On Tuesday evening, a panel of judges on the Ninth Circuit Court of Appeals considered a request from President Donald Trump’s administration to upend a lower court ruling blocking the president’s Refugee and Visa Executive Order. The previous court ruling, issued late last week, put a temporary pause on the administration’s plan to block travelers from seven countries identified by the White House as especially high-risk for terrorist activity. On Tuesday, August Flentje of the U.S. Department of Justice (DOJ) didn’t just argue the lower court was wrong in blocking the executive order. He argued the courts have no real power to review the president’s actions at all.
We are not yet through the first 100 days of the Trump administration, and already the question of whether or not the federal courts have the ability to serve as a check on presidential power is a few steps away from the U.S. Supreme Court.
This is unprecedented. It is not normal. And that cannot be said enough.
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The arguments before the Ninth Circuit were not on the merits of the executive order itself. In other words, the judges weren’t really supposed to consider whether or not the order violates the Establishment Clause that says one religious denomination cannot be preferred over the other, as the states challenging it assert. Rather, the hearing was simply to weigh whether or not the appeals court should put on pause the lower court ruling blocking the executive order while the Trump administration appeals that ruling, or whether the order will remain blocked in the meantime.
Flentje admitted to the court that if the panel ruled against the Trump administration in this case, the DOJ would ask the Roberts Court to step in and block the lower court order while the legal challenge proceeds.
In other words, no matter what comes from Tuesday’s arguments, this case—and the fight over Trump’s executive order—is far from finished.
Even though Tuesday’s arguments and questions presented in the case to the court were largely about procedural issues—such as whether or not the lower court should have issued a temporary restraining order instead of the injunction—the judges clearly wanted to talk about the constitutionality of the executive order and the scope of presidential power the Department of Justice was asserting in its legal arguments. The three judges pushed Flentje on a number of key DOJ arguments. Despite the administration’s claims in court that the executive order is not a “Muslim ban,” the judges asked Flentje: What if it were? Could the courts step in then? Or what about the administration’s argument that the states do not have standing to challenge the executive order, despite evidence of lost tax revenue and stranded residents? Don’t states have a right to challenge the federal government when the latter has arguably overstepped its authority?
Flentje had no good answers to these questions and mostly sputtered in response.
Predicting how a court will rule in a particular case based on oral arguments is mostly an exercise in frustration, but I’m going to do it anyway. My prediction is at least two of the three judges will decide to keep the lower court ruling in place. That would keep the executive order blocked while that lower court has a chance to hear arguments as to whether or not the order is unconstitutional.
What’s important from Tuesday’s hearing, though, is less how the court eventually rules and more what Flentje did not answer during oral arguments. When asked by the judges to define a constitutional limit to presidential power, Flentje could not identify one. He could not explain why the Trump administration has offered conflicting opinions as to the scope of the executive order, and whether or not it affects visa holders. Importantly, Flentje could not offer up a clear answer as to how the executive order is not a de facto Muslim ban, when the evidence in the record included public statements from Trump administration advisor Rudy Giuliani that the order was just that.
These are critical questions the administration should have answers to, but on Tuesday it didn’t. Or at least, Flentje didn’t offer those answers up to the judges. That could mean a few things. One, the administration doesn’t know the answer to, say, the constitutional limit on presidential power or the other questions asked by the judges. Two, the administration might just not care that there are answers to questions like the constitutional limits on presidential power. Three, Fientje could be sending a very clear signal to the federal courts on behalf of the Trump administration: It won’t matter how courts rule in cases challenging administration overreach, because Trump and his crew have no intention of obeying those rulings.