Appeals court's reasoning on the immigration ban

I had planned some non-Trump posts for today, but then the appeals court gave its decision on the immigration ban appeal, and that just seems too important to ignore, even for another day.  So, I'll save the non-Trump good news for another day.

The unsigned, unanimous decision to deny the appeal seems clearly written and explanatory.   The crucial issue hinged on the Department of Justice, representing the president, claim that the president has sole authority over national defense, and that such decisions are not reviewable -- i.e., cannot be overruled -- by the court system.  In fact, the Dept. of Justice had claimed that, were the court to do that, it would violate the separation of powers.

This court does not accept that argument.   Rather it asserts that the judiciary does have a role in safeguarding people's rights, stating that:  "the Supreme Court has made clear that the Government’s authority and expertise in [such] matters do not automatically trump the Court’s own obligation to secure the protection that the Constitution grants to individuals, even in times of war."   The rights referred to here are the equal protection clause and the non-establishment clause of the Constitution, which forbid discrimination based on religion and which forbid the government's establishment of a particular religion.

Further, to the claim that the president's decisions on national security cannot be reviewed by the courts, they addressed the issue of classified information.   What they said, in effect, is that the president cannot just assert that he knows things that he can't tell the court that show that there is grave danger from these particular countries.   The court does not accept such claims without evidence, and judges at this level can be given sensitive evidence to review in secret and keep sealed.    So "we know stuff we can't tell you" is not a sufficient defense.   But they did not offer any such evidence.

Although this hearing and the decision were not on the merits of the case itself, only whether the court should uphold the temporary stay that had been put on the president's executive immigration order, the court did nevertheless address the question of what would be admissible as evidence in deciding whether rights had been violated when the case goes back for trial on the merits.

In fact, the judges noted the previous statements by Mr. Trump in which he had promised to impose "a Muslim ban," implying that such statements could be considered in deciding whether this was a rational executive order or whether it might have arisen from a wish to exclude Muslims, even though the executive order did not make such a statement.   That goes to whether the order violates rights.

The trial on merits will involve much more discovery and depositions, gathering evidence on who worked on writing the order, how it came to be decided, what was the evidence, why it was considered such an urgent matter, etc.   Washington State Attorney General, Bob Ferguson, who brought the case, was on Rachel Maddow's show last night.   He pointed out that, in issuing the original stay, Judge Robarts had to think it likely that the state would eventually prevail on the merits.   That, in itself, is encouraging.   And, in response to Rachel's question about his satisfaction with Thursday's ruling by the appeals court, he said:  "We couldn't have gotten a better ruling, from our perspective, if we had written it ourselves."

Frankly, I was surprised that it was unanimous.   I saw some of questioning of the attorneys by the three judges, and I thought one of them seemed troubled by saying this was religious discrimination when only about 15% of the world's Muslims are affected by ban on people only from seven countries.   Apparently he got answers that satisfied him.

Although this has been chaotic, in one sense it is fortunate that this showdown between Trump and the courts has come up this early.   Because this is going to be a continuing issue with this president and at least some of his top level staff:   whether the president is above the law.   This is a good test of that.    In fact, Washington AG Ferguson voiced his strong intention to push ahead on just this point:   whether we are a nations of laws that even the president must follow.

Ralph

Mitch McConnell is not stupid; so WHY did he do such a politically stupid thing, silence Eliz. Warren?

By now, the story is well known, having hit the news shows Tuesday night like a thunder-clap.   On the Senate floor, Senator Elizabeth Warren was speaking against the confirmation of Sen. Jeff Sessions for Attorney General.   As part of her evidence against him, she was reading a letter to the Senate from Coretta Scott King, which King had sent during the 1986 confirmation hearings for then Alabama prosecutor Jeff Session to become a federal judge.

The confirmation was voted down, with considerable Republican support, because of Sessions' alleged racist attitudes and actions.    Coretta Scott King's letter was thought to have been an important part of persuading bipartisan voters against Sessions in 1986.  It was supposed to have been entered in the Congressional Record;  but it now appears that Sen. Strom Thurmond, who should have done so, did not.    But a copy of the letter has recently been obtained.  And Sen. Warren was reading it aloud to the senators.

Majority Leader Mitch McConnell called her out of order under Senate Rule XIX, which says that, in debate, no senator shall impute to another senator any conduct unworthy of a senator.   King's letter certainly does allege that Session had engaged in conduct unworthy of a senator.   But this is a confirmation hearing, not ordinary senate debate.   If the confirmation process cannot include comments about past behavior of a now-senator, simply because he is now a senator -- then the confirmation process is a farce.

Sen. Warren was not only silenced and told by the presiding senator to sit down, she was also forbidden to speak further during the hearing on Sen. Sessions.

