Trump’s Unconstitutional Muslim Ban, and Other Related Stories

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Donald Trump and Steve Bannon ask a park ranger if she can direct them to the quickest path to eternal infamy.

[Note: Brea Insider here.  (GAD).  I THINK that we can repost this piece from Democratic Foundation of Orange County Chair Dan Jacobson, given that he gave permission to send it along to others.  (He knows how to contact me, if not.)  It’s a good take on some of the critical issues at play when it comes to Donald Trump’s Executive Order on Refugees and Visas.   Some other good sources are listed after his email.   The boilerplate that accompanied the email can be found beneath it.]

Trump’s Unconstitutional Muslim Ban

Our Constitution’s 1st Amendment is clear that the government cannot take any action that discriminates against anyone (citizen or non-citizen) on the basis of that individual’s religious faith.  Thus Donald Trump’s Muslim ban is unconstitutional.  The White House might argue that it is only happenstance that the every nation on the “ban list” is primarily Islamic.  That argument doesn’t pass the straight-face test.  Discriminators have tried for decades to fashion their discrimination policies without using the words “Jew,” “African,” “Asian,” – “Muslim;” and, for decades the courts have seen through the tissue-thin fabric from which the discriminators have woven their horrid policies.

The courts aren’t stupid.  An example from as late as the 70s:  Until late in the 70s and into the 80s there was a height requirement for police applicants.  A requirement that most women couldn’t pass.  The police departments had argued that the policy was not against hiring women, just a policy against hiring people who were under a certain height.  But, the disproportionate, discriminatory, and destructive effect on women was clear, and the courts struck down the height requirements.  If everyone from Utah were banned from moving to another State, the disproportionate, intentional, and illegal effect on Mormons would be evident, and that ban wouldn’t be allowed. “Clever” discriminatory policies don’t impress smart courts.

So, when Trump says he’s banning people from certain countries; he’s not banning people of certain religions – he’s lying.  The effect of banning people from countries that are mostly Muslim is to ban Muslims. That’s illegal, wrong, and destructive to both America’s standing in the world and to our Nation’s moral fiber. This issue will reach the courts, but it may not do so in time to save people’s lives.  Jewish German refugees were turned away at our shores near the start of World War II – and they died back home, at the hands of their tormenters.  Absent immediate court action, Muslims will be turned away – and they will die back home, from starvation, war, and terrorists.

Please peacefully protest, now; please speak-out, now.  Please back the that are aimed at enforcing our Constitution, and at trying to ensure no one, or as few as possible people will die at the hands of the flimflam man who’s in the White House.

Sincerely,

Dan Jacobson, Chair

“Paid for and authorized by the Democratic Foundation of Orange County.  Political Contributions are not tax-deductible for income tax purposes.   Contributions from foreign nationals are prohibited, unless an individual is lawfully admitted for permanent residence in the United States.  F.E.C. ID#:C00176420/ F.P.P.C. ID#: 830453.  If this e-newsletter was forwarded to you by a friend and you’d like to be added to our email list, please click here.”  (The link was dead.) 

Jacobson is one of many lawyers who are having a field day writing about the doomed Executive Order issues from the Department of the Ass of Steve Bannon.  Here are some links (with pull quotes) for you to enjoy, and please feel welcome to suggest your own.  (From both sides, even, if you can find someone credible defending this Executive Order.)

• Malevolence Tempered by Incompetence: Trump’s Horrifying Executive Order on Refugees and Visas

Prototypically mainstream national security attorney Benjamin Wittes tells a story without jokes than nonetheless made your OJB editor laugh out loud:

The malevolence of President Trump’s Executive Order on visas and refugees is mitigated chiefly—and perhaps only—by the astonishing incompetence of its drafting and construction.

NBC is reporting that the document was not reviewed by DHS, the Justice Department, the State Department, or the Department of Defense, and that National Security Council lawyers were prevented from evaluating it. Moreover, the New York Times writes that Customs and Border Protection and U.S. Citizen and Immigration Services, the agencies tasked with carrying out the policy, were only given a briefing call while Trump was actually signing the order itself. Yesterday, the Department of Justice gave a “no comment” when asked whether the Office of Legal Counsel had reviewed Trump’s executive orders—including the order at hand. (OLC normally reviews every executive order.)

This order reads to me, frankly, as though it was not reviewed by competent counsel at all.

