Analysis: Appeals court ruling was the biggest warning to Trump yet on how he’s approaching the presidency

A three-judge panel of the U.S. 9th Circuit Court of Appeals ruled that a Seattle federal judge’s earlier restraining order on the new policy should remain in effect while the judge further examines its legality..


The appellate court repudiation of President Trump’s travel ban marked the first high-level loss for a new administration that, for all the chaos it has inflicted on Washington and itself, had thus far largely succeeded in accomplishing its immediate goals.

Before the judicial panel refused Thursday to reinstate Trump’s order — which aimed to prevented entry into the U.S. by refugees and by all travelers from seven mostly Muslim countries — drama in Washington, D.C., played out as if the nation had only two pillars of power. Trump nominated Cabinet secretaries, and the Republican-led Senate, the only part of the legislative branch with a role in these opening days, pushed them past Democratic opposition.

The court decision was a reminder to the president that the success of his administration will also be driven by the views of jurists who represent the third center of power under the U.S. Constitution.


And it was a reminder of how Trump, and his inability to curb his impulses, can pose a threat to his own goals.

Tweets and comments from the president that were once seen as merely inflammatory and insulting, such as his campaign pledge to enact a ban on all Muslims seeking to come to the U.S., took on more power when cited as evidence before the courts. Trump’s words cut against the Justice Department’s argument that the president’s executive order did not amount to an unconstitutional ban on any particular religion.

The court also provided a rebuttal to the bleak worldview Trump has promoted through exaggerations and falsehoods about safety threats at home and abroad.

“The government has pointed to no evidence that any alien from any of the countries named in the order has perpetrated a terrorist attack in the United States,” the judges wrote.

Trump contributed to the court’s rebuke by adopting, in his early weeks as president, a shock-and-awe strategy that put a premium on speed and secrecy rather than thoughtful deliberation. In the case of the executive order, issued one week after he took office, that meant the administration bypassed review by agencies that might have helped the plan meet judicial muster.

Friday, in the aftermath of the loss in court, administration officials said they were considering a new executive order designed to fix the main problems of the original — a tacit admission of problems with how the order had been written and carried out.


Trump came into office bent on upending politics, and his actions have been meant to further that image. Swift, unilateral behavior — and sharp rejoinders to anyone not going along — have been his hallmarks.

While that has kicked up controversy, Trump has succeeded in early tests of strength because his power over Capitol Hill has been nearly complete. The president is hardly a conservative ideologue, but he shares goals important to the Republican majorities in both houses, such as tax cuts for business and upper-income earners and the repeal of President Obama’s healthcare plan. And that has kept them in line.

With a firm hold on the most activist and energized voters in the Republican base, Trump also represents a potential threat to the political ambitions of Republicans who might want to publicly disagree with him.

After a rocky confirmation hearing, his Education secretary, Republican donor Betsy DeVos, was approved with only two GOP defections and Vice President Mike Pence breaking a Senate tie. His attorney general, former Sen. Jeff Sessions of Alabama, survived furious Democratic objections on the Senate floor with even less GOP wobbling.

That loyalty and a provocative sense of siege have propelled his administration’s first few weeks. Trump has worked to create the sense he first floated in the campaign that only he can solve the nation’s problems and that any entity that threatens his political power is illegitimate.


As president, he has crafted that alternative universe from his first inaugural words, when he cast a dark vision of “American carnage” afoot in the land, of gangs and criminals and the imminent threat of terrorist attacks.

He declares almost daily that the media are dishonest and out to get him, even when his allegations are disproved by video. He has cast reporters as effectively treasonous for intentionally hiding incidents of terrorism — an accusation that is false.

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“They have their reasons and you understand that,” Trump told military service members in Florida this week, speaking of the media. (His staff later released a lengthy list of supposedly ignored attacks, many of which had, in fact, been covered extensively.)

He also went after U.S. Dist. Judge James L. Robart, the Seattle-based jurist who initially blocked his travel ban, in an echo of his attacks last year on a judge handling a legal case against Trump’s former real estate school.

“The judge opens up our country to potential terrorists and others that do not have our best interests at heart,” Trump tweeted this week. “Bad people are very happy.”


“Just cannot believe a judge would put our country in such peril. If something happens blame him and court system. People pouring in. Bad!”

As the appellate panel indicated in its judgment, Trump provided no proof that people born in the countries listed in the travel order represented an imminent threat.

But his rhetoric remains consistent.

In the last 10 days — half the length of his presidency — Trump has taken on judges and the media, demeaned his political opponents as paid provocateurs, threatened to strip federal funds from California, insulted Australia, a U.S. ally, and cast aspersions on an American company, Nordstrom, for its decision to stop selling a fashion line by his daughter Ivanka.

On Thursday, apparently angered that Sen. Richard Blumenthal of Connecticut had made public some remarks by his Supreme Court nominee, Neil Gorsuch, that were critical of Trump, the president raised Blumenthal’s past exaggeration of his service during the Vietnam War.

Trump then went after Arizona Sen. John McCain, a former Vietnam prisoner of war who had angered him when he defined as a “failure” a recent Yemen counterterrorism raid in which a Navy SEAL died.

“He’s been losing so long he doesn’t know how to win any more,” Trump said of McCain, who won his sixth term in November by a 13-point margin.


Later, on Trump’s behalf, spokesman Sean Spicer said that criticizing a military operation, as McCain had done, did a “disservice” to the slain officer — a striking remark given Trump’s habit of denouncing military actions in past administrations.

The most obvious downside to Trump’s behavior so far is its potential to work against his own interests. He’s insulted judges who hold his plans in their hands and senators who will cast votes on his proposals.

And so far, he has made no effort to reach beyond the minority of voters who backed him in November. A Gallup poll this week found 43% of Americans supporting him — minimally less than the 46% of the country who voted for him. Of eight major polling organizations that have tracked changes in Trump’s job approval since his inauguration, seven have shown a decline.

In any normal presidency, even this early in its existence, those would be sobering statistics. Thursday’s reminder that another constitutional branch has the power to upend presidential actions would only amplify the concern.

In any normal presidency, those would be reason enough to regroup and do things differently in the future.

Nothing in the Trump experience so far suggests such changes are in store.


Twitter: @cathleendecker


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2:20 p.m.: This article was updated with the news of a possible new version of the executive order.

This article was originally published at 6:50 a.m.