Why Trump should start over on travel ban

Samar Alwahiri and daughter Laila Alamri of Yemen arrive Wednesday at Los Angeles International Airport.
Samar Alwahiri and daughter Laila Alamri of Yemen arrive Wednesday at Los Angeles International Airport. Associated Press

Members of Congress from both parties have criticized President Donald Trump’s clearly flawed travel ban. CEOs, many of them from California tech companies, and world leaders have condemned it. Tens of thousands of Americans have protested in the streets and at airports.

And now the San Francisco-based 9th U.S. Circuit Court of Appeals has repudiated the president, with a 3-0 ruling Thursday refusing to reinstate the ban.

Trump should take the hint. Instead of clinging to his haphazard and inhumane executive order, he should go back to the drawing board.

This is a big test for the new president. The smart and reasonable move is to go through the appropriate agencies and come up with a policy that addresses where the real terrorism danger comes from, that will be constitutional and that won’t cause chaos.

In other words, the White House should do what it failed to do before Trump signed his order and it took effect on Jan. 27 – a 90-day halt to travel from seven Muslim-majority nations, a 120-day ban on all refugees and an indefinite ban on refugees from war-torn Syria.

Because the order was so rushed, the dragnet caught legal residents who hold green cards, as well as people who risked their lives to help the U.S. military. And, it must be noted, the United States was already closely vetting immigrants and refugees who aspire to come to America.

While the 29-page circuit court ruling isn’t the final judgment on the case, it is a clear rebuke to Trump’s executive order.

The judges say the government didn’t show any evidence that there’s an urgent national security need, or that anyone from the seven nations carried out attacks here. The judges also rejected the government argument that it violates the separation of powers for them to consider a constitutional challenge to such an executive action.

And the judges ruled that the ban may violate due process guaranteed in the Constitution, and that allegations the order is aimed at one religion also “present significant constitutional questions.” It is fitting that opponents of Trump’s action used his own campaign rhetoric about a “Muslim ban.”

Trump quickly reacted to the ruling on Twitter with more bombast than usual, the social media equivalent of yelling at the top of his lungs: “SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!” He followed up with another tweet Friday calling it a “disgraceful decision!”

Hardly disgraceful, the judges carried out their constitutional duty by acting as an independent check on executive power. Trump can keep claiming the decision is political, but that’s not true. Republican George W. Bush appointed the federal district judge in Seattle who halted the travel ban and one of the three judges on the 9th Circuit panel.

Trump said Friday he has “no doubt” he will win the case. He could appeal to the 9th Circuit, which ordered both sides to say whether the full court should hear the case. Or he could seek immediate review from the U.S. Supreme Court, though the White House has reportedly decided not to do so. He said he also might sign a new, but similar order.

Trump also said he plans new steps next week to keep America safe because he has learned more about “tremendous threats.”

It’s not at all clear what he’s talking about as he tries to scare Americans into letting him do whatever he wants. Based on his first three weeks as president, there’s ample reason to be very wary about what those new actions will be.