Transcript:
Panel 1
Two men are in a park, talking.
CAPTION: 2009
MAN 1: We don’t have anything against immigrants. Just against illegals.
MAN 2: Don’t call people “illegals.”
Panel 2
A TV screen plays. On the TV, a blonde woman cheerfully talks.
CAPTION: 2011
WOMAN: Anti-immigrant? That’s ridiculous. The GOP has no problem with immigrants who follow the rules.
Panel 3
A scowling man leans over a laptop, typing furiously, sitting in an empty coffee shop.
CAPTION: 2014
MAN (what he’s typing): That’s yet another libtard lie – that Republicans are anti-immigrant, just because we want to get illegals out!
Panel 4
A man wearing a “Make America Great Again” cap is speaking angrily.
CAPTION: 2016
MAN: It’s so unfair to call Republicans anti-immigrant! We’re just anti-illegal immigrant.
Panel 5
A shot of the White House. Two word balloons, indicating people inside the building speaking, come out of the white house.
CAPTION: Literally the first week of a Republican presidency
VOICE 1: Should our new immigration ban also include green card holders who are legal U.S. residents?
VOICE 2: Hell yes.
1.) The fact that Trump issued the order on Holocaust Remembrance Day (after making a statement about the day that made no mention of Jews) adds another layer of awfulness to this. I credit Bannon with that decision, and, make no mistake, it is a threat to all non-Christians in the U.S.. Muslims are just first on the list.
2.) It is heartening that several judges have already issued stays, and that protests are breaking out all over the country (again).
3.) It is also worth repeating that no one from the banned counties has ever committed a terrorist act within the U.S.. Our very stringent vetting policies were already working.
4.) It is also worth noting that the people most at risk of terrorist attack – those living in large coastal cities – are against Trump, and this policy.
Thanks, Kate.
I did wonder at some point if applying this new rule to people with green cards might have been ineptitude – for instance, a law written carelessly and over broadly. But no, it was on purpose:
And now, a further twist:
White House Official, in Reversal, Says Green Card Holders Won’t Be Barred – The New York Times
And Border Patrol agents are refusing to comply with courts’ rulings:
This is scary.
The Department of Homeland Security has made it clear that they are willing to commit treason, so, yeah, that’s scary. Seems like the beginning of a coup to me.
Jake:
“The Department of Homeland Security has made it clear that they are willing to commit treason,”
U.S. Constitution, Article 3, Section 3, Paragraph 1:
I’m interested in how you fit the actions of DHS in his case to the Constitution’s definition of treason.
Indeed, whoever would have guessed that the agency we created during a self-destructive spasm of national mass hysteria, and to which we granted the Not At All Cartoonishly Crypto-Fascist appellation “The Department of Homeland Security,” would behave in such a fashion?
— which, in fact, offers quite an illustrative reminder of who we could–and who we absolutely could not–rely upon on another occasion when civil liberties were on the line.
Not that I’m holding grudges or anything.
(I’m totally holding grudges. And I’m not at all sorry for it, either.)
It seems to me that it’s worth noting a few things.
1) The list of countries was created and the process of subjecting people from them entering the U.S. to extraordinary scrutiny was operational under President Obama. What has changed is that President Trump has suspended their entry until he’s re-examined the procedures being used – 6 of the countries for a few months, and Syria indefinitely.
2) This does not affect 7 of 8 Muslims world wide, so I see this as a gross misrepresentation to call this a “Muslim ban”.
3) While no one here has raised this particular objection, there’s a whole lot of postings claiming that this is illegal and unconstitutional. But it seems to me that 8 U.S. Code Section 1182 (f) gives the President the authority to do exactly what Trump has done.
You’ll have to scroll about 1/2 down on the link to find that section.
4) President Obama used that section of Federal law himself half a dozen times, including this one. Why no outcry then?
RonF:
Except that no Muslim from the countries on the list have ever completed a terrorist attack on United States soil. Muslims from countries not covered by the ban—Pakistan, Saudi Arabia, Egypt (I think)—have. So, if we’re honest about it, we are essentially targeting the former group of Muslims because they are Muslims, not because Muslims have been successfully sneaking in here from those countries and killing Americans. How is that not an admittedly selective ban, but a ban on Muslims nonetheless? If I were Muslim, why should I not see it as a first step towards an all out ban?
Richard Jeffrey Newman,
A lot of information relating to possible terrorist attacks is classified.
If Trump did not cover Pakistan, Saudi Arabia and Egypt (you think), maybe the current terrorist threats are not coming from those countries. I’m willing to consider the possibility that there may be confidential information in play here that you are not privy to.
But it is fun to speculate and, frankly, allowing entry to several hard-core Muslim countries, despite their terrorist history, does not sound like a ban solely due to someone’s religion.
Exactly, there was already a very stringent vetting process in place that was working.
That alone would be a really big change. But, it is not the only change. This also is being applied to people who have already been granted legal resident status. That is also new. That is also one of the most objectionable things about the new policy. The other objectionable thing about the new policy is that it was done so suddenly that people were caught unaware while already in the air on the way to the U.S.. Finally, no exceptions for Muslims will be considered (exceptions are considered for religious minorities), including people who were granted visas because their lives were in danger due to the work they did as translators, etc. for the U.S. government.
The blanket ban does not apply to members of minority religious groups, i.e. the ban only applies to Muslims from these countries. Exceptions will be considered for religious minorities. That’s what makes it a Muslim ban. Also, Trump proposed a ban on all Muslims entering the U.S. during his campaign. It is not a gross representation at all to suggest that this is just his first step towards such a ban. Given the stakes, I think we need to assume the worst of Trump. He’s earned it. In particular, he made this announcement on Holocaust remembrance day. I believe that some people in his camp fully intended that as foreshadowing.
Quoting a few lines from a large, complex code out of context is pointless. At least four judges have granted stays on this order. I’ll trust their reading of the law over yours, until the U.S. Supreme Court says otherwise.
If you can’t see the difference between the nuanced document you linked to and Trump’s ham-fisted blanket ban, I don’t know how to help you.
Indeed, this is one of the principle things focused on in a very brief cartoon.
That apparently none of the conservatives here can see anything wrong with that – or has acknowledged any problem with yanking legal, law-abiding U.S. residents yanked away from their families, their children, their jobs, for “only” up to six months – suggests that my cartoon is on-target.
RonF would like to quibble over precise meanings of words than acknowledging that DHS’s actions are consistent with a coup. It exposes his priorities to all of us.
Jake’s got a very good point. Several judges have ordered stays on this executive order, yet the Department of Homeland Security is still insisting on enforcing the ban. Even if you, personally, are confident that the ban would be upheld – surely you can acknowledge that this is not the proper procedure. Law enforcement must respect the decisions of the court…yes?
I don’t think that is true now…? It looks like they are going to be able to get in, though they will need to have some additional screening.
Yes, I agree. However, I am not surprised. This administration may think that the Obama administration didn’t do a good enough job of vetting, or something. Or perhaps it believes that the facts on the ground have gotten worse. If that is true (I doubt it is, but I don’t actually know), then the fact that someone was previously approved for entry is not necessarily evidence that they should get in now.
