President Trump has just lost a major decision in court. Today the 9th Circuit court in the state of Washington has ruled, in an unanimous 3-0 decision, to maintain the temporary court injunction on the President’s travel ban from 7 muslim-majority nations, effectively shelving his executive order indefinitely. The President defiantly Tweeted, in all-caps, “See you in court, the security of our nation is at stake!” And speaking with reporters, he also characterized the decision as political in nature.
This win for Washington State’s attorney general, who challenged the executive order in court, means that the immigration rules and vetting practices established during the Obama administration, and still in effect today, will continue to operate in full effect. The ban would have effected tens of thousands of students at American Universities, and employees of U.S. companies, holding valid visas granting entry into the United States.
This is a big set back for the President. Though the stay in question is temporary, it could be months before the question is further litigated, probably in the Supreme Court. The President has invested a lot in this fight, emotionally, and in terms of political capital, the invisible currency of Washington, D.C. He Tweeted his disdain for the judiciary while the three 9th circuit judges were reviewing the case, which prompted Supreme Court nominee Neil Gorsuch to call the President’s statements “demoralizing and disheartening,” in a meeting with a Democratic Senator.
Alan Dershowitz, renowned attorney, and Harvard Law School Professor Emeritus, has suggested, during interviews with CNN, that President Trump could “repeal and replace” his controversial executive order with a new and better one, written in consultation with experts to correct its weaknesses.
But it’s unlikely the President will heed this advice. His signature narcissism, and obsession with “winning” and saving face, will Trump (no pun intended) his interest in national security, and dictates that he’ll meet this challenge head on, in a confrontational, zero-sum manner. Since federal courts don’t overturn Presidential Executive orders lightly, the President faces an uphill battle to prevail at the next stage.
If the U.S. Supreme Court hears the case, there’s a possibility of a 4-4 tie, since the current vacancy, following the death of Justice Antonin Scalia, won’t be filled in time. If so, the 9th circuit court’s ruling will stand, and the President’s executive order will be ruled unconstitutional. Only a majority 3-1 ruling, or a unanimous 4-0 ruling, would permit the President’s travel ban to become a valid law. There’s one more possibility, which is unlikely. Justice Kennedy, of SCOTUS, could refer the case to the full Washington State supreme court, with 11 federal judges presiding. However, since the case is so important, he’s less likely to go this route.