Trump finds the limits of executive power
President Donald Trump suffered more than a legal defeat of his immigration ban Thursday night.
He ran smack into the limits of executive power.
Three
federal judges unanimously refused to restore the White House's
controversial travel ban, laying down the most significant marker yet
that Trump's vision of an administration rooted in the muscular use of
executive power -- similar to that he enjoyed as a business leader --
will not go unchallenged.
In a stinging rebuke, the 9th Circuit Court of Appeals rejected the
administration's argument that the judiciary lacked the authority to
block the travel ban as "contrary to the fundamental structure of our
constitutional democracy."
The
tone and content of the decision immediately called into question
Trump's gamble in enacting such a fundamental reshaping of the nation's
immigration laws through presidential order rather than a law debated
and passed by Congress.
New doubts
The
embarrassment of Thursday's ruling raises new doubts about the
effectiveness of the President's unorthodox method of doing business. In
this case, the tendency to draw up plans without much outside input has
not served the White House well. The relative inexperience of Trump's
core advisers may also have been a factor.
It
is now certain that the saga of the immigration ban, which has consumed
the presidency for two of its three weeks and is distracting from other
priorities, will run on indefinitely with possible damaging
consequences for the young administration.
The ban and its impact
- What we know so far
- What it's like in the 7 impacted countries
- How the countries were chosen
- What the ban says: The full text
- What to know about the restrictions
- Is the ban legal?
- These are the people directly impacted
- The ban's Christian focus
- A family's plight just got more complicated
- Bergen: Trump's big mistake
- All of Trump's executive orders, memos and proclamations
- Comparing Trump to previous presidents
But
the President, who came to office predicting an avalanche of wins and
warning that only he could fix the multiple crises he diagnosed as
ailing the national soul, is a long way from admitting a final defeat.
Drawing on the pugilistic instincts that sustained his business career,
he dug in for a counter attack.
"SEE
YOU IN COURT," Trump tweeted minutes after the ruling came down,
previewing a possible appeal to the Supreme Court that would set up an
even more dramatic and consequential showdown.
A
few minutes later, the President began the task of using the decision
to galvanize his devoted armies of supporters who sent him to Washington
to carry out reforms exactly on the lines of his original executive
order.
"It's
a political decision, we're going to see them in court, and I look
forward to doing that," Trump told reporters at the White House. "We
have a situation where the security of our country is at stake and it's a
very very serious situation."
The
ruling came with Trump waging feuds on multiple fronts with various
lawmakers on Capitol Hill and with his own approval ratings at lower
levels than ever seen for a newly inaugurated president.
Democratic
opponents hailed the decision as an affirmation of the principles on
which the nation is based and a precursor of likely pitched legal
battles to come on the extent of Trump's power.
Check and balance'
"I
am pleased that our check and balance system is working in this
country," Ben Cardin, the top Democrat on the Senate Foreign Relations
Committee, told CNN's Wolf Blitzer. "It shows that the courts are going
to be there when President Trump uses his power and exceeds his
constitutional authority. I think that is an important message that our
constitutional system will work."
But the President's allies quickly moved to contain the damage and to frame the terms of the political and legal fight ahead.
Arkansas
GOP Sen. Tom Cotton said the order was plainly legal and argued the
courts shouldn't second guess the national security decisions of the
president.
"This misguided ruling is from the Ninth
Circuit, the most notoriously left-wing court in America and the most
reversed court at the Supreme Court," Cotton said. "I'm confident the
administration's position will ultimately prevail."
The
Supreme Court could still rule in favor of the administration, either
on the merits of the case or the issue of standing of foreigners on
whose behalf the challenge to Trump's executive order was brought by the
state of Washington.
But the
possibility of the nation's highest bench being called upon to clear up a
growing legal imbroglio will also open a new political fight. The
Supreme Court is currently lacking its ninth member owing to the
prolonged Washington standoff following the death last year of Justice
Antonin Scalia.
Should the Court
hear the case and split 4-4, the ruling of the 9th Circuit would be
affirmed. That fact alone adds heat to the confirmation duel looming
over the nomination of Trump's first Supreme Court pick, Neil Gorsuch.
Republicans
now have even more of an incentive to ram the confirmation through the
Senate using the "nuclear option" to sidestep a Democratic filibuster.
Democrats are even less likely to cooperate with a swift process.
Who is Judge Neil Gorsuch? 00:48
The
9th Circuit decision, however, seemed designed to shape the future
arguments about the content of the executive order and the
administration's attempts to significantly stiffen the government's
anti-terrorism campaign.
It went
far further in its ruling than the simple question of the stay on the
travel ban imposed by a lower court, taking pains to dismantle the
administration's assertion that the travel ban was vital to protecting
Americans against an influx of foreign terror threats from the seven
named nations, Iran, Iraq, Somalia, Sudan, Yemen, Libya and Syria.
"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," the ruling said.
"Rather
than present evidence to explain the need for the Executive Order, the
Government has taken the position that we must not review its decision
at all. 
