Travel ban court decision reminds us that feelings do not trump reason

Not long after the Ninth Circuit Court of Appeals issued President Donald Trump a major setback by upholding a district court’s stay of Executive Order 13769, one that established a travel ban against seven nations that he deemed terror risks, a defiant Trump tweeted in all caps, “See you in court, the security of the nation is at stake.”

Most legal observers immediately understood the falsity in Trump’s comment in that if security were the key issue, the list would include countries, like Saudi Arabia, that have produced large numbers of terrorists.

Second, had security been the main goal, the original order could have left the issue of religious bias completely neutral. Instead, the order allowed for “religious minorities” in the banned nations (read: Christians) to get priority for admission once the 120-day travel ban ended.

The simple fact is that we have entered into an era in which the new president, a political novice, seemingly follows only his “feelings” about the Constitution and the law.

But the beauty of our system of laws is that feelings, in theory, do not trump reason.

{mosads}Trump also seems content to continue with the ruse that his proposed travel ban is not a “Muslim ban” — contrary to what former New York City Mayor Rudy Giuliani (R) indicated had been the president’s desire, based on his conversations with him during the transition period.

If Giuliani’s words were true, then it can be concluded that this first order was merely a test for a far greater and even more constitutionally suspect purpose of discriminating on religious grounds.

Ultimately, Americans have one question about the ban: What happens next?

Typically, when district courts issue temporary restraining orders, the case is set for a full evidentiary hearing where both sides can present evidence in support of their position.

But as the Ninth Circuit noted in its order, what complicates the matter for the Trump administration is that the president and his surrogates seem fixated on the idea that the judicial branch should not second-guess the two political branches on the issue of immigration when the key issue is national security.

On this point, the Ninth Circuit held that “although our jurisprudence has long counseled deference to the political branches on matters of immigration and national security, neither the Supreme Court nor our court has ever held that courts lack the authority to review executive action in those arenas for compliance with the Constitution.”

The Ninth Circuit also provided a blueprint to other district and appellate courts that may consider similar cases and controversies in the future by holding that the individual states have standing to challenge such orders based upon the impact that such travel bans have upon faculty members and students at their state universities.

Given that, and the fact that immigrants from those seven countries have never caused a fatality in a U.S. terrorist attack — contrary to Trump’s fearmongering — it is quite likely that if the administration appeals to the Supreme Court, a potential 4-4 split would uphold the lower court ruling.

If nothing else, what is clear after President Trump’s first three weeks is that his more controversial orders — and his seeming contempt for the judicial branch — will be worth watching as the courts check and balance his unconstitutional actions.

Chuck Hobbs is a lawyer and award-winning freelance writer who is a regular contributor to The Hill. Hobbs has been featured in The New York Times and theGrio in addition to numerous regional newspapers. Follow him on Twitter @RealChuckHobbs.

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