To be clear, the letter had been allowed as part of the senate debate in 1986, and it would have been part of the official Congressional Record, if Sen. Thurmond had done his job.  However, Sessions was not a senator in 1986 and was therefore not covered by Rule XIX.  But he is now.

It's generally assumed that Sen. Sessions will be confirmed, given that it takes only a simple majority. [Note:  he was, later Wed. evening.]  If McConnell had just kept quiet, few would have noticed, or cared, that this letter was read.   It's unlikely to have changed any Republican senators' votes, since they're so determined to gain the power to do what they want.   So why did he stir things up by silencing Sen. Warren?

He could not have picked a better moment to blow up the smooth confirmation of a controversial nominee.   Sessions does have an undeniable record of racist attitudes, actions, including attempts to limit the voting rights of African-Americans.   In addition, he has consistently voted against the Violence Against Women bill.   Supporters claim that doesn't reflect the Jeff Sessions of today.

Now that the spotlight of McConnell's action is shining on this issue -- all the brighter because it was a letter from the widow of Martin Luther King, Jr. that he stopped Warren from reading  -- it only multiplies immensely the public scrutiny of Sessions' racism.  The content of the letter is no secret.   In fact, later in the night, it was read, without objection, on the senate floor by Sen. Jeff Merkeley.   After giving her reasons, including detailed examples, Coretta King's 1986 letter, in part, reached this conclusion:

“I do not believe Jefferson Sessions possesses the requisite judgment, competence and sensitivity to the rights guaranteed by the federal civil rights laws to qualify for appointment to the federal district court.”

Senator Warren further ensured wide attention to the whole incident by giving television interviews and by reading the letter on Facebook Live, where reportedly 7 million people saw it.

So this has to take the prize for the most stupid political decision made by one of the most astute political strategists in the senate.   So, I come back to WHY?   I don't yet have a clue what McConnell hoped to gain.

Ralph

PS:   Later "explanation" from a Republican congressman, whose name I didn't get but who was interviewed on MSNBC:    He said that Sen. McConnell was not on the Senate floor when Sen. Warren gave the first part of her dissent.   He objected to the tone she was using and came to the Senate chamber to invoke Rule XIX.  It just happened that, when he arrived, she was reading the King letter.   It was not the letter itself that he objected to but rather her overall denunciating tone about a fellow senator.

Now, if that is the case, why did they wait almost 24 hours to say so?   It sounds to me like a contrived explanation in an attempt to do damage control.

Recording turned off for Trump's call with Putin

It remains a serious question:   Just what is the relationship between the Trump team and Russia?   Do they hold some power over him that we don't know about?

It is undisputed that Trump's Secretary of State, his National Security Adviser, his former campaign manager, and others have close ties to Russia or to Putin himself.  Putin seems to be the only world leader that Trump has not insulted.  Even when reporters try to get him to be critical of something Putin has done or said, Trump always turns it around to his admiration for Putin.

Here is one more reason to be suspicious:  Trump's recent calls to heads of state have routinely been recorded and a summary written up, except for one:  Vladimir Putin.   Ilan Berman, VP of the American Foreign Policy Council, reported that the recording equipment was turned off during Trump's recent phone call with Putin.  The call summary was one sentence long.   We need to know why.   What did they discuss that they're keeping secret?

Ralph

Plain talk about Trump from the business world

Some excerpts from "Trump Vs. The Rule Of Law" by Matt Levine in Bloomberg Businessweek, Feb. 6.   It shows that the business world is concerned, not just with his removing regulations and making credit easier, but also in more fundamental things like Trump's seeming contempt for the Rule of Law and the danger of his unchecked power.

*     *     *     *     *

"The problem is bigger than some disagreements over policy priorities.  The most troubling aspect of Trump's immigration order may be that it covered U.S. lawful permanent residents,  that is, green card holders who'd spent years building lives in the U.S. . .

"The upshot is that U.S. lawful permanent residents . . . are no longer protected by that law.  They can be deported at the whim of the president, or his advisers, or a border agent -- or they can be spared by a two-sentence statement from the secretary of Homeland Security.  There are no guarantees that the courts can protect them.  The nation of laws they immigrated to is gone, replaced by a nation of arbitrary rule.

"If the president can, without consulting the courts or Congress, banish U.S. lawful permanent residents, then he can do anything.  If there's no rule of law for some people, there's no rule of law for anyone.

"Business leaders are waking up to that reality.  Many grouse in private about the impact of Trump's actions but are afraid to speak out publicly.  'They are scared out of their minds about being attacked,' wrote Andrew Ross Sorkin in the New York Times, "and what that's going to do for their business.'

"When the president can damage your business with a tweet -- and will, if you disagree with him publicly -- then dissent is more difficult. . . . 

