Any lawyer, any first-year law student, any part-time night custodian at a law firm, knows that the proper response to an unfavorable trial court decision is never—ever—a personal attack not only on that judge but also on the appellate court that will hear the case next. Trump apparently still believes that he will find the proper form of words that will bring judges to heel.
The odds are he will not.
Again, that’s not to say that he will not win the travel ban case when it reaches the Supreme Court. Bybee lays out the essential argument for the ban: the Immigration and Nationality Act authorizes the president “by proclamation” to “suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants.” This sweeping provision is what the administration relies on. (The Maryland court found that this grant of power was restrained by a separate provision forbidding discrimination by “nationality” in the granting of immigrant visas.) Beyond that, the judges restraining Trump’s orders interpose a proposition—so far not tested in the Supreme Court—that even this power must give way to the fundamental principles of the Constitution, such as equal protection of the law or the prohibition on “establishment of religion.”
Precedent going back to the 19th Century suggests that these basic constitutional principles don’t apply to immigration decisions, because aliens not yet in the United States don’t have rights under the Constitution. In addition, Bybee cites a 1972 Supreme Court case, Kleindienst v. Mandel; in that case, the Court said that if an individual exclusion order is issued “on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, not test it by balancing its justifications” against another constitutional right. Even if Trump intended to ban Muslims, the argument goes, the court may not use that intent against an order that is otherwise properly drafted.
Trump’s first order, Bybee wrote, “easily” passes that test. Courts, he argued, owe “substantial deference” to the president, but the court’s panel “wiped out any principle of deference to the executive.”
The emerging issue, then, is whether our understanding of the Constitution’s values and structure have evolved since the days of the Chinese Exclusion Acts, when courts likened non-white immigrants to invading armies. Bybee’s arguments—much as I disagree with them—succinctly state the case for judicial abdication in the immigration context.
Of course, the president’s somewhat unorthodox litigation strategy is to belittle the judges and threaten the courts. In his Nashville speech, he even threatened defiance, telling his supporters he just may decide to reinstate the original executive order, already found unconstitutional.
Within days, he will be before the Ninth Circuit pleading for “deference” to his good judgment. If does not change his tone, and soon, even a Bybee may have trouble swallowing that pill.