Important Ruling by the Ninth Circuit in the Travel Ban Litigation

I've been closely following the various legal challenges to President Trump's travel ban for several reasons, as noted here and here. One reason is the deep flaws in the Executive Order itself, which undermines constitutional principles of nondiscrimination, due process, and equal protection, as well as U.S. obligations under international law.  But another reason is because the order--and both the manner in which Trump implemented it and sought to quash resistance to it--represents a real threat to constitutional principles of the separation of powers.  I've observed with great concern, for example, Trump's repeated attack on the judiciary and, in particular, on individual judges. I was, therefore, heartened when the U.S. Court of Appeals for the Ninth Circuit issued its ruling last week denying Trump's request to stay the district court's earlier order temporarily enjoining the travel ban because of its constitutional defects and because of the harm it was causing so many refugees, immigrants, and others.  While this battle over the travel ban order is not over, and while many more battles over executive power are sure to come, the ruling represents an important early moment in the resistance to overreaching by the Trump administration.

The Battle over the Travel Ban Executive Order: the Courts Push Back

The intensifying legal battle over Trump's Executive Order temporarily barring the entry of refugees and other noncitizens to the United States represents an open assault on core constitutional principles. Trump's attempt to single out seven majority-Muslim countries---coupled with his repeated anti-Muslim statements--undermines religious freedom and equal protection of the law. The order's sweeping scope, which denies people entry without individualized consideration, flouts due process.  The order also has caused great and unnecessary harm to many individuals who sought to come to the Unites States for a better life.

The executive order has become a flashpoint in an even larger battle over the rule of law.  On Friday, James Robart, a federal district judge in Seattle, issued a nationwide temporary restraining order, halting enforcement of Trump's order until the legal challenge could be decided.  The suit was brought by Washington and Minnesota, two states impacted by the chaos Trump's order unleashed. Robart joined a group of several judges who have temporarily enjoined the order's enforcement. In his ruling, Robart emphasized the role of the judiciary in a tripartite system of government.  In response, Trump attacked Robart as an "so-called judge" who issued an "outrageous" ruling. Trump continued the attack, declaring--in a flagrant brief of constitutional norms--that the judge had put the nation "in peril."  The Trump administration does appear, thus far, to be abiding by the order while challenging it on appeal (rather than refusing to obey it).  But even so, this type of intimidation of judges is troubling, as it suggests a wholly improper attempt to intimidate the one branch of the federal government capable of standing up to Trump.  It will be critical to see what happens as this case and the other legal challenges to the executive order progress.