Court Rejects Trump’s “Because I Said So” Argument

Today, February 9, 2017, the Ninth Circuit Court of Appeals rejected the Trump Administration’s request to reinstate the January 27 Executive Order that barred people from seven majority-Muslim countries from entering the United States. The court ruled that the government had not proved its case.

Legal issues in a nutshell

The administration implemented its abrupt change in policy without any notice to the people who were affected—even to people who had already been granted visas to immigrate here, after years of “vetting,” or to those who were already legal permanent residents of the United States who happened to be traveling out of the country at the time. The states of Washington and Minnesota, which challenged the order, argued that this action violated the Due Process Clause of theFifth Amendment to the United States Constitution. Essentially, the Due Process Clause requires the federal government to give notice and an opportunity to be heard before depriving individuals of life, liberty or property (A similar clause in the Fourteenth Amendment applies to actions by the states). The states also argued that the Executive Order violated many federal statutes, including the Immigration and Naturalization Act, the Foreign Affairs Reform and Restructuring Act, the Religious Freedom Restoration Act, and the Administrative Procedure Act.

The states of Washington and Minnesota presented ample evidence that their residents and their state universities were harmed by President Trump’s January 27 Executive Order. Students and faculty members at state universities were denied reentry into the United States, which disrupted the activities of the universities. Families were separated.

When the district court entered its temporary restraining order, it found that: (1) the plaintiffs would be irreparably harmed if the Emergency Order remained in effect; (2) the plaintiffs were likely to win at trial; (3) the government would not be harmed by the delay; and (4) the public interest favored the plaintiffs. So it was the government’s burden to show that some government interest, such as national security, outweighed all of these concerns.

Trump’s chutzpah

The administration didn’t challenge any of the trial court’s factual findings. It didn’t show that any government interest would be irreparably harmed unless the court’s order was stayed (as is legally required). Instead, it argued that the court had no power to review the president’s determination that the Executive Order was necessary to protect national security. In other words, the Executive Order was lawful and necessary because he said so. And no one, including the court, had any right or power to question his action.

The president is going to have to learn that the government is not a business. The constitution doesn’t disappear just because he finds it inconvenient. Constitutional rights are available to everyone, not just citizens. And “because I said so” isn’t a trump card in litigation (pun definitely intended).

McConnell Pulls a Trump by Silencing Senator Warren

Senate Majority Leader Mitch McConnell (R. Ky.) has issues. Maybe he needs to become a little more secure in his masculinity. Based on his conduct in the Senate on February 7, 2017, I’d say he seems to have trouble with women who speak forcefully. That’s when McConnell persuaded the Senate to silence Senator Elizabeth Warren (D. Mass.), allegedly for violating a rule against “impugning” another member of the Senate.

What Senator Warren did was to speak against the confirmation of Senator Jeff Sessions (R. Ala.). She spoke for more than 50 minutes. You can view the entire speech here.  She had lots to say about Senator Sessions’s past actions, including, for example:

  • working to block votes on criminal justice legislation that had bipartisan support;
  • bringing litigation against civil rights workers who were helping African Americans who were registered voters to exercise their right to vote;
  • opposing the Violence Against Women Act;
  • opposing abortion rights; and
  • making racist remarks.

She used some very strong language of her own to oppose the confirmation of Senator Sessions because of its threats to the rights of African Americans, immigrants, members of the LGBTQ community, and  women. No one raised any objection.

Then she read a statement made by the late Senator Edward Kennedy during the debates on the confirmation of Sessions when he was nominated for a federal judgeship in 1986. At the time, Sessions was the U.S. Attorney for Alabama. Actually, Kennedy’s argument included the statement that Sessions was “a disgrace to the Department of Justice.”  No one said a word.

“She was warned”

Senator Warren went on to read a letter from the late Coretta Scott King, written to oppose Sessions’s 1986 nomination to the federal bench.  The chair interrupted her and warned her that she was violating a Senate rule which provides:

No Senator in debate shall, directly or indirectly, by any form of words impute to another Senator or to other Senators any conduct or motive unworthy or unbecoming a Senator.

Here is the first interruption, with the so-called warning.

The rule violation was based on Warren’s quotation of Senator Kennedy’s statement. Warren questioned the ruling and asked if she could continue. The chair allowed her to do so, for another half hour. She continued to read the letter. And she went on to allege that the controversial immigration and travel ban of January 27 were, in part, the work of Jeff Sessions and Steve Miller. Senator Warren repeatedly criticized the Trump executive order on immigration.

What’s McConnell’s objection?

So what’s up with the sudden “enforcement” of the rule? When the chair interrupted Warren a second time, she was speaking about Sessions’s positions on legislation. Senator McConnell objected, not to what Senator Warren had just said, but to a passage from Mrs. King’s letter: “He has used the awesome power of his office to chill the exercise of the vote by black citizens.”

Here’s proof:

Never mind that more than 20 minutes had passed since Warren finished reading the letter.

Is the real problem Senator Warren’s gender?

Interestingly, Democratic senators came to Warren’s defense by reading the very letter that Warren was reprimanded for reading. Who else read it into the record today?

None of them was silenced under Rule XIX. What do they have that Senator Warren doesn’t have? Besides Republican respect. Oh.

Opposing Trump’s Agenda: Setting Priorities

Donald Trump put out so many deplorable executive actions in his first two weeks that it was hard to know where to start, what to respond to first. At least one writer has suggested that Trump’s rapid-fire activity is intended to knock us off balance and create “resistance fatigue“. I can believe it. I personally felt overwhelmed after the first ten days.

How to Decide?

Although Trump thinks he alone can turn the country around, I think most of us know that there are very few jobs that only one person can do. And no one of us can do everything. So I think each of us has to do what calls to us. That might mean making phone calls to your senators and representatives in Congress. It might mean sending financial support to the protesters at Standing Rock or to Planned Parenthood. The most important thing is to do something as often as possible.

Right now, for me, that’s opposing Betsy DeVos—and letting Senator Dick Durbin know that I’ll be likely to support his opponent in the next primary if he can’t get it together to vote against her. If you are an Illinois voter, please call Senator Durbin to let him know you’re watching, too.

Monday, when I called, his D.C. office (202-224-2152) answered with a recording that said their business hours were 9 a.m. to 6 p.m. Monday through Friday. “If you’re calling between those hours, please call back later.” Hey, thanks, Dick. I guess it’s an improvement over last week, when Durbin’s message box was full. Either way, the message is “I don’t really want to know what you have to say.” However, on Monday, a human being answered at his Chicago office, 312-353-4952, and graciously took my message.

The D.C. office also has a “vrs” line that purports to take a message. It appears on his web site, though the recording doesn’t tell you that it’s Durbin’s office.

 

What Do Bernie’s Supporters Do Now?

This post was first published on www.LiberalAmerica.Org

Bernie Sanders gave Hillary Clinton his full endorsement on July 12, 2016. As Tiffany Willis, founder of Liberal America, reported, many of the #BernieorBust activists refuse to follow him down that path. Folks have been discussing a few options:

  1. Backing Jill Stein and the Green Party;
  2. Holding their noses and voting for Hillary;
  3. Voting for Trump and trusting that he won’t get enough cooperation from Congress to get anything done;
  4. Protesting in Philadelphia at the Democratic convention; and
  5. Continuing to insist that Bernie should be the nominee.

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