Trump v. State of Washington: 9th Circuit Court Holds Back the Tyranny of the Majority

The 9th Circuit Court of Appeal's decision in Trump v. State of Washington is a triumph of US constitutional democracy over the first legal attempt by the Trump administration at Putin-style authoritarianism. 

From a legal point of view, the election of Donald Trump should be nothing to worry about. The United States' foreign and domestic policy cannot be changed overnight. There are checks and balances in the three branches of government. The entire American system was established to prevent the exercise of tyranny.

Donald Trump's attempt to ban the entry of any citizen from seven Muslim-majority nations (Iran, Iraq, Syria, Somalia, Libya, Yemen, and Sudan) is a case in point. The Federal, 9th Circuit Court of Appeal's decision to uphold an injunction continues to prevent enforcement of this Executive Order. It is both a lesson in US constitutional law and an important milestone in the just-being written history of the Trump presidency.

Number one, it is important to realize that this does not open the floodgates to immigration from these or other any country. The US has various visa and entry requirements that prohibit this from happening, like it or not.

The issue was that many citizens of these countries had already been granted entry. This included students and faculty at universities run by the states of Washington and Minnesota. These were people who had "Green Cards", meaning they were permanent residents of the United States. On behalf of its state universities, Washington, joined by Minnesota, brought the suit against Trump.

Trump had an amazing argument that he presented to the courts. It was one made by his lawyers but it is also one that he will continue to test politically. He argued that in times of war - and according to Trump, we are now in the midst of a war against radical Islam - the constitution is suspended.

What would this mean if this were true? It means that the government could arrest and put people in jail without a trial for an indefinite period of time. That wiretaps could be installed on anyone's telephone without a warrant. That anyone the government decides is a threat to the nation could be excluded or expelled from the country.

It really is the threat of all-out tyranny. The 9th Circuit Court noted the impressive nature of this claim:

Instead, the Government has taken the position that thePresident’s decisions about immigration policy, particularly when motivated by national security concerns, are unreviewable, even if those actions potentially contravene constitutional rights and protections.

The Court went on to absolutely reject this as inconsistent with constitutional democracy:

There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy.

Without the ability of courts to invalidate laws that are inconsistent with the constitution, countries like the US and Canada would be susceptible to being turned into dictatorships. We could be faced with governments that murder its citizens, like Hitler's Germany, or a modern, authoritarian, and more benign version like those that exist in places like Russia and China.

There is no doubt that Donald Trump admires the flexibility that is given to rulers in countries where there is no robust constitutional review, despite the fact that this means a lack of freedom of expression, a weak judicial branch, and the lack of political dissent.

For those concerned about whether Trump represents a real and present danger to US democracy, as flawed as it is, the 9th Circuit Court decision should come as a welcome reminder that the various articles and amendments to the US Constitution were created to prevent such excess. The Court noted that Trump's lawyers had offered no evidence, not even a scintilla, to justify its claim that an absolute bar to entry was necessary because of the threat posed by citizens of the seven countries in question. It noted that the Executive Order could easily be seen as a thinly disguised "Muslim ban", which was contrary to the 1st Amendment that the government pass no law that favoured one religion over another.

Because Trump's Executive Order prevented permanent residents form having any recourse to due process, the Court maintained the injunction against the the Order. In doing so, it reminded everyone - both those living in the US and those of us who watch closely from abroad - that the US remains a constitutional democracy, no matter how hostile those that run it may be to this fact. 



State of Washington v. Trump, No. 17-35105 (9th Circ.), slip op. at 18