But my money is on something else: I think this is just a political ploy to reset the discourse on immigration. That’s why it was temporary to start with.
Think about it: The left has been pushing an immigration agenda with two basic prongs: enhanced consideration of the needs of the would-be immigrant; and lower consideration of legal versus illegal immigration status.
The right wants the reverse of course: first, a more nationalist view, where the question is always “what is preferable for the US?” and not “what is preferable for the would-be immigrant? And second, an enhanced recognition of legal status as privileged over illegal status.
As such, this current brouhaha almost seems like a setup.
We are irrationally scared of terrorism, so this is a perfect arena for the right to gain ground on the “whose preferences matter?” issue. The news from Europe will scare people into conceding that the “old” screening methods may no longer be sufficient.
And as for legality, Trump will get folks up in arms for the green card issue–which seems like it would hurt him… but it won’t. Because when folks talk about protecting green card holders they are obliged to acknowledge the difference between legal immigration and illegal immigration, and that will help the right; it is a loss of a battle but a gain in the war.
The left is making a focused response of “how DARE you touch those folks, they have permission to be here!” They do it without any mention of folks who are here illegally–they have to; in the context of terrorist claims it’s a losing political battle. But I think it will be met with a quick concession and “OK, let’s focus on promptly deporting all the other folks who you just threw under the bus.”
John McCain is also privy to that information. This is what he says:
kate:
John McCain is not privy to that information. Many types of confidential information – especially information involved with executive-branch functions – are not available to Congress, and people in Congress are clearly not given regular briefings on current intelligence.
Here is a somewhat older paper exploring these issues, but a Google search in general will support the statements above. I know there have also been “issues” about Congress having to pay for “black projects” without getting full information out of Lockheed, Northrop & Co.
http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1171&context=bjil
John McCain is not just any member of congress. He is chair of the Armed Services committee, with access to more intelligence than the average congressman. He has also been a presidential candidate and, as such, is aware of the sorts of gaps which may exist between his knowledge and that of the president (since he received presidential level briefings as a candidate). His statement is strong, based on decades of foreign policy experience, with no caveats that there may be information out there that would change his view. I trust his judgement and experience a lot more than I trust Trump’s. His statements are all in keeping with the analysis of experts from past administrations, both Democratic and Republican (including Dick Cheney, who also spoke out against this policy).
Our troops in the region need local allies. Trump’s policy, which will deny potential Muslim allies refugee status should they be in danger because of the aid that they gave us, are against our interest – and (more importantly) fundamentally immoral.
Ebit:
First, what Kate said.
Second:
While I can imagine that a given operation in any of those countries might be classified, assuming for the moment you are correct, I find it hard to imagine that any administration would classify to the point that Congress would not know about it the fact of a threat to the United States. While we know the former has happened, it makes no sense to me that any administration would hide from Congress information that would justify the kind of ban Trump has imposed. It would seem to me that he would want Congressional buy in for such a move.
Anyone who sincerely does believe that the problem is with illegal immigrants, not immigrants generally, must be feeling at least a little bit shocked that so many people they thought were their allies are not, in fact, on their side. Well, maybe not after Trump’s campaign. Just the latest people to get that feeling in a Trump-related way.
Any such people should be outraged that people following the law and going through the process correctly have suddenly had the rug yanked out from under them. The Trump administration may–may–be within the letter of the law, but they’re not following the spirit of the rule of law, by suddenly stranding people who either already have LPR status, or were in the process of coming to the US legally as refugees.
***
gin & whiskey:
The left is making a focused response of “how DARE you touch those folks, they have permission to be here!” They do it without any mention of folks who are here illegally–they have to; in the context of terrorist claims it’s a losing political battle. But I think it will be met with a quick concession and “OK, let’s focus on promptly deporting all the other folks who you just threw under the bus.”
I think you may be right about the dynamic–but wrong about the group of people thrown under the bus. The people flying over and coming through airports are not unauthorized immigrants–though they could potentially later turn into that if they overstay their allotted time. They are coming through designated entry points and going through customs, not going under fences. The group of people that are perhaps thrown under the bus are refugees (and tourists, and business travelers) that don’t yet have legal permanent resident status, but are asking to come to our country, whether or not with the intention of eventually returning to their home country when it is safer.
OTOH, even the more inclusive argument is about “people who have permission to be here”, so they may have been trying to target “illegals” as well. But given Trump’s focus on potential terrorists among Muslim refugees, I suspect that refugees were the primary target.
***
@Ebit:
Donald Trump has been talking about a Muslim ban consistently, either simply “a Muslim ban” or “we can’t do a Muslim ban but we’re going to do it by country to get a similar effect”. Giuliani said that Trump asked him for help creating a Muslim ban that would pass scrutiny And you think we should give him the benefit of the doubt and think, “well, maybe there’s some new intelligence we don’t know about, getting as close to a Muslim ban as he can couldn’t be the intent”?
***
The executive order as written doesn’t say “Muslim” and “Christian”, even though we can see from Trump’s statements that that was the intent. It would be an interesting test to have a bunch of Rohingya from Burma apply as refugees (and if they got in, would be a good humanitarian action). Or some Bangladeshi secular bloggers.
No, we’re targeting them because they are either failed states where there is no effective nation-wide government controlling who enters or leaves their country or because the government there (I’m talking about you, Iran) is officially and virulently anti-American. If we’re targeting Muslims because they are Muslims you’d think that we’d be banning the other 7/8 of the world’s Muslims as well.
Oh, no, there’s a BIG problem with that. This order was improperly drafted and implemented ham-handedly. That needs to be fixed and whoever was responsible for this … re-assigned responsibilities commensurate to their abilities (say, running down to Starbucks for coffee orders). I didn’t comment on it initially because of post #3 (and I’d already seen the NYT article on that before I came to this thread). But if that is insufficient to cover people who are legally resident in the U.S. but have been having problems re-entering, that needs to be addressed quickly. Where you criticize this aspect of what Pres. Trump did I quite agree with you.
“Treason” is not a vague or flexible term. If you don’t want your terminology critiqued, try using it correctly.
Now, if you want to say that the DHS defying a court order is wrong or otherwise describe them with a term that’s actually accurate, that’s a debate worth having. Were those court orders appealed?
RonF, I don’t see why you seem to believe that the order unintentionally affected people with existing lawful US residency.
That is the wrong analysis, I think. “We have, so far, managed to prevent this type of terrorism from happening” does not mean that we can continue to use the same methods to prevent it. Nor does it allow any conclusion about how prevalent that risk is. We have arrested people in the US for plotting or supporting terrorism, as an example; we have denied entry to people who we thought were risky. It would be a mistake to exclude those as a non-risk since we will eventually fail to catch one.
