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.