More Resistance to Trump's Travel Ban and More Deceit from Trump

This past week, two district court's separately enjoined President Trump's revised travel ban, finding his new Executive Order  issued on March 6, 2017, likely violates the Constitution's Establishment Clause by discriminating against Muslims.  I explain here why the courts reached the right decision in these cases.  Despite some tweaks, such as excluding legal permanent residents from the ban, Trump's travel ban 2.0 suffers from the same fatal flaw as its predecessor because it is driven by animus towards Muslims.

Trump, however, continues not only to engage in undignified and unprecedented attacks on judges who have questioned the order's legality, but also continues to defend the order by misrepresenting the threat posed by individuals from the six Muslim-majority countries who are temporarily banned from traveling to the United States.  As a recent Department of Homeland Security Report found, "country of citizenship is unlikely to be a reliable indicator of terrorist activity," and "few of of the impacted countries [under the executive order] have terrorist groups that threaten the West."  Facts, however, are irrelevant to Trump, especially here, where Trump's main motive is not to protect the United States (More than 100 top security and foreign policy experts from both parties agree the travel ban hurts, rather than helps, the country's security).  Rather, Trump's goal is to brandish his faux populist credentials among his base by appealing to racism and xenophobia, while deflecting attention from his economic agenda which will weaken the position of many from among that very group.

Appeals by the government in both cases are expected.  This important litigation is a test not only of the durability of constitutional principles prohibiting religious discrimination, but also of the judiciary's willingness to stand up to a president who has no understanding of or respect for the nation's Constitution.

Important Ruling by the Ninth Circuit in the Travel Ban Litigation

I've been closely following the various legal challenges to President Trump's travel ban for several reasons, as noted here and here. One reason is the deep flaws in the Executive Order itself, which undermines constitutional principles of nondiscrimination, due process, and equal protection, as well as U.S. obligations under international law.  But another reason is because the order--and both the manner in which Trump implemented it and sought to quash resistance to it--represents a real threat to constitutional principles of the separation of powers.  I've observed with great concern, for example, Trump's repeated attack on the judiciary and, in particular, on individual judges. I was, therefore, heartened when the U.S. Court of Appeals for the Ninth Circuit issued its ruling last week denying Trump's request to stay the district court's earlier order temporarily enjoining the travel ban because of its constitutional defects and because of the harm it was causing so many refugees, immigrants, and others.  While this battle over the travel ban order is not over, and while many more battles over executive power are sure to come, the ruling represents an important early moment in the resistance to overreaching by the Trump administration.

The Battle over the Travel Ban Executive Order: the Courts Push Back

The intensifying legal battle over Trump's Executive Order temporarily barring the entry of refugees and other noncitizens to the United States represents an open assault on core constitutional principles. Trump's attempt to single out seven majority-Muslim countries---coupled with his repeated anti-Muslim statements--undermines religious freedom and equal protection of the law. The order's sweeping scope, which denies people entry without individualized consideration, flouts due process.  The order also has caused great and unnecessary harm to many individuals who sought to come to the Unites States for a better life.

The executive order has become a flashpoint in an even larger battle over the rule of law.  On Friday, James Robart, a federal district judge in Seattle, issued a nationwide temporary restraining order, halting enforcement of Trump's order until the legal challenge could be decided.  The suit was brought by Washington and Minnesota, two states impacted by the chaos Trump's order unleashed. Robart joined a group of several judges who have temporarily enjoined the order's enforcement. In his ruling, Robart emphasized the role of the judiciary in a tripartite system of government.  In response, Trump attacked Robart as an "so-called judge" who issued an "outrageous" ruling. Trump continued the attack, declaring--in a flagrant brief of constitutional norms--that the judge had put the nation "in peril."  The Trump administration does appear, thus far, to be abiding by the order while challenging it on appeal (rather than refusing to obey it).  But even so, this type of intimidation of judges is troubling, as it suggests a wholly improper attempt to intimidate the one branch of the federal government capable of standing up to Trump.  It will be critical to see what happens as this case and the other legal challenges to the executive order progress.  

Trump's Ominous Dismissal of Sally Yates

President Trump's dismissal tonight of Acting Attorney General  Sally Yates makes clear, if it wasn't already, that America is entering uncharted waters.  Yates, a holdover from the Obama administration, had earlier refused to enforce Trump's executive order on immigration, stating, accurately, it was neither wise nor just. That Trump should fire her was expected. But the White House statement is chilling. Trump charges that Yates "betrayed" the Justice Department.  While it exceeds 140 characters,  the statement reads like a Trump Twitter post, at least in part  It signals Trump's complete disregard of legitimate dissent and dictatorial impulses, which he is now acting on with the full force of the executive branch.  Those who support him are "great people" and his "good friends".  Those who oppose him are his--and now the country's--"enemies." Other nations have been down this dark (read: authoritarian) path before.  But these are unprecedented times for the United States.

Federal Judge Rebuffs Trump on Refugee Ban

This evening, Judge Ann M. Donnelly, a U.S. District Judge for the Eastern District of New York (in Brooklyn) entered a stay that blocks (at least temporarily) President Trump's efforts to deport refugees and others who had been trapped at airports across the country. The judge found, in short, that the petitioners had shown a sufficient likelihood of success on their Due Process and Equal Protection Clause challenges and faced irreparable harm if deported.  Much remains to be seen, including whether the individuals will remain in detention pending resolution of the case as well as the fate of those who have yet to travel to the United States. But, either way, a big win for the Constitution and for the country, and a high-profile set-back for Trump.   I will have more to say about this important ruling later. For now, kudos to the ACLU and other groups who brought this action.