At some point we need to figure out a grayscale way to discuss the reality that in 2017 there are major political and/or terrorist issues in a ton of Muslim-majority countries in the Middle East. It isn’t black and white but in failed states, it’s usually the majority groups who get tied up in the bad stuff, because the minority groups are struggling not to get killed. When Ireland was blowing itself up, everyone had their eye on Christians; if there were any Muslims in Ireland, nobody cared. When we are concerned about the Mafia, we focus on Italians; when we are concerned about Communism we focus on people from Russia and other Communist countries; when we’re worried about FARC we focus on Columbians; and so on. Right now folks are concerned by what appears to be the global spread of Islamic terrorism; Islamic jihad; Islamic radicalism; and Islamic illiberalism, stemming from the Middle East–so we are unsurprisingly focused on the Muslim countries in the Middle East. And it’s not just us; other Muslim-majority countries are similarly concerned. They don’t want a lot of these folks either.
I think this is naive. Presidents don’t get congressional buy-in because of the political risk. It requires openly discussing the details of your plans with many of your avowed political enemies, all of whom will do their best to discredit you even if they have no better plan to put forth. Also they want to continue the precedent that this is an executive power alone. That’s why Obama didn’t get buy-in for his various wars or immigration actions either.
It seems pretty clear that this is a reaction to the Obama Syrian refugee admits. Did you know about those? Very few of the admitted Syrian refugees were Christian, even though Christians are both a substantial minority in Syrian, and AFAIK, are specifically persecuted because of their religion. Therefore, various folks believed and openly claimed that Obama was discriminating against Christians. I personally doubt this accusation is true (there are a ton of other explanations for the difference) but that belief is surely a driver of this current policy.
Sigh. The left is screwing up here, which is sort of unbelievable since Hillary just got hammered. When will we realize that we need to open our paragraphs with “The most important thing is the security of the U.S.” and/or “the interests of the US outweigh the interests of non-citizens.” THEN we can get into explaining why these folks aren’t a security risk; or why it is in our best interests to admit them, or whatever. But the first part is a necessary Gertrude to gain the trust of the folks who just elected Trump, many of whom feel prevented from adopting anything akin to moderation because they have been labelled as racist ideologues for saying those two things. And since Trump is the only one saying them, they’re with Trump.
No. And it wouldn’t matter if they were unless the stay was lifted.
Because he missed the reporting on the White House overruling DHS’s interpretation that they wouldn’t detain people with existing lawful US residency.
Most of the people supporting a Muslim ban probably don’t know this. I suspect Donald Trump doesn’t really know this, either. I mean, there has been anti-Sikh violence over the last 15 years because people have an image in their head of “Muslims” and it fits Sikh dress better than it fits most actual Muslims. Do you think “oh, and by the way, Indonesia is the world’s largest Muslim country” is really on their radar? I’ve said this before in other contexts, but: it’s not my fault a lot of bigots are also ill-informed. That doesn’t make them not bigots.
The fact that most people can’t separate “Muslim” and “Middle Eastern”, and so they don’t think about the many South Asian Muslims, doesn’t mean this wasn’t motivated by anti-Muslim animus. As several others have pointed out in this thread alone, many of the decision makers involved have said, multiple times, to cheers, that that’s what they want to do. I take them at their word.
And by the way, to everyone arguing that this is based on intel we don’t know about: if this action–banning green card holders and students and tourists wholesale, with no warning–is proportionate to the threat, then think about what you’re saying about the previous administration. Do you think, based on the Obama administration’s history, that they would have failed to act on intelligence indicating a threat so dangerous that banning everyone from those countries is a reasonable countermeasure?
Last year, there was a shooting somewhere in Texas. Houston, I think. Some guy went to a strip mall early in the morning and just started firing. I don’t remember all the details. What I do remember is that his last name was Desai, and he had dark-ish skin. I saw many people trying to insist that he was a Muslim, including this brilliant comment: “Desai is a Middle Eastern name, usually India. Probably a Muslim.” Desai is, in fact, an Indian name, but almost always Hindu (though there are a few Muslim Desais), and, of course, Indian is not even remotely in the Middle East. The fact that completely ignorant people use their ignorance to conclude, “Probably a Muslim,” doesn’t make them any less bigoted than people who are bigoted against people who actually ARE Muslims. It just makes them bigots and also stupid.
You’re right, there ARE a lot of other explanations, starting with the fact that they are far less likely to register as refugees, from The Hill:
The Republicans are playing politics with the human rights of refugees. It’s disgusting.
A bit more on the “maybe they know secret information which justifies these policies” argument:
1) This argument, if taken seriously, would lead to the conclusion that ordinary citizens should never criticize any government policy that could be said to be about security. But that’s self-evidently antidemocratic.
2) The policies Trump is now implementing are clearly variants on the policies he’s been calling for since during the GOP primary, when he wouldn’t have had access to any secret information. (Plus, he’s infamous for not paying attention to briefings anyway).
Of course not! This is almost certainly a case of “same facts, different approach.”
Compare:
OBAMA-ISH: We will do our best to take care of our citizens and our nation. But this is not an ideal world, and the U.S. has a moral obligation to help people at large. Even if providing that help may pose a small risk to our citizens or nation, that risk is justified by the enormous benefit to the people we help, and our place in the world.**
TRUMP-ISH: The sole job of the president is to advance the interests of the citizens of the U.S., either directly or through secondary effects. This is not the U.N., and we have no inherent obligation to anyone else other than that which arises from self-interest. Unless we believe there is a secondary benefit to the U.S., which we do not see here, we have no obligation to take even a small risk of harm, either to our country or our citizens. If there is a lost benefit to people who are denied entry, they are non-citizens and their harm is outweighed by the safety of the U.S.
ETA: Again, I do NOT think Obama discriminated against Christian refugees; I noted the claim merely to help explain.
**If you were writing for country-wide effectiveness or election-winning, you’d talk more about minimizing that risk. And you’d also talk more about how the move would benefit citizens. I didn’t include those because the platform as it was transmitted (or at least how I received it) focused far more heavily on morality.
Not all in one go! They used the “religious minority” language, because actually banning Muslims because they are Muslim is unconstitutional. This is a test case, to see if they can get around the constitution. They are starting with the easiest targets, counties that are already economically marginalized. I believe that, if they are allowed this precedent, they will expand it. If they are not allowed this precedent, they will try other ways.
g&w,
Before I respond, are you playing Devil’s Advocate or is comment 30 an accurate description of your interpretation of Trump and Obama’s reasoning?
I wasn’t randomly playing devil’s advocate; I was responding to an issue which I quoted, of “the two presidents having different security reports.” I was making the point that they can have the same security reports and agree on the same facts, and reach radically different results. But I was not trying to be a perfect reporter of their positions, which is why I used “-ish”
I don’t know if I can accurately predict Trump’s reasoning on this particular issue. He’s all over the place. But he seems like a strong nationalist and that at least seems fairly clear, so I used a strong nationalist position. I’m not vested in it being accurate.
I think Obama’s actual underlying position was actually pretty nuanced and it is certainly much more complex than I have written. My summary was a very short stab at some general aspects of the parts of his position which were discussed a lot, edited somewhat to illustrate the other response I was trying to make. It does seem clear that relative to Trump, Obama pays more attention to the wishes of the would-be immigrants, which is not a huge surprise.
