"Whatever you think of Trump’s original call for a Muslim ban (I think it was ludicrous) the whole point is that Trump did the right thing. He talked to his advisors and they said, “You can’t do that.” So he said, “Okay, what can we do?” And they came up with this executive order. It was shoddily done and on the merits isn’t nearly as vital to American national security as he claims. But that’s my point. He did something vastly less ambitious because the demands of governing required it. The judges responded, in effect, “We don’t care. We’re still going to punish you for it.”
David French is exactly right when he says this ruling is a Pandora’s Box. Where does this retromingent line of legal reasoning end? Barack Obama insisted he would fundamentally transform America and suggested he’d make the oceans recede. Could some judge reviewing an EPA regulation have said, “But the president said . . . ” about that? This is taking the rigorous rules of Twitter logic and putting them into law.
The Ninth Circuit loves to preen under normal circumstances. The judges took a sloppily rolled out — but ultimately legal — executive order and used it to set potential precedents that, if left standing, will have calamitous repercussions.
If one thinks of the courts as a political institution with collective interests, the smartest thing the Ninth Circuit could have done is say something along the lines of “this is stupid but constitutional.” If they really think Trump is the monster the “resistance” Left thinks he is, they’ll need more, not less, credibility in the days to come. But, much like the mainstream media, they’ve decided that crying wolf from Day One is the preferable way to go."