"The reason the U.S. is a good place to do business is that, for the past two centuries, it's built a firm foundation on the rule of law.   President Trump undid that in a weekend.  That's bad for business."

*     *     *     *     *

This is not a wild-eyed, paranoid, liberal opinion.   This is a mainstream voice in a moderately conservative business magazine.

Ralp;h 

Betsy DeVos confirmed 51 to 50

The highly controversial billionaire, school choice zealot Betsy DeVos has been confirmed as Trump's Education Secretary.   Two Republican senators, Lisa Murkowski and Susan Collins joined the 49 Democrats to tie the vote at 50 to 50.   Vice President, acting as head of the senate, broke the tie making it 51 to 50.

Clearly unqualified and embarrassingly uninformed as to laws governing education, DeVos will nevertheless take her place in the Trump cabinet.   Although federal regulations do have a significant effect on public education, in fact the federal government contributes only about 6% of the overall educational budget of local schools.    State and local taxes provide the rest.

Ralph

Trump not welcome to address U.K. Parliament

The United Kingdom's Speaker of the House of Commons, John Bercow, has voiced strong opposition to President Trump speaking before Parliament.    On her recent U.S. visit, Prime Minister Theresa May invited him to visit;  but no date has been set.

Bercow said:  “I would not wish to issue an invitation to President Trump to speak. . . .  An address by a foreign leader to both houses of Parliament is not an automatic right.  It is an earned honor. . . .  I feel very strongly that our opposition to racism and to sexism and our support for equality before the law and an independent judiciary are hugely important considerations in the House of Commons.”   His speech was loudly applauded by other members of Parliament.

Powerful experts warn court on Trump's travel ban

Here are some of the national security experts who have signed an amicus brief in the case against Trump's immigration ban:

Former Secretaries of State Madeline Albright and John Kerry;  former head of Homeland Security, Janet Nepolitano;  former CIA Director Michael Hayden and former CIA officials Avril Haines, Michael Morell and John McLaughlin;   former Sec. of Defense and former head of the CIA Leon Panetta;  and former National Security Adviser Susan Rice.

Their brief is a forceful case that undercuts the lead argument presented by the Trump Justice Department.   They state:  “We view the Order as one that ultimately undermines the national security of the United States, rather than making us safer. . . .In our professional opinion, this Order cannot be justified on national security or foreign policy grounds.”

They further state that Trump's order “could do long-term damage to our national security and foreign policy interests, endangering U.S. troops in the field and disrupting counterterrorism and national security partnerships. It will aid [the Islamic State’s] propaganda effort and serve its recruitment message by feeding into the narrative that the United States is at war with Islam.

“It will hinder relationships with the very communities that law enforcement professionals need to address the threat. It will have a damaging humanitarian and economic impact on the lives and jobs of American citizens and residents. And apart from all of these concerns, the Order offends our nation’s laws and values.”

Several of these national security officials served in the Obama administration up until shortly before the Trump administration took over on Jan. 20th;  the brief includes this:  

“We know of no interagency process underway before January 20, 2017 to change current vetting procedures, and the repeated need for the Administration to clarify confusion after the Order issued suggest that that Order received little, if any advance scrutiny by the Departments of State, Justice, Homeland Security or the Intelligence Community."

Law professor Steven Vladeck, who submitted his own brief against the travel ban, wrote that "it's just not the case that 'many very bad dangerous people' were 'pouring into our country' prior to Trump's order.   "If anything, it's the Executive Order itself, and not preexisting immigration laws and policies, that poses a threat to our national security."

In other amicus briefs, almost 100 tech CEO's have mounted legal opposition to the ban, stating that it will be damaging to the U.S. economy.  Signed by Apple, Facebook, Netflix, Twitter, and Microsoft, their brief emphasized that the executive order makes it more difficult for them to "recruit, hire, and retain the world's best employees. . . .  American workers and the economy will suffer as as result."

A hearing on the government's request for reinstitution of the ban will be held today, Tuesday;  and a decision is expected by Friday.   For Judge Robarts, who was obviously skeptical of the government's claims -- pointing out that there had been zero arrests of terrorists from these countries in the U.S. since 9/11 -- this strong argument from these experienced national security professionals should be persuasive.

The Trump-Department of Justice argument is that the president has the power to make decisions about immigration and national security issues.   The counter to that is:  (1) that the Bill of Rights trumps that power.  This ban essentially applies a religious test to be allowed into our country, even though the order does not mention Muslims.   But, as shown in yesterday's blog, there is ample evidence that was Trump's motivation.  And (2) the Trump Department of Justice has failed to show any compelling reason why that right should be abrogated.  This brief from the former national security officials is the evidence needed to bolster that lack of evidence.

Ralph