While the Lawfare article -- written by former Washington Post editorial writer Benjamin Wittes -- takes issue with some of what the federal appellate court judges said (and didn't say), Wittes ultimately decides that the court made the right call.
Here's the key section:
The Ninth Circuit is correct to leave the [temporary restraining order] 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. Are there tea leaves to read in this opinion? There sure are, particularly with respect to the judges’ analysis of the government’s likelihood of prevailing on the merits and its blithe dismissal of the government’s claims of national security necessity on pages 26-27 — a matter on which the per curiam spends only one sentence and one brief footnote.
Wittes had some fun at Trump's expense Friday on Twitter:
Wittes, as Trump tweeted, does express shock that the ruling didn't deal with the statute that forms the basis of the Trump administration's executive order banning travel from seven countries which are majority-Muslim.
But this is among many points that Wittes makes. The bigger point is that the real fight over the order -- on its actual merits -- still lies ahead and that Wittes believes this court's ruling to be heavier on bark than bite:
- "Lawyers dream about becoming judges, particularly 9th Circuit judges, to write opinions like this. So phrases about how the President is not above the law, and citations to cases like Endo and Ex Parte Milligan are inevitable, as are the arch and clucking dismissals of presidential demands for deference in national security cases and the intoning of the fact that it’s the job of the judiciary to say what the law is. Ignore all that stuff. It’s exciting. It’s fun to read. It’s a reminder that we live in interesting and dangerous times. But it’s not ultimately what this case turns on."
- "Eventually, the court has to confront the clash between a broad delegation of power to the President — a delegation which gives him a lot of authority to do a lot of not-nice stuff to refugees and visa holders — in a context in which judges normally defer to the president, and the incompetent malevolence with which this order was promulgated."
Trump would have done much better to highlight these passages and argue that the real court case is yet to come. But what Wittes wrote doesn't back up Trump's assertion that this was "A disgraceful decision!" -- at all.