The pro-NWC position was that Ford had no option in response to a wonky lower-court ruling but to invoke the clause. The anti-NWC position was that of course he had an option: he could just appeal it, as any normal gov’t would.... /1
The pro-NWC response was that appealing on its own wasn’t good enough, because you know what those liberal courts are like and besides there wasn’t time. The appeals court has just exploded both claims, and with them any pretense that NWC was necessary or justified. /2
Every observer could have told you the decision was extremely likely to be overturned on appeal, and equally likely to be stayed while the appeal was heard: a matter of days at most. Only the Ford govt pretended the matter was in any doubt, in order to justify bringing in NWC. /3
Which they wanted to do for other reasons, unconnected to the present case: to pick a fight w/ the courts, rally the base, and set a precedent for future cases, hoping through repeated invocation to normalize the clause and thus inoculate their agenda from Charter challenges. /4
So the claim that Ford “won” because the appeals court stayed the original ruling has it exactly backward, on the main point of contention: whether Ford was justified in using NWC. There was no crisis; the ruling was certain to be overturned; a stay was all that was needed... /5
All confirmed by the appeals court, and all diametrically opposed to everything Fordgov had said up to that point — or rather, until the day before, when they suddenly promised to withdraw NWC if the stay was granted, in the wake of polls showing massive opp’n to the move. /6
So in that sense I suppose you could say the court saved Ford’s bacon, by giving him a way to get in off the ledge he had put himself out on. /7 fin
