Trump’s travel ban: This is how we know Trump has set himself up for failure

Yesterday, the 9th circuit Court of Appeals in the United States handed down a ruling in the appeal brought to it by the US Justice Department against James Robart’s decision temporarily lifting Donald Trump’s two-week old executive order which places a ban on non-American citizens trying to enter the United States from 7 countries – Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen.

And boy did the appellate decision hurt Trump! The President has been on Twitter promising to keep at the battle:

Seattle-based Judge, James Robart had handed down the decision to temporarily lift Donald’s ban nationwide on Tuesday last week after a case was made against the ban by the States of Minnesota and Washington.

The Department of Justice, of course on Trump’s orders, since he’d already sacked Sally Yates, the Attorney-General who refused to defend the band when it was first challenged by Washington D.C., then filed this appeal. In dismissing it, the Judges did not limit their “No” to the substance of the matter alone, they went further to chastise Trump saying:

“Whether or not one agrees with the substance of a particular judicial decision, it is inappropriate for sitting presidents, or other government officials, to engage in ad hominem attacks against a judge (referring to Trump’s cruel remarks against Judge Robart when he inferred he wasn’t a real judge), or otherwise place political pressure designed to undermine the independence of that judge, or to erode trust in the entire court system.”

Now that the Appellate judges – a panel of three made up of two Republican appointees and only one appointed by Obama – have dismissed Trump’s challenge and he’s promised to go back to the Court; either back to Judge Robart or the Supreme Court this time, let’s look at his options, shall we?

Last night, Kellyanne Conway went live to say that the administration is “fully confident” that it will eventually prevail since “this ruling does not affect the merits at all”. This is despite the fact that the 29-paged ruling clearly explains how Trump’s order had failed to put in place the Constitutional prerequisites necessary to validate such an order limiting people’s travel rights before it was made.

But before Trump goes on to the Supreme Court, he may have to be reminded that this ruling was only delivered in respect of his appeal to temporarily lift the ban as ordered by Judge Robart. The substantive suit to determine the legality of Trump’s ban still has to be heard by Judge Robart in Seattle and over a dozen other courts across the country.

White house Press secretary, Sean Spicer said the Trump administration looks forward to the matter being heard on its merits i.e with Judge Robart. With this, we already know what is likely to happen in Judge Robart’s courtroom. However, that leaves the other cases scattered around the country before other judges – some of them pro-Trump’s order (e.g the Judge in Boston).

But because Sean Spicer is who he is and no one knows if (or when) he will recant added to the fact that he’s already said that the president’s counsel’s office is still exploring what the “best legal route is”,  let’s look at the Supreme Court options.

If this ruling is instantly appealed and heard by the Supreme Court as it is currently constituted – short by 1, the result will most likely be evenly split.

The US Supreme Court quorum is 9 but there are only 8 Justices on the bench right now. 4 Democratically inclined and 4 Republicans. President Trump has already nominated the last Justice who should be confirmed anytime now – Neil Gorsuch. 

However, even the president’s Supreme Court nominee has given some indications that he is not inclined to always be pro-Trump. In the wake of Trump’s anger when he was publicly lashing out at James Robart, Gorsuch told senators that he found such attacks on judges to be “disheartening” and “demoralising.” A Trump appointee critical of Trump does not spell easy victory for this order if heard at the Supreme Court today. And a loss at the Supreme Court throws Trump’s ban out of the window.

All of these are mere prognostications and if November’s elections in the United States taught us anything, it is the fickle weight that should be attached to such predictions. The anger of Americans who have not stopped protesting this ban by any means possible has a better chance of throwing this ban out than well thought out predictions.



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