President Trump signs an executive order in the Oval Office at the White House in Washington, D.C. Photo courtesy of Reuters/Jonathan Ernst

Trump's executive order religiously discriminatory, Appeals Court suggests

Your executive order on immigration looks like a pathetic loser, the Ninth Circuit Court of Appeals told Donald Trump Thursday evening.

Upholding Federal District Judge James Robart's temporary restraining order, the unanimous three-judge panel summarily dismissed the president's claim that courts can't review his exercise of power over who gets to enter the country.

"There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy," the court declared. "[I]t is beyond question that the federal judiciary retains the authority to adjudicate constitutional challenges to executive action."

A bad high school student would understand that.

OK, I promise to refrain from Trumpian insults for the duration of this column.

The constitutional challenge the court found most likely to prevail in a trial on the merits concerned the executive order's violation of the due process rights of those barred entry. But it also emphasized "the serious nature of the allegations the States have raised with respect to their religious discrimination claims."

Never mind that the order doesn't specifically mention Muslims and talks about "religious minorities" in the affected (majority-Muslim) countries rather than Christians: "It is well established that evidence of  purpose beyond the face of the challenged law may be considered in evaluating Establishment and Equal Protection Clause claims."

In other words, Trump's expressed desire to ban Muslims and favor Christians is relevant to judging the claim that the executive order unconstitutionally discriminates on the basis of religion. Hats off to the U.S. Commission on International Religious Freedom for recognizing this.

What happens now is anyone's guess. Mine is that the president's tweet ("SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!") tells the tale.

That is to say: A trip to the Supreme Court on the restraining order, a trial on the merits, and another trip to the Supreme Court for review.

And, God willing, the executive order will be ruled unconstitutional as the religiously discriminatory thing it is.


  1. “the president’s tweet (“SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!”)’

    The president is right,but for the wrong reasons. The security of our nation is at stake. Whether we allow executive power to attack others in violation of both federal law and constitutional principles to go unchecked, or do we uphold democratic principles.

  2. I agree but also wonder about the fate of the US when the person in the highest office in the land apparently has little regard for facts, evidence and expertise. Small wonder he declined to attend security intelligence briefings during the transition period 🙂

  3. What Mr. Silk fails to note, is that the 9th Circuit is the most overturned Circuit of any of the Federal Appeals Courts; up to 80% of its rulings have been overturned by the Supreme Court. Not a great juridical track record.

  4. It’s an irrelevance to the issue, and evidently untrue. I don’t see SCOTUS granting certiori on it. There is no issue or conflict of law between the decisions of district and appeals courts.

  5. Just because Hannity says it doesn’t mean it’s so, Edward. The 9th Circuit is not the most overturned Circuit — it’s third on the list. Moreover, the relevance of such a statistic is debatable:

  6. Actually Ed, some 86% of the 9th Circuit’s rulings were overturned in 2016.

  7. Again Professor Silk must be bored with this work as a professor and pastor, so he’s got time on his hands to be eloquently wrong about President Trump’s decision. It has nothing to do with religious discrimination, or else President Trump would have included ALL the majority Muslim countries for the duration of his presidency. He did not! The 90-day hiatus on entries into the US by those from the seven war-torn Mid-Eastern merely considered the risks of some terrorists coming here, hidden among the refugees and legitimate visitors. Bravo for Silk that he chose not to give us any “Trumpian insults.” I’m insulted that he chose not to display a higher regard for the truth in this matter!

    He joins the Trump-haters who hide behind their politically-motivated LIE that this is crass discrimination against Muslims. It is not. President Trump is just asking for a brief pause so we can put in place a better system for vetting those from the seven countries in the hopes of weeding out the ones who would take advantage of our welcome of foreigners to instead come here to do us harm. How blind the Trump-haters chose to be in refusing to see the truth of our history! By halting the flow of refugees into the US during his short administration, President Jimmy Carter exercised the same legitimate presidential power that President Trump is claiming here. It’s not only the right of presidents to exercise such powers; it’s a president’s RESPONSIBILITY to do so to protect the safety and security of the American people.
    The 9th Circuit Court’s decision will certainly be overturned when it is appealed!

  8. “…President Trump would have included ALL the majority Muslim countries for the duration of his presidency.”

    That is a complete nonsense argument. If Trump could have done so without inviting a shtstorm from diplomatic, military and economic corners, he would have. This was an effort to start small and see what he could get away with. Trump chose 7 countries without direct diplomatic ties to the US. Countries which could not effectively lodge protests that we would have to take seriously. Any claim that this had to do with people from those countries is a flat out lie told after the fact. An excuse for what was clearly a barely considered act.

    Interestingly neither Trump’s Secretary of State or Defense support this measure allegedly having to do with international affairs and national defense.

    “He joins the Trump-haters who hide behind their politically-motivated LIE that this is crass discrimination against Muslims. It is not.”

