"I have just finished reading the opinion of the Ninth Circuit in the dispute over the anti-Muslim Executive Order. The opinion is beautifully written and appears tightly reasoned to me. A few parts of the case involve areas of law about which I do not have particular expertise (like the due process rights of non-citizens with substantial connections to the United States) and there is some room for debate about the Ninth Circuit's decision not to modify the scope of the TRO (though there is also substantial authority for that decision). But I think overall the court got it right.
I am not joyful, however. I think it likely that Steve Bannon crafted this EO with the expectation that it would cause chaos and elicit protests and then be enjoined by the courts. At the very least, I am not prepared to treat this as a victory so much as a reassuring confirmation that our courts remain strong and independent -- which is welcome -- coupled with a continuing sober awareness of the menace now occupying the White House.
This EO was never meant to be policy. It was not designed as policy, it was not vetted as policy, and it was not rolled out as policy. This EO was intended to achieve a strategic outcome. One sinister strategic story is that Bannon seeks to use the next terror attack on the United States as an opportunity to blame our federal courts for threatening national security and thereby to undermine the rule of law. A story that is less sinister but still dangerous and ugly is that Bannon seeks to use this clash to amp up nativist sentiment and inflame their base. The most alarmist story to tell involves references to the Reichstag fire and a deliberate orchestration of an attack on America in order to usher in martial law and full-blown fascist authoritarianism -- a scenario that I am not yet ready to treat as likely, but that I cannot wholly dismiss.
Whatever the agenda underlying these recent events, it is important to understand that this was never about creating policy. We would make a serious mistake if we were to view the decision of the Ninth Circuit as a victory in the normal back and forth between courts and policymakers about the limits of the Constitution. That is not what this is.