The “beautiful thing” here, as a certain Temporary President likes to say, is that by refusing to have the Executive Order reviewed by anybody — not the Office of Legal Council, not the National Security and Foreign Policy establishments, nobody — the Trump Administration massively increased the likelihood that the court system is going to spike this deflated football in the opponent’s end zone after running back the recovered fumble 99½ yards.  The reviewing courts owe no deference to the judgment of the Department of the Ass of Steve Bannon, of which this executive order is redolent.  They’re going to squash it in as many ways as they want to until they get tired or give in to the politesse of judicial restraint.

After listing the many horrific administration policies that he has defended in the past — mostly Bush 43, but some from Obama as well — Wittes points out the difference that even I have to concede distinguishes this policy from all of the others:

While some of these policies proved tragically misguided and caused great harm to innocent people, none of them was designed or intended to be cruel to vulnerable, concededly innocent people.

Well, yeah.  This policy expresses no intention to go after the people who are most likely to be involved in terrorism, given the track record: that would be those from Saudi Arabia and another few countries — allies of ours, which these seven ain’t — that I will be too delicate to name.  This policy is designed just to mess with people who are (1) Lawful Permanent Residents and (2) already very well vetted refugees — despite that they are not by any measure likely to get involved in terrorism.  The intent, pretty clearly, is to make this the “camel’s nose under the tent” that sets into motion a tent-occupation process that cannot easily be reversed.  So while, as Kellyanne Conway rightly asserts, it’s not a Muslim Ban, it’s the first step towards a Muslim Ban, and towards no other conceivable destination.

I’ll use these few paragraphs as well so long as you promise to read the rest of the article while will make these paragraphs even more astounding:

Put simply, I don’t believe that the stated purpose is the real purpose. This is the first policy the United States has adopted in the post-9/11 era about which I have ever said this. It’s a grave charge, I know, and I’m not making it lightly. But in the rational pursuit of security objectives, you don’t marginalize your expert security agencies and fail to vet your ideas through a normal interagency process. You don’t target the wrong people in nutty ways when you’re rationally pursuing real security objectives.

When do you do these things? You do these things when you’re elevating the symbolic politics of bashing Islam over any actual security interest. You do them when you’ve made a deliberate decision to burden human lives to make a public point. In other words, this is not a document that will cause hardship and misery because of regrettable incidental impacts on people injured in the pursuit of a public good. It will cause hardship and misery for tens or hundreds of thousands of people because that is precisely what it is intended to do.

To be sure, the executive order does not say anything as crass as: “Sec. 14. Burdening Muslim Lives to Make Political Point.” It doesn’t need to. There’s simply no reason in reading it to ignore everything Trump said during the campaign, during which he repeatedly called for a ban on Muslims entering the United States.

You gotta read the whole thing.

• This Weekend Was a Complete Disaster

Slate has an article out describing the events of the weekend that links to much of its weekend coverage.  Some of it is absolutely mind-boggling and chilling:

The implementation of Trump’s order has not, in fact, been going well. Confusion remains on the extent to which Customs and Border Patrol agents are violating court orders against Trump’s ban—agents who had to make up rules on how to handle immigrants flying into the country on their own absent guidance from the administration throughout the weekend. There have been reports, for instance, that green card holders legally allowed permanent residence in the United States—initially subject to Trump’s ban before a hasty reversal—have been asked by border agents to submit their social media accounts to inspection and even to surrender their green cards. On Sunday, Slate’s Dahlia Lithwick reported on the case of Tareq Aqel Mohammed Aziz and Ammar Aqel Mohammed Aziz, two Yemeni brothers with green cards who flew in to Washington’s Dulles airport on Saturday:

The Aziz brothers’ story is particularly stunning because, says [attorney Simon] Sandoval-Moshenberg, not only were they handcuffed while they were detained by CBP at Dulles, and not only were they turned away and sent to Ethiopia, but they were also made to sign a form, known as the I-407. In doing so, they surrendered their green cards, under the threat of being barred from the U.S. for the next five years if they did not. Sandoval-Moshenberg tells me he couldn’t quite believe the two young men “were straight-up bullied into having their green cards taken away.” They were at no point given copies of any of the documents they had signed.

I’ve had to tell the green card holders in my family not to sign an I-407 under any circumstances.  But, we’ll have to see, if that day comes, how they’ll stand up to duress.  (Do you have to deal with crap like this in your family?)

