The list of evidence-free claims from President Trump and his administration is long and growing. âMillionsâ of people voted illegally. Inauguration turnout was the âbiggest ever.â All negative polls are âfake news.â
No matter how hard the administration is pressured to support itsÂ assertions, no matter how many âfour-Pinocchioâ and âpants on fireâ ratings follow, Trump doesnât relent. Itâs hard to imagine he feels the need to, especially when polls such as one this week out ofÂ Emerson CollegeÂ show registered voters find his administration more truthful thanÂ its interlocutors in the news media.
‘Trump administration seen as more truthful than news media’https://t.co/6LmsR5JOSW
â Donald J. Trump (@realDonaldTrump) February 8, 2017
Trumpâs defiance might work well as political theater, and thereâs no denying that it made for an effective presidential campaign. But as a legal strategy, itâs already hitting roadblocks.
The first came last week, when a federal judge froze his controversial executive order shutting U.S. borders to refugees and migrants from seven mostly Muslim countries.
But the real blow came Thursday, when an appeals court upheld that freeze. In aÂ unanimous opinion, a three-judge panel on theÂ U.S. Court of Appeals for the 9th Circuit found that the government had failed to show why the travel ban needed to be immediately reinstated, as The Washington Postâs Matt Zapotosky reported.
To arrive at that decision, the appeals court did something close to what fact-checkers, journalists, scholars and others do every day when Trump and his surrogates make extraordinary claims: It demanded extraordinary evidence â or at least some evidence âÂ for the administrationâs arguments.
And it got none, the judges said.
The court asked the government to explain the âurgent needâ for the order to be restored, but Justice Department lawyers offered âno evidence,â the opinion read.
It asked for evidence in the form of legal precedents that noncitizensÂ affected by the order âhave no rightsâ under the Constitution. The court found the governmentâs examples unconvincing.
It also askedÂ for evidence that immigrants from the countries named in Trumpâs order had committed terrorist attacks in the United States. Instead, the government merely argued that the court âmust not review its decision at all,â according to the opinion.
In court papers, the government argued that the presidentâs authority to suspend immigration was âunreviewable,â meaning the court couldnâtÂ check his power. That seemed to alarm the judges.
âThere is no precedent to support this claimed unreviewability,â the opinion read, âwhich runs contrary to the fundamental structure of our constitutional democracy.â
The only thing at issue in the case right now is the temporary order blocking Trumpâs travel ban. A decision on whether the travel ban is legal or constitutional could be a long way away.
The Trump administration says the travel ban is necessaryÂ to protect national security and defend the country against terrorism. Trump went so far as to assert on Twitter that if a terrorist attack did happen, the judiciaryÂ would be to blame.
While language like that might play well with the base, it was part of what caused the court to recoil, suggested Mary Fan, an immigration and refugee law professor at the University of Washington School of Law.
âThe court canât abdicate responsibility in the face of fear-filled words like âterrorismâ or terms of deference like ânational security.â These are, of course, important interests, but you have to have substance behind the words,â Fan told The Post.
âYou canât just play upon these fears without giving the court a substantial reason to justify extreme exercises of power,â Fan said. âThe Trump administration made the 9th CircuitâsÂ job easier in the sense that they were so extreme in what they claimed about unreviewability that they made themselves into a straw man easy to knock down.â
TheÂ Justice Department said in a statement it was reviewing the 9th Circuitâs opinion.
TrumpÂ reacted angrily on Thursday, accusing the judges of making a âpolitical decision.â He had previouslyÂ used the phrase âso-called judgeâ to refer to U.S. District Judge James L. Robart, who penned the lower court decision that paved the way for the appeals courtâs ruling.
Trumpâs attacks on the judiciary will likely continue, but heâll have a hard time bashing individual judges on the appeals court because the opinion was unanimous and unsigned, said Jonathan Hafetz, a constitutional law professor at Seton Hall University School of Law. Writing on the legal blog Balkinization, Hafetz described the 9th Circuitâs ruling asÂ an âimportant moment in the defense of judicial independence.â
âPresident Trump, from his reckless implementation of the Executive Order to his flagrant attacks on the integrity of federal judges hearing these challenges, has transformed the case into an early â and critical â showdown over the independence of the judiciary in the United States,â Hafetz wrote. The judges, he added, may haveÂ penned the opinion unanimously because they ârecognize the real and grave threat Trump poses to the foundations of the constitutional order.â
In a case such as this one, the government faces a heavy burden.Â To liftÂ the stay on Trumpâs executive order, it had to show both that it was likely to succeed on the merits of the case, and that leaving the stay in place would cause âirreparable injury.â It failed on bothÂ fronts.
âAlthough we agree that âthe governmentâs interest in combating terrorism is an urgent objective of the highest order,’â the court said, citing a past Supreme Court opinion, âthe government has done little more than reiterate that fact.â
The judges continued: âDespite the district courtâs and our own repeated invitations to explain the urgent need for the Executive Order to be placed immediately into effect, the Government submitted no evidence to rebut the Statesâ argument that the district courtâs order merely returned the nation temporarily to the position it has occupied for many previous years.â
In a damaging aside, the court raised questions about whether it could trust the administrationâs credibility on the status of the order itself, saying that the administration, through the White House counsel, had shifted positions on whether the order would apply to lawful permanent residents.
âThe White House counsel is not the President, and he is not known to be in the chain of command for any of the Executive Departments,â the court wrote.Â âWe cannot say that the current interpretation by White House counsel, even if authoritative and binding, will persist past the immediate stage of these proceedings.â
In short, the court found the administration essentially unbelievable, as have many of Trumpâs critics.
Though the courtâs rulingÂ represents a significant setback for the administration, some legal observers cautioned about reading too much into it. The courtÂ has yet to rule on the merits of the case, including whether the order discriminates against MuslimsÂ specifically, as the plaintiffs â the states of Washington and Minnesota â argue.
âAre there tea leaves to read in this opinion? There sure are, particularly with respect to the judgesâ analysis of the governmentâs likelihood of prevailing on the merits and its blithe dismissal of the governmentâs claims of national security necessity,â wroteÂ Benjamin Wittes,Â editor in chief of Lawfare.
âBut itâs worth emphasizing that the grounds on which this order was fought are not the grounds on which the merits fight will happen,â Wittes wrote. âEventually, the court has to confront the clash between a broad delegation of power to the President â a delegation which gives him a lot of authority to do a lot of not-nice stuff to refugees and visa holders â in a context in which judges normally defer to the president, and the incompetent malevolence with which this order was promulgated.â