The fight is far, far from over but the United States Court of Appeals for the Ninth Circuit has struck one clear blow for the Constitutional separation of powers at a time when a minority president and his Rasputin are trying to establish a dictatorship.
The issue, as virtually every citizen knows, is the Bannon-Trump ban on Muslim entry and travel in this country and its accompanying favoritism of Christian people.
A horde of legal experts say the titular president’s executive order is unconstitutional on its face, in violation of the Establishment clause of the First Amendment. All but one of the federal district judges hearing legal objections to the ban have ruled against it and one, Judge James Robart of the state of Washington, has issued a ruling against it that applies nationally.
It is this ruling that the Trumnpistan Department of Justice appealed to the Ninth Circuit. The Ninth Circuit denied the DOJ request for immediate relief. It has ordered the lawyers for the states of Washington and Minnesota, which brought the case before Robart, to file legal briefs by the wee hours of Monday morning. The government will then have until Monday evening to file its written rejoinders. After that the Ninth Circuit panel will evaluate the legal filings and make its final adjudication.
Meanwhile, Bannon-Trump’s nominee for the vacant ninth seat on the United States Supreme Court awaits his fate in the Senate, whose constitutional duty is to hold hearings and then vote to confirm or not confirm his appointment. That nominee, Neil Gorusch, is a right-wing ideologue with a deep personal grudge against even centrist elements of government because he believes his mother, an official in the Reagan administration, was made a sacrificial lamb in a political battle 30 years ago.
Democrats in the Senate already had a moral and legal obligation to obstruct the Gorusch nomination. Now, with a constitutional crisis looming ever larger, the focus on the Ninth Circuit and on the Gorusch nomination becomes even more critical to the future of the republic.
They are opposite poles of the judicial spectrum. Gorusch is to the right even of Antonin Scalia, who is his judicial idol and whose seat he would fill if confirmed. The Ninth Circuit is conventionally referred to as the most liberal court in the country, although close scrutiny of its rulings beside those of say, the Second (New York) or the Third (Philadelphia) mark the conventional wisdom as no more than an idea whose validity rests in the frequency with which the ill-informed repeat it.
It is true, as critics contend, that the Ninth’s rulings have been slightly more frequently reversed by the Supreme Court than those of other circuits. It is also true that most of those reversals have been at the hands of the Scalia-Thomas-Roberts-Kennedy-Alito “gang of five.” It is also true that the Ninth, being the largest of the circuits, hears more cases than any other — 12,000-15,000 per year.
All of this is trivial, however, by comparison with the great constitutional issue at stake today. The very essence of the democratic republic established by the Constitution of the United States is its tripartite government — separate but equal branches called the Congress, the Judiciary and the Executive. In the age of Trumpistan, it is important to note that the Constitution requires the Executive -- the President -- to "faithfully" execute the laws passed by the Congress and interpreted as constitutional by the Judiciary.
The Bannon-Trump government considers itself to be above the other branches; indeed, above the law itself. We as citizens should be grateful to the district judges who have reminded them otherwise. We should be especially grateful to the Ninth Circuit panel if in its final decision it remains true to the course it seems to have set in this case.
Meanwhile, the Democrats in the Senate must unite and stand firm, resisting with every legal resource they have the Trumpistan nominee to SCOTUS. If the Ninth Circuit rules as it should in the Muslim ban case, and the government appeals to the highest court in the land, the last, best hopes of a democratic republic rest on that appeal being heard by the eight justices now sitting. The likely result would be a 4-4 split, sending the case back to the Ninth, in effect affirming Judge Robart’s brave and correct judgement.
The alternative, with Gorusch added to the court, is unthinkable.
