Update: Plot twist.
The White House won’t immediately appeal this ruling.
Josh Blackman has an interesting post explaining the possible paths going forward for the Trump administration.
The temporary restraining order against President Trump’s executive order is still in effect, as you probably know. Josh Blackman has a good analysis of the ruling on his website, which I would recommend reading. There are a number of fascinating and disturbing elements of this decision, including the imposition of a “no evidence” standard upon the Trump administration. Although some are attempting to put the best face on what is a sweeping, unprecedented ruling, the truth is that we are entering uncharted waters. We have the largest circuit court in the federal system essentially erasing the plenary power doctrine as it relates to immigration matters.
The fact that the administration was intentionally hamstrung in its appeal is irrelevant in the larger context, i.e. we are dealing with a federal judiciary that’s unwilling to recognize Congressional and presidential authority to execute immigration law. What’s more, the reasoning, such as it is, behind this decision is so shoddy that it would be laughable if the consequences weren’t so dire. The idea that universities and colleges have a vested interest, i.e. continuing the flow of tuition dollars from the coffers of foreign students, which supersedes the national security concerns of the President and his cabinet would be an absurdity in any other era. Keep in mind, Khalid Sheikh Mohammed, the defiant architect of the 9/11 massacres, was brought to the United States along with other Muslim students from abroad in order to pad the enrollment and keep afloat a struggling North Carolina college.
Even if the statutory and Constitutional rationales for enjoining the President’s executive order are incredibly weak-which they are-that doesn’t make the path forward any easier. Whether the administration decides to rewrite this EO from scratch, as some have suggested, or simply appeals to the Supreme Court, those of us who believe that American interests outweigh those of foreign nationals and international organizations have already been dealt a grievous blow by a judiciary which no longer recognizes itself as a co-equal branch of government.
How long before this quasi-ironic tweet becomes a reality? I suppose we’ll find out soon enough.