Given the federal court system’s foul history of letting presidents ride roughshod over civil liberties, why are judges saying “no dice” to Trump? Danny Katch explains.
THE FEDERAL appeals court rejection of Donald Trump’s executive order calling for a travel ban for visitors from seven predominantly Muslim countries is a major victory for civil rights–and a validation of the nationwide protests that began when people flooded to airports on the day the order was announced.
Trump has reacted with his trademark mix of impotent and incoherent rage. First, he tweeted, “SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!” Then he told reporters that maybe he wouldn’t appeal in court, but would simply issue another executive order–as if that wouldn’t be blocked by the courts, too.
Unfortunately, the Trump regime is going to get more competent minds to work crafting an anti-Muslim ban that can get past the judiciary.
We shouldn’t be confident that they can’t succeed and therefore stop organizing against them. Despite popular mythology, the courts have been far from a reliable ally for oppressed minorities throughout U.S. history.
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THE THREE-judge panel of the 9th U.S. Circuit Court of Appeals, based in San Francisco, was presented with three separate arguments against Trump’s travel ban.
The states of Washington and Minnesota filed a brief-–with a supporting documents from 15 other states and the District of Columbia–asserting that “President Trump unleashed chaos by signing the executive order” which would “cause harm to the states, including to state institutions such as public universities, to the businesses that sustain our economies, and to our residents.”
Additionally, a number of former diplomats and national security officials filed a declaration arguing that the executive order “undermines the national security of the United States, rather than making us safer…In our professional opinion, this order cannot be justified on national security or foreign policy grounds.”
Finally, in what the Washington Post described as “a rare coordinated action across a broad swath of the industry,” almost 100 tech industry corporations–including Google, Apple, Microsoft and Facebook–filed their own brief to claim, “The Order makes it more difficult and expensive for U.S. companies to recruit, hire, and retain some of the world’s best employees. It disrupts ongoing business operations. And it threatens companies’ ability to attract talent, business, and investment to the United States.”
Lining up in the courtroom against this united front of some of the leading titans in government and industry were the freaks and rogues who now occupy the world’s most powerful building. Their argument is simple: Nobody, not even the courts, has the right to question “a formal national security judgment made by the President himself pursuant to broad grants of statutory authority.”
In other words, when it comes to anything declared a matter of “national security,” the President of the United States has absolute power. Even if he happens to be a blundering racist goon.
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THE STAKES were high with this decision. If the judges granted Trump all or most of his order, they would have enshrined explicit religious and national discrimination into U.S. law, put a giant target on the backs of people not only from the seven listed countries but all American Muslims, and blocked refugees fleeing the horrors of wars that this country started.
As Democratic Sen. Chris Murphy tweeted with admirable bluntness: “We bomb your country, creating a humanitarian nightmare, then lock you inside. That’s a horror movie, not a foreign policy.”
Winning on the travel ban could also embolden Trump, his newly confirmed Attorney General Jeff Sessions, and their ultra-right wing advisers Steve Bannon and Stephen Miller to accelerate the rest of their anti-immigrant agenda–such as repealing the Deferred Action for Childhood Arrivals that granted temporary relief to many immigrants who came to the U.S. as children.
As it is, hundreds of so-called “low priority” immigrants without criminal records were detained in immigration raids over the past few days. This might be the result of a directive for increased deportations by the new administration, although it’s hard to say at this point given that there were certainly weeks during the Obama era when Immigration and Customs Enforcement (ICE) agents were similarly busy hunting people down and tearing apart families.
On the other hand, now that the Circuit Court has ruled against the executive order, if the administration is unable to find a way to get its travel ban–either through legal appeal or getting away with a modified version–it will be a significant setback to Trump’s blitzkrieg strategy of ramming through as many changes as possible before a disorganized opposition can even mount a response.
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THE FEDERAL appeals court decision against the ban has already given people who oppose Trump a tremendous boost of confidence–and helped ensure that the spontaneous airport protests that directly confronted Trump’s order will become a model for resistance to the next attacks to come from the White House.
As Busta Rhymes proclaimed at the Grammy Awards on Sunday night at the beginning of his performance with A Tribe Called Quest: “”I want to thank President Agent Orange for your unsuccessful attempt at the Muslim ban. But we come together. We the people!”
While millions of people celebrated the court ruling, Trump–presumably sitting alone in his bathrobe, like the sad recluse he apparently is–took to Twitter, at one point writing, “Just cannot believe a judge would put our country in such peril. If something happens blame him and court system.”
To the surprise of no one, the president thought his executive order was the best. In a speech to police chiefs, he praised it as “so simple and so beautifully written and so perfectly written.”
This is even more conclusive proof that Trump isn’t even reading the things he signs–something we learned from the New York Times report that Trump didn’t realize he had appointed Bannon to the National Security Council.
Because absolutely nobody who reads executive orders–with their flowery openings like, “By the authority vested in me as President by the Constitution and laws of the United States of America, including the Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq., and section 301 of title 3, United States Code”–has ever called them beautifully written before.
