I thought that the Ninth Circuit opinion was very interesting and well written. In the end, however, I thought that the Court had to work too hard to find a way to rule against Trump, particularly in drawing the distinction between dangerous countries and individuals under its nationality discrimination analysis. The coup de grâce however was Trump’s own words contradicting the arguments of his own lawyers. The court noted “Indeed, the President recently confirmed his assessment that it is the ‘countries’ that are inherently dangerous, rather than the 180 million individual nationals of those countries who are barred from entry under the President’s ‘travel ban.” and quoted one of Trump’s tweets from June 5, 2017: “That’s right, we need a TRAVEL BAN for certain DANGEROUS countries, not some politically correct term that won’t help us protect our people!”
That did not stop Trump from again tweeting about the case this morning as coming at a “dangerous time.” The continuing tweets (against the public advice of even GOP members) so a disconnect from any rationale approach to this litigation. Trump has repeatedly undermined his own case with these comments.
The Ninth Circuit opinion broadens the legal foundation for the decisions on appeal. This is join the Fourth Circuit opinion before the Court and could be taken up with it. As I noted earlier, the irony is that the administration had finally assembled an excellent legal team, and they are finally before the Supreme Court where they could expect greater support for upholding Mandel. That is precisely the time that Trump chose to attack his legal team and their arguments. In the end, the Supreme Court could (and should) ignore the president’s tweets, but it is increasingly hard when he is drowning out the voices of his own counsel.