http://www.huffingtonpost.com/entry/5929ff8ce4b08861ed0cca0e
Man, Nolan sure gets around in terms of different publications! And, he is both timely and highly relevant! Here, Nolan writes in HyuffPost:
“In April 2016, I wrote an article entitled, “If he is elected to the presidency, Donald Trump will have statutory authority to suspend the entry of all Muslim aliens.”
The article included a successful prediction of Trump’s temporary travel ban. But I failed to foresee that it would be rejected on the basis of his campaign statements, or that using campaign statements that way would put our country on the brink of a constitutional crisis.
. . . .
The campaign statements that Judge Gregory uses to justify his decision can be used again and again to attack anything Trump does that has a negative impact on a country with a large Muslim population.
If the Supreme Court does not reverse Judge Gregory’s decision, other courts will follow suit and President Trump ultimately will be faced with the constitutional crisis of not being able to meet his national security responsibilities as the Chief of the Executive Branch with respect to terrorism coming from Muslim countries unless he defies the orders of the Judicial Branch.”
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Read Nolan’s complete article on HuffPost at the above link!
I appreciate Nolan’s helpful summary of what has happened to date on the “Travel Ban” litigation. Nevertheless, I disagree with his conclusion that the President will not be able to “meet his national security responsibilities as Chief Executive.”
I have little doubt that if there were a legitimate “national security” crisis, the Federal Courts would give the Executive considerable discretion to operate. President Trump’s problem is that there is no obvious national security crisis at present. Therefore, his attack on nationals of predominantly Muslim countries seems to be out of bounds, and motivated by religious animus and a desire to fulfill campaign promises, rather than by any legitimate national security considerations.
FPWS
05-29-17
Like you, I disagree with Nolan’s conclusion that the President will not be able to “meet his national security responsibilities as Chief Executive.”and I “have little doubt that if there were a legitimate national security crisis, the Federal Courts would give the Executive considerable discretion … Trump’s problem is that there is no obvious national security crisis at present. And his campaign attacks on Muslims justifies invalidation because it evidences that the facially valid EO #2 was “motivated by religious animus and a desire to fulfill campaign promises, rather than by any legitimate national security considerations”.
As I keep repeating in this blog, hoping somebody else other than the two of us comments, for perspective, the Supreme Court looking at discriminatory intent against a disfavored group when deciding to apply strict scrutiny is well precedented. See Court is just following the line of cases in of mid-level “heightened scrutiny” of “means and ends”. i.e. Romer v. Evans, 517 U.S. 620, 634-35 (1996) finding “animus” against a politically unpopular group ( sexual orientation); City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 448 (1985) (mentally impaired); Palmore v. Sidoti, 466 U.S. 429, 433 (1984) (interracial marriages).
And since Nolan will probably read these words I hasten to add that I don’t think Nolan is personally prejudiced. Nolan just thinks that strict enforcement of all laws, and specially immigration laws is very important. and now he is getting his Warhol’s 15 minutes of fame. We have had over the years similar arguments on attempting to preserve MJ Prohibition, etc. And I am a Libertarian refugee from such a totalitarian dictatorship. I know where strict enforcement of unpopular laws that primarily affect unpopular groups usually leads. ’nuff said.
Because the current law is so totally screwed up, “strict enforcement” amounts to “arbitrary enforcement.” I remember trying to point out to Al Nelson and Mike Inman, who were strongly opposed to TPS for Central Americans (other than Nicaraguans), that de facto INS was already running the largest TPS program in history for Central Americans, without getting any credit for it from the immigrant community. There were probably about a million Central Americans here in the 1980’s and every year we at INS sacked up and deported a few thousand unfortunate folks who happened to be in the wrong place at the wrong time. But, 99% of them continued to live here. Indeed many of them eventually came through my courtroom in Arlington as uncontested NACARA grants and TPS extensions. While there were a very few “bad actors” that we weeded out, I was overall very impressed and sometimes humbled by what these hard working folks had achieved in their lives — against great odds. And, most of their kids were amazing — truly “All-American” producers and future “movers and shakers.” I looked out at them in the courtroom and saw a brighter future for America.
