Executive Order: Trump Has No Choice but to Go to Supreme Court

U.S. Supreme Court is shown March 29, 2016 in Washington, DC.
Win McNamee/Getty Images

President Donald Trump responded swiftly to Thursday’s ruling by the Ninth Circuit upholding a temporary restraining order against his executive order restricting travel from terror-prone countries: “SEE YOU IN COURT.”

Experts, like Harvard Law School professor emeritus Alan Dershowitz, suggest Trump should rescind the first order and issue a new one. If the original order were indeed a matter of pressing national security — which the Ninth Circuit doubted — that would reinforce the point.

According to that logic, there might only be two reasons for Trump to persist in appealing the Ninth Circuit ruling to the Supreme Court. One is that the Ninth Circuit ruling is so bad — it makes no reference to the underlying statute, and would give even a 9/11 hijacker the right to sue to come to the U.S. — that it deserves to be publicly rejected. However, it is not going to be persuasive to other courts, and would likely be overturned or limited to the facts of this particular case, eventually.

The other reason for Trump to go to the Supreme Court is that he has said publicly said he would do so. He would lose some credibility, and perhaps suffer some embarrassment, were he to withdraw. Yet ego alone should not trump national security.

But the reality is that Trump actually has no choice: he has to go to the Supreme Court, because the left would likely sue to stop any executive order he issued on the subject.

Given the left’s determination to oppose anything and everything he does — even blocking new Secretary of Education Betsy DeVos from visiting a school on Friday — it is a safe bet that they would simply sue in a Ninth Circuit court again, and Trump would likely be forced to appeal to the Supreme Court in any case.

So even if there is an extremely urgent national security threat, Trump might have to wait months, even to improve on the first order.

And so it is ugly to say, but is likely true, that the courts may have increased the threat of terror to our country.

Joel B. Pollak is Senior Editor-at-Large at Breitbart News. He was named one of the “most influential” people in news media in 2016. His new book, How Trump Won: The Inside Story of a Revolution, is available from Regnery. Follow him on Twitter at @joelpollak.