The travel ban is in a weird place. While it could be taken to the Supreme Court, if the Supreme Court were to tie (which is likely since it is missing a member), then the Ninth Circuit Court’s ruling would be upheld. The Senate could also try to push through Trump’s Supreme Court nominee Neils Gorsuch, but such a thing would likely create another debate over the use of the ‘nuclear option’ and lead to a showdown in the Legislative Branch. How did we get here?
After the Ninth Circuit Court upheld the stay on Trump’s Travel and Immigration Ban, there was a lot of uproar from the Republicans, especially Trump himself who took to twitter to assail the Courts. Shortly before that, Trump had also tweeted criticism of Judge James L. Robart, who initially ordered the restraint on the executive order. In the tweet, Trump said, “What is our country coming to when a judge can halt a Homeland Security travel ban and anyone, even with bad intentions, can come into U.S.?”
I have no doubt that the ruling was infuriating to Trump, but it’s important to remember just what the duty and responsibility of the courts is. Unfortunately, America has become deadlocked by an incredibly partisan culture. Everything down to the finest details of daily life is now criticized by each respective side for either being “too conservative” or “too liberal.” In effect, every viewpoint someone disagrees with, every cultural phenomenon someone dislikes and every world event is distilled down to either “those damn republicans” or “those damn liberals.” The Judiciary Branch is the one branch of government where that type of thinking is supposed to be explicitly avoided. They deal with one thing and one thing only, the law.
Trump is not the only person to do it, but his constant and berating attacks on the Ninth Circuit are a symptom of this partisan approach to government and the distilling down of every action into a partisan debate. The Supreme Court’s ability to review the law and rule on the validity of executive orders, legislation and all other manners of legal infractions or operations is simply enshrined in the ink of our Constitution. For Trump to dismiss the entire idea of the Judiciary based on their restraining order is an offense to our nation’s democratic makeup. The ruling may not have been favorable to him, but in denying that the ruling is even valid he says that the entire Judicial branch is baseless.
What gets lost in that mindset is that the ruling wasn’t even a yes or no decision on whether or not the Travel Ban is legal. The decision by the Ninth Circuit Court was not “Trump’s Travel Ban is the worst thing to ever happened to mankind and racist and baseless and terrible,” it was “Trump’s Travel Ban presents immediate complications for the state and its citizens and its validity and warrant must be reviewed.” The only thing the Ninth Circuit did was uphold the stay, in other words giving government officials and the courts more time to review the facts behind the executive order. It’s not a judgment. In fact, the Ninth Circuit refused to say that the ban had anything to do with religion. Their real decision was that the ban had no immediate need or basis, something which is backed up by the fact that no Terrorist incidents have originated from these countries, but that it did have immediate effects on the states and the citizens therein and so there was time to put a hold on and review the context and legality of the ban.
Really all of this could have been avoided if the Trump Administration had taken the time upfront to actually confer with the Judiciary on the legality of the order before signing it into action. If they’d taken the time to run it by the different states, and actually inform homeland security on how to implement it. Instead, the Travel Ban was rushed through.
That’s not entirely the Trump Administration’s fault. It just shows how difficult it is to try and run our government in the face of hyper-partisanship. If the Trump Administration had taken those steps and conferred with the democrats before instituting the order, I have absolutely no doubt that there would still be a media crusade. There would still have been a complete dismissal of any parts of the order that might actually be beneficial because that’s simply what you have to do in our political climate. If you’re a democrat you have to burn anything that touches Trump or has even the faintest republican scent.
Our attitude towards politics, treating it like the Superbowl where you’re either for one team or the other, is incredibly harmful to our country. Not only because it leads to situations like this where the Judiciary Branch itself is called into question, but also because it breeds even more partisanship. It spirals out of control too quickly when we treat politics like religion and both sides are to blame.
The Travel and Immigration ban is gone for now, but regardless of how it turns out, in the end it won’t be for anyone’s benefit. If it stays blocked, and the Supreme Court upholds the Ninth Circuits ruling, then the republicans will feel as if it’s a personal affront to their values and they will work to subvert the system. If the travel ban is reinstated, then the liberals will keep crying racism and neglect, resorting to the power of the mob rather than the power of the discussion room.
We all lose when we treat politics in this way, and the president isn’t helping by buying into the rhetoric.