All of this is to say that when the law is unworkable, but Congress won’t change it, then strict enforcement” basically becomes “arbitrary enforcement.” That’s what we’re getting now. Secretary Kelly, with Session’s encouragement, has basically told DHS enforcement that they can arrest anybody they feel like arresting, the more the merrier. And Sessions wants to put more citizens and non-citizens in jail. After all, prisons are a great business opportunity.
Thanks for commenting,
Best,
P
Talking about Central Americans in the wrong place at the wrong time, let me tell you a funny story about “Elvis”.
Elvis was the name of an 18 year old Nicaraguan whose case I had soon after I became an IJ in Miami in 1989. He was in the wrong place, riding in the back seat of a stolen car In Ft. Lauderdale, when he was arrested in one of Sheriff Navarro’s petty crime immigrant raids. You may remember Sheriff Navarro from the early seasons of the TV show “Cops”.
After Elvis was cleared of any wrongdoing other than being here illegally, he was sent to Krome by Navarro and came up before me on an application for asylum. Elvis testified forthrightly that he had nothing to fear in Nicaragua, and that he only applied for asylum because everyone else was doing it. When I denied the application and gave him 30 days VD, I said I was sorry I couldn’t do anything more for him.
Then the INS trial attorney who also felt sorry for him informed me that I could also order him released on his own recognizance and he’d be just like most Nicaraguans on uncertain VD status in Miami, and she’d not object. I did.
But the next day the same trial attorney told me what had happened after I gave him his release on recognizance order. He was an excellent soccer goalie and decided to play one last game for his team at Krome before leaving, when an unfortunate collision with another player at the goal ruined his handsome face. He needed plastic surgery which INS would pay for, but only if he was still detained.
So Elvis had a tough decision to make. If he stayed for his surgery, INS would pay, but his 30 days VD would have expired, and he would be deported. Later that week I found out Elvis decided to leave Krome, and that he’d rather be an ugly man in America than handsome back in Managua. True story!
I am stunned by the arrogance of Gus and Paul and Chief Judge Gregory. No matter what they think of Trump, he is the President of the United States, and he makes national security decisions on the basis of private briefings and advice from the CIA, the FBI, DHS, and the rest of the agencies that report to the president on intelligence and security matters….and meetings with the National Security Counsel. Moreover, on national security matters, the information is likely to be classified, which means its release has been found likely to cause serious harm to national security.
But Gus and Paul and the judge are in a better position than the president to decide whether the travel ban is based on a legitimate matter of national security???? Unbelievable.
And they are forgetting Mandel. Mandel limits the role of the courts to determining whether the order was issued in good faith for a facially legitimate reason. That doesn’t include authority to question whether there really is a matter of national security.
According to one of the dissents, Mandel also limits the good faith inquiry to the language of the order, which makes good sense. Unless there is reason in that language to suspect that the order wasn’t issued in good faith, the inquiry is over. And not even Judge Gregory found evidence of bad faith in the language of the order.
He finds in his decision that the stated national security interest in the order was, on its face, a valid reason for the travel ban and, therefore, that it satisfied Mandel’s first requirement. He observed, therefore, that, “Absent allegations of bad faith, our analysis would end here in favor of the Government.”
Absent allegations of bad faith??? That’s all the courts needs, some schmuck claiming bad faith and then the door is wide open to a fishing expedition into everything the president said when he was a candidate? Why stop there? What about things he said when he was a college student? Or in high school. Hell, let’s find out if he had difficulty with potty training as a toddler. That would shed additional light on his general abilities.
But the main problem is that when the bad faith inquiry does not arise out of the language in the order, there is no way that Trump can ever escape the finding that he is acting in bad faith whenever he issues an order that has a negative impact on Muslims. And as I say in my article, if the Supreme Court does not restore sanity by reversing Gregory’s decision, Trump will have to defy the courts if he wants to meet his responsibility to protect the nation against terrorism from Muslim countries.
And I am totally astounded, Nolan, that you would accept President Trump’s word on this. He is the President. But, he’s also an established serial liar, a bigot, and a xenophobe. Almost nothing he says can be believed. I don’t believe he knows (or cares) a hill of beans about national security. It’s all about xenophobia, bullying, and demonstrating control. There is no national security emergency (except, perhaps, Trump’s own conduct in office). And, none of his advisers have any credibility either. So, having elected a President who is not fit to lead, the country is in great difficulty. But, your uncritical acceptance of Trump’s malarkey only makes things worse. Surely, as a smart person, you must know better. Most disappointing. But, to each his own. I have a lot more confidence in Chief Judge Gregory’s judgement than I have in Trump’s. And, that’s completely on Trump.
