President Donald Trump’s travel ban has some defenders on the federal bench. President Trump himself does not.
On Wednesday night, in a dissent signed by four other judges, Judge Jay Bybee of the Ninth Circuit laid out the most thorough case yet arguing in favor of the constitutionality of Trump’s executive order temporarily banning visa-holders from several majority-Muslim countries and all refugees from entering the United States. But Bybee went out of his way to admonish the president — calling him "out of all bounds of civic and persuasive discourse."
Most of Bybee’s colleagues on the bench don’t agree with him about the constitutionality of the ban. Bybee was dissenting from a Ninth Circuit decision stating that the court would not reconsider its February ruling putting Trump’s original executive order on hold.
Meanwhile, on Wednesday night and Thursday morning, federal courts in Hawaii and Maryland (respectively) put holds on the revised version of the ban that was supposed to go into effect Thursday — and which was specifically designed to pass legal muster.
President Trump has not bothered to hide his displeasure with the way the court battle’s going. Bybee’s the first federal judge to agree that, legally, the courts are getting it wrong. But he wasn’t nearly as harsh toward his fellow judges as he was toward the president himself:
Even as I dissent from our decision not to vacate the panel’s flawed opinion, I have the greatest respect for my colleagues. The personal attacks on the distinguished district judge and our colleagues were out of all bounds of civic and persuasive discourse—particularly when they came from the parties. It does no credit to the arguments of the parties to impugn the motives or the competence of the members of this court; ad hominem attacks are not a substitute for effective advocacy. Such personal attacks treat the court as though it were merely a political forum in which bargaining, compromise, and even intimidation are acceptable principles. The courts of law must be more than that, or we are not governed by law at all.
This isn’t just an act of solidarity among members of the judicial branch. It’s a reminder that Trump’s inability to keep his mouth shut about pending legal cases continues to hurt him in court — and a warning that it might end up alienating his ideological allies on the bench.
The judges who’ve ruled against Trump so far have done so in the name of judicial independence — both against the Department of Justice’s insistence that the executive order isn’t subject to judicial review, and to the president’s own bullying. Bybee’s dissent is sympathetic to the administration on the first point, and appalled by the second.
And it raises a question for other judges, or Supreme Court justices, who may believe that the ban is supported by constitutional precedent: If past cases give the president broad authority, is it better to overturn those cases or to sanction this ban and President Trump’s behavior?
There is a legal argument that courts should defer to Trump. But he’s trying to bully them into it.
The Ninth Circuit has been the biggest obstacle to Trump’s travel ban. Its ruling in February (upholding a lower-court judge) that kept the executive order on hold ultimately inspired the administration to go back to the drawing board and work out a more narrowly tailored version of the ban. That version, issued March 6, was supposed to go into effect Thursday — but was put on hold, Wednesday night, by Judge Derrick K. Watson of the US District Court of Hawaii, which is part of the Ninth Circuit. (A second hold on the order was issued Thursday morning by a judge in Maryland.)
If the Trump administration wants to get the travel ban back on track, it’s going to have to appeal the Hawaii judge’s ruling to the Ninth Circuit — and hope the circuit is more amenable to travel ban 2.0 than they were to the original. It will also have to appeal the Maryland ruling to the Fourth Circuit Court of Appeals — both holds are going to have to be removed for the ban to go forward.
And the Ninth Circuit’s ruling Wednesday, refusing to reconsider its February ruling with a bigger panel of judges, isn’t a sign that the Trump administration is likely to have better luck this time.
The administration’s best hope is that Bybee, and the other four judges who signed onto his dissent, lay out a very solid case that the Ninth Circuit should be more careful in striking down immigration executive orders.
Indeed, the dissent is a good model of what a Supreme Court ruling might look like if, say, Justice Anthony Kennedy sided with the court’s conservatives to uphold the ban. And in the meantime, it’s a reminder that, despite the losses the Trump administration has suffered so far at the hands of mostly liberal judges, the ultimate outcome of the travel ban isn’t yet judicially assured.
The courts have traditionally given the executive branch sweeping authority to exclude prospective immigrants and refugees from the United States, and very few constitutional protections to the people who get excluded. So Bybee believes that the Trump administration shouldn’t have to prove the travel ban wasn’t intended to discriminate — which has been a major legal objection it wasn’t able to address in revising the executive order, because you can’t revise away intent. When it comes to immigration law, Bybee writes, the president gets to meet a lower constitutional standard.
It might sound like a cop-out, but it’s not — there’s both Supreme Court and Ninth Circuit precedent for giving such broad immigration discretion. And by striking down the new executive order without addressing the precedents, Bybee points out, the court’s creating two contradictory precedents at once.
If Bybee’s argument is correct, the Ninth Circuit would have to rule in Trump’s favor to prevent the contradiction. But the Supreme Court wouldn’t. It would have the choice between using existing precedent to restore Trump’s travel ban or overriding the older cases by striking them down.
And if other judges are as horrified by Trump’s behavior as Bybee is, they might be more inclined to choose the latter.
Here’s why: Many of the judges who disagree with Bybee, and have ruled against the ban, see the heart of the case as a simple matter of judicial independence. The Trump administration says the ban isn’t subject to judicial review, but the Trump administration doesn’t respect the judiciary, so the Trump administration is wrong. The Ninth Circuit ruling from February said the Trump administration’s argument that the travel ban wasn’t judicially reviewable “runs contrary to the fundamental structure of our constitutional democracy.”
But the principle embedded in the precedents, and the one Bybee’s trying to uphold, is that judges have an obligation to defer to the president when it comes to matters of national security, because he reflects the will of the people in a way the court does not.
This is more or less the argument Trump himself is making. But he’s doing so in such a bullying way that it raises concern that judicial independence really is under threat — that the “bargaining, compromise, and even intimidation” that Bybee writes about is already happening.
Trump’s attacks on the judges who’ve ruled against him are becoming a self-fulfilling prophecy: The more he attacks judges, the more stridently the judges resist. Bybee may not believe that Trump’s actions are enough to outweigh the court’s obligation to grant him deference. But Bybee’s dissent makes it clear that the more Trump rails against judges for ruling against him, the harder it might be for judges to give him what he wants.