Trump cited an analysis by Benjamin Wittes, the editor in chief of the blog Lawfare, which focuses on national security law, to attack the three-judge panel for unanimously voting to reject his claim of authority. Trump called it “a disgraceful decision!”

The president was apparently reacting to a “Morning Joe” segment that quoted the Lawfare post.

But Trump might have wanted to read Wittes’ entire take before redirecting his millions of followers to the article, which ultimately supports the 9th Circuit’s decision to keep the temporary restraining order in place “for the simple reason that there is no cause to plunge the country into turmoil again while the courts address the merits of these matters over the next few weeks.”

On Jan. 27, Trump signed an executive order titled “Protecting the Nation From Foreign Terrorist Entry Into the United States,” which demanded that immigration from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen be stopped for at least 90 days. It suspended the country’s entire refugee program for 120 days.

Wittes, a senior fellow in governance studies at the Brookings Institution think tank, dismissed a large chunk of the 9th Circuit’s opinion as “moral throat clearing and virtue signaling” that’s fun to read but ultimately not what the case is about.
President Trump listens to questions from reporters. (Photo: Mike Segar/Reuters)

According to Wittes, the case is about two questions: How extensive is the president’s authority to ban travelers from specific countries under a specific statute on “inadmissible aliens”? And should Trump’s “invidious” or worrisome motivations — as expressed on Twitter or by his team — be sufficient cause to invalidate an otherwise legitimate exercise of power?

As Wittes notes, the panel did discuss the latter but not the former. The statute in question — Section F of U.S. Code § 1182 — gives the president the authority to suspend entry or impose restrictions on “aliens.”

    “Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”

The full paragraph that Trump cited in his early-morning tweet points out that in ignoring this executive power, the 9th Circuit was effectively ignoring the Trump administration’s legal basis for the controversial executive order.

“Remarkably, in the entire opinion, the panel did not bother even to cite this statute, which forms the principal statutory basis for the executive order (see Sections 3(c), 5(c), and 5(d) of the order). That’s a pretty big omission over 29 pages, including several pages devoted to determining the government’s likelihood of success on the merits of the case.”

After the ruling was announced, Trump fired off a tweet suggesting that he would have attorneys from the Department of Justice challenge the court’s decision.

In conversation with reporters at White House, he further accused the panel of basing its decision on politics. He said national security is too important for him not to contest the decision.

“We have a situation where the security of our country is at stake, and it’s a very, very serious situation,” he said.