Trump, Sessions, Miller, Bannon got themselves into this trouble with their ill-advised statements, even continuing after the litigation was in progress. So, no, when you can’t stop making outrageous statements, you’re going to be stuck with them for a long time. Most folks can figure that out, particularly anyone with any experience in the Federal Courts. Judges don’t like out of court statements about the pending litigation.
The next time around, the country should elect someone who is honest and can do the job of President. Until then, we’re all in danger from Trump and his ill-advised policies. Let’s hope we all survive.
I’m honored to be placed in the company of Gus and Chief Judge Gregory.
Best,
Paul
If the courts divest Trump of his ability to deal with national security issues when Muslims are involved, where does that leave the country?
FYI you have made my point with your statement, “He is the President. But, he’s also an established serial liar, a bigot, and a xenophobe. Almost nothing he says can be believed. I don’t believe he knows (or cares) a hill of beans about national security. It’s all about xenophobia, bullying, and demonstrating control.”
That’s the approach Judge Gregory took in his decision too, isn’t it? To Hell with what the order says or what it would do if we let it go into effect, we all know what kind of a person Trump is so his order must have been made in bad faith. And Gregory will reach the same conclusion every time one of Trump’s executive orders reaches his court, no mater what Trump does.
If the Supreme Court does not stop this mess before it is too late, we are headed for a constitutional crisis of a conflict between the executive and judicial branches of government. I ask you again, where does that leave the country?
Gee, Nolan, that President Trump has zero credibility is hardly Chief Judge Gregory’s fault, or mine or Gus’s, for that matter. It’s purely on Trump. And, he has surrounded himself with folks who have a bad case of “the Emporer has no clothes syndrome.”
We’ve elected a President who is unqualified for the job. He is dishonest, prejudiced, totally self-centered, insecure, intellectually shallow, lacking in compassion, and without any real values. He has no commitment to the Constitution or the rule of law. It’s all about his ego and what he wants.
But, this is a republican democracy, not a dictatorship. That’s why we have three branches of government and separation of powers.
Although the GOP-controlled Congress won’t give Trump everything he wants, neither will they effectively restrain him. So, that does leave it largely to the courts to place some restraints on Presidential and Administration abuses, which they have been doing. Maybe the Supremes will reverse the lower courts; maybe they won’t. Several of the more conservative Justices aren’t big fans of unrestrained Executive power. And, who knows how badly Trump and Sessions might screw up their case before the Court gets around to deciding it (if ever; I’m still not convinced they will necessarily take the case).
The biggest threat to our national security right now is President Trump — both his lack of judgment and his lack of ability to govern in a competent manner. And, I find it incredible that so many in the GOP are largely willing to brush off what appear to be very unusual connections between the Trump camp and one of the world’s worst, and probably most dangerous, autocrats, Vladimir Putin. It’s a fact that the Russians tried to interfere with our elections, whether aided by Trump or not. That, in and of itself, should make all of us wary about trusting Trump to protect our national security.
Best,
Paul
Sorry Nolan, but again you speak nonsense defending Trump.
The US Presidency is the most respected political office in the world and most of its power derives from a President’s earned reputation as a straight shooter. Trump didn’t. And the courts are not divesting Trump of his ability to deal with national security issues when Muslims are involved. The country remains where the Founding Fathers intended, per Lincoln’s speech below.
The Presidency is 4 year appointment per Article 2 of the US Constitution whose primary asset is the bull pulpit. An earned asset, not a specified absolute power. And surprise! Trump has done everything he can to convince a majority of Americans that he has no clue, as far as earning either the trust of Americans, or anyone else.
What you describe as desirable, indeed necessary, is what political scientists describe as the “Führer Principle” a/k/a Führerprinzip , is a very simple concept. Hitler’s aide Rudolf Hess probably best summarized the Führer Principle best when he said in a public speech: “Hitler is Germany and Germany is Hitler. Whatever he does is necessary. Google it.
