No matter what one believes about the Trump’s order on immigration, a legal challenge was inevitable because it does strike at the heart of the Constitutional separation of powers as much as it does at the Establishment Clause of the First Amendment. Five Federal Courts have ruled on the order, four of them concurring that it appears to be unconstitutional. One Federal District Court Judge in Washington ordered a national stay, invoking a reaction from Trump that should create even more concern than the order itself.
The attorneys arguing for Trump to the Court of Appeals are stating the case that the President has virtually unlimited authority to issue orders when those orders have anything whatsoever to do with national security. The Trump argument, in effect, is saying that he has the right to violate the Constitution if the matter is one of national security. For anyone with knowledge of the Constitution and of precedent, this matter was settled by the courts long ago. This is a fragile and frightening argument that he is making, but it is the only real alternative to their transparently false initial arguments that this was not a religious or country specific ban, or ban at all.
As if the argument that national security “trumps” the Constitution were not frightening enough, Trump has continued to attack Judge Robart (a George W. Bush appointee) personally. If an attorney had done the same thing, then they would be in jail or face serious sanctions — and there are those who argue that Trump should be sanctioned — or at least have his contempt codified in formal charges. The fact is that the authoritarian nature of their current legal argument in support of his order matches the authoritarian nature of the man. He has always personally attacked any judge who rules against him (e.g. housing discrimination, fraud with “Trump University,” or fraud with his “charities”). However, now that he is President, the same contempt he has always shown to judges and the law creates a Constitutional conflict and threatens to undermine the rule of law.
There is a worry emerging among both Republicans and Democrats, that after only two weeks Trump’s authoritarian nature is making a Constitutional crisis inevitable by using his power to intimidate judges who resist his power grabs.