As of 3:15 Pacific Standard Time today, Trump’s travel ban remains on hold. A 9th circuit appellate panel unanimously agreed to let District court Judge James L. Robart’s temporary injunction on enforcement stand.
Of course, the appellate ruling is by no means the end of litigation or political conflict on this matter, but it’s a significant blow to the Trump administration.
Our question: did the airport protests that started ten days ago have anything to do with what’s happened since?
The influence of protest on policy remains the critical question for activists and scholars alike. People who braved poor mass transit connections to metropolitan airports, pushed their way through restless pussy-hatted crowds, considered airport foods, and dodged traffic, surely wondered whether it was all worth the effort. No politician will say that she did something she thought wrong in order to appease a protest movement, and protesters never get all they ask for anyway. So how do you know?
Honestly sorting out the connections between all the events since Americans first began reacting to an ill-considered and poorly implemented embargo on travelers from seven mostly Muslim countries helps us understand how protest might work. It also points to a few places where academics who try to make sense of influence may go astray.
To start: the airport protests were really an extraordinary set of events. Although the crowds that turned out for Women’s Marches the previous weekend were impressive, they weren’t all that surprising. Since his election Trump continued to be provocative and unpopular. The large demonstration is a familiar way to protest, and organizers worked hard to get spread the word and rally their supporters.
The spontaneous protests at big city airports were something very different. With no advance warning, angry people started turning up, on behalf of people they didn’t know, but even more in support of a vision of America. They crowded and pushed for religious tolerance and ethnic pluralism, and very much against a president ready to feed an uglier side of America. When travelers occasionally cleared ill-defined new strictures and walked out, sometimes aided by court orders, the demonstrators cheered. Meanwhile, volunteer lawyers streamed along the corridors, offering to help.
Trump’s Executive Order provoked lots of other push back on its own, but it’s helpful to imagine what, if anything, might have been different without the public demonstrations.
As soon as the ban became public, civil liberties groups like the ACLU and the Council on American-Islamic Relations (CAIR) began filing suits in federal district courts. These groups don’t depend directly on public opinion, and surely would have filed suit whether or not people were publicly protesting. At the same time, I’m confident that both groups enjoyed a wave of contributions for their efforts.
But the suit that led to the 9th circuit appeal was filed by Bob Ferguson, the Attorney General of Washington state. Ferguson was just elected to a second term, and apparently has higher political aspirations. The public outcry against the Trump ban made it easier for him to take the bold step of filing suit without seeming to risk his political future. The demonstrators lined up Ferguson’s legal judgment with his political interests.
Meanwhile, Acting US Attorney General Sally Yates ordered the Department of Justice not to defend the travel ban; Trump fired her in short order. Apparently, after determining that the policy was neither “wise nor just,” Yates considered resigning. She chose to defy the president instead, perhaps encouraged by the protesters at the airport gates. Public opinion, narrowly, followed the protesters, turning against the ban and against Trump.
I don’t believe that Federal judges normally interpret the law in the light of public opinion or protests; I think they try to focus on the law and the Constitution. I do think, however, that their opinions get more extensive coverage and more public attention when people are protesting and rooting for particular outcomes. The Trump administration had to answer more questions about the policy publicly than they expected, questions they were clearly unprepared for.
What’s more, critical commentary about the ban, particularly from conservative sources, received more attention than it otherwise would have. (See Benjamin Wittes, “Malevolence Tempered by Incompetence.”) When John Yoo, who was critical in drafting the memos justifying torture for the Bush Administration, writes that the president has taken executive power too far, people take notice. The protests made it more likely that the New York Times would solicit such a piece. Many Republicans who wanted to work with Trump, even Senate Majority Leader Mitch McConnell, found ways to distance themselves and criticize the ban. If the courts struck down the ban, McConnell was clear, Congress would not save it.
And the president’s extraordinarily thin skin allowed the protests to go even deeper. Trump could not help being trolled, responding by gratuitously attacking all his opponents, including federal judges, for their judgment and their motives. It’s hard to imagine his explanations did anything at all to build support for his policies.
Regardless of what happens next, the Trump administration has expended a great deal of political capital defending the policy, and the protests raised the costs. Even if the policy is ultimately upheld, the Trump administration will find it more difficult to take the next step, whatever that is, and to keep its supporters in line for the next controversy.