Trump's First Week: Preclude to a Nightmare

President Donald J. Trump right off the bat dashed any remaining hopes that he would moderate his extremist views upon assuming the Nation's highest office.  (Though Trump's statements and behavior both during the campaign and following his election made harboring such hopes naive). Trump immediately launched a full-out assault on civil liberties, causing many Americans (myself included) to wonder just what kind of a country we were living in.

Trump has no respect for the Constitution, for the office of the presidency, or for human dignity. He has proven he will pander to the lowest common denominator at every opportunity, mixing extraordinary assertions of executive power with a blatant disregard for the truth.  Trump will, in short, provide a supreme test of the durability of the nation's institutions and system of checks and balances.

The President's assaults on the Constitution and human rights came fast and furious, all enveloped by the now familiar clouds of lies and deceit, including Trump's continued assertion of the canard that millions of illegal immigrants illegally voted in the election, robbing him of a popular majority. Trump used that falsehood not only to sooth his colossal ego, but also to call for a major investigation into voting fraud.  In a hopeful sign, state officials from both parties are rejecting Trump's claims of massive voting fraud. But the move showed the depths of Trump's authoritarian impulses.  Trump intends to use claims of voting fraud to generate momentum for voter ID laws and other anti-democratic measures designed to restrict the franchise among those who oppose Trump and the Republican party.  And because it benefits them, the danger is that many in the GOP will go along.  Further restrictions at the ballot box will help blunt the potential for the political process to act as a check on a Trump administration while cementing Republican control of government in the long run.

Trump's executive order on refugees, issued on Friday, represents a profound assault on human values and the rule of law.  The order, among other things, immediately suspends admission of all refugees to the United States for 120 days; bars refugees from Syria indefinitely;  suspends entry for 90 days of individuals from seven predominantly Muslim countries linked to concerns about terrorism; and prioritizes refugees fleeing religious persecution (a provision almost certainly intended to favor Christians).  The order violates nondiscrimination principles under the Constitution and U.S. commitments under international law, including human rights and refugee treaties.  Its human consequences are already being felt. News reports describe individuals being detained at ports of entry, including this heartbreaking story of Hameed Khalid Darweesh, who had worked for the United States in Iraq for more than 10 years and who was traveling to the U.S. to join his wife and young son.  Trump could not have given extremist groups better propaganda material to undermine support for the United States in the Arab and Muslim world if he tried.

The refugee order is only one of several assaults on civil liberties in Trump's first week.  Trump is also seeking broader powers to deport individuals in the country.  An order signed on Wednesday targets, for example, any person who has "committed acts that constitute a chargeable criminal offense"or who has "engaged in fraud or willful misrepresentation in connection with any official matter or application before a government agency."  The order threatens to sweep in not only individuals convicted of violent offenses, but also anyone federal authorities think has committed a crime (however minor) or those who, for example, used a false Social Security Number to obtain employment, as many undocumented immigrants do (to the benefit of millions of American employers and consumers).  Trump also vowed to crackdown on sanctuary cities, seeking to eliminate any opposition to his plans. (So much for a principled position on federalism).  For good measure, Trump pressed ahead with his plan to build the U.S.-Mexico border, and impose the costs on Mexico.  The wall is a destructive approach to addressing the complex challenges of migration--much of which actually benefits the United States--and has already inflamed tensions with Mexico, America's third largest trading partner.

There are more issues that warrant comment and concern, including the leak of a draft executive order on detention and interrogation that promises to maintain the U.S. detention center at Guantanamo Bay, contemplates reopening of lawless CIA black sites, and toys with resurrecting torture, which Trump, contrary to facts, claims works and which, in any event, is illegal.  Defense Secretary James Mattis and CIA Director Mike Pompeo were reportedly "blind-sided" by the report.  (Mattis, one of the few competent and responsible officials Trump's cabinet, has been particularly vocal on not returning to torture).  Yet, despite positive signs of some internal resistance, the current president's authoritarian impulses and disregard for truth and transparency have prompted concerns about a return to Bush-era lawlessness in the detention and interrogation of terrorism suspects.

Amid the unfolding nightmare, there were a few signs of hope.  A district judge refused to dismiss a lawsuit brought by the ACLU on behalf of several victims against two psychologists, James Mitchell and Bruce Jessen, who, as private contractors, helped create and implement the CIA torture program during the Bush administration.  Court challenges have already been filed against Trump's order suspending the admission of refugees.  Maintaining public and political opposition to Trump will continue to be important.  But, as this week has shown, courts will remain the first line of defense, as they have in the past.

Trump's Anti-First Amendment Instincts on Display from the Outset

President Donald Trump wasted no time in making clear his antipathy to the spirit--if not the letter--of the First Amendment would carry forward into the Oval Office.  The new White House Press Secretary, Sean Spcier, attacked the press for accurately reporting the size of the crowd at Trump's inauguration, which, as the press noted, was significantly lower than the crowd at President Obama's second inaugural.  This moment crystalized two key fears about a Trump administration.  First, it showed Trump's flagrant disregard for facts (press accounts were supported by evidence, including DC Metro ridership and aerial photographs).  Second, it showed Trump's disdain for the press-- or, more accurately-- for a press that does not laud and adore him.  There is no question that Trump's impulses are authoritarian.  The only question is whether, and to what extent, he will act on these impulses to chill and curtail First Amendment freedoms in America.