President Trump has been on an 18-month winning streak. That streak ended Thursday night when a
federal
appeals court upheld a lower-court ruling lifting Trump's travel ban on
refugees and all visitors from seven predominantly Muslim states.
“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,” read the unanimous ruling of the three judges.
“There is no precedent to support this claimed unreviewability, which
runs contrary to the fundamental structure of our constitutional
democracy.”
Trump, as is his way, reacted angrily via Twitter:
The government will probably ask the Supreme Court to intervene in the travel ban.
But,
all caps aside, this is a major setback for not only one of Trump's
signature campaign promises but also for his conception of a presidency
with nearly unlimited power.
During his campaign for president,
Trump regularly promised that he would install a system of “extreme
vetting” if elected, casting it as a necessary step to keep the country
safe. When he signed the executive order 13 days ago that took steps
toward instituting just that policy, Democrats immediately began to work
through the legal system to undo it.
As is his pattern, Trump first scoffed at those efforts, then went on the attack — tweeting out a barrage of hits on the Washington state judge who initially ordered the ban lifted.
To
Trump, it was an open-and-shut case: He was the president. The
president is tasked with keeping the country safe. This ban would keep
the country safe.
The appeals court didn't see it that way,
leaving Trump with the very real possibility that even an appeal to the
Supreme Court will change nothing. Remember that the Supreme Court is
divided between four more-liberal justices and four more-conservative
ones. The ninth seat is open as a result of the death of Antonin Scalia
and the blockade Republicans put up on then-President Barack Obama's
nomination of Merrick Garland. Trump court nominee Neil Gorsuch is in
the very early stages of the process and wouldn't be seated — even if he
is eventually confirmed — in time to break the tie.
And a tie would mean the ruling of the appeals court would hold — and Trump's travel ban would be no more.
That's
a big deal for a man who promised during the 2016 campaign that he
could change everything that people hated about Washington, bringing his
business savvy to its bloated bureaucracy. What Trump is learning — or
should learn — from this latest court ruling is that the government
isn't like a business in one critical way: There are checks and balances
built into the system. The judiciary is not something he can control or
cajole. He is, quite literally, not the boss of the federal court
system.
Trump has changed Washington more than Washington has changed him
in his first three weeks in office. But tonight's ruling proves that
even someone like Trump, who views the executive branch with the most
expansive powers possible, cannot simply dictate how he wants the
country to run or whom the country is allowed to accept within its
borders.
His initial reaction was, in a word, Trumpian. But
tweets — even those in all caps — don't change the separation of power
in our system of government, a fact that Trump is being forced to
acknowledge with his presidency less than three weeks old.
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