    You have a problem with basic facts, as does our president and his supporters. The order does just that. It excludes Muslim refugees from those seven countries and gives special consideration for “religious minorities”. It is plainly discrimination against Muslims. You are either lying here or sadly misinformed.

    “It is not. President Trump is just asking for a brief pause so we can put in place a better system for vetting those from the seven countries in the hopes of weeding out the ones who would take advantage of our welcome of foreigners to instead come here to do us harm.”

    Which would make sense if one actually was aware of the system used for vetting or had a legitimate well founded concern that terrorists are among the refugees. But nobody supporting this act can point to either of these. In fact the implementation of the order, without any sort of clue or input from the agencies most responsible for doing so, demonstrate that absolutely no thought was put into the existing vetting system or legitimate well founded threats.

    What makes it worse is that you are taking ISIS propaganda at face value. They have been intentionally demonizing refugees just so gullible (and bigoted) fools in the west would keep them from escaping.

    “President Jimmy Carter exercised the same legitimate presidential power that President Trump is claiming here”

    No he didn’t. In fact there is a huge enclave of Iranians who came here as refugees following the 1979 Revolution.

    You are putting far more thought into terrible fact free excuses for this dookie of an executive order than what was put into writing it and implementing it.

  9. Do you have a link for that, because the one Mr. Silk attached clearly shows you are incorrect.

  10. Mr. Spuddle, anyone in possession of the facts knows that this isn’t “a complete nonsense argument” like you insist.. The seven countries in question are not even among the larger Muslim countries, and has nothing to do with discrimination against Muslims anywhere. It has everything to do with protecting the American people and their safety and security from terrorists who would do us harm. The 90 day hiatus is merely for the purpose of fashioning a better system for vetting those wishing to come here from those countries where terrorist activities and anti-American feelings are rampant. Your arguments here are all driven by anti-Trump hatred! I don’t care to read any more of the same kind of drivel from the NY Times or the Huffington Post!
    I notice you offered no comment on President Jimmy Carter’s exercise of the same presidential right to disrupt the flow of immigrants into the US during his administration. My conclusion is that you have no salient response to offer.
    By the way, I’ve noticed that you seem to have a strong need to take issue with anything I write here on DISCUS. I take it as a profound compliment anytime someone is so stimulated by my rhetoric and fact-based arguments. Having once been a professor, I recall how it used to really make my day whenever a student had such a strong disagreement with whatever I put forth. It was evidence that I had done an extraordinary job of upsetting their prejudices and showing them some new ways to think.

  11. At no point are you in possession of anything even brushing up against a fact.

    The order specifically singles out Muslims for treatment. Just because it is not a total Muslim ban doesn’t mean it isn’t a Muslim ban. Even allegedly temporary violations of the laws are still illegal. They were certainly considered harmful enough to those affected to meet the bare standards of a TRO issued and upheld by the Courts. SCOTUS won’t touch it or will remand it back because the standards required to issue the TRO are so low and so fact based, there is no issue of law here. Appeals and Supreme Courts are not triers of fact. Short of an absolute abuse of discretion by the District Court, a TRO will stand.

    You also don’t have a shred of evidence that any of the people affected by the order, including permanent resident aliens, posed any credible threat of terrorism. All you have is their religion and country of origin. So spare me your panicky fact free bullshit that this has anything to do with safety or security.

    Also Jimmy Carter did nor ever ban Iranian refugees from coming here. Whatever nonsense script you are working off can’t even get basic facts straight. I have mentioned this here and elsewhere on this site.

    You don’t care to do more than parrot easily verified lies. I know that already. Mattis has gone in record enough times and in enough credible sources criticizing President Cheeto for this order. I take issue with you because you are saying such obvious untruths and nonsense. It needs to be addressed lest someone take such garbage at face value.

    It is obvious this order was done hastily, maliciously implemented and not even close to vetted by the usual experts who check these things prior to being issued. Trump is a dangerous incompetent surrounded by sycophants.

  12. Even if your numbers are correct, 3rd on the list is hardly an aspect that would give me a great deal of confidence in that particular Circuit.

  13. The assertion, despite Mr. Silk’s assumption, was not made by Mr. Hannity. It was made by Jay Sekulow, who litigates regularly in the system of the U.S. Circuit Courts. It is hardly irrelevant, even if the 9th only ranks third in reversals. If U.S. Circuit Court judges, the highest level apart from the U.S. Supreme Court, find themselves regularly reversed by the SCOTUS, then one can reasonably question their understanding of constitutional issues, though it could be argued that the Supreme Court itself is hardly flawless in its jurisprudence.

  14. The link Mr. Silk had showed otherwise.

    That being said, the issue is unlikely to be overturned. Temporary Restraining Orders are heavily dependent on issues of fact from the lowest Court. Appeals courts and SCOTUS are not triers of fact. They only deal with issues of law. They have no authority to overturn a TRO unless they can point to some wild abuse of discretion. Something unlikely in the current situation.

    Plus with the current makeup, a 4-4 split is likely or refusal to grant certiori.

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