Full disclosure- I am not an attorney, I do not play one on TV or the internet, and I did not stay at a Holiday Inn Express last night. However, I am a reasonably intelligent person with the ability to read and discern events for which I can find facts. If you would like to read the decision from the Ninth Circuit, all 29 pages are here.
On January 27, 2017, the President issued Executive Order 13769, “Protecting the Nation From Foreign Terrorist Entry Into the United States” 82 Fed. Reg. 8,977. I wrote on this shortly after it was announced. I was critical not about what it did, but how it was rolled out. I believe this error in judgment is the reason Judge Robart issued the Temporary Restraining Order or TRO.
The first thing we have to understand is that Judge Robart did not rule on the legality or merits of the case. I do believe he was in error when he issued the TRO. However, the comments by Trump, his Tweets, and also statements by Rudy Giuliani misstated the reality of the restrictions which gave rise to an errant public perception. The bottom line is that we have what we have at this point. I worried that Trump’s tweets and off the cuff comments would create problems that would otherwise not exist.
The actual case is ongoing, so the merits of the case will be heard. The TRO is simply a judgment call by the judge over which side is likely to suffer more harm in the meantime. Again, I believe that had the administration worked all this out prior to the rollout; this would not be an issue.
I explored the legality of the Executive Order recently in an article. I’ll not repeat that info here; however, I would encourage you to read that information. To this columnist, it is clear that this President has every right constitutionally and legally to do what he did. It is the implementation and comments that have thrown a wrench in the works. Not that progressives would not have thrown a hissy fit, but they would not have had the narrative.
© 2004 reed, Flickr | CC-BY
Judge Robart decided that there was greater potential harm to individuals affected by the restrictions, rather than the potential for terror-related incidents. Let’s be clear here. No one was going to be harmed by the restrictions. Inconvenienced maybe, but not harmed. On the other hand, if one terrorist comes in during the TRO and commits and act there will likely be more than just “harm.”
What came before the Ninth Circuit was whether the judge’s TRO was appropriate, not the merits of the case. So what they were faced with was stories of people stuck in airports, kept from their family and such, versus something that “might” happen. I am not surprised they refused to remove the TRO because it is impossible to show what WILL happen in the future. Additionally, the Ninth Circuit stated that a TRO is not normally appealable.
What should the president do at this point? One, stop tweeting and shut up for once. Next, the purpose of the restrictions was to put better vetting and other methods in place to make sure that those coming into our country are not dangerous. That has not been done for some time, so it will take some time to establish proper protocols, so get busy and get it done.
The legal process will take months or longer. Congress can and should act to assist in the process. The root of the problem is years of lax concern for our national security, more concern over feelings than the reality that some people hate us and want to hurt us. It is neither unconstitutional nor illegal to prevent their entry to our nation.
Photo Credit: “United States Court of Appeals for the Ninth Circuit, James R. Browning United States Courthouse, San Francisco, California”, © 2013 Ken Lund, Flickr | CC-BY-SA