Let’s get legal for a minute. Last night, the U.S. Ninth Circuit Court of Appeals refused to reinstate even temporarily the immigration travel ban, handing the Trump administration a defeat on one of its signature issues. For several reasons, it’s huge.
The Constitution creates three branches of government and gives certain powers to each branch. In this case, the Executive branch has the power to administer matters of immigration, as well as primacy in matters of national security. The Ninth Circuit decision in the case, improbably named Washington v. Trump, addressed whether this power has any limitation and, if so, whether the Judicial branch can restrain the Executive. The Court decided that it did indeed have the power to review and determine if the Executive Order is unconstitutional. Because if the courts can’t do it, who or what is there to stop an Executive from violating the Constitution?
This is not as obvious as it sounds. Lots of times, the Executive or Legislative branch cannot be checked by the courts. For example, the Executive has the exclusive power over foreign relations. Under the law, the courts have refused to get involved, calling it a political question. The government argued the same principle in this case.
Three Ninth Circuit judges speaking as one rejected the Government’s argument.
“Our court has likewise made clear that “[a]lthough alienage classifications are closely connected to matters of foreign policy and national security,” courts “can and do review foreign policy arguments that are offered to justify legislative or executive action when constitutional rights are at stake.” American-Arab Anti-Discrimination Comm. v. Reno, 70 F.3d 1045, 1056 (9th Cir. 1995).”
That’s the nub of it. The courts will step in when the constitutional rights of individuals are at stake. Make no mistake. Given the first few weeks of the new administration, a showdown over the limitation of Presidential power was inevitable. We can expect a lot of cases about Presidential power, and we can expect the courts to reel in the power of the executive, especially with one who has disdained the authority, competence and fairness of the judicial system.
© 2017 The Revolted Colonies ™
This past Friday, Hon. James Robart, a Republican-appointed federal district court judge, declared unconstitutional the presidential immigration ban, allowing immigration travel to resume without delay.
The Justice Department filed an appeal with the United States Court of Appeals for the Ninth Circuit and asked the court to stay the Judge Robart’s decision striking the executive order until the appeal is heard, meaning that the ban should stay in effect until there has been a final decision on the appeal. The Court of Appeals turned down the Justice Department plea, permitting flights into the United States to resume for the time being. At the same time, the Court of Appeals set a very rapid schedule for the parties to file their briefs, signifying that a decision would be made rapidly.
What It Means
The Circuit Court decision represents a minor victory for the anti-administration position. It suggests, at most, that the court expects to uphold Judge Robart’s decision. At the least, it means that, given the short briefing schedule, no real harm will be done by allowing flights to be rescheduled. Judges frequently it will overcome a request for temporary relief by shortening the time involved.
In part, it is a reflection that the court expects to rule against the executive order. It doesn’t represent an in qualified victory for the anti-administration position. Only after the case is briefed, argued and decided will we know what this appellate court thinks about the executive order.
The administration has several problems with its position. The first is that it is well known now that it was conceived as a means to stop entry of Muslims into the United States. It was so declared by its conceiver, Rudolph Giuliani, the former mayor of New York and currently the reincarnation of Heath Ledger’s Joker. Giuliani proudly admits taking the idea of a Muslim ban and couching it in terms of banning entry by nationals of certain Muslim-majority countries.
However, those countries do not account for an imminent threat or a single act of terrorism on United States soil. Moreover, the executive order also exempted religious minorities from those countries. It reads like a ban against all people of Islam. Oops!
The administration’s second problem is that it relies entirely on the President’s motivation on the need of national security, which in turn is based on his belief, as opposed to evidence. No doubt, there is an underlying national security need to exclude potential terrorists. By declaring everyone (except Christians) from certain Muslim-majority countries to be excluded, the administration painted with a broad and religiously discriminatory brush.
Second, the administration has offered no proof of a national security risk if the immigration ban is not enforced. There is no publicly available information suggesting a threat of terrorism by one or more individuals emigrating from the targeted countries. Addition, there is no explanation why other Muslim-majority countries are not included in the executive order-such as Saudi Arabia. If there is information and it’s confidential, the Justice Department could offer to show the courts the information on a confidential basis, so that the classified nature is not destroyed. The Justice Department has not offered to do that.