And none of us are “arrogant” for insisting that Trump respect the high office he holds to the high standards set by his predecessors. It is not arrogance. It’s our duty as loyal US citizens. to resist despots.
The United States is not a dystopia that requires abandoning our fundamental liberties so the least qualified American President, EVER, can run amok smiting untermensch. It remains what Reagan described as the “shining city on the hill”, to which the rest of the world looks as an inspiration. And the sua sponte resistance from loyal patriots who repeat the first American logan “Don’t thread on me” is simply the latest instance of the most eloquent words in any language, Lincoln’s Gettysburg speech., which began:
” Four score and seven years ago our fathers brought forth on this continent, a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal. Now we are engaged in a great civil war, testing whether that nation, or any nation so conceived and so dedicated, can long endure”.
and ended: “we here highly resolve that these dead shall not have died in vain — that this nation, under God, shall have a new birth of freedom — and that government of the people, by the people, for the people, shall not perish from the earth”.
In short: No Fuhrers”.
You are being short sighted. Using csmpaign statements this way sets a precedent. If the supreme court doesnt intervene, they will be used against future presidents that you like too. We saw this happen when the democrats got rid of the filibuster to get obamas appointments through the senate. It smoothed the way fot trump to get his appointments though.
No, Nolan, it won’t hurt future Presidents, except to the extent that they run on overtly racist, xenophobic, and bigoted agendas and are serial liars. The seeds of untruth, exaggeration, and hate that Trump sowed to get elected are now bearing fruit. Fortunately, in my view, courts have stepped in to at least temporarily put a halt to this nonsense.
Trump is what we get when we elect unqualified leaders. Other institutions have step in to protect the Constitution. Trump is sui generous. Hopefully, never again in our history will we elect such a patently unqualified leader.
There’s a reason why many of the issues raised by Trump’s misadventures in governing haven’t come to a head in the courts before. Prior Presidents of both parties have exercised at least a modicum of reasonableness, prudence, and restraint. All essential qualities for good governing which are totally lacking in Trump.
You keep blaming and shaming others for the problems Trump brings on himself. That’s another of his problems: inability to acknowledge mistakes and accept responsibility.
Best,
Paul
According to Alexis De Tocqueville in his classic “Democracy in America”, the “Tyranny of the Majority” is what you get when a democratically empowered government legislates against a disfavored minority.
President John Adams first coined the phrase. De Tocqueville toured the USA in the 1830s, generally praised our Democracy, but also warned of how when demagogues gain power demonizing minorities, eventually citizens find themselves disenchanted with their government because their electoral choices increasingly become less representative of the public interest. Political scientists call it “democratic totalitarianism”.
We have been lucky because our Founding Fathers were unusually prescient designing a flexible limited government, immediately adding a Bill of Rights to protect individual rights, and occasionally revising it with careful amendments which require strong national consensus reflected in elaborate legislative actions before they become law.
But approximately every 80 years (4 generations) we reach a demographic crisis point as the USA keeps changing. 1770-80s and the War of Independence after the 1762 French and Indian War diverged American and British interests; 1850-60s and the Civil War when Western Expansion made Slavery untenable; 1930-40s and the Great Depression when economic laissez faire capitalism failed us; and now our first true demagogue in the White House just as the USA again faces another great demographic transition.
Historians call it a “Fourth Turning”, and you can google it for further details if you want. Four distinctly different generational types, each reacting to the previous generation’s excesses. It is no accident that our 3 greatest Presidents, Washington, Lincoln and FDR, led the USA out of these 3 respective crisis.
Ask yourself, does Trump sound like Washington, Lincoln and FDR? Or does he resemble instead King George, James Buchanan and Herbert Hoover, predecessors whose ineptitude as our leaders exacerbated those crises?
That’s your response to the concern I raise about using campaign statements to discredit an otherwise acceptable Executive Order? It is okay to use them against Trump because he is a horrible person. It won’t happen again because future presidents won’t be horrible people. Would you accept that justification for using bad evidence to put horrible criminals in prison?
And that isn’t the only point I have made that you have ignored. I pointed out that presidents have resources, briefings, advisors, access to classified information, and so on that you, Gus, and Gregory don’t have. What makes you think that you know more about national security threats than the president does?
