Fair and Unbalanced
Littwin: Trump loses this round with brothers, sisters of the robe
If not for the brothers and sisters of the robe — as Neil Gorsuch described his fellow judges — there would have been no more than the typical chaos at the Trump White House.
If not for the panel of Ninth Circuit judges who forcefully reminded Donald Trump that there are three branches of government — something even a bad high school student should know — it would have been, in fact, a day much like any other confounding day.
If not for the fact that the three-judge panel unanimously blasted Trump’s defense of his executive orders on immigration and refugees as running “contrary to the fundamental structure of our constitutional democracy,” we could have safely ignored Trump’s all-caps tweeted reply to the ruling: “SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!”
But we can’t ignore it because the judges, in upholding a lower-court stay of Trump’s executive orders, basically determined that Trump had not shown that the security of the nation would be enhanced by the orders, which leaves us, and probably the judges, to wonder why he was actually issuing the orders at all. Of course, there’s so much to wonder about in Trump World.
On our calendar Thursday, the day of the ruling, there were these puzzlers: Kellyanne Conway being “counseled” for her Invanka Trump products sales pitch. Sean Spicer going full Melissa McCarthy on the press. Trump embarrassingly having to embrace the One China policy in a didn’t-sound-like-winning phone call with China President Xi Jinping. National security adviser Mike Flynn caught lying (by the Washington Post and its nine sources) about talking to the Russians about sanctions before Trump took office. Mike Pence having to explain why he had said Flynn never talked to the Russians about sanctions (did Flynn lie to Pence or did Pence lie to us?). Trump’s twitter feuding (again) with John McCain. Trump’s leaked phone call with Vladimir Putin being paused while Trump had to ask advisers what the New START treaty was.
And, of course, there was the ultimate Trump — the once-healthy college-age athlete who escaped the draft by claiming to have had bone spurs, although, years later, he wasn’t sure in which heel — blasting Sen. Richard Blumenthal for lying about his Vietnam-era record (Blumenthal had said he served in Vietnam when, in fact, he had served during Vietnam).
Why call Blumenthal a liar? Because the senator had relayed, apparently with the judge’s permission, that Gorsuch was “disheartened” and “demoralized” by Trump’s so-called critique of so-called judges. Trump said Blumenthal mischaracterized Gorsuch’s words even though Gorsuch’s Senate handlers, who were in the room, said Blumenthal’s words were accurate. In other words, Trump called Blumenthal a liar even though he knew Blumenthal wasn’t lying. The White House later tried to say that Gorsuch’s statements weren’t about Trump at all, but apparently about some other very important person calling judges a “disgrace.” We’ll see if the White House launches a search to find the real judge-basher.
If Gorsuch had been trying to put some distance between himself and the man who appointed him in order to impress Democratic senators with his independence — one theory on why he let Blumenthal take his words public — it failed. Now, as ever, the Gorsuch nomination will be all about Trump. Of course, it’s always about Trump.
Just as the executive orders were all about Trump’s ever-adjusted campaign promise to ban all Muslims (the order settled for temporarily banning Muslims from seven majority-Muslim countries).
Just as the judges’ 3-0 ruling was about Trump’s insistence that judiciary, which usually gives deference to the executive in such cases, had no right to even review the national-security orders.
Here’s from the ruling: “The government does not merely argue that courts owe substantial deference to the immigration and national security policy determinations of the political branches — an uncontroversial principle that is well-grounded in our jurisprudence.
“Instead, the government has taken the position that the president’s decisions about immigration policy, particularly when motivated by national security concerns, are unreviewable, even if those actions potentially contravene constitutional rights and protections.”
That concept, the judges wrote, “runs contrary to the fundamental structure of our constitutional democracy.”
The experts tell us that Trump’s appeal, which will almost certainly get to the Supreme Court, although the timing may be at question, was shot down at nearly every turn. On standing (the states had the right to sue). On trust (the court didn’t trust that the Trump administration would actually exclude green-card holders from the order). On the possibility of religious discrimination (it was Rudy Giuliani who couldn’t resist bragging that Trump had asked him how to “legally” implement his Muslim ban). On irreparable injury (the government didn’t even attempt to show that the present system wasn’t adequate to protecting the country).
In her New Yorker article, Amy Davidson made the point that the irreparable harm, in Trump’s view, was to his ability to boast about winning. Trump lost, for now. But it’s early. And as for winners, well, we’re just at the temporary-restraining-order stage now. There are, in all likelihood, many rulings on these orders yet to come. Trump is already promising more “extreme vetting,” whatever that means. Let’s hope it doesn’t involve waterboarding.
And at this point, if you’re feeling some real irreparable harm, I can promise it won’t be the last time.
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