In support of my contention @31:
https://www.theatlantic.com/politics/archive/2017/01/a-betrayal-of-legal-immigrants-who-followed-the-rules/514841/?utm_source=atlfb
It also just occurred to me – the use of the term “religious minority” just underscores the ignorance and/or Islamophobia in this directive. ISIL is a group of Sunni Muslims, who are a religious minority in predominantly Shia Iraq.
gin & whiskey:
Therefore, various folks believed and openly claimed that Obama was discriminating against Christians.
Yes, I did know that people were claiming this. (I didn’t/don’t take it seriously enough to look into it further because A) a lot of those people also think Obama is a secret Muslim and B) when people in this country complain that Christians are being discriminated against, IME they are describing a situation where they think Christians should get special privileges. Often cases where they’re like, “Those meanies enforcing separations of church and state…. Wait, the Muslims and/or the Satanists want to take advantage of school religious holidays/money for private schools/distributing religious pamphlets to students/etc.? Never mind!”)
Sorry if I have missed out on prior responses to this, but
Amp @ 12:
I do. I don’t have problems with a country-wide ban. I have no problem saying that no one has a right to travel here. However, it appears the “pause” applied to permanent residents, and that such a pause violated rights they had. As a result, they were owed due process. If the injunction on the pause was based on that, good. Whether other people affected were denied due process rights, I am not sure. So, I can’t say that the whole order was wrong, but a ban on permanent residents is almost certainly wrong, and a stupid mistake on the part of the administration (who already appears to be back-tracking on it).
-Jut
Oops! Bad box quote! Naughty box quote!
-Jut
[Quote box fixed. Thanks for pointing it out, it’s helpful. –Amp]
Thanks, Amp.
-Jut
“The left is screwing up here, which is sort of unbelievable since Hillary just got hammered.”
I don’t blame her. If I’d gone through what she had gone through on 11/8/16 I’d get hammered too.
Sorry, Mr. President: The Obama Administration Did Nothing Similar to Your Immigration Ban | Foreign Policy
@ Kate,
Calling ISIL Sunni is a little like calling David Koresh a Protestant. I see your point, though.
Apparently Secretary Kelly is trying to talk Trump down/trying to find a reasonable interpretation/trying to basically go back to DHS’s original interpretation of the executive order: Entry of lawful permanent residents in “national interest”, DHS secretary says
(IIRC, the executive order talked a lot about only letting people in if it was in the “national interest”.)
Also, pro-ISIS social media accounts are celebrating the “blessed ban”, as ISIS wants there to be no middle ground between Muslim-hating “crusaders” and ISIS-defined proper Muslims.
Yep. Muslim ban.
Putting my predictions out there. Who agrees? Share yours!
1) Trump will drop the ban on green card holders by Monday. That was a stupid, mean, and illegal move in the first place. Trump will not acknowledge that, though.
2) Trump will allow almost all existing travel visas to enter by Monday, with a bit of extra fuss. His team will dig like crazy and try to find one “example” visa which is marginal; if they find it they will reject and leak the rejection. Even if they don’t find it he’ll reject at least a few just to make a point.
3) Trump will maintain the temporary ban on new visas and travel for those seven countries, for two or three months.
4) The US will authorize sufficient admissions from other non-list countries, in order to head off the threatened “Muslim ban” suits, from groups like the ACLU. Assuming he manages to do so, the ACLU will lose. Generally the presumption is one in favor of the government.
5) Trump will seek to admit enough Muslims that he can claim the Dem tweets and reporting on the “Muslim Ban” to be false news, agitprop, etc. This will not be hard. If Trump admits at least 75% of what Obama did, he’s probably in good shape. But here’s a Pew paper on the past years’ admits, covering Obama’s whole term. Note that Trump can admit THIRD of the Muslims compared to last year, while accurately admitting “just as many as Muslims as Obama did in 2011.” We’ll be talking about 2011 a lot.
6) Trump, will, as usual, continue to create a ton of OTHER issues, in order to saturate the press and our attention span. We can only pay attention to so many things at once.And damn, there are a lot of them. Changes to Chevron deference!** Crazy new laws about agency regulations! Idiots sitting in the National Security Council! Anger at the U.N.! Bad folks likely on the Supreme Court! Multiple troubling Cabinet heads! Restarting the Dakota pipeline! More issues with immigration! Holy shit, it’s only been 11 days…..
7) Once the green card and visa bans are lifted and once Trump has begun to admitted sufficient Muslims (from other countries not on the list) at a sufficient rate to make a facially-valid argument that he is not enacting a “Muslim ban,” then many folks will move one to a different issue.
8) In the end, Trump will end up with what he probably wanted in the first place; we will have ended up with a stricter immigration ban than we started with. AND we will have issue fatigue and have failed to notice some other very important stuff. Folks will either conclude that “a temporary hold on 7 countries” is not really a huge issue, or they will forget about it during the Supreme Court nomination fight.
**I keep posting this one, and if you don’t know about it, you should! It gets almost no press, IMO because it is complex and difficult to explain. But the Republicans are trying to pass a bill which will radically change the degree of “agency deference” that courts use when interpreting agency regulations. This is actually a huge deal with a ton of major and long-term side effects, because it opens the door to a slew of challenges to agency regulations.
I am not an immigration lawyer and this is proving to be very difficult to figure out, but I think that “nationality” for this purpose is w/r/t citizenship/passport and NOT w/r/t place of birth.
So for example, it seems like if you’re an EU citizen you’re OK even if you were born in Iraq, so long as you have no Iraqi passport and so long as you have not recently traveled to Iraq….? I may be wrong; this is not an obvious answer.
The Trump order DOES appear to bar “dual nationals”, which is to say people who maintain passports or citizenship alliances with other countries.
My reading is in line with the article you linked to:
At first I thought it was a “security” exception, since it’s probably fair to say that Israel has some of the best terrorism screening on the planet, but on closer read it seems like the same interpretation of “national” which is used elsewhere.
Also see this U.S. government site:
Also see this state department site.
Welp, looks like we’ve gone from 0 to Peak Nixon in less than three weeks. That’s gotta be hard on the transmission.
When I was a kid, my parents’ best friends had a dog named Archibald Cox.
Good dog, too. Used to go for walks in the woods with me.
Oh, my. I have so many disagreements with this.
Let’s start with the time frame. Three weeks is far too generous. We’ve gotten here in 10 days. Only 5 of which were working days.
And the Nixon comparison?!?! You’re denigrating the memory of a terrible human being by making the comparison. Look, if Nixon was taking the country to hell in a hand basket, Current Dude is cavorting naked with the country in a deep frier in an active volcano on a star. Which is to say that at least Nixon knew how to use the power that comes with the Presidency. Granted, he was so awful that even that couldn’t save him. But, really. The Trump/Bannon Frankenstein’s Monster is just flailing blindly and catching itself on fire before it’s even started to destroy the village.
This stuff is making my stomach hurt. https://medium.com/@yonatanzunger/trial-balloon-for-a-coup-e024990891d5#.moyh4wi4o
Also, when David Frum is calling it… https://www.theatlantic.com/magazine/archive/2017/03/how-to-build-an-autocracy/513872/
Well, Nixon also seriously considered both universal healthcare and a universal income. So you gotta adjust for the era, kwim? It’s not as if we started out from Kansas–or even from Planet Earth–this time. We were already on that far-away star, making it a much shorter hop to the brink of the active volcano thereon (although getting into that fry basket still took some gymnastics).
