical conclusion – more on Obama here.
- There’s a great post by Katherine Cross about how the EO’s ambiguity is a feature not a bug. When questioned in court they can defer to ideas like “it doesn’t mention Muslims by name!” (which luckily the court ruling seemed to throw shade on). But in terms of how the thousands of people tasked with carrying out the order interpret it, the dog whistles aren’t very subtle. Companion piece: Ordinary Americans carried out inhumane acts for Trump. Part of the strategy is to provide cover to the frightening levels of bigotry, racism etc among a huge percentage of people employed in various levels of law enforcement, customs etc.
- Interesting that WA+MN argued through a very specific injury (ie. their universities). Maybe it was the easiest and cleanest argument to make at short notice. Kinda like Al Capone being convicted for tax evasion and not for being a brutal mobster. On the one hand whatever it takes but on the other it’s disconcerting because what happens with the next EO that doesn’t leave such an opening? I guess it always will because the aim of the administration is to ruin lives so there will always be grounds to argue damages.
- This ruling has effectively provided Trump with the blueprint of a more bulletproof (and hence more maliciously competent) new EO. This is a great victory but as always the war will continue and intensify.
- It’s understandable that the court didn’t want to wade into making a decision about religious discrimination. Still it would have been great if it spelled out a bit more clearly that the de facto effect of an EO is enough to establish religious discrimination. The pessimist in me thinks this is where the administration could take the battle, and who knows what happens if it reaches the Supreme Court…
- Australia is fucked. As scarily outlined in Junkee we don’t have anything like the equivalent of the US’s Bill of Rights. And without the constitutional rights to freedom of religion and due process there would have been less reasons for the court to reject the repeal of the stay.