Tag: immigration

General Washington, Meet Mr. Trump

 

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 ™

 

Immigration Ban Losing Its Appeal


 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.

Stay Denied

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.

Constitutional Problems

 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!

 National Security 

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.

Cyber-Based Terrorism

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

 

 

 

Make America Gated Again: Trump on Deportation

Immigration Policy

Donald Trump announced his plan for deportation of undocumented immigrants and greater restrictions on immigration. By these means, Trump plans to turn America into one enormous gated community. Unless I miss my guess, tonight Donald Trump was off-script and off his meds. He took time from campaigning in states he has no chance to carry, such as Maine and Washington, to make an impromptu trip to Mexico to meet with Mexican President Enrique Peña Nieto to deliver his anti-immigration message in person.

It’s not entirely clear what took place. Trump said they never discussed payment for his proposed Wall. Peña Nieto disputes Trump’s account. He said that he made it clear that Mexico would not pay for the Wall. The two men also disagreed on Trump’s assertion that Mexico has unfairly benefited from the NAFTA trade agreement. Trump gave the impression that, despite these minor quibbles, they had a cordial chat. Trump was subdued in their joint appearance following the meeting.

The Hair Apparent then flew to Phoenix, Arizona, and replaced his quiet tone with his familiar face-reddening bluster. There he delivered an off-book rendition of the most recent version of his immigration policy. He clearly has renounced any thought of softening his policy or his rhetoric.

Exit Strategy

• There will be no amnesty. All undocumented immigrants will be deported, where they can reapply for entry. He didn’t mention the fate of their American-born children who by law are citizens.
• Any immigrant caught re-entering illegally will be incarcerated for a very long time – the “mandatory minimum.” Then after the U.S. has paid room and board, it will deport him or her again.
• He will create a deportation task force to deport all dangerous criminals “on day one.” Trump suggested that Hillary Clinton, his opponent, should be part of this group.
• He will cancel Obama’s executive orders, one of which gave work permits to over a half million young immigrants who came to the US as children.
• He will add 5,000 more border patrol officers.
• He will block federal funding to so-called sanctuary cities, meaning American cities that provide shelter – not Sanctuary – to undocumented immigrants.
• He reiterated his concept of “extreme vetting,” by which he means an ideological certification, a screening test that has electrodes attached to it.

The Takeaway

Trump still has not formulated a clear plan for dealing with most of the undocumented immigrants; only the criminally dangerous ones. There are a lot of ruffles and flourishes but he lacks a coherent statement addressing non-violent immigrants who are in the U.S. without papers.

In addition, he has reverted to type. Last week he pivoted, claiming a new softness on immigration. Tonight’s speech slammed the book shut on a softer approach and a softer, more “Presidential” demeanor.

In front of a crowd of his impassioned supporters, he spoke again to the nativist strain in America. He and his supporters forget that, at some earlier time, their ancestors crossed into this land of infinite possibility. No doubt they came from a harsher and less promising environment. They were seeking just what today’s immigrants seek – a better life for themselves and their children.

Going Native



 There will always be an England, presumably, and there will always be its Channel, to use as it pleases.  For the past 70 years it has been a conduit to the European mainland and the shared market.  The other day the British converted it back into a moat. The United Kingdom, once a globe-encircling Empire, is shrinking back into the island country of its origin. In the age of globalization, England wants to go it alone. This past June, for the first time, England grew its own tea in Cornwall.  That must have been the straw.

   Pundits liken Britain’s decision to leave the European Union to Trumpism: a populist, nativist movement, focused on taking back the country and maintaining control in white, Christian hands. One look at the platform at a Trump victory rally and you can see it: the Monochrome Coalition. In the UK, the Leavers were lurking in the shadows until the light was shone upon them.

   Tribal ambition is coupled with the guarantee to voters to restore the country to its former glory, although nobody has explained how one thing triggers the other.  In America, the not well-kept secret is that Trump is supported by the many of the wealthiest Americans; not just the disenfranchised working-class which is the target of his pitch. 

     Brexit, and Frexit, the French movement to exit the EU, and Nexit (the Netherlands) are after something else: freedom.   “Victory for freedom!” exclaimed Marine Le Pen, a leader of France’s xenophobic National Front.  “As I have been asking for years, now we need to have the same referendum in France and in the countries of the EU.”

     Dissatisfied Europeans from member countries fault EU handling of the economy.  France’s Thomas Piketty wrote that we are in a period of slow growth, which never favors the working-class, and there is not much that anyone globally can do about it.  Who else is there to blame? You can’t fire all the players, so you fire the manager.

     The nativist streak is most glaring in anti-immigration politics. The native population is outraged to have to share with, let alone support, emigres and refugees.  How short the memory; these same outcasts once were their colonial drudges.

Most surprising, though, is that there is an undercurrent of hostility to corporate welfare, similar to Bernie Sanders’ principal concern.  Europeans believe that the EU is captive to nationless hydra-headed corporations, whose influence dictates EU policy.  

     Why does anyone think that breaking up the EU will put an end to corporate domination of politics? England, France and whoever else exits the European Union will be subjected to the same enticement and threats by companies who are better funded than nation-states to wage economic war.



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