Not a day can go by without our President taking to Twitter to publish his own brand of fake and deceptive news. Often this occurs more than once. Today is a new day, with more Trump Twitter tantrums and more dishonesty. Friday morning Trump predictably took to Twitter to express his apoplexy at the Ninth Circuit’s decision to deny his request to stay the restraining order against his travel ban. His tantrum included this tweet where Trump cites a Lawfare (a legal blog) article:
Trump is obviously attempting to convince his army of Twitter followers that the Lawfare article supports his view that the Ninth Circuit erred. Actually reading the Lawfare article finds the exact opposite. The writer of the Lawfare article could not have been more direct or clear:
“The Ninth Circuit is correct to leave the TRO in place, in my view, 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.”
While the quote from the article Trump’s tweet cited is accurate, he presented it out of a context. In fact, Lawfare clearly supported what the Ninth Circuit did. The Lawfare article concludes with a damning description of Trump’s Executive Order describing “the incompetent malevolence with which this order was promulgated.”
As for the substance of the allegation, that the Ninth Circuit did not cite the empowering statute, it did cite the statute in the preliminary section of the decision recounting the Trump’s EO and what the EO cited for its authority (see page 4 of the decision).
It is true that the Ninth Circuit did not address the statute as a potential justification for the Executive Order, but there is a simple reason for that. When the allegations of the Plaintiffs are that the EO is unconstitutional the statute cannot justify it. The relevant authority are the commands of the Constitution, which the Ninth Circuit most definitely did address, and not a statute that our Constitution bars from empowering unconstitutional actions.