There is a third factor, and it is important. The attacks within the United States and in Western Europe over the last couple of years were thought to be Lone-wolf actions or the act of ISIS sympathizers. The people carrying out the attacks were lawfully in the countries where the attacks took place. Most recently, investigation suggests that these were not Lone-wolf attacks but in fact were directed by ISIS through instant messaging via the Internet. The domestic terrorism issue is as much an issue of cyber security as it is about admitting potential terrorists into the country.
In addition to being unconstitutional for a variety of reasons, the executive order may be ineffectual in stopping domestic terrorism.
What else can the Justice Department say? It will probably argue that the executive order is an exercise of the presidential prerogative to maintain national security. This argument is not persuasive. It is too easy for the administration to assert a national security pretext to cover otherwise unjustifiable actions.
If the administration is able to present some tangible evidence of an imminent risk, no doubt the court would take such evidence very seriously and would uphold the ban in some modified form that would address the potential danger. But the court cannot grant blanket use of a national security exception without creating an opportunity for abuse by the administration.
© 2017 The Revolted Colonies
The warning signs were there from the beginning that this was going to be a watershed year. Donald Trump, President-Elect, buzzed through a crowded field of mostly experienced politicians to emerge as the Republican standard-bearer. We could chalk it up to the asymmetry of the field or the brawling of primary politics or an aberration caused by conflating reality and TV. Now that Trump has won the White House, his victory, still shocking, is more understandable.
The country is almost evenly divided between people who reject the empowerment of the federal government as a positive force and those who embrace it. Trump embodies the former and Clinton the latter. Trump had a clear vision of his following — he could shoot someone on Fifth Avenue in broad daylight and he would not lose his support. Sexual assault, race-baiting, tax dodging, swindling: none of it mattered because he thumbed his nose at the System. Now he will be the System, until he dismantles it.
Take Trump at his word. He will build a wall. He will get Mexico to pay for it. He will close our borders. He will start sending bills to our allies. He will tip all the sacred cows. If you like alternate history, this will be a field day. There will be an iconoclast — a vengeful, petty, litigious one — as Commander-in-Chief. Nothing is unthinkable.
© 2016 The Revolted Colonies
When it comes to mass murder, Hitler runs a distant third. He trails Stalin by about 10 million and Mao by about 70 million. I don’t mean to say that Adolph was a poser but frankly he was out of their league. Mao and Stalin were long-lasting tyrants, holding unquestioned, terrifying political power for five decades. The Third Reich of a thousand years lasted but twelve. Still, Hitler was unique as these monsters go. He committed an incredible number of murders in those twelve years. They’re not Hall of Fame stats but he sure had a meteoric career.
Now, here comes Trump, 70 years old. No private army, no loyalty from the military, no secret police. Nothing like an SS. How can the Washington Post’s Richard Cohen, a very sharp guy, compare him to the Führer?
It’s possible that Trump followers could egg a few federal buildings after he’s shut down their agencies– why not? But it’s not even close to setting fire to the Reichstag, the German Parliament. He’s not about to lock up Jews, Blacks and Mexicans. Ok, maybe a few Mexicans. And Muslims probably shouldn’t back-order anything just now. Trump talks guns and doesn’t even wear a uniform. Mao, Joe and Adolph always dressed to kill. How can you take the guy seriously?
The press is always building people up just to shoot them down. The next Dylan, the next Mantle, the next Adolph. It will be the same with Trump. “Believe me!” He won’t even chart as high as Pol Pot or Idi Amin.
What’s got Richard Cohen’s hair on fire is the lies. “Trump lies, then he lies about the lies!” That wasn’t Hitler. It was really more Goebbels. Goebbels was all about the Big Lie: if you say something outrageous long and loud enough it starts to seem true. Trump tried it with the Birther thing. Trump made the hats and shirts, but it never took off. People just weren’t buying it. I’ve seen the facsimile Kenyan birth certificates stacked up at the Dollar Store. His licensees must have taken a real beating on that one.