Has it really only been 10 days? But it’s been so action-packed!
Yeah, Elusis. I’m pretty sure that’s what we’re seeing. On the plus side, the opposition has mobilized on the streets and that’s putting pressure on opposition politicians to actually, you know, be the opposition. There’s also the sheer ignorance and incompetence with which they’re trying to execute their coup. I place great hope in their combination of ignorance and hubris.
I’ve said this elsewhere, but Trump is taking the first steps down the road that, were he competent, ends with his corpse being dragged through the streets by a mob. Like Mussolini. The fact that he isn’t actually competent, we hope, results in a much less fatal humiliation.
G&W, you are dangerously naive about Trump’s goals. He wants to reestablish white supremacy in the U.S.. His endgame may even be the ethnic cleansing of the U.S..
And this week was meant to test whether law enforcement would follow Trump’s orders or judicial orders. The answer is, they’ll be loyal to Trump. We need to be calling for those who ordered the DHS to ignore the stays issued by our courts to be fired, or impeached.
Jake Fuentes laid it out better than I could, although I think his hope that his worst case scenerio is wrong is misplaced.
And the answer to question number two–namely, how the populace at large might react –is illustrated herein: they will engage in partisan semantic quibbling over what the true meaning of words like “coup” and “treason” might be, while evidencing no particular signs of alarm. (While, to be perfectly fair, others will then respond with mordant flippancy and other forms of ghetto humor, rather than taking to the streets or doing anything else in the slightest bit threatening to the architects of the toe-dip.)
So Green Light it is, then! Full steam ahead.
@ G&W
It’s not your job to parse how the law should be read. Last time I checked five judges have issued stays on this executive order. That’s your answer, until higher courts step in and say otherwise.
The executive branch is ignoring those stays. Does the DHS have the right to just ignore those stays? I believe that the answer is no. That makes this a legitimate constitutional crisis. You need to readjust your view. We are rapidly heading towards authoritarian rule.
@Sam Cole – point taken
@ Elkins
You seem pleased. That’s really disturbing.
Elkins,
To be fair, millions have taken to the streets. Tens of thousands showed up at airports this weekend with no notice. And this situation is something we’ve had no preparation for. Also, DHS doesn’t necessarily represent the broader armed law enforcement community nor does CPB necessarily represent the broader DHS. I hope, I hope, I hope.
g&w,
There’s quite a trail of evidence, not least of which is Giuliani claiming to be an author who was explicitly instructed to find a way to make a Muslim ban legal, supporting the fact that the EO was meant to be a ban on Muslims.
:blink: I seem “pleased?”
Wow, and here I was all concerned that my last message might reap a reprimand for being too mean to the local Trump apologists. Apparently, my writing style is so utterly incomprehensible that I needn’t have worried.
Jake, certainly the opposition so far has been a most welcome and pleasant surprise to me. I’m still so traumatized from the aughties that I genuinely wasn’t expecting it. And I hope, as well.
Actually, it literally is my job; I am a lawyer. And I know that plenty of lay words (like “national”) have specific definitions in the law which are radically different from lay usage. That’s why I raised the issue.
Yes; I have read a few of the orders. They don’t answer the issue I discussed.
Nope. We’re all supposed to listen to the courts.
Eh, not so much. As constitutional crises go this one isn’t even in my top 50. If you think this is the next coming of Hitler I don’t think you’ve been watching.
The executive branch is constantly going on a tear. It’s not good when they do, but from a constitutional perspective this one is less bad than most. At least there’s some precedent for the executive to make immigration decisions.
And sometimes they reach too far. For example, Obama made a huge executive overreach on immigration, and got overruled by the courts; and the prosecutors who represent the executive branch lied to the courts about the process. Clearly Obama should not have done it, but that was not an authoritarian crisis, either. It was worse IMO when he kept waging war without bothering to ask Congress for war powers. It was worse yet when his administration unilaterally decided that he had the power to order the killing of US citizens without a trial; or when he did the whole “secret warrantless surveillance of all citizens” thing. Those last two DO make my top 50.
Were you worried about constitutionality then? Or did your “constitutional crisis” meter just arrive in mid-January? Like most executives, Trump is clearly going to push the boundaries of the executive branch in some scary ways. And he should be opposed–but overblown one-sided rhetoric won’t help. When you say things like this:
Do you want more Trump? Because this is how you get more Trump. It is patently ridiculous to suggest that Trump is going to “ethnically cleanse” the country. It’s on a par with the claims that Hillary would send jackbooted thugs to “take away your guns.” Nobody is a traitor, nobody is plotting a coup. The guy just got elected like anyone else. In four years he’ll lose and step down like everyone else. Hopefully by then we can manage to tamp down on the executive a bit (though oddly, quite a few of Trump’s proposals pass power back to Congress.)
Sigh. Look, cops are part of the executive branch and like I keep discussing, the executive stretches, breaks, or temporarily ignores the law (and the Constitution) all the time. The executive is also very good at finding loopholes which technically comply with the law but which permit them to do just what they want.
This is a bad thing! I frequently fight it! But there is nothing super scary or unusual going on here. Jake Fuentes is right about Trump being a bad person, but he’s wrong in his analysis, probably because he reads too few court cases.
By all means; that is what elections are for! The courts have no power to get people fired, which is deliberate. Nor can the courts order an impeachment; this is also deliberate. The Constitution is complex. (That said, do you know who becomes President if Trump gets impeached? First Pence; then Ryan; then Orrin Hatch. Yuck. I’d rather have Trump, bad though he is.)
Of course there is evidence of intent; I knew that already. But that is not what the ban says, for a simple reason: Surprisingly enough, Trump consulted Giuliani about the Muslim ban–I think this is what he is supposed to do. Like an intelligent person, Giuliani said he could not do it. So Trump took the advice and changed the ban.
Sure! What it was MEANT to be (had it been legal) is relevant in the “is Trump anti-Muslim?” or “is Trump an asshole?” sense. Which, yes and yes. But in the end you have an order. And what it was meant to say is not what it actually says.
This is how the legal game is played. The ball is what the law actually says, and how the law actually is applied in practice. If you get distracted by what people thought or said, and you ignore what the law says, you’re taking your eyes off the ball. Nothing makes lawyers happier than when our opponents do that. I am giving this warning as someone on the same side of this issue as you.
@ Elkins,
Poe’s law
@Jake Squid
Also, DHS doesn’t necessarily represent the broader armed law enforcement community nor does CPB [CBP?] necessarily represent the broader DHS. I hope, I hope, I hope.
My impression, also, was that some locations were responding differently than others–Dulles and Logan were acting differently from each other, IIRC. Not too surprising given how chaotic implementation has been. Even without that factor, there can be a surprisingly large amount of variations in how the federal government does things in different locations and offices, I think. I’ve also read that depending on the judge’s jurisdiction the order can be different: this article says that in NY, VA, and WA, they cannot be removed from the US, but in MA they cannot be detained or removed from the US.
