There
is an emergency rally hosted by Maria Gabriela Aldana
Enriquez and five others on Sunday from 2 to 5 PM at 3601
Eastern Ave., Baltimore 21224-4206. I do not know what sparked this call,
but I suspect it was an raid by ICE. Get ICE off the streets of
Baltimore. Kagiso, Max
Protesters stand in front of the United States Court of Appeals for the Ninth Circuit in San Francisco, California, February 7, 2017. (photo: Getty Images)
The
9th Circuit Deals a Blow to the Imperial - and Incompetent - President
By Jennifer Rubin, The Washington
Post
11 February 17
A
federal appeals court panel has maintained the freeze on President Trump’s
controversial immigration order, meaning previously barred refugees and citizens
from seven Muslim-majority countries can continue entering the United States.
In a
unanimous, 29-page opinion, three judges with the U.S. Court of Appeals for the
9th Circuit flatly rejected the government’s argument that the suspension of
the order should be lifted immediately for national security reasons and
forcefully asserted their ability to serve as a check on the president’s power.
The
opinion tells us much about the hubris and sheer incompetence of the new
administration as the court rebuked it at every turn, pointing to errors in law
and lawyering.
The
administration made the argument that the case was not even reviewable, despite
ample precedent from the George W. Bush years. In its most memorable line of
the opinion, the judges held, “There is no precedent to support this claimed
unreviewability, which runs contrary to the fundamental structure of our
constitutional democracy.” The court pointed out that even in the immigration
and national security realms the political branches are subject to judicial
review. Given the president’s recent public hectoring and threats to hold the
court responsible for any terrorist attacks if it upheld the lower court’s
order, the court had every reason to eviscerate the claim of what amounts to
executive supremacy. (One wonders if the president’s noxious attack on the
judiciary also encouraged the three-judge panel to make the ruling unanimous.)
The
executive order — drafted, we are told, during the campaign — was so sweeping
and egregiously dismissive of constitutional niceties that the court made easy
work of it. The most fatal flaw was the inclusion of green-card holders, which
the Department of Homeland Security apparently warned the White House not to
include. This gave the court a significant group of people with due process
rights who would be subject to presidential whim without any procedural
recourse. Both green-card holders here in the United States and those seeking
to come back into the country were affected.
The
White House realized after the executive order was issued that green-card
holders were a problem, but then made a stupid legal error. Rather than issue a
new order, the White House counsel issued “guidance” to say the order was not
intended to affect green-card holders. The court scoffed, “The Government has
offered no authority establishing that the White House counsel is empowered to
issue an amended order superseding the Executive Order signed by the
President.” The government lawyers failed to show that the modification was
even binding. Along with green-card holders, the court found those with visas
also are entitled to due process.
While
the court chose not to rule directly on First Amendment grounds, it did dismiss
the argument this was not a Muslim ban. The court found that “the States have
offered evidence of numerous statements by the President about his intent to
implement a ‘Muslim ban.'” On this, Trump dug his own legal grave.
In
then weighing the “irreparable injury” that might be done by staying the ban,
the court observed that the administration provided “no evidence that any alien
from any of the countries named in the Order has perpetrated a terrorist attack
in the United States.” In biting criticism, the court found, “Rather than
present evidence to explain the need for the Executive Order, the Government
has taken the position that we must not review its decision at all.” This too
was a complete failure of lawyering. Not a single affidavit or other showing
attesting to the imminent harm to American national security was produced. In
fairness to the executive branch’s lawyers, though, maybe there simply is not
any.
The
White House seemed to believe that issuing an executive order was no different
than putting out a campaign white paper. The court, to its credit, reminded the
administration that presidents have ample, but not unlimited, power.
Constitutional restraints still apply to the president, even on national
security.
A more
rational president who actually believed national security was at risk would
heed the court’s directions, issue a narrower ban that would pass muster and
roll that out with proper coordination. But Trump must “win” and can never
accept error — even if his aides deserve some of the blame. He’ll persist, he
says, to the Supreme Court (or perhaps first to an en banc review). If he truly
believes that we are in peril, it is he who is endangering the country by
choosing to leave the country with no travel ban whatsoever. And of course,
with regard to real risks — radicalized Americans, lone wolves, etc. — the president
is doing nothing, thereby leaving the country no safer than it was under his
predecessor.
This
is a humiliating defeat for the White House, revealing just how amateurish the
president and his advisers are. The frightful part is that if they cannot
handle a simple executive order, what makes anyone think they can handle far
more difficult challenges?
C 2015 Reader Supported News
Donations can be sent to the Baltimore Nonviolence
Center, 325 E. 25th St., Baltimore, MD 21218. Ph: 410-323-1607; Email:
mobuszewski [at] verizon.net. Go to http://baltimorenonviolencecenter.blogspot.com/
"The master class has always declared the wars; the
subject class has always fought the battles. The master class has had all to
gain and nothing to lose, while the subject class has had nothing to gain and
everything to lose--especially their lives." Eugene Victor Debs
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