Besides, since when is lying a sin? The Eighth Commandment doesn’t say anything about lying exactly. It says not to bear false witness, lying under oath, which means don’t swear to it. Big difference. Ask any lawyer.
There’s always going to be a few people who believe him. After all, he’s a billionaire (maybe). He must be right about something! Trump is pretty good at separating fools from their money and maybe from their votes too. That doesn’t make him Hitler. It might make him P.T. Barnum.
Donald Trump watches Vladimir Putin admiringly, as the despot reassembles the Russian Empire, and he dreams of similar conquest. Trump has vowed to make America great again, and domination is what he means. Donald Trump’s vision is a grotesque paraphrase of Ronald Reagan. Trump sees this country as the Shining Fortress of Solitude on the Hill, dispatching the military to rule over its Imperial outposts.
Trump supporters long for an America of memory, one that will not be kicked around. But this is a faulty memory, a confabulation. For all but the twenty-five years following the Second World War, America hasn’t dominated the world. America didn’t win the World Wars alone, for that matter. America did not even get into those wars for two years after they began.
The undeclared Korean War is a stalemate that has never been resolved. The Vietnam War was a debacle. The first Gulf War essentially was uncontested, and the wars in Afghanistan and Iraq have been unqualified disasters. No disrespect for those who served and serve, the wars themselves were atrocious mistakes. The Iraq war was a fraud on the troops and the taxpayers.
Yet Trump promises to return America to its winning ways. He believes in an America of the imagination, a vision of Empire that drove this country down the dishonorable road of genocide and displacement of the indigenous peoples; into a series of wars in the West to maximize its North American territory; and wars in the Caribbean and the Philippines to drive Spain out of North America once and for all, while establishing a U.S. beachhead in East Asia.
Empire is inherently despotic, even those that are nominally democratic, because there is no equality between the ruler and the ruled, domestic or foreign. Trump says, “I am your voice.” No, you’re not. You’re not my voice, and you’re not my Nation.
The American people will have to fall much farther than we think we have fallen to abandon our civic sovereignty, our right of self-determination. Why would Americans give up the rights guaranteed by the Constitution to someone who does not respect the rule of law?
Trump’s admiration for Putin is instructive. He lauds Putin’s assertiveness in the Crimea and Syria, just as he attacks Obama for his decision not to enter those military theaters. Russia’s actions have precedent, pushing out to the expanse of the former Tsarist and Soviet Empires. Putin has the backing of many countrymen who rue the collapse of Communism. Marcel H. Van Herpen, the author of Putin’s Wars, explains why Russians are willing to yield their hard-won freedoms:
In such a case, the home country’s imperial conquests provide an ersatz satisfaction. Feelings of powerlessness and a lack of personal pride and individual accomplishment are compensated by a process of identification with the power and the glory of their country. The lack of personal respect that they receive as individuals is compensated by the respect—and fear—that their home country inspires. “If a man is proud of his Belief, his Fatherland, his People,” one can still read in an anonymous Russian publication of 2007 attacking democracy, “he finds internal pride in himself as a representative of this great people and great country.” This mechanism can be observed in a population of serfs that has been enslaved, as well as in a population that gives up its original freedom and enslaves itself for the sake of national glory.
Trump’s nostalgia for an idealized American past, a short-lived one at that, taps into an anger borne of a sense of powerlessness. Americans have limits, as all other people of the world do. People who grew up in the post-Second World War era take this as a defeat, because from 1945 to 1968, America was a country of nearly limitless resource and possibility. That era has been gone for longer than it was here, and all of us longing for it will have to live off the fumes. The world has changed, and America is no longer its overwhelming economic force.
For many Americans, it has meant financial desperation and hopelessness for their children. Somebody’s going to pay for that. The authoritarian strain in America is real. It has been gaining force, while the European-descended portion of population slips in political force and our economy comes back to the pack.
© 2016 The Revolted Colonies