What’s been happening?
8 executive orders and 12 memoranda. Those are the latest numbers so far for President Trump who has issued more orders and memoranda than any other president before him in the same period. One of his most controversial executive orders was a travel ban signed in late January which applied to nearly all travellers that were from seven Muslim-majority countries. Under the order, they were not permitted to enter the U.S for at least 90 days. According to 2015 data published by the World Bank, this would affect at least 218 million people from those countries.
Needless to say, chaos ensued across America as airports struggled to adjust to the new directives. Some people arriving in the U.S were detained indefinitely while others were prevented from boarding flights. Protests occurred at airports and numerous lawsuits were filed in courts around the country with Washington State’s attorney general Bob Ferguson being one of the first to do so. U.S District Court Judge James Robert of Seattle was one of many judges that granted a temporary restraining order on Trump’s travel ban.
What Now? 3-0
On the 9th of February, all three judges from the U.S. Court of Appeals for the 9th Circuit upheld the Seattle judge’s ruling. It is important to note that the decision was made only on the issue of the temporary block on Trump’s immigration ban and the legality of the President’s order under the Constitution was not examined. The Justice Department’s argument that suspension of the immigration order should be lifted immediately for national security reasons was dismissed due to insufficient evidence presented. The judges also rejected the last minute argument that the courts lacked the right to review the president’s executive order. In their unanimous opinion, the judges wrote that there is “no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy.”
As always, Trump promptly resorted to Twitter to publicise his response to the ruling:
SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!
— Donald J. Trump (@realDonaldTrump) February 9, 2017
Given the outcome, Trump and his administration have a couple of options:
- Instruct the Justice Department to escalate the case to the Supreme Court. This would be very unlikely as a senior official of the Trump administration has already made a statement that they would not pursue this. In the event that the statement is withdrawn and they ask the Supreme Court to reconsider the case, it would still be a lengthy review process and would need at least five out of eight votes to overturn the lower court’s decision as a tie (4-4) will mean that the previous ruling stands.
- Have the case reconsidered by a larger panel of judges in the Court of Appeals. This could prove difficult to succeed in as the San Francisco-based court is considered to be one of the most liberal in the country.
- Signing a new executive order that would effectively replace the existing one to carry out his immigration policies in a different manner. Trump said himself that this was an option that he was definitely considering, “a brand new order” that could be issued as soon as Monday or Tuesday next week.
- Modify the executive order in terms of scope or duration in light of the controversy that it has generated. It’s a nice way of “backing out” and restoring favour with the public.
Looking ahead, it seems that Trump is officially between a rock and hard place.