I am mid-flight across the Pacific, going to the U.S. with a bunch of lawyers to do some audits for a client. Armed with some Wi-Fi and idle time, I am going to send up some assessments of what I think so far about this new admin. They are my updates on the question you and BLK asked pages back: What do I make of Trump?
We started with how a supporter like you saw him and how he was actually portrayed to a detractor like me. With some idle time to think, I want to go back to the 7-country ban EO since I had time to playback the recording for the second time, and be critical. I will go light on the legalistic aspect since I already hammered it out. I want to focus on the actual injury and supposed danger the White House said existed but not yet shown.
Let's start there: the notion of deference to the executive branch on foreign policy aspect, this plenary power, in practice.
Do the public and the other branches have any recourse when the President lies?
We have an injunction issued by a Federal district court, to be reviewed by the 9th Circuit, where the president and his men argued that the Court should not even involve, but nevertheless came unprepared to let the court know what exact emergency EO 13769 aimed to address. Instead, the government said the injunction was the emergency because it blocked the presidential power to decide what's the risk facing the country. In their words, the injunction "overrides the President’s national-security judgment about the level of risk. Furthermore, the court should not consider this a "Muslim ban" because that's not technically what written in the EO. The court should take the President at his EO's words and not his chattering in the public domain. This included "some newspaper articles" having him on the record dispensing his views on Islam and Muslim immigrants. The 9th should just look at the actual text and believe.
Time seemed to be the essence. The Court said it would decide soon and it used the 30-minute session to push the government on what is reviewable. Soon as the DoJ finished their opening remark, Judge Friedland asked, “Have you offered any evidence to support this need you’re describing for the executive order, or are you really arguing that we can’t even ask about whether there’s evidence because this decision is non-reviewable?”
The government admitted it had no evidence ready to present because "these proceedings have been moving very fast."But they
were the one asking for the immediate lift of the injunction, which was put in place to sort out whether Washington and Minnesota had any rights to object. The government insisted Obama and Congress already named these 7 countries in their visa-waver program, so why can't Trump take it further? Why further? Because it is a stretch to say what Trump did here was exactly or similar to what Obama did with Congress.
That law, the Visa Waiver Improvement and Terrorist Travel Prevention Act, put in place a system that ID'd and subjected travelers to and from these 7 countries to more questioning
. According to the enforcing agency (USCIS), the law "establishes new eligibility requirements ... (but) do not bar travel
to the U.S.. Instead, (those) do not meet the requirements must obtain a visa
.... which generally includes an in-person interview at a U.S. Embassy or Consulate." Again, what Obama system did was not a ban, but ask more questions.
In light of this, Judge Clifton asked for evidence as to why the change---why the upgrade in threat assessment---"that there’s a real risk, or that circumstances have changed?"
The government didn't sound like it had solid footing. It retreated to plenary as sole reason: "Well, the President determined that there was a real risk;" therefore it was "understandable" that he did so because he "understands" the issue.
So, is it the DoJ's position is that the president's assessment is "unreviewable?" Friedland asked.
Yes, the government replied, but within "obvious" constitution limits. Judicial review should be "limited" to the "four corners of the document." (Nice phrasing). That means the court should only review the text, whether the laws it cited, the syntax it used, the grammar and jargon deployed are correct---a scrutiny the government said it would "easily" passed. And if for some reasons the court decided to hear from the affected American citizens, the focus should be exceedingly narrow. That's it!
"We're not acknowledging any review on the facts of the case," the government said.
One thing no one disputes is the latitude Immigration laws give the president, especially when the country is in danger. But what if we have a president who is known to tell lies, discernible to the objective eyes of the court and public? How should we see his edicts and reconcile between what he claimed as danger and the existing laws saying religion should not be a factor for excluding people?
If there was one thing we learned from Snowden and Wikileaks, it is a fact that there are many things the public doesn't get to know, and certainly not until it is too late. Some of us believed Bush that we did no do anything that would violate our treaties on torture. When discovered, Bush asserted his Commander in Chief status as the reason to be beyond judicial review. Some of us seen our trust broken by Obama when he signed a hit order on Anwar Al-Alawki, an American citizen, and violated the very letter and spirit of the Due Process clause. When discovered, Obama's men essentially said, Trust us, we only did it once.
J brought this up to mitigate the fact that Trump was not the first politician to lie, and this one surely doesn't rise to the level of Tonkin or LBJ's refusal to end the war because he didn't want to be the first president to lose a war. But I am also cognizant the inherent obstacle facing the court, and the public as well, when it comes to sorting out the lies and the half-truths, especially when it comes from a long line of executive chiefs using national security disguise racial animus. It brought to mind the interment of American citizens of Japanese ancestry that ended by Koematsu vs United States. Then, as now, the court's role is crucial.
“Haven’t there been allegations here of bad faith?” Judge Friedland asked, “And doesn’t Mande
l and Din
, the concurrence in Din, envision that that is something that we would need to look at?” The government used these two cases as reasons to why the court should look at the order at face value. But ironically, “Justice Kennedy’s controlling opinion in Din held that courts should look behind the stated motives for exclusion even as to a nonresident alien if the plaintiff ‘plausibly alleged with sufficient particularity’ ‘an affirmative showing of bad faith,'" the states responded in the filing. And this is where the government stumbled for answers. It had none so it switched to the question of "standing."
We did talk about standing and moot, and I understand these concepts. Lawsuits must be filed by those directly affected and recognizably harmed, which the remedy must be able to fix. The government hoped that the court would drastically narrow the scope from nationwide to just Washington and Minnesota. But the government lawyer floundered when the judges brought up institutional examples the University of Washington, which claimed their faculty and students were either stranded at the airports under uncertainties, or completely banned from returning.
Judge Canby pressed on this, “Could the President simply say in the order, we’re not going to let any Muslims in?”
That's not what the order said, DoJ said repeatedly. But when the judges pressed further, he conceded that he could see some could have standing to challenge the order.
When the judges turned to the states to hear their side, the states affirmed the situation and that gave them standing to sue. The court "has always been" the one to check the abuse and should not give into the president's demand that they "to abdicate that role here, to reinstate the executive order without meaningful judicial review, and to throw this country back into chaos"-- the mess that was brought on by Trump's action, which "caused irreparable harm" to the states' people and economic interests. It is real and entirely of Trump's creation.
The question of bad faith is where the states want to pursuit. It's amazing, they said, that they have yet to being the discovery process and already they've seen a mountain of evidence showing "intent to discriminate against Muslim." Evidence in speeches, on twitter, to radio hosts or just about anyone who attended the rallies, who saw him on TV, in shock or in awed. The government now asked us to effectively forget all of that, to deem those bits irrelevant, and start anew. We have to look within the four corners of the documents, they said, even if we can see the lies they stacked all around the periphery.
See you when I get back.