By Emma Emeozor
United States President Donald Trump was optimistic when he went to the appeals court to challenge the ruling of a Seattle judge that quashed the travel ban he imposed on seven Muslim-majority countries. But on Thursday, the 9th U.S. Circuit Court of Appeals, sitting in San Francisco upheld the stay on the original order, giving an unprecedented ‘blow’ to the Executive Order the President signed on January 27, 2017, seven days after he was sworn in.
The judgment was unanimous by the three judges who heard the case. Though Trump remains defiant and has threatened to still pursue the case, it is instructive for him to begin to give a listening ear to the voice of the people. Perhaps, he needs a Daniel on his cabinet who can read the writing on the wall and make him adopt reason and flexibility in governance. From his performance in the last 33 days as President, it would seem he has turned the White House to a House of Comedy. After the appeals court gave its verdict, Trump, in his characteristic bravado, tweeted, “See you in court, the security of our nation is at stake.” He told reporters on Air Force One that a “brand new order” could be issued as early as today or tomorrow. “We’ll win that battle,” the President said. “The unfortunate part is it takes time. We’ll win that battle. But we also have a lot of other options, including just filing a brand new order.” This is even as protests continue to hold over the ‘obnoxious’ order. Dancing to the gallery in the name of populism could imperil the Trump administration. If the President cannot abide by court judgments, then who is going to respect the rule of law? This is why his attack on judges for failing to rule in his favour is a worrisome development in a country that holds the judiciary in high esteem. His Supreme Court nominee, Neil Gorsuch, has been quoted as saying the President’s comments about the judicial branch are “disheartening” and “demoralising.”
Interestingly, President Trump is the grandson of Frederick Trump (Drmpf in German language), a German who migrated to the U.S. in 1885 and became a citizen in 1892. “He returned to Germany for a bride, Elisabeth Christ, in 1902 and sired three children.
Frederick’s son, Fred Christ Trump, married Mary Ann MacLeod in 1936 and had five children, of which Donald was the second youngest. Fred died in 1999 and Mary died in 2000.”
Perhaps, Trump, the grandson of an immigrant, who professes to be a Presbyterian, may have forgotten the Golden Rule: Do unto others as you would have them do unto you. Besides his migrant-linked roots, America is a country founded by migrants.
Executive Order, a synopsis
The Executive Order temporarily bans all refugees and nationals of seven Muslim-majority countries from entering the U.S. for 90 days, while refugees were banned for 120 days. At the time, Trump argued that the measure was part of his administration’s strategies to stop terrorists from entering the country and to make life safe for Americans. He ignored all entreaties, including mass protests from within and outside the U.S., to rescind the decision. The administration’s act of defiance became worrisome when the White House Press Secretary, Sean Spicer, while reacting to the “Memo of Dissent” signed by 900 State Department diplomats that opposed the travel ban, told them to “either get with the programme or they can go.”
On February 5, 2017, the travel ban suffered a major setback as a federal appeals court denied the Justice Department’s request for an immediate reinstatement of the ban after Seattle judge James L. Robart, 69, had on February 3, 2017, made a ruling invalidating the order. At the time, “the 9th U.S. Circuit Court of Appeals in San Francisco asked challengers of the ban to respond to the appeal, and for the Justice Department to file a counter-response by Monday afternoon,” reports said.
Following Robart’s ruling, the State Department reversed the order, saying that the over 60,000 citizens of the affected countries, Iraq, Syria, Iran, Sudan, Libya, Somalia and Yemen, could temporarily enter the country if they had a valid visa.
The court ruling followed a suit brought before it by Washington State requesting it to block the order on the ground that it was unconstitutional and, if allowed, would harm its residents. Minnesota State and major corporations like Microsoft, Amazon and Expedia supported the suit.
But how did the Department of Homeland Security react to the ruling? It swiftly announced that it had “suspended all actions to implement the immigration order and would resume standard inspections of travellers as it did prior to the signing of the travel ban.” But it said the Justice Department, which was expected to file an emergency motion to stop the order, needed to challenge the ruling “at the earliest possible time.”
“(Trump’s order) is intended to protect the homeland and the American people, and the President has no higher duty and responsibility than to do so,” acting Department of Homeland Security Press Secretary Gillian Christensen said when announcing the suspension.
Why Appeals Court upheld stay on the order
First, the appellate judges “rejected the Trump administration’s argument that the courts lacked the right to review the President’s Executive Order.” The judges told the State Department that “There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy.” Continuing, the panel said: “Indeed, federal courts routinely review the constitutionality of and even invalidate actions taken by the executive to promote national security, and have done so even in times of conflict.”
On the claims by the two states that filed the suit (Washington and Minnesota), the judges pointed out that they “were likely to succeed in their due process claim,” noting that the due process protections provided under the Constitution apply not only to citizens, but to all “aliens” in the country, as well as “certain aliens attempting to re-enter the United States after travelling abroad.”
Also, they noted the “serious nature” of the states’ claim that “the travel ban, because it targets Muslim-majority nations and provides exceptions for members of persecuted religious minorities, constitutes religious discrimination.” The court said: “We express no view as to any of the states’ other claims.” It did note that the states had also offered “ample evidence” that reinstatement of the ban would harm their universities and businesses. The judges, therefore, rejected Trump’s appeal for lack of evidence.
