Friday, February 10, 2017

Appeals court's reasoning on the immigration ban

I had planned some non-Trump posts for today, but then the appeals court gave its decision on the immigration ban appeal, and that just seems too important to ignore, even for another day.  So, I'll save the non-Trump good news for another day.

The unsigned, unanimous decision to deny the appeal seems clearly written and explanatory.   The crucial issue hinged on the Department of Justice, representing the president, claim that the president has sole authority over national defense, and that such decisions are not reviewable -- i.e., cannot be overruled -- by the court system.  In fact, the Dept. of Justice had claimed that, were the court to do that, it would violate the separation of powers.

This court does not accept that argument.   Rather it asserts that the judiciary does have a role in safeguarding people's rights, stating that:  "the Supreme Court has made clear that the Government’s authority and expertise in [such] matters do not automatically trump the Court’s own obligation to secure the protection that the Constitution grants to individuals, even in times of war."   The rights referred to here are the equal protection clause and the non-establishment clause of the Constitution, which forbid discrimination based on religion and which forbid the government's establishment of a particular religion.

Further, to the claim that the president's decisions on national security cannot be reviewed by the courts, they addressed the issue of classified information.   What they said, in effect, is that the president cannot just assert that he knows things that he can't tell the court that show that there is grave danger from these particular countries.   The court does not accept such claims without evidence, and judges at this level can be given sensitive evidence to review in secret and keep sealed.    So "we know stuff we can't tell you" is not a sufficient defense.   But they did not offer any such evidence.

Although this hearing and the decision were not on the merits of the case itself, only whether the court should uphold the temporary stay that had been put on the president's executive immigration order, the court did nevertheless address the question of what would be admissible as evidence in deciding whether rights had been violated when the case goes back for trial on the merits.

In fact, the judges noted the previous statements by Mr. Trump in which he had promised to impose "a Muslim ban," implying that such statements could be considered in deciding whether this was a rational executive order or whether it might have arisen from a wish to exclude Muslims, even though the executive order did not make such a statement.   That goes to whether the order violates rights.

The trial on merits will involve much more discovery and depositions, gathering evidence on who worked on writing the order, how it came to be decided, what was the evidence, why it was considered such an urgent matter, etc.   Washington State Attorney General, Bob Ferguson, who brought the case, was on Rachel Maddow's show last night.   He pointed out that, in issuing the original stay, Judge Robarts had to think it likely that the state would eventually prevail on the merits.   That, in itself, is encouraging.   And, in response to Rachel's question about his satisfaction with Thursday's ruling by the appeals court, he said:  "We couldn't have gotten a better ruling, from our perspective, if we had written it ourselves."

Frankly, I was surprised that it was unanimous.   I saw some of questioning of the attorneys by the three judges, and I thought one of them seemed troubled by saying this was religious discrimination when only about 15% of the world's Muslims are affected by ban on people only from seven countries.   Apparently he got answers that satisfied him.

Although this has been chaotic, in one sense it is fortunate that this showdown between Trump and the courts has come up this early.   Because this is going to be a continuing issue with this president and at least some of his top level staff:   whether the president is above the law.   This is a good test of that.    In fact, Washington AG Ferguson voiced his strong intention to push ahead on just this point:   whether we are a nations of laws that even the president must follow.


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