Really? Intent of the authors isn’t relevant when considering the constitutionality of a law or an executive order? That’s not my understanding of how constitutional law works. Have I been mistaken?
Well, first of all the word “intent” usually refers to the LAW, not the AUTHOR.** So if you pass a sentencing law and the law’s stated intent in the preamble is “to improve equality of sentencing” and if it doesn’t mention race, the fact that some folks may have voted for it with the hope that it would screw over black people is not part of the law’s “intent.”
Second, intent isn’t usually relevant if the law is otherwise OK. Bad laws are passed by good people; good laws are passed by bad people. The fact that an author intended to discriminate will not void a facially-neutral and neutrally-applied law. The fact that an author didn’t intend to discriminate won’t save all discriminatory laws. It’s a complex area; take a look at Washington v. Davis, for very good info.
Authorial intent is a really problematic area though. While I dislike Trump, when challenges to laws begin “what was someone thinking when they wrote it, and were they proper thoughts?” that is a bad idea. And a dangerous one. After all, if Trump can clear things up by saying “By the time I was done I understood that we should focus on those countries and not on a religion,” it’s meaningless. And if he can’t clear things up because he has to prove (to whose satisfaction?) that he had sufficient good thoughts to permit him to issue a facially-neutral law and apply it neutrally, it’s madness.
** Authorial intent gets mentioned but not often. The best measure of considered intent is what the people actually do after considering things. That said this is a rare case.
And yet, courts DO sometimes overturn a law based on discriminatory intent, such as the 4th circuit recently striking down some of North Carolina’s voter suppression law (pdf link):
Is this actually an area of law you personally practice? I ask because you’re effectively claiming to be an expert, but being a lawyer doesn’t actually make someone an expert on areas of the law outside their expertise and legal experience. Or so lawyers have told me. :-p
So congress’ intent wasn’t brought up by lawyers in the big ACA suit before SCOTUS in 2015? Wow. I really misread the reporting on that one.
and offers this as supporting that:
Seems to me that Israelis born in those countries are quite likely to be Muslim, not Jewish.
G-U-W @ 45:
He set a 120 day time limit on them anyway, so the fact that he might relax them sooner is not a huge surprise.
Kate @ 31:
What part of the Constitution does this get around?
As far as the intent issue goes, there’s a difference between what was intended by passing a given law or issuing a given EO vs. what the intent would be of something it is claimed that the legislators or executive authority would like to do but did not actually do. If the claim is that this EO is legally impermissible because the intent of the order was to ban all Muslims, then that clearly fails because it only covers about 13% of all Muslims. If the claim is that the author of the EO would like to ban all Muslims but can’t so he did this instead, it seems to me that a challenge fails because the EO itself never intended to ban all Muslims.
Yes. I know about VRA litigation, therefore the caveats “usually” in “the word “intent” usually refers to the LAW, not the AUTHOR.”)
Moreover, the case you cited involved differential treatment of a protected class:
which is also why I said “intent isn’t usually relevant if the law is otherwise OK” and also said both “the ball…is how the law is actually applied in practice” and “issue a facially-neutral law and apply it neutrally”
The existing Trump rule can be enforced in a manner which does not discriminate against “Muslims” per se; if that happens then it’s a different ball game.
Federal Constitutional litigation? No. At the USSC there are really only a few people who really do it. On the federal appeals level there are more, but it’s really an issue of luck about what falls in your lap.
I did not use that word! But I am usually more expert and informed about the law than almost all non-lawyers, and less expert and informed than specialist attorneys (at least in those areas.)
What? There are plenty of Israeli Jews who were born in those countries. There are some refugees from Sudan in Israel, and I think they’re mostly Muslim, but I don’t think that most of them are Israeli citizens, and I’ve only very rarely heard of Muslims from any of the other countries on the list becoming Israeli citizens.
Hundreds of thousands of Arab Jews immigrated to Israel from 1948 until the early seventies. Many of them are still alive. https://en.wikipedia.org/wiki/Jewish_exodus_from_Arab_and_Muslim_countries
No, suggesting that McCain or Romney had such plans would be on par with such claims about Hillary. In all cases, there was no evidence to suggest such intent. There is with Trump.
1.) His national security advisor has been meeting with members of the Nazi party in Europe. He is embraced enthusiastically by American neo-Nazis. He does not disavow these endorsements and connections.
2.) Before even being elected his surrogates were floating trial balloons about the legality of Japanese internment camps.
3.) Trump has proposed a massive deportation force, without funding. We do not have the infrastructure to round up and deport the millions of undocumented people living in the U.S. without committing massive human rights violations, and getting citizens and legal residents caught up in the process. He is not showing any signs of seeking funding to support such infrastructure, and congress is not offering it.
4.) With the ban on entry from these seven majority Muslim countries, he showed that he will lump legal and illegal aliens together, if we let him get away with it.
5.) He issued the ban on Holocaust remembrance day. He could have done it on any other day of the year. He CHOSE to issue it on that day. I think that was intended as a dog whistle to white supremacist members of his base.
6.) By failing to mention the attempted genocide of the Jews on Holocaust remembrance day, and doubling down after, he was dog whistling to Holocaust deniers.
Seriously, G&W – I have been commenting here for years. I have listened to you, and sometimes changed my views as a result of your comments. I disagree with Republican policies, but I have never been hyperbolic about Republicans in the past. This is something different. Stop trying to win the argument and seriously consider the possibility that I might be right to worry. You too Ron.
Before we get into the weeds: what does the term “ethnic cleansing” mean to you? Sending the National Guard to round up Muslims and shoot them? Something else? If you’re going to keep making that accusation, please explain what you mean by it.
As much as I hate to link to breitbart, they deny that a meeting took place at all (apparently the evidence of the meeting is a claim by the Nazi guy on his facebook page) and also disavow the Nazi dude. I haven’t seen any other articles which go beyond the facebook claim.
(Query: When it comes to people with horrible views and political importance–Iran’s president; some dude representing an Austrian Nazi party that got a plurality of votes in the presidential election and 42% of the vote in a run-off; minority parties in Britian; Marine Le pen–would you support talking to them, or not talking to them?)
I don’t put much stock in “surrogates.” I will join the fight full-on should we seek to re-institute Korematsu-style camps, though I see that as a very tiny chance.
That is… usually how it works? You start by making a proposal like “let’s improve airports!” or “let’s hire a ton of teachers” and then you try to get funding for it.
Hey, we agree on something! I don’t actually think that is what Trump wants anyway. Also, this is not actually happening, because it is not physically possible. (And also, I’m not sure whether your use of the term “human rights violation” is like “ethnic cleansing,” but whatever.)
OK. So if he doesn’t seek funding it’s bad. Got it. But call me crazy; I keep getting this feeling that if he was seeking funding you’d also think it was bad. If so, this is a red herring.
Which we will not; the court shut that down w/r/t due process. Not at all incidentally, those groups can share crucial common traits, most obviously “not citizens” and “immigrating from countries enhanced terrorism risk.” This will sometimes be relevant.