The court ruling that invalidated the travel ban
After listening to the arguments of Washington State that the travel ban was unconstitutional and would harm its residents, among others, Judge Robart agreed, saying “the state was likely correct.”
According to U.S. media, Robart “grilled a Justice Department lawyer, Michelle Bennett, asking if foreign nationals from the seven countries named in the order had been arrested for plots in the U.S. since 9/11. Bennett said she didn’t know, and an unimpressed Robart replied: “The answer to that is none, best I can tell.”
In invalidating the order, Robart told Bennett, “You’re here arguing on behalf of someone that says we have to protect the United States from these individuals coming from these countries, and there’s no support for that.” The judge made it clear that he was tasked with determining whether the President’s order was “grounded in facts, as opposed to fiction.”
Expectedly, Trump in his usual ‘unpresidential’ way of responding to criticism and any opposition to his ‘morbid’ thoughts, quickly derided Robart. He took to Twitter and tweeted about Robart, a “so-called judge,” whose “ridiculous” ruling” would be overturned. “Because the ban was lifted by a judge, many very bad and dangerous people may be pouring into our country. A terrible decision.”
In his written order, Robart said it was not the court’s job to “create policy or judge the wisdom of any particular policy promoted by the other two branches,” but rather, to make sure that an action taken by the government “comports with our country’s laws.”
The Justice Department had countered that “judicial second-guessing of the President’s national security determination in itself imposes substantial harm on the federal government and the nation at large.” Robart’s order, it said, also imposes harm on U.S. citizens “by thwarting the legal effect of the public’s chosen representative.”
At the appeal court, “Acting Solicitor-General Noel Francisco forcefully argued that the President alone had the power to decide who could enter or stay in the U.S. The brief said: “The power to expel or exclude aliens is a fundamental sovereign attribute, delegated by Congress to the executive branch of government and largely immune from judicial control.”
What next for Trump?
Now that the appellate court has ruled that the travel ban remains invalidated while it continues with the examination of the matter, what next for Trump? Analysts say the coming days or weeks may witness a legal battle by the Trump administration to upturn the ruling.
Either Trump would have to listen to the voice of reason and dump the order or he may head to the Supreme Court. It is hoped that the President would not tell the world that he is ‘deaf’ by insisting on the implementation of an unpopular law.
During the presidential campaign, one of the arguments against Trump by those opposed to his presidency was that he lacked the competence to rule the U.S. He seems to be proving this school of thought right, even in his first 100 days in office. Perhaps, driven by populist fervour, he has chosen to enact orders without regard to the letters of the law, not even as they affect “the rights of man,” which the U.S. constitution upholds.
It beats the imagination of right-thinking people that the son a German immigrant could turn his back on refugees so soon after becoming the President of the U.S.
Why the travel ban is vexatious
It is without argument that the U.S. has been a victim of serial terrorist attacks and it remains a target till date. Therefore, the White House has a responsibility to protect U.S. citizens by putting in place appropriate rules. But what the Trump administration has done raises many questions:
1. His choice of only Muslim countries has made people to conclude that he has declared ‘war’ on Muslims even as he denies the allegation
2. Citizens of the affected countries were not involved in the 9/11 terrorist attacks in the U.S. Rather, 15 of the terrorists were from Saudi Arabia and the rest were from Lebanon, Egypt and the United Arab Emirates. The Trump administration is yet to explain why these countries were not affected.
3. Analysts have questioned why Pakistan, “where the Taliban and al-Qaeda have bases or Tunisia, the biggest supplier of fighters to Islamic State” and “Belgium or France, which are the home countries of numerous terrorists behind recent attacks” are also not on the list.
4. Watchers of U.S. affairs have debunked the government’s argument that the country “is relatively free from terrorist attacks, especially those perpetrated by foreigners.” They believe that “right-wing extremists probably pose as much of a threat as other “home-grown” or “lone wolf” Islamic terrorists. Noting that the term “terrorist” has a fluid meaning, they ask: “Does it only apply to Muslims? Are white supremacists who use violence not terrorists?”
Travel ban, a mockery of fight against terrorism
Analysis of all arguments for and against the travel ban clearly shows that the Trump administration’s approach to eradicating terrorism from the U.S. is a mockery of the global fight against the scourge. Not even the building of the Mexico border wall would stop illegal migrants from entering the U.S. The State Department would have to tell the world the true features with which to identify a terrorist. Many America boys and girls are in Iraq and Syria fighting on the side of the Islamic State. Some of them return to the U.S. after a period of fighting abroad. How did this group get their extremist orientation? Many of them were brainwashed right in the US.
As the State Department diplomats said in their “Memo of Dissent,” the travel ban “stands in opposition to the core American and constitutional values that we, as federal employees, took an oath to uphold.”
The group noted that, if implemented, the ban would pitch the U.S. against other nations, especially its allies in the Arab world. The move “will immediately sour relations with countries whose governments are important allies and partners in the fight against terrorism, regionally and globally.” Acting State Department spokesman Mark Toner confirmed to reporters that “The dissent channel is a longstanding official vehicle for State Department employees to convey alternative views and perspectives on policy issues.”
“The end result of this ban will not be a drop in terror attacks in the United States, rather, it will be a drop in international good will towards Americans and a threat towards our economy,” the group said.
It concluded that the ban “calls back to some of the worst times in our history,” such as the internment of Japanese-Americans during World War II. “Decades from now we will look back and realise we made the same mistakes,” the draft memo warned.