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BUT IN this case, the horrible quality of the legal writing is matched by the blatant lies, ridiculous logic and gross immorality of the order itself.
To begin with, the order was clearly rooted in the discriminatory “Muslim ban” that Trump campaigned on for two years, though the administration’s legal team now swears that it has nothing to do with Islam.
In a bizarre attempt to prove that the travel ban is “not based on religion,” Trump cheerleader-in-chief Rudolph Giuliani revealed that was exactly the intent, in a January 28 interview on Fox News. “I’ll tell you the whole history of it,” Giuliani said. “When [Trump] first announced it, he said, ‘Muslim ban.’ He called me up, he said, ‘Put a commission together. Show me the right way to do it legally.'”
Trump himself undermined any attempt to claim the ban is based on countries rather than religions (as if that’s so much better) when he told the Christian Broadcasting Networkthat Christian refugees from the Middle East would be given priority.
Then there was the laughable argument that the executive order was based on classified intelligence received by the White House, which therefore can’t be questioned by the courts.
The courts were being asked to believe that one week into his term, Trump received fresh intel about “terrorism” threats that just happened to lead him to issue the same ban he called for after the mass shooting in San Bernadino and again after the massacre in Orlando–neither of which would have been prevented by banning travel from the seven countries on Trump’s list.
Trump claimed, according to the New York Times, that “he had initially wanted to wait a week or even a month before issuing the travel ban,” but he was “told by law enforcement officials that doing so would prompt a flood of people, including some with ‘very evil intentions,’ to rush into the United States before the restrictions took effect.”
But in the event, many senior Homeland Security officials had no idea what was even in the executive order.
In spite of all these lies, White House lawyers argued that it was shockingly inappropriate for the courts to question the reasoning or integrity of a U.S. president. “It is extraordinary for a court to enjoin the president’s national security determination based on some newspaper articles,” said Trump lawyer August Flentje in the hearing, apparently invoking his boss’ strategy of throwing the “fake news” label at unfavorable information. “That is some very troubling second guessing.”
In effect, the administration’s argument was that the president has access to top-secret information and he therefore has to be trusted–even when the president and his team don’t even pretend to be trustworthy.
Whether they’re aware of it or not, Trump, Bannon and company are trolling our pseudo-democracy, making fun of the absurdities of executive authority by showing what happens when that authority is in the hands of a band of fools and provocateurs determined to start a global race war.
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AND YOU know what? If they can figure out how to dial down their incompetence just a bit, they still just might freaking get their way.
From approving the imprisonment of antiwar speakers during the First World War, to giving the A-OK to internment camps for Japanese-Americans during the second one, to approving massive surveillance in the post-9/11 era, the judicial branch has a long history of deferring to the executive one at precisely the moments when we need it to protect our liberties.
This is a pretty major loophole in the Constitution’s vaunted system of checks and balances. It’s like finding out a secret rule in the Rock Paper Scissors game–where Rock always wins if you just shout “National security!” at the same time.
It would also be a mistake to think that Trump officials are the only ignorant Islamophobes holding positions of power in government.
Even as it ruled against the travel ban, the 9th Circuit declined to rule on whether the executive order constituted religious discrimination. During the hearing, Judge Richard Clifton–a George W. Bush appointee–said that “because only a small fraction of the world’s Muslims were affected by the order…he was unconvinced that its effect was religious discrimination.”
By that logic, lynching was never racist–after all, the mobs only actually killed a small fraction of all the Black people in this country.
Though it will never be stated outright in decisions or documents, one factor has got to be that judges don’t want to give so much executive authority to an oaf who keeps blasting their colleagues for being “disgraceful” and blaming them in advance for future terror attacks.
The U.S. judicial system may have a sorry record of defending the civil liberties of Arabs and Muslims, but it will be a lot more vigilant in protecting its own authority and privileges in the face of such bullying.
Still, the judiciary as an institution will be hesitant about validating the message that ordinary people engaging in protest–which undoubtedly stiffened the resolve of the anti-Trump challenges coming from government and corporate officials–should have the authority to challenge White House claims of “national security,” ridiculous as those claims may be.
After all, there’s an undemocratic system that has to be kept intact for when Trump is gone and someone in the club (they hope) is back in.
It’s a battle, in other words, between an incompetent and very stoppable presidential force versus a pliant and quite movable judicial object.
If the White House were to draft a new executive order calling for a travel ban that addresses some of the concerns raised by federal judges–such as exemptions for Christians and the barring of green card holders–it’s possible that the courts could view it as an acceptable compromise that preserves the authority of both the executive and judicial branches, at the expense of religious freedom and civil rights for the rest of us.
We need to maintain our protests, both to keep up the pressure on the courts and to establish the precedent they don’t want us to set–that our collective voices should matter more in a democracy than the secret plans made by government officials.
