It appears that the problem with the Internet in Palau resulted in the deletion of the original post on the decision in Virginia. I did not want to delete any discussion so I am keeping this post. I am in Guam now with better Internet access. Virginia federal district court Judge Leonie Brinkema granted a preliminary injunction which requires a higher showing for the challengers. In that sense, this is an obvious victory but it could also be an opportunity for the Trump Administration. I believe that the Brinkema decision might be the better option for the Administration to appeal given its focus on religious discrimination and its reliance on campaign statements and the bizarre statements of Rudy Giuliani.
I have previously expressed my skepticism over the use of Trump’s campaign statements as a determinative or even substantial element to the interpretation of the executive order. The opinion states “The evidence in this record focuses on the president’s statements about a ‘Muslim ban’ and the link Giuliani established between those statements and the (executive order) . . . Based on that evidence, at this preliminary (stage) of the litigation, the Court finds that the Commonwealth has established a likelihood of success on the merits.” That creates a target rich environment for appeal.
Moreover, I consider the religious challenge to face the most significant opposing precedent and textual difficulty. If that is the case, the Administration could consider fast tracking the appeal to the Fourth Circuit, which is generally more favorable than the Ninth Circuit for the government. Of course, this could become moot with a rewriting of the order. I have previously stated that I view this order as poorly written, poorly executed and poorly defended by the Administration.
Brinkema’s statement on limited power is compelling but it does not fully answer the question presented in my view:
Maximum power does not mean absolute power. Every presidential action must still comply with the limits set by Congress’ delegation of power and the constraints of the Constitution, including the Bill of Rights. It is a bedrock principle of this nation’s legal system that “the Constitution ought to be the standard of construction for the laws, and that wherever there is evident opposition, the laws ought to give place to the Constitution.” The Federalist No. 81, at 481 (Alexander Hamilton) (Clinton Rossiter ed., 1999). Defendants have cited no authority for the proposition that Congress can delegate to the president the power to violate the Constitution and its amendments and the Supreme Court has made it clear that even in the context of immigration law, congressional and executive power “is subject to important constitutional limitations.” Zadvidas v. Davis, 533 U.S. 678, 695 (2001).
This is premised on the notion of religious discrimination as driving the motive and affect of the order. The Administration could respond that there is an equally countervailing danger in the exceeding of judicial authority in this case. Unlike the Ninth Circuit case, this is not an order with national scope but politically it could be viewed as the best option for a reversal. Legally, however, it still needs to either moot or reverse the Ninth Circuit case.