By Josh Gerstein
February 9, 2017
President Donald Trump's three-week-old administration took a thrashing from a federal appeals court Thursday as a panel of three judges unanimously rejected his request to resume enforcement of his controversial travel ban executive order.
The 9th Circuit Court of Appeals ruling put into sharp relief several tactical and strategic errors Trump and his aides made in crafting, implementing and defending the order, which the president said was needed to ward off the terrorist threat posed by foreigners entering the U.S.
Introspection does not seem to be one of Trump's strongest personality traits. Even after Trump's own Supreme Court nominee expressed strong discomfort with Trump's public attacks on judges weighing his travel ban case, White House press secretary Sean Spicer made clear that the president had no intention of retreating from his remarks.
"He has no regrets," Spicer said flatly.
Now, several legal experts are urging Trump to withdraw his order altogether, so it can be redrafted in a way that might be more likely to hold up to court review.
Here are three key mistakes that contributed to Trump's courtroom defeat Thursday:
1. The green-card debacle
The White House failure to make clear from the outset that the travel ban did not include U.S. permanent residents, so-called green-card holders, was both a political and legal gaffe of the first order. The confusion led to the detention of more than 100 green-card holders during the first 24 hours the order was in effect and many more thereafter.
That caused major blowback from Congress, because many green-card holders are longtime residents of the U.S. It included many Iranians who fled their country in the 1980s to escape Islamic fundamentalism, a bizarre result for an executive order allegedly aimed at combating radical Islamic terrorism.
But strictly as a matter of legal strategy, the impact on green-card holders was a serious error. Permanent residents have more U.S. constitutional rights than any other category of foreigners. The green-card issue all but guaranteed that opponents of the travel ban would win the early rounds of litigation by persuading judges that these long-term U.S. residents were being unfairly denied entry or detained.
White House officials have insisted that green-card holders were never supposed to be covered by the order, but many experts don't believe that.
"I think they clearly intended to include legal permanent residents," said Jonathan Meyer, a former Department of Homeland Security deputy general counsel. "It was a mistake to do so, compounded by the fact and shows that they did not vet this sufficiently. There's no question that it meant they would face legal defeats ... It's definitely hurt them."
All eyes are on a 9th Circuit Appeals Court case over Donald Trump's travel ban, but there are roughly 20 other cases nationwide challenging it.
2. The McGahn fix
One of the steps the Trump team settled on to save face while stemming the legal and public outcry over the order's impact on U.S. residents essentially blew up in the White House's face Thursday.
Once the concern about green-card holders was identified, Trump could have simply signed a half-page tweak to his executive order, making crystal clear that U.S. permanent residents were exempt from the order. But he didn't do that, apparently because he or his aides did not want to admit any flaws in the drafting or vetting process. A formal change to the order would have amounted to a concession of such imperfections.
Instead, Trump and his advisers settled on having his official lawyer — White House Counsel Don McGahn — sign a memorandum purporting to offer "authoritative guidance" that the order did not apply to green-card holders. The memo did not say that Trump instructed McGahn to tweak the order or even that the president approved the new "guidance."
"The White House counsel speaks for the president in this context," Justice Department lawyer August Flentje insisted during Tuesday's oral arguments in response to skeptical questions from the only Republican appointee on the three-judge panel, Richard Clifton.
Despite the claims by McGahn and Flentje that the counsel's memo was conclusive, the three judges nearly ridiculed that position.
"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," the judges wrote, adding curtly: "That proposition seems unlikely."
And the appeals judges didn't leave it there.
"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," the court wrote.
Some legal experts said the Trump administration's contention that McGahn could clarify the order was bizarre. If Trump wanted to change it, he could have in moments with the stroke of a pen, but the bravado exhibited by the president and his aides seemed to foreclose that possibility.
"There were other options," said George Washington University law professor John Banzhaf. "The president's counsel has no official standing at all ...The Homeland Security Secretary does, the Secretary of State does. Maybe it's not as good as the president himself, but it's a hell of a lot better than the counsel, the president's dog, his wife or his son, all of whom have no official standing whatsoever in the government.
3. Pushing the legal argument too far
Another major tactical mistake came when the Justice Department decided to argue to the 9th Circuit that the courts have no role to play whatsoever in examining immigration-related decisions the president makes on national security grounds.
The claim that Trump's action was unreviewable is a tough one for judges to stomach. Some lawyers say government lawyers might have done better by acknowledging a role for judges but insisting that they must be very deferential to the executive branch.
"I think in the context of this case it was clearly a mistake," said Meyer, now with Sheppard Mullin. "I think it's a mistake almost any time you tell judges you can't look at something."
The claim that the issue was beyond the province of the courts essentially invited the judges to do just what they did at oral arguments on Tuesday: raise Trump's "Muslim ban" comments and ask whether the courts would have no role in reviewing an immigration-related action explicitly taken to discriminate against a religion or for some other highly dubious reason.
The court's opinion makes short work of that argument. "There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy," the judges wrote.
And while the judges made no reference at the arguments or in their opinion to Trump's extraordinary public attacks on them and the judge who issued the restraining order at issue, this is where Trump's statements may have come into play.
The 9th Circuit ruling goes on to cite a Supreme Court case decided under President George W. Bush rejecting efforts by Congress and the White House to shut down legal cases brought by Guantanamo prisoners. If the courts did not believe Bush was due complete deference in that case, it seems unthinkable that the 9th Circuit would grant such latitude to Trump, given the erratic decision-making processes on display in recent weeks.
"Given the dynamics we've seen in this administration, they had to know that argument would not be popular with almost any judge," Meyer said.
In their ruling Thursday, the judges didn't squarely address the relevance of Trump's "Muslim ban" talk to assessing the legality of his executive order. But it was clear that the fact Trump was on the record suggesting a desire to target Muslims made it almost impossible for the judges to buy into the Justice Department's argument and conclude his order should be entirely immune from judicial scrutiny.
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