Why Trump's Revised Travel Ban Could Still Succeed

Despite judicial setbacks, federal law leaves open the possibility that the president’s new executive order might prevail––if he can keep quiet.

Not since the Supreme Court told Harry Truman to give back the steel mills has an American president gotten such a concentrated dose of bad news as the federal courts gave President Trump yesterday.

By now you’ve read of the harsh words that District Judge Derrick Watson in Hawaii directed at the president’s revised “travel ban” yesterday in a temporary restraining order barring its enforcement “in all places, including the United States, at all United States borders and ports of entry, and in the issuance of visas ... pending further orders from this Court.” A federal district judge in Maryland issued a similar, though narrower, order late last night, saying that “explicit, direct statements of President Trump’s animus toward Muslims and intention to impose a ban on Muslims entering the United States, present a convincing case that the First Executive Order was issued to accomplish, as nearly as possible, President Trump’s promised Muslim ban.”

To complete the hat trick, the active bench of the Ninth Circuit Court of Appeals refused to reconsider a three-judge panel’s earlier decision upholding a restraining order against the original travel ban, which was issued by a district judge in Seattle on February 3. Unlike the original, the revised ban bars travelers from six rather than seven predominantly Muslim countries, and exempts legal permanent residents and those who obtained visas prior to the order.

That Seattle judge also heard arguments on an order against the revised ban yesterday, and while he has yet to be heard from, the portents for the administration aren’t good.

But the most interesting judicial rebuke to Trump came not in adverse opinions, but in a 26-page dissent by someone who may be the closest thing he has right now to a judicial friend.

Judge Jay S. Bybee, writing for himself and four other circuit judges, dissented from the Ninth Circuit’s refusal to rehear the original travel-ban case. Bybee is no enemy of executive power: as head of George W. Bush’s Office of Legal Counsel, he supervised the preparation of the infamous John Yoo memos authorizing American intelligence personnel to use waterboarding and other tortures on detainees in what was then called the “global war on terror.”

That episode may raise questions about Bybee’s values, but no one has ever called him unintelligent. His dissent should make sobering reading for those celebrating the skunking of the travel ban yesterday; on the merits, Trump’s case is stronger than his opponents would like to believe, and there’s a reasonable chance the ban will prevail when it finally reaches the Supreme Court.

But the president’s relations with the entire federal bench are undergoing a near-death experience. Consider these words:

The personal attacks on the distinguished district judge and our colleagues [on the Ninth Circuit] were out of all bounds of civic and persuasive discourse—particularly when they came from the parties. It does no credit to the arguments of the parties to impugn the motives or the competence of the members of this court; ad hominem attacks are not a substitute for effective advocacy. Such personal attacks treat the court as though it were merely a political forum in which bargaining, compromise, and even intimidation are acceptable principles. The courts of law must be more than that, or we are not governed by law at all.

Those words, plainly aimed at a sitting president, are extraordinarily harsh—the equivalent, in the polite parlance of the appellate bench, of Rep. Joe Wilson’s scream of “You lie!” in the House chamber during Barack Obama’s 2009 health-care address to Congress.

And the author is Bybee. In the process of urging a decision for Trump, he felt constrained to disown the president in the most personal terms.

Nothing chastened, Trump last night flew into attack mode again, this time against Watson, the judge in Hawaii. At a raucous rally in Nashville, he accused Judge Watson in Hawaii of making a “political decision” and committing “unprecedented judicial overreach.” Then for good measure, he added an explicit threat against the court on which Bybee sits. He told the audience that many people are “screaming, break up the Ninth Circuit. I will tell you why. That Ninth Circuit, you have to see, take a look at how many times they have been overturned with their terrible decisions.” “Break them up” may succeed “lock her up” as a Trump-rally chant.

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.