After two weeks of signing executive orders non-stop in the White House where “ chaos management” reigned, the president finally hit a major road block. On Friday, February 3, Two attorneys general from Washington State and Minnesota secured from U.S. District Court Judge James Robart a Temporary Restraining Order ( TRO) of Trump’s Immigration Ban, effective nationwide immediately. Washington Attorney General Rob Ferguson spoke on TV cable stations reporting the Breaking News, “ No one is above the law, not even the president.” In an interview, Ferguson said he had concluded from the start that “Mr. Trump’s order was unlawful and unconstitutional”. Governor Inslee strongly backed Ferguson’s approach, saying the executive order was a unique threat to the state’s economy.
The ban, issued on Friday, January 27, had restricted immigration from seven predominantly Muslim countries in the Middle East, blocking passengers en route and landing at American airports across the country. That weekend, lawyers flocked to help detained passengers while 60,000 visas were being canceled in embassies overseas. Critics here and world-wide attacked the ban as being against American values. Lawyers were joined by political commentators who said it was in conflict with the Establishment Clause and Free Exercise of Religion Clause in the First Amendment to The Constitution.
Donald Trump was apoplectic, posting seven tweets on Saturday, describing the TRO as “outrageous” , later softened to “ridiculous”, and calling Judge Robart a “so-called judge”. On Sunday, he tweeted: “Just cannot believe a judge would put our country in such peril. If something happens, blame him and court system. People pouring in. Bad!” Lawyers in Seattle, describe Judge Robart, a Republican of 69, as a “judges judge” who is unafraid of passing down unpopular rulings. Jenny Durkan, a former U. S. attorney said, “I think he truly believes in the independence of the judiciary to the marrow of his bones.” It would appear that Donald Trump had picked a fight and insulted the wrong Federal District Judge. Perhaps , this temper tantrum will end in a history lesson for the president . He needs to learn about Marbury v. Madison, 1803, when Chief Justice John Marshall first laid out the concept of “Judicial Review” . It has been an essential part of our separation of powers ever since. He may then understand that as president, he is not an emperor who delivers fiats. There are three branches of government and each has different powers. Kazir Khan was so right when he took his copy of the Constitution out of his pocket and offered it to Trump during the campaign.
Throughout his career building a real estate empire, Trump was constantly involved in law suits. He seemed to relish being sued after he offered contractors thirty percent of the original terms, and a long court case would ensue. His first experience had been with his father, being sued for discriminating against black renters in their apartment complexes in New York City boroughs. They lost the law suits and paid a significant fine. He also lost the recent law suit to New York’s Attorney General, Eric Schneiderman. Trump University was sued by former students who felt cheated on the lack of educational benefits they received for their investments. In an editorial on the subject, The New York Times described the “so-called university” which is now defunct.
On Monday, February 5, the Justice Department turned to the United States Court of Appeals for the Ninth Circuit in San Francisco. The court scheduled an hour long oral argument for Tuesday at three oclock Pacific Time, six o’clock Eastern time. It would be conducted on the telephone and streamed live on television cable stations. Three Appeals Court judges would hear the case. Before then, each side had certain deadlines to submit briefs arguing their positions. There were also certain ‘amicus’, friends of the case briefs that would be filed. Fifteen states and the District of Columbia filed an amicus brief that the ban would “cause harm to public universities, business that sustain our economy and to our residents.” Another amicus brief was filed by former Secretaries of State, John Kerry and Madeline Albright, as well as Susan Rice, national security adviser to President Obama, and Leon Panetta, his secretary of defense and C.I.A. director. They said Trump’s executive order would endanger American troops and intelligence sources, and have “a devastating humanitarian impact.” They also stressed, “The order offends our nation’s laws and values.”
Tuesday, February 7, 2017, the oral arguments by telephone were streamed live to the American public. Along with thousands of other citizens, I listened on cable TV to the three judges questioning lawyers from both sides for an hour. I scribbled key exchanges on 8 pages of my yellow lined pad. William Canby, 85, had been appointed by President Carter. Richard Clifton, 66, was appointed by George W. Bush. Barack Obama appointed Michelle Friedland, 44. As is the custom, the judges interrupted the lawyers throughout with their questions. The entire hour was fast paced , technical and fascinating. Early on, Friedland asked August Flentje, the DOJ lawyer for “evidence” of terrorists from the seven countries. His answer indicated there was none. Later, she posed a fundamental query to him, “Are you arguing then that the president’s decision in that regard is unreviewable?” Flentje paused and finally said, “Yes.” Judge Clifton asked strong questions to both lawyers, but was particularly skeptical with Noah Purcell, the solicitor general of Washinton State. Purcell stressed that the underlying purpose of the immigration ban was religious discrimination. He said, Mr. Trump as a candidate had “called for a complete ban on the entry of Muslims into the country.”
Donald Trump met with a group of police chiefs and sheriffs on Wednesday morning and weighed in on the oral hearing. He criticized the appellate judges as failing to grasp concepts “even a bad high school student would understand. I listened to a bunch of stuff on television last night that was disgraceful. I think it’s sad. I think it’s a sad day. I think our security is at risk today.” He continued, “ If these judges wanted to, in my opinion, help the court in terms of respect for the court, they’d do what they should be doing. It’s so sad.” His remarks were not surprising. What was very surprising were the comments that his nominee for the Supreme Court, Judge Neil Gorsuch, made in a private conversation with Senator Richard Blumenthal, Democrat of Connecticut. Gorsuch called the president’s criticism of independent judges, “demoralizing” and “disheartening”. This became Breaking News on all TV cable networks’ and the front page stories on newspapers nationwide. It was clear that Trump’s insulting remarks had caused Gorsuch to rise in defense of the independence of the judiciary.
On Thursday , February 9, the United States Ninth Circuit Appeals Court refused to lift the TRO halting Trump’s immigration travel ban. The decision was unanimous with all three judges agreeing that the government had not proved their case. They forcefully rejected the government’s claim that in cases of national security, the president’s orders were “unreviewable”. “It is beyond question that the federal judiciary retains the authority to adjudicate constitutional challenges.” ( The history lesson — John Marshall’s concept of judicial review in Marbury v. Madison. ) Another key part of the 29 page opinion dealt with “evidence”: “The government has pointed to no evidence that any alien from any of the countries named in the order has perpetrated a terrorist attack in the United States.”
Donald Trump reacted within minutes to the comprehensive ruling against him. He tweeted angrily on Twitter and to reporters in the White House: SEE YOU IN COURT. THE SECURITY OF OUR NATION IS AT STAKE!” He also told the reporters that the ruling was “a political decision” and predicted that his administration would win an appeal, “in my opinion, very easily.” Since an appeal to the Supreme Court could take weeks or months to be heard, thousands of people with restored visas will continue to come and be welcomed at airports across the country.
Joyce S. Anderson