By Mike Appleton, Weekend Contributor
“A scheme of government like ours no doubt at times feels the lack of power to act with complete, all-embracing, swiftly moving authority. No doubt a government with distributed authority, subject to be challenged in the courts of law, at least long enough to consider and adjudicate the challenge, labors under restrictions from which other governments are free. It has not been our tradition to envy such governments. In any event, our government was designed to have such restrictions.”
-Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 613 (1952)
The decision of the Ninth Circuit Court of Appeals earlier this week upholding the temporary restraining order against enforcement of Executive Order 13769 produced immediate outrage in the Trump Administration. The President himself characterized the ruling as “disgraceful” and claimed that any subsequent act of terror on our shores would be laid squarely at the feet of the judiciary. Mr. Trump has been variously advised to take the matter to the Supreme Court or ignore the lower court orders entirely. In my view, the wisest option is to return to the drawing board, an idea that is apparently also under consideration.
The anger over the Ninth Circuit’s ruling is misplaced. It is neither warranted by the decision itself nor by the perceived threat to presidential power. The court did not rule on the merits of the plaintiffs’ claims and its continuation of the TRO until completion of an evidentiary hearing in the trial court is not fairly predictive of the final outcome. Moreover, the Administration has not advanced any substantive argument, either in court filings or in public statements, to support the notion that temporarily maintaining current immigration policy creates serious security risks. Indeed, we are still waiting for an explanation of what the phrase “extreme vetting” even means.
Instead of railing against the decision and engaging in personal attacks against judges, the President would be well-advised to read the opinion carefully. It contains several useful lessons for the future of his presidency.