In a development that came as a surprise to pretty much no one except the President himself, the Ninth Circuit Court of Appeals has upheld a federal district judge’s nationwide stay of President Trump’s Muslim ban. This result immediately elicited the rare all-caps reaction from our illustrious Tweeter-in-Chief, who for some reason is talking a mighty big game about courts for someone who just got thrashed in two of them.
Interestingly, the opinion’s primary objection to the executive order is the likelihood that it violates affected individuals’ due process rights under the Constitution—for example, the hundreds of individuals detained at airports around the country who had no notice of the order and received no hearing on its application to them. By grounding its reasoning in due process instead of religious discrimination, the Ninth Circuit sidesteps the slightly trickier issue of whether the executive order is a Muslim ban. (It’s absolutely a Muslim ban, but since the court found the states had already won on due process grounds, the court decided not to go further than necessary.)
Tucked in to the ruling’s language, though, is the court’s hilariously rude response to the government’s argument that the hastily-disseminated “just-kidding” statements that the White House put out in the midst of the disastrous rollout—most notably, the guidance “clarifying” that the order didn’t apply to lawful permanent residents—made the travel ban legally sound. All emphasis mine:
The Government has argued that, even if lawful permanent residents have due process rights, the States’ challenge to section 3(c) based on its application to lawful permanent residents is moot because several days after the Executive Order was issued, White House counsel Donald F. McGahn II issued “[a]uthoritative [g]uidace” stating that sections 3(c) and 3(e) of the Executive Order do not apply to lawful permanent residents. At this point, however, we cannot rely upon the Government’s contention that the Executive Order no longer applies to lawful permanent residents. The Government has offered no authority establishing that the White House counsel is empowered to issue an amended order superseding the Executive Order signed by the President and now challenged by the States, and that proposition seems unlikely.
A loose translation: “You incompetent goobers blew this in every conceivable way and clearly have no fucking idea what you’re doing, and you have yet to give us any reason to trust literally anything you say about it.” Shade dressed up in legal jargon is the best kind of shade. The opinion continues:
Nor has the Government established that the White House counsel’s interpretation of the Executive Order is binding on all executive branch officials responsible for enforcing the Executive Order. The 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. Moreover, in light of the Government’s shifting interpretations of the Executive Order, we cannot say that the current interpretation by White House counsel, even if authoritative and binding, will persist past the immediate stage of these proceedings.
The court does have a valid point about the authority to modify executive orders, etc., but this last passage sure looks like a hilarious judicial subtweet of an administration that often appears pathologically incapable of telling the truth. The President hasn’t stopped lying about this stunningly lazy executive order since the moment he signed it, and he has to deal with the consequences, which now included getting owned in federal court. Twice.
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