I am unaffected by this. Ignoring the very odd fact that the holocaust museum seems to list the day in April of 2017 on one page and 1/27/17 on another page, I skeptically think all of those protests would still be around on the day “just before” or “just after,” or “same week as” Holocaust Remembrance Day, or any Muslim holiday, or MLK day, or an anniversary of an important event, or any of the multiple days in which… well, I don’t care that he did it on Holocaust Remembrance Day. I care THAT he did it, not WHEN he did it.
And FWIW, I find it a wee bit ironic to suggest that an action which is taken against places like Iran (who would like to see Israel wiped from the face of the map) and which folks claim is targeting a religion which on average polls as quite hostile to Judaism is automatically an insult to…. the Jewish remembrance day? I have no idea if those seven countries even acknowledge Holocaust Remembrance Day but I doubt most of them do.
Sigh. I’ll let Scott Aaronson address that, here. Or here, see #10
Worry about what? If you were worrying that he’d push the country somewhat to the right, I’d join you. If you were worrying that he might damage foreign relations, I’d join you. But if you’re worrying that he will “ethnically cleanse” the country or will promptly imprison a bunch of US Citizens… and if your basis is that he did something on the wrong day and has supporters who are assholes and so on… well, I don’t find it credible.
In fact, I think that this level of extremism makes it HARDER to fight Trump effectively, which is why I am arguing against you even though I also oppose Trump.
You might want to ask actual Jews about that. Or, hey, you can listen to the many of us who are right here in this thread, rather than just making shit up.
For the record, G&W is Jewish.
I apologize. I had him mixed up with someone else.
I realize this was just an obnoxious aside, but: “Iran’s president; some dude representing an Austrian Nazi party that got a plurality of votes in the presidential election and 42% of the vote in a run-off; minority parties in Britian; Marine Le pen–would you support talking to them, or not talking to them?”
One of these things is not like the others, one of these things is not quite the same…
Should be have lines of communication with a major regional power? Yes.
Should we be encouraging extremist opposition groups in our allies? No.
Should we cut off communication with France if Le Pen comes to power? No.
It’s almost like Presidents are different from opposition parties in whether you have to deal with them, evil or not.
g&w:
So I read those pieces. I don’t always agree with Aaronson, but sometimes he’s good; in this case, I was surprised you found those comments persuasive. The whole point of the first essay is that people finding dog whistles or subtle communications of bias in Trump’s words are wrong. His last example is…he thinks people who find Donald Trump misogynist are way off the mark. This was written last summer, of course, before many of Trump’s most infamously misogynist moments had fully come to light, but if his point is “all these other people have read subtle communication wrong”, and then some non-subtle communication proves him wrong, to me that calls into question his ability to understand the other bits of subtle communication he discussed in that essay.
There’s also an element to that essay of “it’s not [something]ist unless you’re very extreme about it”, but we’ve litigated that here a number of times already.
(In any case, I don’t think Trump is probably personally antisemitic. But he lets Bannon do what Bannon wants, and Bannon definitely IS antisemitic, so Trump’s administration as a whole is going to have moments of antisemitism as long as Bannon’s around.)
Also, as a quick belated response to #30: I don’t think
is reasonable, because of how much it ignores about the benefits (primary and secondary) of immigration. But I’ll agree that the second part is a logical consequence of the first.
Ampersand @71:
Well, I can hardly blame Ruchama. gin &whiskey hardly sounds Kosher. Hell, I’m of Irish descent and I can find no good reason to mix gun and whiskey.
-Jut
@JutGory:
I am very much opposed to mixing gun and whiskey.
***
WRT my comment @20 on the distinction between Trump politically targeting “illegal immigrants” and refugees–apparently Trump either does not see a difference between the two groups, or finds it politically expedient for refugees to be thought of as “illegal immigrants”.
@closetpuritan: He talked about Germany accepting “illegals” when discussing the European refugee crisis too.
Unfortunately this isn’t just Trump – in the past thirty years we’ve seen a widespread popular delegitimising of the refugee process.
Ethnic cleansing – targeting people for forcible resettlement, deportation, and/or detention in camps based on ethnicity – is the goal of key white supremacist groups in Trump’s base (not his whole base, just a vocal subset). I don’t know whether or not Trump shares that goal. But, if he does, things could move very quickly, and we need to be prepared for that possibility. Protest does work to slow him down, though. My hope is that protests will continue to work to reign him in, and you will forever think I was a hyperbolic fool. But, here’s my (evolving) understanding.
The U.S. already has serious problems with its police, prison and detention systems, from simple overcrowding, to human rights violations like the abuse and rape of prisoners. This system is not equipped to handle mass deportations. I believe that Trump means what he says, and will order that deportations be carried out. Everything he has done since he took office serves to confirm that he is going to continue ordering his various promises to be carried out. His pattern appears to be that he issues orders, and then lets people on the ground work out the details.
So, I expect that the implementation of Trump’s deportation orders will be radically different in different areas. On one end of the spectrum, liberal cities and states will refuse to carry the orders out, and fight them in court (already are, actually). At the other end of the spectrum, some areas run by Trump supporters, I fear, will turn to cost cutting measures, like those formerly used by Joe Arpaio in Arizona:
And, then we will have a system of small camps, in mostly “red” rural areas that desperately need jobs.
They can then contract to receive inmates from “purple” suburban areas. Then, we will have a system of large camps, away from liberals, who are fully occupied defending their own territory.
At first, this system will only being used for people who have committed crimes. And, we all know how much the average American cares about the human rights of criminals.
But, then how Trump will react when there is another attack by a Muslim on U.S. soil? He has already accused Muslim communities in the U.S. of knowing who the attackers are and harboring them. I fear that, deportation camps will be used to “question” Muslims about what they know to prevent further attacks. Then, we will be gathering people into camps based solely on their ethnicity.
It is the targeting of refugees generally that I consider insulting the Jewish remembrance day.
But on the specific issue of Iran, the action was not taken against the government of Iran, it was taken against the Iranian people, who are among the most pro-American in the region. Keeping them connected to the rest of the world weakens their government. Cutting them off makes it stronger.
kate said:
This is very, very true.
We’re less than two weeks in and he’s already imprisoned and denied entry to people with green cards and legal visas. I consider that “prompt” enough to be alarmed.
And, yes, I believe the combination of not mentioning the attempted genocide of the Jews on Holocaust remembrance day and choosing that day to deny entry to refugees was a dog whistle to the “assholes” in the white supremacist segment of his base.
Another treat for the white supremacists in Trump’s base:
Exciting The Right Wing, Trump Downplays Threat Of Right-Wing Terror
and they are VERY appreciative:
Some decent reporting on what is happening with the Executive as a whole ignoring court orders. But, as of today, that is out of date: the CBP appears to be obeying the new court order from Seattle and Lufthansa is allowing people with otherwise valid visas from the banned countries to board flights to the US (at least to Boston). No word so far on whether permitted refugees are being allowed to board, but it appears that they will be.
That is good news, Charles.
Sometimes outrage and protest works.
