As we reported last night, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit in San Francisco refused to reinstate President Trump’s executive order on visitors from seven Muslim or predominantly Muslim countries—Iran, Iraq, Syria, Libya, Sudan, Somalia, and Yemen. Trump tweeted almost immediately after the order was issued, saying: “See you in court, the security of our nation is at stake.” Among the legal analyses of the decision was one by Lawfare, the website that covers national-security law. This morning, MSNBC ran a segment on Lawfare’s analysis at 8:03 a.m. Trump tweeted 12 minutes later.
Candidate Donald Trump called for the “extreme vetting” of refugees, who are also barred by his order, and for a “Muslim ban.” These, he said, was essential to keep the homeland safe. Indeed, Trump has maintained that his only goal is to keep terrorist attacks from occurring in the U.S., and, as such, he has used Twitter to target judges who have ruled against the order.
Trump also maintains the law allows him to bar those individuals whom he deems dangerous to the U.S. The law states:
(f)Suspension of entry or imposition of restrictions by President
Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.
The Lawfare post of Thursday’s court decision points out that “[r]emarkably, in the entire opinion, the panel did not bother even to cite this statute, which forms the principal statutory basis for the executive order (see Sections 3(c), 5(c), and 5(d) of the order). That’s a pretty big omission over 29 pages, including several pages devoted to determining the government’s likelihood of success on the merits of the case.”
But the Lawfare analysis by Benjamin Wittes, the site’s editor in chief who is a senior fellow in governance studies at the Brookings Institution in Washington, D.C., also notes that Washington state and Minnesota, which challenged the president’s order, pointed to Trump’s past tweets about banning Muslims, and it was this argument the judges cited in their decision. (For the likely next legal steps in the battle over the executive action, go here.)
Wittes also noted that Eric Posner, the law professor at the University of Chicago, said the president’s tweets will possibly interfere even with legitimate government action in the future.
Trump hasn’t hidden his disdain for judges and courts that issue opinions that he believes are unfair. He reiterated those sentiments by calling Thursday’s decision “disgraceful.” But by citing an MSNBC snippet of Lawfare’s analysis—“Remarkably, in the entire opinion, the panel did not bother even to cite this (the) statute.”—he leaves out the other part of Wittes’s argument:
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.
Lawfare’s response to the tweet: