"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt and Dr. Alicia Triche, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
It was never about protecting the border, rule of law or the U.S. economy. And it was never about “illegal” immigration, for that matter.
Trump’s anti-immigrant bigotry was always just anti-immigrant bigotry.
There’s no other way to explain the Trump administration’s latest onslaught against foreigners of all kinds, regardless of their potential economic contributions, our own international commitments or any given immigrant’s propensity to follow the law. Trump’s rhetoric may focus on “illegals,” but recent data releases suggest this administration has been blocking off every available avenue for legal immigration, too.
Last month, the number of refugees admitted to the United States hit zero. That’s the first month on record this has ever happened, according to data going back nearly three decades from both the State Department and World Relief, a faith-based resettlement organization.
So what happened?
The problem wasn’t that the 26-million-strong global refugee population lacked a single person who met America’s strict screening requirements. No, our admissions flatlined because Trump announced and then delayed signing a new refugee ceiling for the 2020 fiscal year. This delay led to a complete moratorium on admissions.
Hundreds of flights were canceled for approved refugees who had waited years or decades to come — once again, legally — to our shining city on a hill. As the moratorium dragged on, some refugees’ eligibility expired. At least four were minors who have now turned 18. This means they’ve aged out of the resettlement program they were accepted under and now must get back in line, perhaps indefinitely, to reapply under a different system as adults.
By the way, when Trump finally did sign off on that new fiscal 2020 refugee ceiling, it was for a mere 18,000 admissions. That too is an all-time low. The Trump administration has also thrown up other roadblocks for refugees, such as allowing states and localities to veto any resettlements within their borders. (This policy is being challenged in court.)
Trump supporters might argue that, whatever our moral obligations to the world’s destitute and desperate, the president is merely keeping immigrants out to protect our economy.
They are wrong.
The Trump administration’s own research — which it attempted to suppress — found that refugees are a net positive for the U.S. economy and government budgets. That is, over the course of a decade, refugees pay more in taxes than they receive in public benefits.
The Trump administration is also turning away categories of legal would-be immigrants who are historically admitted because they are economically valuable.
Last week, for instance, we learned that enrollment of new international students has fallen more than 10 percent over the past three years, according to the Institute of International Education.
This is a shame. Higher education has been one of our most successful industries, adding $45 billion to the U.S. economy last year alone. International students spend money in the local economies where they study — on lodging, food, books, entertainment. They are also more likely to pay full freight in tuition. This means they cross-subsidize American students, especially in states where public education funding has fallen.
International students are also more likely to major in high-demand STEM fields, providing U.S. employers with a pipeline of talent that supports the jobs of native-born Americans.
New international student enrollment is declining for a number of reasons, including high tuition and fear of campus gun violence. But the barrier most frequently cited by universities lately is problems with the visa-application process. Meanwhile, other developed countries, such as Canada and Australia, are poaching students who might otherwise have contributed their talents here.
These are hardly the only signs we’re discouraging or denying legions of desirable and legal would-be immigrants.
Denial rates for H-1B visas — awarded to high-skilled workers — have more than doubled since Trump took office, according to tabulations from National Foundation for American Policy. Processing delays for citizenship applications have doubled. Naturalization and visa fees have skyrocketed.
Meanwhile, when families apply for their legal right to asylum at the border, we tell them to await processing in Mexico, in a region so dangerous that Americans are instructed not to visit. (“Violent crime, such as murder, armed robbery, carjacking, kidnapping, extortion, and sexual assault, is common,” the State Department website advises.)
There, asylum seekers live outdoors, in filthy, flooded, freezing tents. Agonized parents send sick and frostbitten toddlers to cross into the U.S. alone, because they fear they’ll die waiting in Mexico.
And if these desperate families don’t like living in squalor, we tell them they should just return home, get in line and apply through another legal route into the United States. Perhaps as refugees, students or workers.
As though there were still such routes to be found.
It’s institutionalized hate, racism, sexism, lawlessness, and cruelty.
One of the worst things is that’s it’s basically enabled by Federal Appellate Courts who see the same problems as many U.S. District Judge do, but “go along to get along” by “normalizing” Trump’s disgraceful racist behavior and “deferring” to pretextual Executive actions that are merely facades for a dishonest, illegal, and unconstitutional White Nationalist agenda. Sort of reminds me of the bogus “separate but equal” doctrine of judicial cowardice.
Apparently, too many life-tenured Article IIIs in the ivory tower think that they and their privileged circles will escape the gratuitous harm being inflicted on our nation and on vulnerable individuals by a scofflaw executive. Certainly, not unlike the enabling white male judges and Supreme Court Justices who “looked the other way” and thereby enabled Jim Crow regimes to corruptly use our legal system to disenfranchise, murder, oppress, and otherwise abuse African American citizens.
Where has judicial courage among the higher levels of our Federal Judiciary gone?
IN THE TWO YEARS AND 308 DAYS THAT DONALD Trump has been president, he has constructed zero miles of wall along the southern border of the United States. He has, to be fair, replaced or reinforced 76 miles of existing fence and signed it with a sharpie. A private group has also built a barrier less than a mile long with some help from Steve Bannon and money raised on GoFundMe. But along the 2,000 miles from Texas to California, there is no blockade of unscalable steel slats in heat-retaining matte black, no electrified spikes, no moat and no crocodiles. The animating force of Trump’s entire presidency—the idea that radiated a warning of dangerous bigotry to his opponents and a promise of unapologetic nativism to his supporters—will never be built in the way he imagined.
And it doesn’t matter. In the two years and 308 days that Donald Trump has been president, his administration has constructed far more effective barriers to immigration. No new laws have actually been passed. This transformation has mostly come about through subtle administrative shifts—a phrase that vanishes from an internal manual, a form that gets longer, an unannounced revision to a website, a memo, a footnote in a memo. Among immigration lawyers, the cumulative effect of these procedural changes is known as the invisible wall.
In the two years after Trump took office, denials for H1Bs, the most common form of visa for skilled workers, more than doubled. In the same period, wait times for citizenship also doubled, while average processing times for all kinds of visas jumped by 46 percent, even as the quantity of applications went down. In 2018, the United States added just 200,000 immigrants to the population, a startling 70 percent less than the year before.
Before Trump was elected, there was virtually no support within either party for policies that make it harder for foreigners to come here legally. For decades, the Republican consensus has favored tough border security along with high levels of legal immigration. The party’s small restrictionist wing protested from the margins, but it was no match for a pro-immigration coalition encompassing business interests, unions and minority groups. In 2013, then-Alabama Senator Jeff Sessions introduced an amendment that would have lowered the number of people who qualified for green cards and work visas. It got a single vote in committee—his own. As a former senior official at the Department of Homeland Security observed, “If you told me these guys would be able to change the way the U.S. does immigration in two years, I would have laughed.”
. . . .
In November, Cuccinelli was promoted to DHS deputy acting secretary. Kathy Nuebel Kovarik became acting deputy at USCIS and Robert Law, the former FAIR lobbyist, ascended to the head of the policy office. The agency has promised a new flurry of major policy changes before the end of the year. And in what is perhaps the purest expression of the administration’s intentions so far, it started sending Central American asylum seekers to Guatemala with no access to an attorney, no review by an immigration court, far away from the border infrastructure of activists and reporters and lawyers or any form of help at all.
IT’S EASY ENOUGH TO BELIEVE THAT BECAUSE NONE of the Trump administration’s reforms are entrenched in law, they can be overturned as quickly as they were introduced. And yet even though, in theory, the policy memos can all be withdrawn, the “sheer number of both significant and less significant changes is overwhelming,” said Jaddou, the former USCIS chief counsel. “It will take an ambitious plan over a series of years to undo it all.” Formal regulations, like the third-country asylum rule and public charge rule, if it succeeds, will be especially hard to unravel.
The institutional implications run deeper. The backlog of delayed cases will likely take several years to get under control. The administration has promoted six judges with some of the highest asylum denial rates to the Justice Department’s immigration appeals court, including one who threatened to set a dog on a 2-year-old child for failing to be quiet in his courtroom. Those appointments are permanent.
The refugee program, too, will take years to rebuild. The plunge in admissions caused a plunge in funding to the nine resettlement agencies, which have closed more than 100 offices around the country since 2016. That’s a third of their capacity, according to a report by Refugees Council USA. “The whole infrastructure is deteriorating,” said Rodriguez, the former USCIS director. Because the application process is so lengthy, even if a new administration raises refugee admissions on day one, it would take as long as five years before increased numbers of people actually make it to the United States. Consider that in January 2017, the State Department briefly paused in-bound flights for refugees who had finally made it through the gauntlet of health, security and other checks. As of this summer, some of those refugees were still waiting to leave. While the flights were grounded, they missed the two-month window during which all of their documents were current. When one document expires, it can take months to replace, causing others to expire and trapping the refugee in what the report called “a domino effect of expiring validity periods.”
Even harder to repair is the culture shift within USCIS. New visa adjudicators will remain in their jobs long after the political appointees have gone—kings and queens of their own offices. Employees who were promoted for their skeptical inclinations will stay in those positions, setting priorities for subordinates. The multitude of changes at USCIS are the product of an administration that regards immigration as its political lifeblood. There’s no guarantee—or indication—that any of the potential Democratic nominees would apply the same obsessive zeal to overturning them.
Back in 1924, Johnson-Reed’s supporters never anticipated the Holocaust, and yet they expanded its horrors. We don’t know where our own future is headed, but we live in a time of metastasizing instability. Last year, the United Nations’ official tally of refugees passed 70 million, the highest since World War II. Mass migrations, whether because of violence or inequality or environmental calamity or some murky blend of factors that don’t conveniently fit existing laws, are the reality and challenge of our era. There aren’t any easy solutions. But already, what started as a series of small, obscure administrative changes is resulting in unthinkable cruelty. If left to continue, it will, in every sense, redefine what it means to be American.
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Read Rachel’s entire, much longer, article at the link.
Building Due Process and fundamental fairness is a painstaking incremental process that takes years, sometimes decades, to achieve. Destroying it can happen basically overnight.
This should never have happened if the Supremes had stood up to the Administration’s unconstitutional, factually bogus, racist, religiously targeted “Travel Ban” instead of green-lighting the return of “Jim Crow 2” under a clearly pretextual and fabricated “national security” facade. Judicial complicity and task avoidance enables cruelty and the destruction of democratic institutions (including, ultimately, the independent judiciary). That’s why the “New Due Process Army” is in it for the long run!
Constantly Confront Complicit Courts 4 Change!
Due Process Forever. White Nationalism Never! Complicit Courts Never!
Trump Plans Far-Reaching Set Of New Immigration Regulations
The Trump administration plans a far-reaching set of new immigration regulations that, if enacted, would profoundly affect employers, international students, H-1B and L-1 visa holders, EB-5 investors, asylum seekers and others. The proposed forthcoming rules are detailed in the administration’s just-released Unified Agenda for the Department of Homeland Security (DHS).
H-1B Visas: “As a result of more restrictive Trump administration policies, denial rates for H-1B petitions have increased significantly, rising from 6% in FY 2015 to 24% through the third quarter of FY 2019 for new H-1B petitions for initial employment,” according to a recent National Foundation for American Policy analysis. A new H-1B regulation would make life even more difficult for employers and high-skilled foreign nationals.
The summary of a forthcoming H-1B rule states it would: “[R]evise the definition of specialty occupation to increase focus on obtaining the best and the brightest foreign nationals via the H-1B program, and revise the definition of employment and employer-employee relationship to better protect U.S. workers and wages. In addition, DHS will propose additional requirements designed to ensure employers pay appropriate wages to H-1B visa holders.” (The target date for publishing a proposed rule is December 2019.)
The rule could be used to defend the administration against lawsuits from companies that contend many actions by U.S. Citizenship and Immigration Services (USCIS) on H-1B petitions have violated the Administrative Procedure Act by not going through the rulemaking process.
“Undoubtedly they will push the boundaries and aim for long-term, structural changes to the H-1B visa category,” said Lynden Melmed, a partner at Berry Appleman & Leiden and former Chief Counsel for USCIS, in an interview. “But absent new authority from Congress, going too far risks a court injunction and they could end up with nothing.”
One way USCIS may try to push the boundaries would be to place into regulation the theory behind a March 31, 2017, internal document now used in adjudications that excluded computer programmers from qualifying as a specialty occupation. The document discusses computer programmers and tells adjudicators that since the Department of Labor Occupational Outlook Handbook states that “. . . some employers hire workers with an associate’s degree . . . it suggests that entry level computer programmer positions do not necessarily require a bachelor’s degree and would not generally qualify as a position in a specialty occupation.” (Emphasis added.)
The March 31, 2017, document notes this has applicability to many occupations and states: “The Policy Memorandum is specific to the computer programmer occupation. However, this same analysis should be conducted for occupations where the Occupational Outlook Handbook does not specify that the minimum requirement for a particular position is normally a bachelor’s or higher degree in a specific specialty.” (Emphasis added.)
“Companies may be surprised to learn how many different positions do not require a bachelor’s degree under Department of Labor standards,” said Melmed. “Employers may have to rethink how they approach their talent strategy.”
A new regulation that would “revise the definition of employment and employer-employee” will make it even more difficult for IT services companies and others that place employees at customer locations. Such companies already have experienced much higher H-1B denial rates due to USCIS policies that, attorneys say, have targeted the companies for tougher scrutiny.
H-4 EAD: The administration continues to place on the regulatory agenda a measure to rescind an existing rule that allows many spouses of H-1B visa holders to work. The target date for a proposed rule is March 2020. (See here for more background.)
L-1 Visas: The irony of USCIS trying to tighten the L-1 visa category is companies complain the Trump administration already has made it nearly impossible to gain approval of L-1 visas at U.S. consulates in India to transfer employees into the United States. Companies also cite U.S. consular posts in China as a problem. “Our refusal rate for L visas at consular posts in India is 80% to 90%,” an executive of a major U.S. company told me in an interview. Denial rates have also increased considerably at USCIS for individual L-1B petitions (used for employees with “specialized knowledge”).
According to the summary of a new item placed on the regulatory agenda: “In order to improve the integrity of the L-1 program, the Department of Homeland Security will propose to revise the definition of specialized knowledge, to clarify the definition of employment and employer-employee relationship, and ensure employers pay appropriate wages to L-1 visa holders.” (September 2020 is the target date for publishing a proposed rule.)
Companies note they already endure visa denials by consular officers who, with little background knowledge, decide that a company should only have a limited number of people who possess “specialized knowledge” – even though there is nothing in the law or regulation about a numerical limit within a company on employees with specialized knowledge of a company’s “product, service, research, equipment, techniques, management, or . . . expertise in the organization’s processes and procedures.”
Regulating on L-1 wages may place USCIS in legal difficulties. “As a practical matter, most employers already pay their L-1 workers at high rates of pay,” said Kevin Miner, a partner at the Fragomen law firm, in an interview. “We will want to see what specific regulatory proposals are made regarding wage rates for L-1 workers, since Congress specifically did not impose prevailing wage requirements in the L-1 statute. Adding requirements that Congress has not put into the statute would be an overreach by the agency and would call into question the legal viability of the new regulations.”
International Students, OPT and Unlawful Presence: New enrollment of international students at U.S. universities declined by more than 10% between the 2015-16 and 2018-2019 academic years – and new Trump administration regulations are likely to further discourage international students from coming to America.
The ability to gain practical work experience following a course of studies attracts many international students to the United States. Many competitors for talent and students, such as Canada and Australia, already make it easier than the United States for international students to work after graduation.
The administration continues to target Optional Practical Training (OPT), which allows international students to work for 12 months after graduation and 24 additional months in science, technology, engineering and math (STEM) fields. A summary of a rule proposal on the agenda states: “ICE [Immigration and Custom Enforcement] will amend existing regulations and revise the practical training options available to nonimmigrant students on F and M visas.” (August 2020 is the target date for a proposed rule.)
Ironically, Trump administration officials from the State Department recently praised Optional Practical Training. “OPT is one of our greatest strengths,” said Caroline Casagrande, a deputy assistant secretary at the U.S. Department of State, during a November 18, 2019, press event on international students. “And we know that students value the practical experience that they gain here in the United States and it is one of our most helpful recruitment tools as a reason that a student chooses to study in the United States.”
A 2019 National Foundation for American Policy study by economist Madeline Zavodny concluded, “There is no evidence that foreign students participating in the OPT program reduce job opportunities for U.S. workers.”
In 2018, USCIS issued policy memos that could cause many international students who unknowingly violate their immigration status to be barred from the United States for 10 years. On May 3, 2019, a U.S. District Court issued an injunction blocking the two policy memos following a lawsuit (Guilford College) filed by universities.
USCIS placed on the regulatory agenda plans for a proposed rule (with a September 2020 prospective date) called “Enhancing the Integrity of the Unlawful Presence Inadmissibility Provisions.”
“The recent announcement in the regulatory agenda regarding unlawful presence is likely a response to the Guilford College litigation,” Paul Hughes, a partner at McDermott Will & Emery and the lead attorney in the case, told me. “In Guilford College, the court issued a nationwide injunction blocking USCIS from applying this memo, both because it did not undertake the notice-and-comment rulemaking required by the Administrative Procedure Act, and because it was at odds with the statutory text. It appears that the administration is now trying to use rulemaking in an apparent effort to cure the procedural errors they made the first time.”
The Department of Homeland Security regulatory agenda contains at least two other measures of interest to the education community and international students. An item on the agenda (with a June 2020 target date for a proposed rule) states: “ICE proposes to vet all designated school officials (DSOs) and responsible officers (ROs), who ensure that ICE has access to accurate data on covered individuals via the Student and Exchange Visitor Information System (SEVIS).”
An item that remains on the regulatory agenda – with a February 2020 target date for publishing a proposed rule – would establish a “maximum period of authorized stay for students.” Currently, international students are admitted for the “duration of status” until they complete their studies. Universities warn changing to a maximum period of stay is likely to carry negative consequences for students.
EB-5: USCIS has proposed and finalized (November 21, 2019) a rule governing EB-5 (employment-based fifth preference) “immigrant investor classification and associated regional centers” that made significant changes to the category, including substantially raising the minimum investment amount for a foreign investor. The administration appears interested in further restricting the category with two items placed on the agenda. One would make regulatory changes to the EB-5 Immigrant Investor Regional Center Program, including how they file, and their designation, termination and continued participation. The other rule would “increase monitoring and oversight of the EB-5 program as well as encourage investment in rural areas.”
Family Sponsorship: After failing to convince Congress to reduce or eliminate most family-sponsored immigration, the Trump administration put forward two measures that could significantly reduce legal immigration to the United States: 1) an October 4, 2019, presidential proclamation (blocked at least temporarily by a court) would bar new immigrants from entering the United States without health insurance and 2) a rule on Inadmissibility on Public Charge Grounds – finalized on August 14, 2019, but blocked by an injunction.
A proposed rule on “Enhancing the Integrity of the Affidavit of Support” shows the administration wants to restrict and discourage Americans from sponsoring family members. “DHS intends to update regulations at 8 CFR 213a by aligning the requirements with the statutory provisions and amending sponsorship requirements to better ensure a sponsor has the assets and resources to support the intended immigrant at the statutorily required level,” according to a summary. “DHS further intends to update the provisions to allow the public benefit granting agencies to more easily obtain information from USCIS in order to seek reimbursement from a sponsor when the sponsored immigrant has received public benefits.”
Asylum: Many items on the regulatory agenda aim to restrict asylum, which has already seen wholesale changes in procedures in the past three years. All of the proposed rules are designed to make it more difficult for individuals to avail themselves of the U.S. asylum system.
In one measure, “The Department of Justice (DOJ) and the Department of Homeland Security propose to amend their respective regulations governing the bars to asylum eligibility. The Departments also propose to remove their respective regulations governing the automatic reconsideration of discretionary denials of asylum applications.” In another proposed rule, DOJ and DHS would “amend regulations governing the standards and procedures for making credible fear determinations or reasonable fear determinations for aliens who are subject to expedited removal, but who want to seek asylum or express a fear of persecution or torture.” Others would affect asylum interviews, work authorization and procedures.
Other Rules on the Agenda: The administration proposes to continue with its announced fee increases for immigration benefits, make changes that could affect adjustment of status and limit a future administration’s use of parole and employment authorization. “Removal of International Entrepreneur Parole Program” is listed on the agenda with a “final action” date of December 2019.
The Trump administration’s regulatory agenda on immigration is ambitious and far-reaching. It’s an attempt to lock into place changes to immigration policy that cannot be easily undone, regardless of the outcome of the 2020 presidential election. There is one glaring omission from the Trump administration’s regulatory agenda – any measure to make it easier for foreign-born individuals to work, study or live in the United States.
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With “Moscow Mitch” and the GOP making sure that Congress can’t do its job and the Supremes and much of the Federal Judiciary apparently in his pocket, Trump’s plans for a White Nationalist Fascist State are on a roll. As Stuart points out, once the damage is done to our nation, it’s likely to take a long time to repair, regardless of when Trump finally leaves office.
Who would have thought that institutions and values developed painstakingly over centuries would be so easily thrust aside by a lawless authoritarian and his gang.
U.S. has world’s highest rate of children in detention: U.N. study
The United States has the world’s highest rate of children in detention, including more than 100,000 in immigration-related custody that violates international law, the author of a United Nations study said on Monday.
Worldwide more than 7 million people under age 18 are held in jails and police custody, including 330,000 in immigration detention centres, independent expert Manfred Nowak said.
Children should only be detained as a measure of last resort and for the shortest time possible, according to the United Nations Global Study on Children Deprived of Liberty.
“The United States is one of the countries with the highest numbers – we still have more than 100,000 children in migration-related detention in the (U.S.),” Nowak told a news briefing.
“Of course separating children, as was done by the Trump administration, from their parents and even small children at the Mexican-U.S. border is absolutely prohibited by the Convention on the Rights of the Child. I would call it inhuman treatment for both the parents and the children.”
There was no immediate reaction from U.S. authorities. Novak said U.S. officials had not replied to his questionnaire sent to all countries.
He said the United States had ratified major international treaties such as those guaranteeing civil and political rights and banning torture, but was the only country not to have ratified the pact on the rights of children.
“The way they were separating infants from families only in order to deter irregular migration from Central America to the United States to me constitutes inhuman treatment, and that is absolutely prohibited by the two treaties,” said Nowak, a professor of international law at the University of Vienna.
The United States detains an average of 60 out of every 100,000 children in its justice system or immigration-related custody, Nowak said, the world’s highest rate, followed by countries such as Bolivia, Botswana and Sri Lanka.
Mexico, where many Central American migrants have been turned back at the U.S. border, also has high numbers, with 18,000 children in immigration-related detention and 7,000 in prisons, he said.
The U.S. rate compared with an average of five per 100,000 in Western Europe and 14-15 in Canada, he said.
At least 29,000 children, mainly linked to Islamic State fighters, are held in northern Syria and in Iraq – with French citizens among the biggest group of foreigners, Nowak added.
Even if some of these children had been child soldiers, he said, they should be mainly treated as victims, not perpetrators, so that they could be rehabilitated and reintegrated in society.
(Reporting by Stephanie Nebehay; Editing by Mark Heinrich)
Why is Trump not being held accountable for leading the “race to the bottom” while littering the track with illegalities and trampling on our Constitution?
This is how we will be remembered by future generations!
Contrary to the rants of dangerous subversive Billy Barr, “The Resistance” may be the only thing that can save American and our national values.
And, let’s “lose” all the GOP/Fox News BS about “reversing election results.” Not only is impeachment an authorized Constitutional process, but, in fact, removal of Trump would result in his replacement by his hand-picked GOP stalwart successor VP Mike Pence. Hardly a “reversal” of results.
As I’ve said before, in some ways Pence could be worse than Trump, because he’s much more competent and knowledgeable on how Government actually works. Where Trump often trips over his own two feet (or, perhaps, “tweet”), Pence might be able to get things done even where they aren’t in the national interest. Nevertheless, that shouldn’t stop anyone from voting to remove Trump, because it’s the right thing to do. Unlikely to happen, though, given the blind commitment of the GOP to Trumpism and its ugly messages of cruelty, intellectual dishonesty, and dehumanization.
This week, the Southern Poverty Law Center (SPLC) published a bombshell article revealing troubling emails that White House senior policy advisor Stephen Miller sent to editors at Breitbart News, the far-right media outlet previously led by Steve Bannon.
Marie Yovanovitch says state department fails to fight ‘corrupt interests’
The emails, which were leaked by former Breitbart editor Katie McHugh and predate Miller’s period in the White House, show Miller’s obsession with immigration and his seemingly successful attempts to get Breitbart editors to write anti-immigration stories, some of which were based on openly white nationalist sources like American Renaissance and V-Dare.
The widespread public outrage in response to the revelations is understandable. Miller is the longest serving senior advisor to President Trump who is not related to the president, and is believed to be the architect of the White House’s draconian anti-immigration policies, which doesn’t just target “illegal immigration” but also aims to return to the country to the infamously racist immigration policy of the early 20th century.
In its response to the leak, the White House tried to discredit the source, SPLC, which has had some internal and external problems recently, but is overall a very reliable authority on the US far right (full disclaimer: I regularly collaborate with the SPLC). One White House spokesperson went full “alternative facts” by accusing SPLC of antisemitism, because Miller is Jewish. By doing so, the White House displayed a complete lack of understanding about what antisemitism is, which is no surprise, given that Trump considers himself “the least antisemitic person you’ve ever seen”.
The Democratic responses were predictable and swift as well. Of all the 2020 candidates, Julian Castro went the furthest in condemning Miller – he called him a “neo-Nazi” – but all agreed that he should resign from the White House.
But would Miller’s resignation change anything? While Miller might be behind the concrete policies that harm immigrants, he is not the main white supremacist in the White House. And Trump can easily find someone else to do Miller’s work, particularly now that almost the whole Republican party has fallen in line with their president.
It also externalizes white supremacy, as if it lives in the margins. But it has been hiding in plain sight within the Republican Party for decades. Miller wrote the emails to Breitbart when he was still an aide to Senator Jeff Sessions, who has been a consistent voice of white supremacy in Congress since 1997. And the Alabama Senator was not alone in Congress either. Representative Steve King has been the most open and unapologetic voice for the cause since 2003. Others, like representatives Louie Gohmert, Paul Gosar, Tom Tancredo and Dana Rohrabacher, might not be as open in their support, but they all encourage white nationalism to varying degrees.
But white supremacy in the Republican party is not limited to just these individual congressmen and women. It runs much deeper than them. White supremacy was at the core of the “Southern Strategy”, dating back to the unsuccessful 1964 presidential campaign of Barry Goldwater, which was formative for the future conservative movement. Perfected by President Richard Nixon, with the help of speechwriter Pat Buchanan, dog whistles to white supremacy have been at the heart of virtually every Republican campaign since the 1970s.
Talking of Buchanan, more than 25 years ago he gave his now famous “culture war” speech at the 1992 Republican convention. While the term has become mainly linked to the religious right, Buchanan is at least as much a white supremacist as a Christian fundamentalist. In many ways, he is the intellectual father of the Trump administration, personifying Mike Pence and Donald Trump in one.
This is why calling for Stephen Miller’s resignation wouldn’t change much. Neither Miller nor Bannon “made” Trump the white-supremacist-in-chief. And Trump is not the only problem either, as Joe Biden seems to believe. He won the Republican primaries, and presidential elections, not despite white supremacy but because of it.
In short, it is time for Democrats to face and name the ugly truth: the Grand Old Party is a party steeped in white supremacy. It is the basis of its electoral support and this will not change in the near future. By focusing on the most brazen examples, like Stephen Miller, Democrats strengthen the misguided belief that the Republican party is a good party with some bad apples. Ultimately, this will help the Republicans more than the Democrats.
Cas Mudde is a Guardian US columnist and the Stanley Wade Shelton UGAF Professor in the School of Public and International Affairs at the University of Georgia
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Mudde’s conclusion is worth repeating:
In short, it is time for Democrats to face and name the ugly truth: the Grand Old Party is a party steeped in white supremacy. It is the basis of its electoral support and this will not change in the near future. By focusing on the most brazen examples, like Stephen Miller, Democrats strengthen the misguided belief that the Republican party is a good party with some bad apples. Ultimately, this will help the Republicans more than the Democrats.
Let’s take a real life example. Joe Biden clearly would be a huge upgrade over Donald Trump as President, whether or not he’s your “first choice.” But, one of Biden’s “selling points” has been his long experience in the Senate and his good working relationships and mutual respect with GOP Senators.
Yet recently, Trump has shamelessly slandered and blatantly lied about Biden while besmirching his character. This is all without a scrap of actual supporting evidence.
Under the circumstances, you would certainly expect some of Biden’s long time GOP colleagues to speak up in his defense and vouch for his character. Almost all Republicans know that Trump is a chronic liar and everything he says about Biden is untrue.
Yet, not a murmur of support or sympathy from the GOP for their “old buddy Joe.” That would cast at least some doubt on Biden’s optimism that he could work successfully with Mitch McConnell and the GOP in the Senate to get bipartisan things done for the country.
More likely, the GOP would treat him exactly like they treated his former “boss” President Obama. That means opposing and mischaracterizing everything, regardless of merit, in an attempt to make Biden a one-term President and to play to the “Trump base.”
Even if Trump loses the next election (by no means a given), his white supremacist base will remain critical to the GOP’s future. Without its enthusiastic support, they become perhaps a “20% party” until they finally cease to exist.
With it, the GOP has a decent chance of imposing some semblance of minority rule over the majority of Americans for decades to come, even if they don’t always control the White House. Given the GOP’s strength in lesser populated states which are “over represented” in the Senate, they also have a decent shot at indefinitely controlling the Senate and therefore the appointments process as well as the judiciary.
Consequently, Trump or no Trump, there is little incentive for the GOP to abandon white supremacy as their fundamental identity. Perhaps that counsels a Democratic strategy of less hand wringing about how to reach out to GOP voters and more of a focus on how to get new Democratic voters registered, get out the Democratic vote, hold the party together (note that the GOP’s “hard right” under Trump didn’t by any means split the party as many pundits had predicted), and use their potential numerical advantages, their wider appeal to a diverse America, and their more positive message to restore at least some semblance of majority rule.
Recapturing the White House certainly won’t solve all of America’s problems. But, it’s an important start.
It could be America’s last chance for survival as a Constitutional Republic.
Today’s biggest story set the scene for news that continues to develop about the Ukraine scandal.
The big story, in terms of its ability to frame the crazy events coming at us at top speed, happened last night, when Attorney General William Barr gave a speech to the Federalist Society, a group of conservative and libertarian lawyers who argue for an originalist interpretation of the Constitution. The conviction of members of the Federalist Society that courts should not do anything that is not listed in the original Constitution makes them great friends to business and to white men, since they focus on the protection of property and deny that laws can regulate business, provide a basic social safety net, or protect minority or women’s rights. The Federalist Society organized in 1982 to push back against what its members felt was an activist court system that tried to reorganize society from the bench. It has been extraordinarily successful in taking over the courts: currently five members of the nine-member Supreme Court are current or past Federalist Society members: Clarence Thomas, John Roberts, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh.
In his speech, Attorney General William Barr claimed he was going truly to be an originalist, and explained by taking American history back to its roots. In contrast to every single American historian in, well, American history, Barr argued that Americans had rebelled not against King George III in 1776, but rather against Parliament. What the Founders feared, he said, was not a strong executive, but rather a strong Parliament. (You can tell where this is going, right?) Barr was setting up the idea that Congress has grown far too strong lately (in fact, virtually every scholar will tell you that it is the Executive that has grown terribly strong since 1981) and that it is badly hampering the president’s ability to do his job. The president should be able to act on his own initiative, and not be checked by either congressional or judicial oversight, Barr insisted, in a theory known as that of the “unitary executive.”
Barr did not stop there, though. He went on to blame “The Resistance” for sabotaging the Trump administration, and claimed that its members were “engaged in a war to cripple, by any means necessary, a duly elected government.” More, he claimed “the Left” is “engaged in the systematic shredding of norms and the undermining of the rule of law.” Conservatives, he said, were at a disadvantage against progressive’s “holy war” because they “have more scruple over their political tactics” especially when facing “a hyper-partisan media.” (You might want to reread those last two sentences.)
Richard Painter, who was George W. Bush’s ethics lawyer, called this a “lunatic authoritarian speech.” Attorneys General are supposed to be non-partisan, and Barr lumped all opposition to Trump as the dangerous far left. The “Left,” in America, generally refers to those few people who advocate for communism—a system in which the government owns and controls all industries and businesses– or anarchy, a system in which there is no central authority at all. It’s actually a pretty small group. But Barr, and other recent Republicans, have included in “the Left” everyone who believes that the government has any role to play in regulating business, providing a basic social safety net, and promoting infrastructure, all those things the Federalist Society opposes. In fact, most of us, regardless of whether we vote Republican or Democratic, want some basic regulations, social welfare programs, and infrastructure development.
But now the Attorney General, who is charged with overseeing our justice system, has declared that anyone standing in the way of Trump is not just a member of “the Left” but also is waging war against America. Painter is quite right: this is the language that enables a leader to imprison people he considers his enemies.
Barr is not saying all this in a vacuum. More news dropped today about the Ukraine scandal, filling in the lines we already suspected. Congress released transcripts today from Tim Morrison and Jennifer Williams, both of whom were deeply involved in the Ukraine mess and were on the July 25 call between Trump and Zelensky. A long-time career official in the State Department, Morrison replaced Fiona Hill as the Senior Director for Russia and Europe in July 2019. Williams is another long-standing career officer in the State Department. Since April 2019, she has been the Special Adviser for Europe and Russia for Vice President Mike Pence. Morrison said that Ambassador to the European Union Gordon Sondland made it clear that aid was being withheld until there was an announcement about an investigation into Burisma, the company on whose board Hunter Biden sat.
This jibed with the opening statement of David Holmes, the political counselor at the Embassy in Kyiv, who testified for seven hours yesterday behind closed doors. Holmes was an eye-witness to the efforts of Trump, his lawyer Rudy Giuiliani, and Ambassador to the European Union Gordon Sondland, to pressure the new Ukraine president Volodymyr Zelensky into announcing an investigation into Burisma, the company on whose board Hunter Biden sat. Holmes’s opening statement was explosive. It was not only first hand, but also it tied Trump directly into the efforts, and it made very clear that the administration was demanding the announcement of an investigation before it would release the money Congress had appropriated for Ukraine’s fight against Russian incursions. Holmes also said that he had reported what he had heard to John Eisenberg, Legal Advisor to the National Security Council, the same man to whom Lt. Col. Alexander Vindman had reported the July 25 call, and, once again, Eisenberg had done nothing. (Eisenberg is refusing to honor a subpoena to testify.)
Then, CNN dropped the story that at last year’s White House Hanukkah party Lev Parnas and Igor Fruman met privately with Trump and Giuiliani. After the meeting, Parnas told two people that the president had given him a secret mission to pressure the Ukraine government to investigate Joe and Hunter Biden. The Wall Street Journal reports that in February, Parnas and Fruman met with the Ukraine President at the time, Petro Poroshenko, and his Prosecutor General Yuriy Lutsenko, offering to invite Poroshenko to a White House State dinner if he publicly announced an investigation. As I wrote here two days ago, this would have boosted both Poroshenko’s and Trump’s reelection campaigns. In March, Lutsenko smeared U.S. Ambassador to Ukraine Marie Yovanovitch to an American reporter and Sean Hannity ran with the story on his show, but the scheme fell apart when voters elected Zelensky instead of reelecting the corrupt oligarch Poroshenko. Then they had to scramble to come up with a new plan, and the whole ham fisted Ukraine scandal took off.
The Ukraine scandal is fleshing out, and it is truly astonishing that there is not more evidence that can be read in Trump’s favor. This increasingly just looks like a shakedown that weakened national security to help Trump rig the 2020 election. Meanwhile, in northern Syria, where Turkish and Russian troops moved in when we moved out, the Russians boasted yesterday that they have now occupied a former U.S. air base.
Trump spent several hours today at Walter Reed hospital. The visit was unexpected and unannounced, but the White House said he had decided to have portions of his annual physical done three months early.
Attorney General Bill Barr Is Getting Roasted for His Outrageous Speech Blasting Progressives
As the impeachment hearings continued, Attorney General Bill Barr on Friday trash-talked Democrats for attempting to “drown the executive branch with oversight demands,” saying they were working for political gain without thinking of the consequences.
“In waging a scorched-earth, no-holds-barred war against this administration, it is the left that is engaged in shredding norms and undermining the rule of law,” Barr told a room of attorneys at the annual gathering of the Federalist Society, a conservative legal group that has been influential in determining President Donald Trump’s nominees for federal judges.
The remarks about Democrats ignoring the rule of law were especially ironic because they came a mere hours after Roger Stone, one of Trump’s previous advisers, was convicted on all counts for lying to Congress during its probe into Russia’s interference in the 2016 election. The attorney general’s speech also came on the second day of presidential impeachment hearings examining allegations that Trump attempted to interfere in the 2020 elections by asking Ukrainian President Volodymyr Zelensky to investigate former Vice President Joe Biden and his son Hunter.
Barr criticized Democrats for launching a “holy war” and using “any means necessary to gain momentary advantage,” while he said conservatives “tend to have more scruple over their political tactics and rarely feel that the ends justify the means.”
. . . .
Barr reportedly received a standing ovation, but outside the halls of the Federalist Society, his remarks sparked outrage and intensified calls from the left to impeach not only the president, but the attorney general himself. Others were quick to roast Barr for his statements. “Bill Barr is the type of bare knuckles lawyer the Church would have hired thirty years ago to cover up sex abuse cases,” Richard Painter, a former White House ethics counsel, tweeted.
. . . .
“Yesterday AG Barr addressed a radical political group and gave one of the most vicious partisan screeds ever uttered by a US cabinet officer,” Rep. Bill Pascrell (D-N.J.) tweeted Saturday morning. “Barr says trump should have king-like powers. Barr is a liar and a fanatic and should be impeached and stripped of his law licenses.”
. . . .
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Read Samantha’s complete article which includes the full the two of a number of tweets at the link.
Hours after a new witness testified in the House’s latest impeachment hearing on Friday, Attorney General William Barr railed against Democrats for declaring a “war of resistance against this administration.”
In a speech before the conservative Federalist Society, Barr rebuked lawmakers for probing President Donald Trump’s potential power abuses, suggesting their efforts are illegitimate.
“The sheer volume of what we see today ― the pursuit of scores of parallel investigations through an avalanche of subpoenas ― is plainly designed to incapacitate the executive branch, and indeed is touted as such,” Barr said. “The costs of this constant harassment are real.”
Barr’s portrayal of oversight as harassment echoes Trump’s repeated claims that he is the victim of a partisan “witch hunt” rather than the subject of a justified inquiry into his dealings with Ukraine, which remain at the heart of Democratic-led impeachment proceedings.
“The fact of the matter is that, in waging a scorched earth, no-holds-barred war of resistance against this administration, it is the left that is engaged in the systematic shredding of norms and undermining the rule of law,” Barr added. “This highlights a basic disadvantage that conservatives have had in contesting the political issues of the day.”
President Trump is convinced he has the “absolute right” to do anything from asking other countries to investigate his political opponents to pardoning himself. But he couldn’t possibly tell you why — aside from his innate conviction that “when you’re a star, they let you do it” — you can get away with anything. Enter Attorney General William P. Barr to put a pseudo-intellectual gloss on Trump’s authoritarian instincts. In a Friday night speech to the Federalist Society, Barr gave a chilling defense of virtually unlimited executive authority.
Barr’s wrongheaded assumption was that “over the past several decades, we have seen steady encroachment on presidential authority by the other branches of government.” His view faithfully reflects the conservative consensus of the 1970s when he was a CIA analyst and a law student. Few serious analysts share that view today at a time when the president claims the authority to kill suspected terrorists anywhere in the world without any judicial oversight. In fact, conservatives decried President Barack Obama’s tendency to rule by fiat — for example, in protecting “dreamers” from deportation or reaching a nuclear agreement with Iran that wasn’t submitted for Senate ratification.
Trump has now taken rule-by-executive-order to the next level by declaring a “state of emergency” to spend money on his border wall that Congress refused to appropriate. Trump has also misused his authority in myriad other ways, including obstructing justice (as outlined in a special counsel report that Barr deliberately mischaracterized) and soliciting a bribe from Ukraine to release congressionally appropriated military aid.
Yet, to hear Barr tell it, Trump is somehow denied power by the nefarious “Resistance.” Barr decried Trump critics who do not view “themselves as the ‘loyal opposition,’” but rather “see themselves as engaged in a war to cripple, by any means necessary, a duly elected government.”
Earth to Barr: Trump does not treat his critics as “the loyal opposition.” He calls them “human scum,” “traitors” and “the enemy of the people,” using the language of dictators. And it is Trump and his toadies — not his opponents — who are “willing to use any means necessary to gain momentary advantage.”
Barr went on to blame the “Resistance” for Trump’s failure to get more nominees confirmed. The real problem is Trump’s incompetence and his preference for “acting” appointees to dodge the constitutional requirement to seek the Senate’s “advice and consent.” (Trump has not nominated anyone for nearly 20 percent of the top federal jobs.) If Barr wants to find a real abuse of the confirmation process, he should talk to Merrick Garland.
As devoid of self-awareness as his master, Barr whines about “the pursuit of scores of parallel ‘investigations’ through an avalanche of subpoenas.” He conveniently forgets that Republicans tried to impeach President Bill Clinton for lying about sex and spent years probing the Benghazi, Libya, attack in a failed attempt to blame Hillary Clinton. Trump is stonewalling congressional subpoenas at an unprecedented rate, forcing Congress to seek judicial assistance to enforce legitimate requests for documents and witnesses. But Barr denies that the courts have any right to “resolve … disputes” between the executive and legislative branches — effectively allowing the president to act like a king.
The attorney general went on to rail against judicial review of administration actions such as “the travel ban.” This was ultimately upheld by the Supreme Court after the administration rewrote the initial versions, which constituted clear discrimination on religious grounds. Yet Barr is still aggrieved that the courts dared “to inquire into the subjective motivation behind governmental action” — i.e., to look at Trump’s own words about banning Muslims rather than accept the administration’s disingenuous explanations.
Barr blamed the courts and the president’s critics for the fact that so many administration actions have been challenged in court. The truth is Trump has nobody but himself to blame. Many of the lawsuits accuse the administration of violating the Administrative Procedure Act, which the executive branch can comply with simply by showing that its actions are not “arbitrary and capricious.” This is an incredibly low standard, which is why the normal “win rate” for the government in such cases is about 70 percent. According to the Institute for Policy Integrity at the New York University School of Law, the Trump administration’s win rate is less than 7 percent.
Trump likes to blame such setbacks on “Obama judges,” but many of the judges ruling against him are Republican appointees. Chief Justice John G. Roberts Jr., for example, wrote the 5-to-4 decision in June in which the Supreme Court blocked Trump’s attempt to include a citizenship question on the 2020 Census.
“In this partisan age,” Barr sanctimoniously concluded, “we should take special care not to allow the passions of the moment to cause us to permanently disfigure the genius of our Constitutional structure.” He is right, but not in the way he intended. The real threat to “our Constitutional structure” emanates not from administration critics who struggle to uphold the rule of law but from a lawless president who is aided and abetted in his reckless actions by unscrupulous and unprincipled partisans — including the attorney general of the United States.
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Finally, let’s hear from Mary Papenfuss, also at HuffPost:
Attorney General William Barr’s latest extreme defense of Donald Trump has triggered a wave of calls for his impeachment — and disbarment.
Richard Painter, the former chief White House ethics attorney in the George W. Bush administration, tweeted that Barr’s remarks Friday before the conservative Federalist Society were “another lunatic authoritarian speech” amid an impeachment investigation into the president. He claimed that Barr — a member of the conservative Catholic society Opus Dei — is “the type of bare knuckles lawyer the Church would have hired thirty years ago to cover up sex abuse cases.”
. . . .
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Read the rest of Mary’s article at the link.
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Somewhat “below the radar screen:” Barr’s repetition of Session’s blatantly unethical performance by acting as a “quasi-judicial decision maker” in Immigration Court cases where he clearly has both an actual and apparent bias in favor of a party, the DHS, and against another party, the individual migrant, particularly any asylum seeker.
Obviously, viewed through Barr’s perverted historical lens, we’ve made some seriously wrong moves.According to Barr’s interpretation, we should have allied ourselves with Hitler during World War II. Now, there’s a guy who understood the concept of the “Unitary Executive.” And, he sure knew how to deal with opposing legislators, “the resistance,” and others who were “enemies of the state” or of “inferior stock.” Why on earth would we have aligned ourselves with, and helped rebuild, the noxious parliamentary democracies of the West?
One of our allies, Stalin, did actually demonstrate the wonderful power of the “Unitary Executive” — talk about a guy who WAS the State and annihilated all opposition, real and imagined! He certainly would have known what to do with subversives who preached “impeachment” under the Constitution!
But, concededly, Stalin’s godless communism doesn’t fit in well with Barr’s Catholic Christian theocracy (minus, of course, the social justice teachings of Christ and the Catholic Church). Hitler’s pure Aryian Christian superiority was a much better fit with Barr’s historical outlook.
Of course, according to the Barr view, the seminal figure in Republicanism, Abe Lincoln, erred by not aligning himself with Jeff Davis and the Confederacy. Davis certainly knew how to operate without much legislative accountability. And the founders of the Confederacy also possessed Barr’s superior understanding of the relationship between the State and the Divine: “establish justice, insure domestic tranquillity, and secure the blessings of liberty to ourselves and our posterity — invoking the favor and guidance of Almighty God.”
Sure, easy to believe that God was always a big fan of enslavement, rape, brutality, white privilege, and theft of services from enslaved African Americans, who also happened to be believers in God. Fits right in with Barr’s dehumanization of Hispanic workers, trashing of LGBTQ Americans, denial of rights to asylum seekers, threats to political opponents, and war on Hispanic Americans who have the audacity of wanting to vote and live peacefully in their communities without being terrorized by DHS enforcement.
George Washington, who wrongly refused to install himself as either King or “President for Life” was, according to Barr’s historical perspective, a dangerous wimp who diminished the potential powers of the “Unitary Executive.”
Undoubtedly, our Founders had their flaws. After all, the Constitution not only enshrined the dehumanization of African Americans, who had actually made the success and prosperity of the American Republic possible, but also excluded the majority of inhabitants from political participation.
But, unlike Barr and his fellow “originalists,” our Founders were largely persons of vision and good will who had enough self awareness and humility to see a better and more dynamic future. They would certainly be shocked and dismayed to find out that rather than viewing our Constitution rationally, as a blueprint to be built upon for a better, more inclusive, more tolerant future, two plus centuries later, individuals like Barr holding supposedly responsible positions under our Republic, would be mindlessly and immorally urging us never to escape the limitations and mistakes of our distant past.
Disturbingly unqualified as he is to serve as our Attorney General, Barr does illustrate the moral and legal bankruptcy of the “fake doctrine” of “originalism.” It’s actually an intellectually indefensible excuse for an empowered, largely White, predominantly male, minority to exclude the majority of America’s inhabitants and their hopes and dreams from full participation in our democracy. It’s as ugly and dishonest as Barr’s own tenure as Attorney General.
Republican lawmakers seem to be having self-esteem issues.
The legislature, after all, is an equal branch of government with constitutionally granted powers. Lately, nearly all of those powers have been siphoned off by the president and his team of unelected bureaucrats. Yet, again and again, GOP lawmakers meekly submit to this constitutional castration.
To wit: Congress’s power of the purse? Gone. Regardless of how much money Congress appropriates for, say, a border wall or military aid to Ukraine, President Trump has made clear that he’ll ignore the number and pencil in his own.
Congress’s power to regulate commerce with foreign nations? Hijacked by a president who cites bogus “national security” rationales to impose tariffs whenever he likes.
Congress’s duty to “advise and consent” on major appointments? Cabinet and other senior government posts that require Senate confirmation have been atypically littered with “acting” officials instead. In fact, while immigration is ostensibly the president’s signature issue, Trump hasn’t had a single Senate-confirmed director of Immigration and Customs Enforcement since he took office. And though Democratic lawmakers may complain, nothing will change as long as Republicans control the Senate.
Which brings me to the most significant power Trump has stripped from Congress: its lawmaking authority. This is best illustrated by the administration’s actions basically rewriting immigration law wholesale, with nary a peep from GOP legislators.
Sure, on some immigration matters, Congress has relinquished its responsibilities, effectively giving Trump the ability to contort immigration policy as he sees fit.
Consider the “dreamers,” the young immigrants brought here as children who know no other country than the United States. They have long been in a legal limbo. Congress could resolve that limbo swiftly and easily by granting the dreamers permanent legal status and a pathway to citizenship. Thiswould have the support of majorities of voters from both parties, and the Democratic-controlled House has already passed such legislation.
Meanwhile, lawmakers in the GOP-controlled Senate wrung their hands and watched helplessly from the sidelines as Trump announced his decision to kill the Obama-era program that protects the dreamers from deportation. Based on a hearing this week, the Supreme Court appears poised to uphold the president’s decision. Yet, despite claiming to care about the issue, Republicans remain unwilling to act.
Similarly, Congress long ago gave the president authority to set the annual cap on refugee admissions. Not surprisingly, if disappointingly, the Trump administration has used that authority to ratchet the ceiling down to a record low of 18,000. For context, during President Barack Obama’s last year of office, the ceiling was 110,000.
But there are other areas of immigration law on which Congress has acted, definitively and clearly, with legislative language that leaves little room for maneuvering by the executive. The Trump administration has flouted these laws anyway.
Take asylum law.
“Refugees” and “asylum seekers” both refer to immigrants fleeing violence or persecution, but, technically, “refugees” apply for sanctuary while still abroad, and asylum seekers apply while in the country of their destination. Unlike with refugeeadmissions, there are no legal caps on the number of people who may qualify for and receive asylum. The law does not allow the executive branch to set them, either.
But the Trump administration has effectively set its own limits.
Last year, for instance, the Trump administration tried to ban people from applying for asylum if they crossed between ports of entry — as most asylum seekers are now forced to do, because the administration has severely throttled (or “metered”) the number of people who may apply through a given port of entry per day.
This “asylum ban” was blocked by the courts — because Congress has explicitly said asylum seekers can apply whether or not they entered the United States “at a designated port of arrival.”
“The law is crystal, crystal clear on this,” says Aaron Reichlin-Melnick, policy counsel at the American Immigration Council.
With virtually no pushback from Republicans in Congress, Trump administration then implemented a sort of asylum ban 2.0. This one disqualifies asylum seekers who passed through another country on their way to the United States without first applying for asylum there. A separate legal challenge — one among many — is now working its way through the courts.
A host of other changes designed to serve as a backdoor limit on asylee admissions have also been announced in recent weeks. Last week, the administration announced a new processing fee for asylum seekers, which would effectively disqualify families fleeing with nothing but the clothes on their backs. This week, it proposed a rule denying many asylum seekers authorization to work while their cases are being adjudicated, which can take years. This will force more immigrants into the shadows, contrary to Congress’s intentions.
The Trump administration keeps scolding desperate immigrants to shape up and “follow the law.” When will cowardly members of Congress insist that the president do the same?
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Catherine and some other reporters “get it” as to what Trump is doing to the law, our democratic institutions, and our Constitution. How come Federal Appellate Judges, Supreme Court Justices, and GOP legislators stick their collective heads in their sand and pretend not to understand the true long-term ramifications of what they are letting Trump do? Why aren’t they protecting our Constitutional and civil rights, not to mention human rights?
It’s all part of “Dred Scottification” – the degradation and dehumanization of individuals while stripping them of their rights combined with a constant barrage of outright lies and false narratives. And, contrary to the apparent belief of many “Trump Toadies” throughout our system and the electorate, once Trump turns on them, which he eventually will, the rights they counted on for protection will be long gone. The total lack of empathy, the ability to understand and appreciate the pain and suffering of others, is perhaps the worst aspect of the Trump kakistocracy.
Thanks, Catherine, for your courageous and insightful writing!
Across the years of a presidential administration, the churn of politics and policy brings certain men and women to the top of U.S. politics. The past few days have demonstrated the paths to preferment and influence in the Trump years.
First is the case of Stephen Miller, a senior adviser to President Trump and the administration’s unofficial liaison to the alt-right world.
Miller is best known as the prime mover behind the Muslim travel ban and the main opponent of any political compromise involving compassion for Dream Act “dreamers.” Now, with the release of a trove of emails sent to Breitbart writers and editors in 2015 and 2016 (soon before Miller became a Trump administration official), we get a glimpse of Miller’s inspirations and motivations. In response to the massacre of nine black churchgoers by a white nationalist in 2015, Miller was offended that Amazon removed merchandise featuring the Confederate flag and was concerned about the vandalization of Confederate monuments. Miller encouraged attention at Breitbart to a “white genocide”-themed novel, featuring sexualized violence by refugees. He focused on crime and terrorism by nonwhites as the basis for draconian immigration restrictions. He complained about the “ridiculous statue of liberty myth” and mocked the “national religion” of “diversity.” He recommended and forwarded stories from a range of alt-right sources.
All this is evidence of a man marinated in prejudice. In most presidential administrations, a person with such opinions would be shown the White House exit. But most of Miller’s views — tenderness for the Confederacy, the exaggerated fear of interracial crime, the targeting of refugees for calumny and contempt — have been embraced publicly by the president. Trump could not fire his alt-right alter ego without indicting himself. Miller is safe in the shelter of his boss’s bigotry.
Second, there is Rep. Jim Jordan (R-Ohio), the tireless, tendentious, often bellowing chief defender of Trump during the impeachment hearings.
Jordan is not, of course, alone in his heroic sycophancy. GOP Reps. Devin Nunes (Calif.), Mark Meadows (N.C.) and others try to equal him. Together they update Alexander Pope: Fools rush in where Mick Mulvaney and Rudy Giuliani fear to tread.
But Jordan has mastered the art of talking utter rubbish in tones of utter conviction. His version of the events at the heart of the impeachment inquiry? Rather than committing corruption, Trump was fighting corruption. Military assistance was suspended, in Jordan’s telling, while the president was deciding whether Ukrainian President Volodymyr Zelensky was “legit” in his determination to oppose corruption. When Trump found that Zelensky was the “real deal,” the aid was released.
This is a bold but flimsy lie, of the type Trump has made common. Why, in this scenario, would Trump try to secure specific commitments from Zelensky to investigate former vice president Joe Biden and his son Hunter, and to examine Trump’s conspiracy theory about Ukrainian influence in the 2016 election? Are we supposed to believe that Trump employed these as random, theoretical examples of corruption that a worthy, crime-fighting leader would root out? And was the release of U.S. aid just two days after Congress was notified about the whistleblower report a coincidence as well?
Jordan asks us not to accept additional facts but to live in a substitute reality. Almost everyone who participated in these events — both professional staff and political appointees — has affirmed that Trump was employing leverage to secure his political objectives. It is the plain meaning of the reconstructed transcript of Trump’s call to Zelensky.
But none of this matters to Jordan or his colleagues. Consistency and coherence are beside the point. Their objective is not to convince the country; it is to maintain and motivate the base, and thus avoid Trump’s conviction in the Senate. The purpose is not to offer and answer arguments but to give partisans an alternative narrative. And the measure of Jordan’s success is not even the political health of his party (which is suffering from its association with Trump); it is the demonstrated fidelity to a single man.
The elevation of Trump to the presidency has given prominence to a certain kind of follower and permission for a certain set of social values. Bolsheviks once talked of creating the New Socialist Man. Miller and Jordan are giving us a taste of the Truly Trumpian Man — guided by bigotry, seized by conspiracy theories, dismissive of facts and truth, indifferent to ethics, contemptuous of institutional norms and ruthlessly dedicated to the success of a demagogue.
Every day of Trump’s term continues the moral deconstruction of the Republican Party and brings the further debasement of American politics.
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Let’s hear that again:
Every day of Trump’s term continues the moral deconstruction of the Republican Party and brings the further debasement of American politics.
Yup!
This also confirms what we already knew about Miller’s “role model,” his former boss and White Nationalist nativist “mentor’ Jeff “Gonzo Apocalypto” Sessions. He’s someone who should have been disowned by the GOP ages ago and who has demonstrated “beyond a reasonable doubt” his total unfitness too hold public office!
Senior Trump adviser Stephen Miller shaped the 2016 election coverage of the hard right-wing website Breitbart with material drawn from prominent white nationalists, Islamophobes, and far-right websites, according to a new investigative report by the Southern Poverty Law Center (SPLC).
Miller also railed against those wishing to remove Confederate monuments and flags from public display in the wake of Dylann Roof’s murderous 2015 attack on a black church in Charleston, South Carolina, and praised America’s early 20th-century race-based, restrictionist immigration policies.
Emails from Miller to a former Breitbart writer, sent before and after he joined the Trump campaign, show Miller obsessively focused on injecting white nationalist-style talking points on race and crime, Confederate monuments, and Islam into the far-right website’s campaign coverage, the SPLC report says.
Miller, one of the few surviving initial appointees in the administration, has been credited with orchestrating Trump’s restrictionist immigration policies.
The SPLC story is based largely on emails provided by a former Breitbart writer, Katie McHugh. McHugh was fired by Breitbart over a series of anti-Muslim tweets and has since renounced the far right, telling the SPLC that the movement is “evil”.
However, throughout 2015 and 2016, as the Trump campaign progressed and she became an increasingly influential voice at Breitbart, McHugh told the SPLC that Miller urged her in a steady drumbeat of emails and phone calls to promote arguments from sources popular with far-right and white nationalist movements.
Miller’s emails had a “strikingly narrow” focus on race and immigration, according to the SPLC report.
At various times, the SPLC reports, Miller recommendations for McHugh included the white nationalist website, VDare; Camp of the Saints, a racist novel focused on a “replacement” of European whites by mass third-world immigration; conspiracy site Infowars; and Refugee Resettlement Watch, a fringe anti-immigrant site whose tagline is “They are changing America by changing the people”.
McHugh also says that in a phone call, Miller suggested that she promote an analysis of race and crime featured on the website of a white nationalist organization, American Renaissance. The American Renaissance article he mentioned was the subject of significant interest on the far right in 2015.
In the two weeks following the murder of nine people at a church in Charleston by the white supremacist Dylann Roof as Americans demanded the removal of Confederate statues and flags, Miller encouraged McHugh to turn the narrative back on leftists and Latinos.
“Should the cross be removed from immigrant communities, in light of the history of Spanish conquest?” he asked in one email on 24 June.
“When will the left be made to apologize for the blood on their hands supporting every commie regime since Stalin?” he asked in another the following day.
When another mass shooting happened in Oregon in October 2015, Miller wrote that the killer, Chris Harper-Mercer “is described as ‘mixed race’ and born in England. Any chance of piecing that profile together more, or will it all be covered up?”
Miller repeatedly brings up President Calvin Coolidge, who is revered among white nationalists for signing the 1924 Immigration Act which included racial quotas for immigration.
In one email, Miller remarks on a report about the beginning of Immigrant Heritage Month by writing: “This would seem a good opportunity to remind people about the heritage established by Calvin Coolidge, which covers four decades of the 20th century.” The four decades in question is the period between the passage of the Immigration Act and the abolition of racial quotas.
Miller also hints at conspiratorial explanations for the maintenance of current immigration policies. Mainstream coverage of the 50th anniversary of the removal of racial quotas in immigration policy had lacked detail, Miller believed, because “Elites can’t allow the people to see that their condition is not the product of events beyond their control, but the product of policy they foisted onto them.”.
Miller used a US government email address during the early part of the correspondence, when he was an aide to senator Jeff Sessions, and then announced his new job on the Trump campaign, and a new email address, to recipients including McHugh.
As well as McHugh, recipients of his emails included others then at Breitbart who subsequently worked in the Trump administration, including Steve Bannon and current Trump aide, Julia Hahn.
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“The Worst Generation?”
Also, remember that Miller is an acolyte of shameless White Nationalist racist Jeff “Gonzo Apocalypto” Sessions. The latter was last seen groveling and pleading before Donald Trump in what hopefully for America will be a vain attempt to regain his Senate seat in Alabama. The country certainly has been enriched by not having this vile purveyor of racist lies, false narratives, and gratuitous cruelty on the national scene since Trump fired him. Nevertheless, his cruelty, illegal, and immoral actions during his tenure as Attorney General continue to destroy lives and haunt our nation.
At detention facilities, legal rights ‘in name only’
Whether we call them ‘concentration camps’ or detention centers, the lack of justice for those seeking refuge must end.
7:42 pm EDT Oct. 25, 2019
As President Donald Trump prepares to pick a new secretary for the Department of Homeland Security, Rep. Alexandria Ocasio-Cortez, D-N.Y., is preparing to appear in a Brooklyn court. She is being sued for blocking a man on Twitter who criticized her for calling immigration detention sites “concentration camps.” Her opponents seized on the comment. One of their talking points: America’s hardworking immigration officers should not be equated with Nazis.
To some extent, I can understand their perspective.
I recently visited four Immigration and Customs Enforcement (ICE) detention sites across the country. I met many of their workers. They carried clear plastic backpacks and lunchboxes as they filed through security in the morning, looking weary and bored. As I left each site, some asked me whether I had had a “nice visit” and wished me safe travels.
These workers don’t bring to mind cinematic villains. Yet they are part of a system that, no matter its appearances, is inflicting the horror of trapping people inside.
I saw it in the eyes of the people I interviewed in detention. A 28-year-old Cuban woman told me about spending five days sleeping on the ground in an outdoor cage run by Border Patrol, the “perrera” — a place for dogs. That was followed by 17 days in the “hielera,” a frigid room. She had been denied a shower the entire time.
She recounted this months later, when I met her at an ICE detention site in Adams County, Mississippi. She had not seen or talked to her husband for months, since U.S. authorities separated and detained them. She said that last summer, an asylum officer interviewed her and determined that her fear of persecution if she returned to Cuba was credible — the first step in an asylum case. But she said she had never seen a judge, had no court date, no lawyer, no ICE officer assigned to her. She was alone and trapped: She had no idea of what would happen to her next, how to move her asylum case forward and whether she would ever be released.
Adams County is part of the immigration detention boom. Detention levels have skyrocketed to a record high of about 50,000 people a day, at an annual cost of more than $2 billion. Counties are grabbing at detention contracts that provide jobs, although many will be filled by out-of-town residents. New detention sites are opening in the Deep South — hours from urban areas with networks of pro bono or low-cost attorneys. Even in big cities, the number of people detained far outpaces the number of attorneys available to help them. The result is that these immigration jails are effectively legal black holes, where legal rights often exist in name only.
“You come to this place and you can never win,” another woman told me. She had spent three months in an ICE detention center near Miami, separated from her then 5-month-old baby. Her husband, a U.S. citizen, was driving her to Walmart when local police questioned them during a random traffic stop. She was not accused of a crime, and she was in the process of petitioning for residency based on her marriage to a citizen. But police took her to a local jail and held her for ICE.
“I haven’t seen my baby in three months,” she said, and asked me what would happen to her.
Without a lawyer, she is likely to remain in detention for months or years — and ultimately be deported away from her husband and child. Just 3% of detained individuals without a lawyer succeeded in their cases, compared with 74% of nondetained and represented individuals who won in theirs, according to a study that focused on New York immigration cases. For asylum-seekers, the stakes are often life or death.
Yet immigrants have been denied the right to a government-appointed lawyer in their deportation proceedings. I met many who didn’t have enough money to make a phone call from prison, let alone pay a lawyer. Even those who could afford it struggled to find one, since they are stuck on the inside without access to Google, email or a cellphone.
Our immigration system is set up for them to fail, with Kafka-esque limits on their ability to apply for legal relief and appeal to federal courts. Navigating this complex and unforgiving set of legal rules is hard for lawyers, let alone for detained individuals. Some are offered release on bond, but in unaffordable amounts like $25,000.
Many people I met had never seen a judge, several months into their detention. They had no idea how or when they might ever be free. They were confused, scared and, in some cases, suicidal. A woman from Cameroon who fled its ongoing civil war after her father was murdered told me she prayed that God would provide her a way out.
We have an obligation to respond.
Local governments should end ICE detention contracts, if they exist, and prohibit new ones. Cities and states should robustly fund free legal service providers and bond funds. Major law firms should send their lawyers to the Deep South to work with local pro bono providers to address the drastic shortfalls in legal services. Community groups should lobby Congress to cut funding for detention and pass comprehensive reform legislation like the Dignity For Detained Immigrants Act.
Trump’s new Homeland Security secretary is likely to ramp up immigration detention to even higher levels, using the specter of prison to deter people from coming here and the reality of it to punish those who do. We cannot afford to be divided by semantics.
Whatever we call them, America’s immigration prisons are antithetical to the free society we claim to be. We must do all we can to dismantle this system.
Naureen Shah is the senior advocacy and policy counsel at the American Civil Liberties Union, working on immigrant rights.
DHS’s “New American Gulag” – the “brainchild” of Stephen Miller, Jeff Sessions, and Steve Bannon – is an affront to our Constitution, the rule of law, and human decency. Remember that the next time Trump’s “Gulag Enablers” like Kelly, Nielsen, Sessions, and Barr try to “reinvent themselves” as something other than the sleazy human rights violators they are and will always remain.
There is a family separation that occurs long before an immigrant reaches America’s borders. It is no less wrenching than the ruptures that the Trump administration inflicted on thousands of children and parents last year as part of its “zero tolerance” policy against illegal entry, and may at times be even more painful, since it happens voluntarily. That is, if acts born of despair can ever be described as entirely voluntary.
In “A Good Provider Is One Who Leaves,” journalist Jason DeParle’s riveting multigenerational tale of one Filipino family dispersing across the globe, from Manila to Abu Dhabi to Galveston, Tex., and so many places in between, separation is a constant worry and endless toll. Parents leave their kids and country for years at a time so they can send back wages many multiples of what they previously earned. Children yearn for their parents, rebelling or wilting without them, while the youngest latch on to aunts and grandparents. Births, birthdays, weddings, illnesses, funerals — daily life slips by for the absent, imagined and unexperienced. Meanwhile, the government encourages the exodus; 1 in 7 laborers in the Philippines becomes an Overseas Filipino Worker (OFW), a status so common it rates not just an acronym but also an industry of private middlemen and government agencies managing a sector that accounts for one-10th of the country’s economy.
But the price is loneliness and longing. “The two main themes of Overseas Filipino Worker life are homesickness and money,” DeParle writes. “Workers suffer the first to get the second.” With immigration a central battleground in the Trump-era culture wars, and with the southern U.S. border and Hispanic influx dominating the political debate, this book provides crucial insight into the global scope, shifting profiles and, above all, individual sacrifices of the migrant experience.
DeParle, a New York Times reporter, tells the story of Emet, Tita and their daughter Rosalie, as well as their other children and grandchildren — a Manila family he first encountered and lived with for several months in the late 1980s. As a young reporter, DeParle wanted to better understand poverty, but in the Philippines, that meant learning about migration instead. The title of his book is also the Portagana family’s unofficial creed, a pained mix of self-affirmation and abnegation.
Emet cleaned pools in a government complex in the Philippines, earning $50 a month, barely enough to scrape by with his family in their Manila shantytown. When he has the chance to clean pools in Saudi Arabia for $500 per month, he takes it, while his wife of 14 years and their five children stay behind. “Ever since his orphaned childhood, all he had wanted was a family, but to support one, he had to leave it.” Tita cries when Emet departs, left to fend for herself and the family, rising at 4:30 a.m. to boil the breakfast rice, washing the school clothes every day, making every tough decision — does she pay for a doctor’s visit or for more food? — on her own.
When Emet first sends money, she cries again. “Tita stopped running out of fish and rice,” DeParle recounts. “She bought extra school uniforms so she didn’t have to wash every day. . . . After years of toothaches, she had seven teeth pulled and treated herself to dentures. . . . But the ultimate luxury was the family’s first bed.” She told Deparle how “I was ecstatic we could lay on something soft.”
New comforts are part of “migrant lore,” DeParle writes. Some analysts worry that remittances lead to consumerist splurges, but families receiving migrant income also invest in housing, health care and education. Migration serves as a tool of economic development, DeParle suggests, because of migrants’ enduring loyalty to the family back home. Of the 11 siblings in Tita’s own family, nine worked abroad, as did all five of Tita and Emet’s children. When DeParle returned to the Philippines two decades after having lived in Tita’s home, he saw that the family’s old straw huts had morphed into a compound of a dozen houses for various relatives — and the quality of the amenities bore a direct relationship to how long each owner had worked abroad. But an aging Emet still pondered the price, nostalgic for the days in the slum. “I was happier then,” he acknowledges, “because I was with my children.”
Rosalie, their middle child, emerges as the book’s itinerant protagonist, not simply because she becomes the clan’s essential breadwinner as a nurse in America but because, for DeParle, she embodies the new face of migration. “Since 2008, the United States has attracted more Asians than Latin Americans, and nearly half of the newcomers, like Rosalie, have college degrees. Every corner of America has an immigrant like her.” Long male-dominated, migration has been increasingly feminized, in part because of the demand for caregiving workers in rich countries, a need that women have disproportionately filled. “By the mid-1990s when Rosalie went abroad, nearly half the world’s migrants were women — more than half in the United States — and they increasingly went as breadwinners, not spouses.”
Rosalie was a quiet child and an average student who considered religious life in Manila — not necessarily someone you’d pick to make it through nursing school, move to Saudi Arabia and the United Arab Emirates for several years, and take and retake English-language tests until, after 20 years of working, she could obtain a visa to the United States, take on a night shift in a Galveston hospital and embrace suburban life. She is separated from her own children, just as she suffered years without Emet. Her eldest daughter grows attached to Rosalie’s sister Rowena as a sort of surrogate mother, calling her “Mama Wena” and struggling with her aunt’s absence after reuniting with Rosalie in Texas.
Having long operated as a far-flung family, Rosalie, her husband, Chris, and their three kids must not only learn to live in America — they have to learn to live together. DeParle’s examination of how the two daughters adapt to U.S. elementary schools, seeking to become more all-American than the Americans, even as their parents find solace in Texas’s Filipino immigrant networks, is a minor classic of the assimilation experience. He also reflects on the impact of communications technology on migrant communities: “Can assimilation survive Skype?” DeParle wonders, seeing how it eases transitions by helping relatives stay in touch across time zones but also lengthens and deepens immigrants’ ties with the old country.
After all, even when you’ve left, you’re never entirely gone. Any health crisis among her extended family in the Philippines results in new bills for Rosalie to cover from afar. Chronically exhausted at the hospital — where Filipino nurses feel they get shorthanded shifts and sicker patients — she must also deal with the insecurities of her suddenly stay-at-home husband, whose masculine self-perception suffers in the face of his provider-wife. (“Would you be ashamed of Daddy if I worked as a janitor?” Chris asks the kids as he seeks a job in Galveston.) DeParle highlights this “inversion” of traditional gender roles in the modern migrant experience. For women, “migration elevated their incomes, raised their status, and increased their power within their marriages,” he writes. “But it also took many away from their children, often to care for the children of others, and elevated the risks of abuse.”
DeParle has a gift for distilling complexity into pithy formulations. “Migration is history’s ripple effect,” he writes, noting how U.S. colonialism led to the establishment of the Philippines’ first nursing schools, an industry that would propel Rosalie to America a century later. He also aptly captures the United States’ conflicted feelings about immigrants, a mix of resentment and need. “Unwelcomed is not the same as unwanted,” he explains simply. And the ominous U.S. Embassy in Manila, the repository of so much hope and so many fears for Filipino visa seekers, is “the gateway to opportunity, but marines guard the gate.” The book is packed with insights masked as throwaway lines — lines that convey so much.
So I wish DeParle had conveyed more about his own role in the story of this remarkable family. “Our relationship defies easy categorization; it’s part author-subject, part old friends,” he writes, likening himself to a big brother for Rosalie and uncle to her kids. “This was a journalistic endeavor but not an entirely arm’s-length one,” DeParle admits. “Occasionally my presence shaped events I was trying to record.” Some of these events were crucial. He gets Rosalie an English tutor for her exams. He spends hours on the phone helping Rosalie practice for her interview with the Galveston hospital. Most essential, he intervenes when bureaucratic scheduling nearly derails a final visa approval. “I was there as a journalist, not an advocate,” he writes. “But Rosalie had been waiting for twenty years.” So he helps by speaking with a U.S. Foreign Service officer. It is an entirely humane impulse, and DeParle stresses that the determination that got Rosalie to America “is hers alone.” But the author’s unexpected appearances complicate and at times confuse his narrative.
“A Good Provider Is One Who Leaves” has political implications without being an overtly political work. Yes, DeParle’s sympathies are clear. “Rosalie’s experience was a triple win: good for her, good for America, and good for her family in the Philippines,” he writes. “Migration was her vehicle of salvation. It delivered her from the living conditions of the nineteenth century. It respected her talent, rewarded her sweat, and enlarged her capacity for giving.” He also stresses how Filipino immigrants thrive in America, with more education, higher employment, and lower poverty and divorce rates than the native-born.
Yet he mainly calls for calm and compromise around the immigration debates. “Be wary of seeing the issue in absolutist terms,” DeParle warns. He worries that if immigration becomes entrenched as another American culture war, like those over guns or abortion rights, its supporters will have more to lose. The warning comes under a Trump administration that has defined itself through its offensive against migrants, not just rewriting policies but seeking to write immigration out of the American tradition. On this point, DeParle offers a devastating rebuttal in another simple line.
“It’s good,” he concludes, “for your country to be the place where people go to make dreams come true.”
This story reminds me of the dramatic presentation about her own family’s immigrant experience delivered by my friend and co-teacher Professor Jennifer Esperanza of Beloit College during our recent Bjorklunden Seminar on American Immigration.I’ve posted it before, but here it is again.https://www.youtube.com/watch?v=OEODrtuj_Pk&t=323s
One of the points Jenn makes is how she channeled the challenges of her childhood into learning that led to a lifetime of success and high achievement.
“GONZO APOCALYPTO” SLAMMED: UNANIMOUS PANEL OF 4TH CIR. REJECTS MATTER OF CASTO-TUM — Exposes Irrationality Of Biased, Unqualified Restrictionist Former AG — “ADR” Outed— “Although one of its purported concerns is efficient and timely administration of immigration proceedings, it would in fact serve to lengthen and delay many of these proceedings by: (1) depriving IJs and the BIA of flexible docketing measures sometimes required for adjudication of an immigration proceeding, as illustrated by Avetisyan, and (2) leading to the reopening of over 330,000 cases upon the motion of either party, straining the burden on immigration courts that Castro-Tum purports to alleviate.”
ZUNIGA ROMERO V. BARR, NO. 18-1850, 4th Cir., 08-29-19, published
PANEL: AGEE, FLOYD, and THACKER, Circuit Judges.
OPINION BY: Judge Agee
KEY QUOTE:
In the absence of Auer deference, the weight given to a BIA decision “hinges on the thoroughness evident in [the BIA’s] consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade”—that is, whether the interpretation should be afforded Skidmore deference. Zavaleta–Policiano v. Sessions, 873 F.3d 241, 246 n.2 (4th Cir. 2017) (internal quotation marks omitted). And here, a court reviewing Castro-Tum for Skidmore deference would not be persuaded to adopt the agency’s own interpretation of its regulation for substantially the same reasons it is not entitled to Auer deference: because it represents a stark departure, without notice, from long-used practice and thereby cannot be deemed consistent with earlier and later pronouncements. As a result, it lacks the “power to persuade.” Id.; see also Kisor, 139 S. Ct. at 2427 (Gorsuch, J., concurring) (contending that an agency interpretation of a regulation should as an initial matter be “entitled only to a weight proportional to ‘the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade’” (quoting Skidmore, 323 U.S. at 140)). Put another way, even under the view set forth by Justice Gorsuch in Kisor, the Attorney General’s interpretation would amount to a failure of proof because the evidence—that is, Castro- Tum—comes too late in the game.
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In sum, the result is that 8 C.F.R. §§ 1003.10(b) and 1003.1(d)(1)(ii) unambiguously confer upon IJs and the BIA the general authority to administratively close cases such that the BIA’s decision should be vacated and remanded.
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A huge victory for the “New Due Process Army.” The “Roundtable of Former Immigration Judges” actually filed an amicus brief before Sessions in Castro-Tum raising many of the points found determinative by the Fourth Circuit. Our brief was, of course, ignored by “Gonzo,” who undoubtedly had already drafted his decision along the lines dictated to him by some restrictionist interest group.
Finally, an Article III Court “gets” how the DOJ under the Trump Administration is promoting “Aimless Docket Reshuffling” (“ADR”) in an attempt to build the backlog, destroy the system, blame the victims (respondents and their, largely pro bono, attorneys), and dishonestly call upon GOP Legislators to mount a pernicious attack on constitutional Due Process by statute!
The idea that adding 330,000 cases to the already backlogged Immigration Courts was legally required or a good policy idea clearly is a piece of White Nationalist restrictionist propaganda promoted by corrupt public officials like Miller, Sessions, and Barr.
With the Democrats in control of the House, there is no way that Congress will eliminate “Administrative Closing” by statute. And, while the DOJ under the sycophantic Barr might try to change the regulation, this decision makes it very clear that there is no rational basis for doing so. Therefore, any future regulation change is likely to be tied up in litigation in the Article III Courts for years, adding to the confusion and ADR, as well as threatening to immobilize the Article III Courts.
Unless the Article III Courts want their dockets to be totally swamped with immigration appeals, the answer is to end this unconstitutional system administered by an Attorney General clearly unfit to act in a quasi-judicial capacity and place the Immigration Courts under a court-appointed independent “Special Master” to insure fairness, impartiality, and other aspects of Due Process until Congress fixes the glaring Constitutional defect by creating an independent U.S. Immigration Court outside of the DOJ.
E.J. Dionne, Jr. writes in the Washington Post commenting on a recent speech by David Miliband, Chief Executive of the International Rescue Committee:
. . . .
“A new and chilling normal is coming into view,” Miliband concluded. “Civilians seen as fair game for armed combatants, humanitarians seen as an impediment to military tactics and therefore unfortunate but expendable collateral, and investigations of and accountability for war crimes an optional extra for state as well as nonstate actors.”
But these evils cannot be isolated from the larger political corrosion in the rest of the world — and this includes the long-standing democracies themselves. “The checks and balances that protect the lives of the most vulnerable people abroad,” he said, “will only be sustained if we renew the checks and balances that sustain liberty at home.”
This isn’t simply about aligning principle and practice. More fundamentally, when governments abandon a commitment to accountability domestically, they no longer feel any obligation to insist upon it internationally. It’s no accident, as Miliband noted, that under President Trump, the United States “has dropped the promotion of human rights around the world from its policy priorities.”
He pulled no punches: “The new order is epitomized in the photo of Russian President [Vladimir] Putin and Saudi Crown Prince [Mohammed bin] Salman high-fiving each other at the G-20 meeting in Argentina in November last year. With Syria in ruins, Yemen in crisis, and political opponents like Boris Nemtsov and Jamal Khashoggi dead, theirs was the embrace of two leaders unencumbered by national institutions or by the fear of international law.”
Miliband acknowledged the mistakes of an earlier era (including the Iraq War) but argued that “accountability, not impunity” was on the rise in the 1990s, when there was “an unusual consensus across the left-right divide” about “the need for global rules.” We have said goodbye to all that.