@ G&W # 61,
I am a constitutional law attorney, and I think you’re conflating textualism, which is a method of interpreting statutes, with constitutional doctrine.
Under textualism, it’s true that the intent of a law’s authors does not generally matter for statutory interpretation. Textualism posits that the best indicator of legislative intent is the plain meaning of the statute. Thus, for a textualist (like Scalia or Gorsuch), the intent of the individual legislators is irrelevant to the statute’s meaning. All that maters is how an average, educated reader would understand the statute. To use a silly example, if a law forbade owning “elephants” as pets, it would be irrelevant to a textualist that every member of the legislature thought that a llama was a kind of elephant and said so in congressional hearings. We’re bound by the words in a statute, not the secret meaning in legislators’ heads. (I know you know all this as an attorney, but I’m giving context for others. No disrespect intended.)
On the other hand, intent or “motive” is very important under certain constitutional doctrines, even outside of voting rights. For instance, under a Due Process/Equal Protection analysis, a law can be struck down if it was motivated solely by animus. See Lawrence v. Texas. Motive can also be relevant in Free Exercise cases or under certain statutes (i.e. RLUIPA). See Employment Division v. Smith. Here’s the distinction: In the latter cases, you are not looking at intent to interpret the statute; rather, you’re looking at intent or motive to determine the statute’s constitutionality.
Indeed, it is conservative jurists who usually insist on evidence of a discriminatory motive. McCleskey v. Kemp, 753 F.2d 877, 890 (11th Cir. Ga. 1985) (“[W]e have consistently held that to state a claim of racial discrimination in the application of a constitutional capital statute, intent and motive must be alleged.”). Liberals like me often hate this because it’s obviously rare for law-makers to shoot themselves in the foot as dramatically as Trump has.
Thus, as explained by Ilya Somin, a libertarian law professor at the Antonin Scalia Law School, Trump’s comments calling for a Muslim ban “are definitely relevant, because there’s a longstanding doctrine that there can be laws or executive orders that on their face don’t discriminate on the basis of race or religion but that is their motive — and if that is their motive, they can be struck down.”
Sam Cole, thanks very much for your comment; I appreciated it.
On the challenges of rigorous textualism: Textualism tends to treat words as tasilmans—assuming that a word has one, true meaning arising from some source other than convention.
In contrast, linguists agree that words derive their meanings from social convention. So if every member of a legislature used the word elephant to encompass a range of animals that includes what I would call a llama, that would strongly suggest that some society existed in which people used the word elephant in this manner. Thus, there are various doctrines in contract law—course of dealing, usage of trade—that acknowledge that words within a given context can come to have a legally cognizable meaning that may differ from how most members of society would construe the words.
If pressed, a texualist might concede that words derive their meaning from social convention. But the textualist would argue that where constitutions/statues/regulations are concerned, we need to construe the text in accordance with the perspective of some authoritative source—say, the usage of the majority—and not the conventions of the legislators. Otherwise, we risk subjecting the majority of people to laws that they could not possibly understand because the laws are written basically in code.
It’s a fine perspective. But hard cases can arise.
1. When the British ruled Rhodesia (now Zimbabwe), they discovered people with unfamiliar habits. First, many Rhodesians embraced a belief in witchcraft (putting curses on people) and sorcery (blessing crops and lifestock). When bad things happened, some Rhodesians had a habit of blaming their neighbors for practicing witchcraft, and a mob would subsequently attack the neighbors.
To stamp out this practice, the British Parliament passed anti-witchcraft legislation, but drafted it badly. First, contrary to its title, the legislation did not ban witchcraft; it banned the practice of publicly accusing people of practicing witchcraft. Second, the legislation defined witchcraft in a manner that actually conformed to the practices of sorcery, not witchcraft. In short, this was pretty much a case of legislators thinking that the word elephant encompasses llamas.
So the first person put on trial for violating the law readily admitted to accusing a neighbor of putting a curse on her—but denied that this curse amounted witchcraft as defined in the law. The judge convicted anyway, reasoning basically that everybody knew about the new law, the harm it was intended to prevent, and the method for preventing this harm. The judge refused to credit the idea that the defendant had relied to her detriment on the specific, inartfully drafted words of a statute that, like most statutes, was not widely read by the public.
2. The federal Telecommunications Act of 1996 restructured the US telephone marketplace by breaking up the monopolies enjoyed by the Bell Operating Companies. To this end, the law ordered the Federal Communications Commission to draft and adopt an impossible number of rules by the end of 1996.
One rule governed which local telephone companies would be eligible for federal subsidies. The FCC’s rule stated that no company could receive a subsidy unless the state regulators certified that the company met a list of minimum service requirements. In particular, it required local carriers to permit customers to set a fixed number of long distance minutes or dollars they would pay for each month, with long-distance service terminating after the limit was reached. Small problem: Using available 1996 technology, this was impossible.
Perhaps the FCC intended to shut off the flow of dollars keeping small telephone companies alive. Or perhaps FCC thought that the word elephant encompassed llamas.
Either way, states faced a short deadline in which to perform the simple task of acknowledging that none of their telephone companies could meet the requirements for receiving subsidies, and dutifully surrendering the subsidies. NOT. Instead, every state found some excuse to say that their local telephone companies should continue to receive the subsidies. And shortly thereafter the FCC revised its rules.
Moral: Textualism is nice in theory, but there are no textualists in foxholes.
@ nobody
My comment wasn’t meant to defend textualism, just to explain it in a simple-but-fair way. My main point was that G&W seemed to be conflating a particular, even controversial, way of interpreting statutes with established constitutional law.
In my (expressly silly) example, I was assuming unrealistically that, other than the legislators’ weird beliefs, the rest of the world was the same as it is now. The real bone textualism has to pick with looking at legislative history is that looking at legislative history is like going to a crowded cocktail party and seeking out your friends (to paraphrase Justice Scalia paraphrasing Harold Leventhal).
My own view is that textualism can be really bad when it’s done in a ham-fisted or partisan way. It also gets complicated (as you point out) in marginal cases. I think the dissent in King v. Burwell is an example of ham-fisted and partisan textualism.
On the other hand, as a federal criminal defense attorney, I would much rather have a consistent textualist as a judge than a Republican partisan or even, in some cases, a liberal. I thought Judge Gorsuch’s dissent in United States v. Games-Perez was a great example of textualism at its finest. (Also, some of Scalia’s worst opinions happened when he abandoned textualism to achieve a partisan result.) Especially in criminal cases, I think textualism can be a good thing, in conjunction with the rule of lenity, if you don’t get too carried away with it. In other words, you sure as h*ll ain’t sending my client to prison for owning a llama.
Amp, I think nobody and I have gone down a bit of a rabbit-hole! Sorry! Feel free to move this to an open thread.
The discussion is interesting and most welcome, Sam.
Oh, I was just riffing. Like Amp, I’m loving Sam’s stuff.
Besides, we have a separate thread for discussing rabbit holes.
It looks like the 9th circuit believes that intent is important in determining whether or not the EO is discriminatory (see page 25). Here’s another post that seems to agree with me that intent (and prior declarations of intent) are relevant to determining whether or not the EO is discriminatory.