And you haven’t justified the court’s involvement in national security decisions in the first place. You and I discussed this topic months ago and you said Trump would win because the standard is so low, i.e., that he just has to show a facially legitimate national security reason. When did you change your mind and decide that he has to convince the courts, you, and Gus that there is a national security interest that justifies the executive order?
And you haven’t responded to my point that if there doesn’t have to be an indication of bad faith in the executive order, the campaign statements will stop Trump from implementing any executive order dealing with the Muslims, regardless of what the order says or requires.
Before Trump became the target of hatred and prejudice, most of what you are saying about Trump was said about republicans who advocated enforcing the immigration laws. It is understandable when politicians engage in such character assassinations. They have to prevent political opponents from succeeding if they want to regain power or hold on to power they already have. But what’s your motivation?
And I will comment briefly on your statement, “Because the current law is so totally screwed up, “strict enforcement” amounts to “arbitrary enforcement.” And “All of this is to say that when the law is unworkable, but Congress won’t change it, then strict enforcement” basically becomes “arbitrary enforcement.” That’s what we’re getting now. Secretary Kelly, with Session’s encouragement, has basically told DHS enforcement that they can arrest anybody they feel like arresting, the more the merrier.”
What exactly are you talking about? Are you complaining that Trump is going to deport aliens who entered without inspection? Aliens who overstayed their visas (supposedly 40% of the 11 million)? Who exactly is he going to deport that he shouldn’t be deporting?
But to use on of your own expressions, “Keep poking Trump and his administration in the eye with a stick.” It won’t hurt you, Gus, or Gregory; but it will ensure that Trump deports as many noncriminal illegal aliens as he can over the next four years. And with the expansion of expedited removal proceedings, that is going to be a very, very large number.
Nolan: If I owed you $100 and I can’t pay you, I have a problem. But if I owe you $1 million you have a problem because I can never pay you. And you confuse laws meant to address individuals here illegally, with realistic solutions for millions of people already here and becoming Americans in every way except being legalized by Congress.
To address millions of undocumented immigrants mass deportations is neither practical nor moral. And that’s not what Americans want according to every poll on the subject, despite an aggressive anti-immigrant campaign of “blood libels” against Mexicans and Muslims circulating the internet specially since 9/11. Terrorists are not immigrants. Immigrants come here to live and prosper. Terrorists come here to kill and die.
Trump, our most notorious predator marketer, saw a unique opportunity to meet the demands of those who never got the memo that all men are created equal. Some say because he was transitioning into a media mogul TV personality evidenced by his trademarking his slogan “Make America Great Again”. Politicians usually want people to freely repeat their slogans. He was surprised that his demagoguery was successful and was unprepared to assume the Presidency in either knowledge or temperament. You say “Trump became the target of hatred and prejudice”? Seriously? His campaign was the most despicable orgy of hatred and prejudice in American history.
Legalizing as many of these millions ASAP so they can contribute and thrive openly is not a permanent solution. It’s only a tourniquet to stem the bleeding of Americans respect for immigration laws caused by obscure anti-Mexican provisions inserted into the INA since 1965 when Congress discarded the racist National Origins quotas: imposing Western Hemisphere numerical limits in 1965; requiring the petitioning US citizen to be at least 21 years old in 1972; imposing 20,000 preference visas on Mexico in 1976, and then, a spasm of provisions expanding grounds of deportability, and closing off avenues of relief from deportation we judges used to address the most sympathetic cases.
The best precedent is the 1862 Homestead Act when Congress resolved the needs of the millions of landless immigrant farmers the USA had recently recently acquired after the European crises of 1848: Potato Famines, collapse of traditional cottage industries and the Revolutions of 1848 all over Europe, specially Germany and Italy.
Today it’s the millions who similarly fled oppressive home countries following the call on the Statue of Liberty: “Give me your tired, your poor, Your huddled masses yearning to breathe free, The wretched refuse of your teeming shore”. They are the people you now see behind the counters at every store and 7/11 or cleaning up, while the rest of us enjoy the best of 21st Century American prosperity. Because that “wretched refuse” strives to improve their wretched status, instead of hurting their darker skinned neighbors whom they blame for everything.