In 2002, Samantha Power, later the U.S. ambassador to the United Nations, published “ ‘A Problem from Hell’: America and the Age of Genocide,” a book that stirred consciences about the world’s obligations to helpless people unprotected — and often targeted — by sovereign governments.
Nearly two decades on, we are numb, distracted and inward-looking.
Miliband understands that democratic citizens, grappling with their own discontents, will be inclined to look away from the travails of others “until there is a new economic and social bargain that delivers fair shares at home.”
But an Age of Impunity not only poses immediate dangers to millions confronting violence far away. It also corrodes the sense of obligation of the privileged in wealthy nations toward those left behind. When anything goes, no one is safe.
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Read the complete article at the above link.
The key point here for Americans who have been “tone deaf” to Trump’s (and his toadies at DHS, DOJ, DOS, and elsewhere) gross abuses of the rule of law, human rights, and human dignity is the following: “When anything goes, no one is safe.”
There was a time when I believed, almost as an article of faith, that with the passage of time, America would age out of racism. What in the world was I thinking?
But that is what I told myself in the fall of 1954 — five months after the Supreme Court’s school desegregation decision — when I learned that students attending then-all-white Eastern, Anacostia and McKinley Technical high schools, and several white junior high schools in the District, had staged walkouts to protest the assignment of black kids to their schools. I was enrolled at then-all-black Dunbar High School at the time.
I really believed that racial integration was a step toward the goal of full equality and that, as the months wore on, those who walked out would shed their fear and anger. Instead, they and their families devoted the time remaining before the black students arrived to finding a means to flee the city.
Still I dreamed.
When, in 1956, students and adults shouted racial epithets and threw rotten eggs and rocks at a young black woman named Autherine Lucy who tried to enter the University of Alabama to obtain a degree in library science, I consoled myself with the thought that the hurlers of eggs and epithets would age out of the picture. Even when the University of Alabama expelled Lucy, under the guise of ensuring her personal safety, I thought those elders would one day be off the scene.
The same thought was in my head in the fall of 1957, when Arkansas Gov. Orval Faubus called the National Guard to surround Central High School in Little Rock to prevent nine African American students from attending the all-white school, declaring “blood will run in the streets” if black students attempted to enter.
One day, oh one fine day, I believed, it’s gonna be over because one day, folks such as Orval Faubus are gonna be dead and gone.
But they were still around years later when, in the summer of 1964, Michael Schwerner and Andrew Goodman, two white New Yorkers, and James Chaney, a black Mississippian, were in Mississippi helping to register voters. Schwerner, Goodman and Chaney disappeared on their way back from investigating the burning of an African American church by the Ku Klux Klan. Their bodies were later discovered buried in an earthen dam near Philadelphia, Miss.
Through it all, I clung firmly to the belief that because those white men and women hellbent on making life miserable for people unlike themselves were getting up in age, they would soon die out and be replaced by a younger, more broad-minded, racially tolerant generation of white Americans. Unlike many of their elders, these young people would be unencumbered by ingrained racist ideas, I said to myself.
What a fool was I. Bigotry doesn’t age out.
Evidence of that smacks us in the face.
Dylann Roof, the white supremacist who shot and killed nine black churchgoers in Charleston, S.C., in 2015, including the pastor and a state senator, was 21 at the time.
Holden Matthews, charged with burning three historically black churches in Louisiana a week before Easter, was 21 .
John Earnest, accused of a shooting that killed one and injured three at a synagogue in Poway, Calif., a few weeks after launching an arson attack at a San Diego County mosque, was 19 .
The man charged with the massacre at the Tree of Life synagogue in Pittsburgh that left 11 dead was no septuagenarian; Robert Bowers was 46 .
Then there are the two ninth-grade students at Walt Whitman High School in Bethesda who posted an image of themselves in blackface on social media and used the n-word as they described the photo. They were driven by the same racial animus that caused students to walk out of Eastern, Anacostia and McKinley Tech high schools 65 years ago.
Bigotry is a disease of the mind — a poisonous infection unbounded by age, time or space. It is transmissible, capable of being passed down from elders to child, from community to community, from racial and religious kin to racial and religious kin.
The newly appointed archbishop of Washington, Wilton Daniel Gregory, has called racism “a grave moral disease whose recurrence, aggressiveness and persistence should frighten every one of us.”
What’s striking about today’s disease, Gregory wrote in a December 2016 article carried by the Catholic News Service, is that it “may seem to have been brought under control”; that it was on the wane.
Presciently, Gregory wrote, “We have returned to a moment in our nation’s history when racist feelings and sentiments have been condoned as acceptable to express publicly and publish openly.”
The response he called for would reflect the sentiment of my youth: to “disavow any vestige of racism and hatred of other people because of race, religion, legal status or gender.”
Eradicating and inoculating us from this disease is our hope and never-ending challenge — for each of us. For certain, hate won’t outgrow itself.
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I have noticed before the similarity between the faces and expressions of the overwhelmingly white, mindlessly cheering crowds, behind Trump at his rallies as he rattles off his “normal litany” of lies, insults, and racist provocations and the absurd, yet ugly and dangerous, faces of white racists in the 1950’s and 1960’s South —- captured in black and white photos as they bullied and taunted African Americans at lunch counters or African American kids attempting to attend school. Really, I also wanted to believe that those days were gone, and the white folks pictured were either gone or would be embarrassed and humiliated by the cowardice, ignorance, and inhumanity of their past actions.
King is right: “hate won’t outgrow itself.” And Trump and his followers are are nurturing, growing, and harvesting that hate on a daily basis. The majority of us who don’t believe in Trump’s vile messages and unacceptable methods must take our country back before hate and bigotry consume it!
Professor Gordon Chang of Stanford University writes in the LA Times:
Immigrants got the job done
History finally has its eyes on Chinese laborers who built transcontinental railroad’s western leg
By Gordon H. Chang
The nation’s first transcontinental railroad, completed 150 years ago today at Promontory Summit in Utah, connected the vast United States and brought America into the modern age. Chinese immigrants contributed mightily to this feat, but the historical accounts that first transcontinental followed often marginalized their role.
Between 1863 and 1869, as many as 20,000 Chinese workers helped build the treacherous western portion of the railroad, a winding ribbon of track known as the Central Pacific that began in Sacramento.
At first, the Central Pacific Railroad’s directors wanted a whites-only workforce. Leland Stanford, the railroad’s president, had advocated for keeping Asians out of the state in his 1862 inaugural address as governor of California. When not enough white men signed up, the railroad began hiring Chinese men for the backbreaking labor. No women worked on the line.
Company leaders were skeptical of the new recruits’ ability to do the work, but the Chinese laborers proved themselves more than capable — and the railroad barons came to consider them superior to the other workers.
My colleagues and I initiated an international research project — based, appropriately, at Stanford University — to investigate the enormous contribution Chinese workers made to the transcontinental project. It proved to be a formidable task, not least because no written record produced by what were called “railroad Chinese” is known to exist. Without letters, diaries and other primary sources that are historians’ stock in trade, we amassed a sizable collection of evidence that included archaeological findings, ship manifests, payroll records, photographs and observers’ accounts.
The material allowed us to recover a sense of the lived experiences of the thousands of Chinese migrants Leland Stanford came to greatly admire. He told President Andrew Johnson that the Chinese were indispensable to building the railroad: They were “quiet, peaceable, patient, industrious and economical.” In a stockholder report, Stanford described construction as a “herculean task” and said it had been accomplished thanks to the Chinese, who made up 90% of the Central Pacific Railroad’s labor force.
These workers showed their mettle, and sealed their legacy, on the peaks of the Sierra Nevada. Many observers at the time had assumed that Stanford and the railroad were daft for thinking they could link California with the East because an immense mountain range separated the state from Nevada and beyond. The Sierra Nevada is a rugged, formidable range, its inhospitableness encapsulated by the gruesome tragedy of the Donner party in 1847 and 1848. Trapped by winter storms in the mountains, they resorted to cannibalism.
To get to the High Sierra, Chinese workers cut through dense forests, filled deep ravines, constructed long trestles and built enormous retaining walls — some of which remain intact today. All work was done by hand using carts, shovels and picks but no machinery.
The greatest challenge was to push the line through the Sierra summit. Solid granite peaks soared to 14,000 feet in elevation. The railroad bed snaked through passes at more than 7,000 feet. The men who came from humid south China labored through two of the worst winters on record, surviving in caverns dug beneath the snow.
They blasted out 15 tunnels, the longest nearly 1,700 feet. To speed up the carving of the tunnels, the Chinese laborers worked from several directions. After opening portals along the rock face on either side of the mountain, they dug an 80-foot shaft down to the estimated midway point. From there, they carved out toward the portals, doubling the rate of progress by tunneling from both sides. It still took two years to accomplish the task.
The Chinese workers were paid 30% to 50% less than their white counterparts and were given the most dangerous work. In June 1867, they protested. Three-thousand workers along the railroad route went on strike, demanding wage parity, better working conditions and shorter hours. At the time it was the largest worker action in American history. The railroad refused to negotiate but eventually raised the Chinese workers’ pay, though not to parity.
After the Sierra, the Chinese workers faced the blistering heat of the Nevada and Utah deserts, yet they drove ahead at an astonishing rate.
As they approached the meeting point with the Union Pacific, thousands of them laid down a phenomenal 10 miles of track in less than 24 hours, a record that has never been equaled. A Civil War officer who witnessed the drama declared that the Chinese were “just like an army marching over the ground and leaving the track behind.”
Progress came at great cost: Many Chinese laborers died along the Central Pacific route. The company kept no records of deaths. But soon after the line was completed, Chinese civic organizations retrieved an estimated 1,200 bodies along the route and sent them home to China for burial.
The transcontinental railroad’s completion allowed travelers to journey across the country in a week — a trip that had previously taken more than a month. Politicians pointed to the achievement as they declared the United States the leading nation of the world.
The transcontinental railroad has been viewed in a similarly nationalistic way ever since. Chinese workers were often left out of the official story because their alienage and suffering did not fit well with celebration. And attitudes toward them soon soured, with anti-Chinese riots sweeping the country. The Chinese Exclusion Act of 1882 barred Chinese laborers from entering the United States and placed restrictions on those already here.
Federal immigration law prohibited Chinese citizens from becoming Americans until 1943.
As a faculty member of the university that bears his name, I am painfully aware that Leland Stanford became one of the world’s richest men by using Chinese labor. But I also try to remember that Stanford University exists because of those Chinese workers. Without them, Leland Stanford would probably be at best a footnote in history — and the West and the United States would not exist as we know it today.
Gordon H. Chang is a professor of history at Stanford University.
Sometimes, it takes too long. Often, the “real heroes” die unrecognized (like the more than 1,200 Chinese workers mentioned in this article or the many anonymous enslaved African-Americans whose uncompensated labor and ingenuity “propped up” at least five of our first seven Presdients) long before justice comes. And, frequently, the flawed folks who were wrongly acclaimed “popular heroes” of their day escape judgement within their lifetimes.
But, history has a way of eventually “getting it right.” Trump and his misguided followers eventually will be in for a reckoning.
It won’t be pretty. Once the subpoenas can’t be ignored, the testimony perjured, the innumerable lies, intentional misrepresentations, and squalid distortions presented as “business as normal,” and the full historical record becomes available for study and analysis, free from the political hoopla of the present, it will be much, much worse than we can possibly imagine. The true unpalatable nature of Trump and his enablers will be revealed for some future generations. And, those who stood against them and their racism, greed, dishonesty, and cruelty will be vindicated.