And there’s more:

Friday night, DHS arrived at the legal interpretation that the executive order restrictions applying to seven countries—Iran, Iraq, Libya, Somalia, Syria, Sudan and Yemen—did not apply to people with lawful permanent residence, generally referred to as green card holders.

The White House overruled that guidance overnight, according to officials familiar with the rollout. That order came from the President’s inner circle, led by Stephen Miller and Steve Bannon. Their decision held that, on a case by case basis, DHS could allow green card holders to enter the US.

This attack on LAWFUL PERMANENT RESIDENTS is more outrageous than I can adequately express.  Republicans, start distancing yourself right now — and HARD!

Finally (I think, though maybe not entirely finally), here’s a pair of stories from a writer named Yonatan Zunger that have been making the rounds on social media this past weekend.

• Trial Balloon for a Coup?

This is a chilling story, arguing that the small circle around President Trump has used this dispute to test the waters to see how much they can get away with — especially the portion involving direct defiance of court orders in an emergency situation.  Here’s a sample:

Note also the most frightening escalation last night was that the DHS made it fairly clear that they did not feel bound to obey any court orders. CBP continued to deny all access to counsel, detain people, and deport them in direct contravention to the court’s order, citing “upper management,” and the DHS made a formal (but confusing) statement that they would continue to follow the President’s orders. (See my updates from yesterday, and the various links there, for details) Significant in today’s updates is any lack of suggestion that the courts’ authority played a role in the decision.

That is to say, the administration is testing the extent to which the DHS (and other executive agencies) can act and ignore orders from the other branches of government. This is as serious as it can possibly get: all of the arguments about whether order X or Y is unconstitutional mean nothing if elements of the government are executing them and the courts are being ignored.

Yesterday was the trial balloon for a coup d’état against the United States. It gave them useful information.

But perhaps you still have some optimism left in you after reading that one?  Never fear!  This one may completely destroy you.  It addresses how demographic groups (for the most part) are likely to be targeted — and, believe it or not, when it makes sense to flee and regroup.  I’d like to think that this is overly alarmist, but judge for yourselves.

• What “Things Going Wrong” Can Look Like

While I hope that most people are beyond the stage of saying “oh, this is all just campaign rhetoric,” I know that many people will still say that, and will probably keep saying that until the day something happens to them directly. But given that in his first eight days in office, Trump has proven himself quite honest on the campaign trail — going out and doing exactly the things he said he would, from ordering walls and detention camps built at the Mexican border to banning even legal permanent residents who are citizens of various Muslim countries (but only the Muslim ones) from entering the country — I’m hoping people are starting to realize that no, it wasn’t just a joke.

So I expect to see certain next steps relating to each of these groups. I don’t expect to see them happen in rapid succession; each of these is a major move, which can have significant political value if spread out over time. This is roughly a roadmap for the next 2–3 years.

• For Latinos, increased laws and orders exerting pressures on employers, landlords, etc., to get rid of anyone who even might be undocumented. (So long as they’re Latino; a good 25% of Americans can’t easily produce proof of citizenship, but they won’t be hassled) The goal here is to create what Trump calls “self-deportation:” i.e., making the situation bad enough to cause people to flee the country.
• For Muslims, increased surveillance of (leading up to registration of) groups. The next big step would be bulk revocation of visas from people from various countries, at which point they fall under the same “illegals” program as is set up for Latinos. This also gives political cover for mass deportation — which, as an operational footnote, also requires mass internment for logistical reasons. (For more on that, see my earlier piece on just what mass deportation means)
• For black people, an increased crackdown on protests, if that’s actually possible. (Given that police turnout in Ferguson already looked like they were ready to retake Fallujah, escalation isn’t trivial — but they can find a way) Any protest, no matter how peaceful, will be declared a “riot” and a reason for sharply increased police presence, not just then, but going forward; we should expect to see a lot of very visible marching of cops through the streets, arrests of anyone for insubservience, and so on.
• For trans people, a systematic passage of laws somewhere between legalizing and mandating discrimination in all things. This is already legal in much of the country, but again, it’s possible to turn up the knob: to basically ensure that being trans causes you to lose your job, your home, and have your children taken away from you.

And then he does Jews and Native Americans and academics.  And I’ve left out the parts that would lead you to take these forecasts more seriously, so if you want the full effect you should read the original article yourself.

Pleasant dreams!