The Outsider Perspective, brought to you by The Beltway Outsiders.
Good Friday Morning! Two weeks of news in the Trump administration feels like 6 months in any other administration. Instead of dog years, we have Trump news years. 7 days may pass in real time. But it might as well be a year. That’s my take away from the new President. The best description I’ve read is that the Trump news cycle is like a fire hose turned on full blast and all you want is a drink from a water fountain. The result is that your face is blasted off if you stand in front of the full volume of news coming out. I imagine it will eventually slow down some. Especially once Congress gets into the swing of things. But for now… it’s information overload.
So I’m going to focus on some of the larger stories out there to provide some context and depth. Particularly the big legal stories thing week. First up, the so-called “Muslim ban” executive order. I’m going to walk through what it actually does, the legality behind it, and go into why former Acting Attorney General Yates was wrong to issue her “no-defend” order to DOJ attorneys across the country. Second, I’ll jump into the nomination of Gorsuch to the Supreme Court and why the conservative legal community is excited. Finally, I look at tensions flaring in Russia and what Trump’s response to all of that means for us.
The “Muslim ban” Executive Order
The Executive Order, “Protecting the Nation from Foreign Terrorist Entry into the United States,” more colloquially known as the Muslim Ban can be found on the White House website here. It’s not a terribly long Executive Order, and much like the “border wall” executive order, it focuses on ensuring the executive branch and the agencies it controls are enforcing current law. The key on executive orders is this: they cannot announce new law. They can only emphasize how the executive branch will enforce or interpret laws passed by Congress.
As an example of how this works, in the border wall executive order, President Trump ordered the hiring of 5,000 new border patrol agents. And then gave specific points of emphasis on all the agents to enforce. This is similar to the NFL giving its referees “points of emphasis.” Referees are always on the lookout for all rules violations, but the NFL can tell them to pay particular attention to certain violations. It’s the same for executive orders, they’re like a point of emphasis from the President.
The same is effectively true for Trump’s executive order. He’s taking powers he has from Congress and the Constitution and applying those to the agencies under his charge. Broadly speaking, Trump’s goal is to limit the traveling of people from countries tied to specific terrorist concerns. Congress and the Obama administration had previously designated the countries of Syria, Iraq, Iran, Yemen, Sudan, and Libya. There was growing concern at the time that people traveling from these countries posed a great risk of terrorists traveling abroad. Trump broadened that ban to the fullest extent available to him at law.
Additionally, the executive order suspends refugee admission to the United States for 120 days. During that time agencies are supposed to review screening procedures and recommend any way to better security. Exemptions are to be given on a case by case basis. Specific exemptions are given to people who are considered to be under a “minority religion” of their home country. People have specifically pointed to this as the Christian bias in the executive order.
There are more details and specific orders given in the executive order, which you can here here. But those are the broad concepts. Now, I don’t believe this is a very effective policy. Nor do I see the wisdom in applying the policy. But, I do believe the order is legal and Constitutional.
The plenary power doctrine
Congress and the Executive branch have what is called “plenary power” over immigration. Plenary is a latin word that simply means “full.” As applied to US law, it means that Congress and the President have full power over all immigration policy and law. The plenary power doctrine says that there is nothing really checking Congress or the Executive branch in this area of law. There are no competing interests. There is no state power check and historically the Court system has steered clear because non-citizens have no constitutional rights to enforce. So Congress and the President have ruled over both areas free from any true check.
The reasoning is fairly straightforward: non-citizens have no rights under the Constitution. Anything they are given or granted is directly from Congress or the Executive. Further, the issue of immigration and borders is one of national sovereignty. An area only Congress and the Executive can control. Courts can only enforce the Constitution and the states have no national sovereignty to enforce. The final note is: the plenary power doctrine is broad. How broad? I can’t think of a reason Congress CAN’T choose to ban a non-citizen. As law professor Eric Posner pointed out over a year ago:
The Supreme Court has held consistently, for more than a century, that constitutional protections that normally benefit Americans and people on American territory do not apply when Congress decides who to admit and who to exclude as immigrants or other entrants. This is called the plenary power doctrine. The Court has repeatedly turned away challenges to immigration statutes and executive actions on grounds that they discriminate on the basis of race, national origin, and political belief, and that they deprive foreign nationals of due process protections. While the Court has not ruled on religious discrimination, it has also never given the slightest indication that religion would be exempt from the general rule.
There is even precedent for Trump’s plan. In 1891, Congress passed a statute that made inadmissable people who practice polygamy (directed, at the time, at Mormons), and in 1907 extended this ban to people who “who admit their belief in the practice of polygamy.” While Congress later repealed the latter provision (the former seems to be still on the books), no court–as far I know–ruled it unconstitutional.
In other words, if Congress wanted to say: “We are banning all non-American citizen Muslims from X, Y, and Z” countries, odds are it would be constitutional. If you can ban people on basis of race or political belief, you can almost certainly ban on the basis of religion. The typical protections for race and speech are far stronger for US citizens than religion. Whatever reasoning would sink race-based discrimination for immigrants or refugees could absolutely be used to support religion-based discrimination. The polygamy bans, still on the books, are aimed at Mormons.
In Trump’s Executive Order, he doesn’t rely on the plenary power explicitly, he relies instead on various statues within the Immigration and Nationality Act (INA). These are statutes passed by Congress and do rely on the plenary power doctrine. Trump explicitely relied on 8 USC 1182(f):
Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate. Whenever the Attorney General finds that a commercial airline has failed to comply with regulations of the Attorney General relating to requirements of airlines for the detection of fraudulent documents used by passengers traveling to the United States (including the training of personnel in such detection), the Attorney General may suspend the entry of some or all aliens transported to the United States by such airline. [emphasis mine]
If you diagrammed that sentence like a lawyer, you’d read only the bolded language. In other words, if the President deems it necessary, he can impose any restriction he wants on any alien. An alien is going to be any non-American citizen. An American citizen would not be subject to a law like this because they have citizenship and full Constitutional rights. And again, the reason the Federal Government has this level of power is because they have been granted Plenary Power under the Constitution over matters of immigration law.
Last point on this, it’s not just me saying this: the Office of Legal Counsel within the DOJ, tasked with reviewing this executive orders for legality and form, said the executive order was legal.
I don’t believe this order was a good idea. At all. But just because something may be a bad idea doesn’t make it unconstitutional or illegal. If you don’t like this type of power, the only answer is to protest to your federal Representatives and Senators.
So why the bad roll-out of the order?
So, you may be asking, if all of this is within the President and Congress’s power, then why did the order cause such a stir? There are two answers to that:
First, the Trump administration made bad mistake of including green card holders as part of the order. Green card holders are people who are in the process of becoming a permanent US citizen (often called Longtime Permanent Residents, or LPR’s). So while they aren’t true citizens yet, they also aren’t truly an alien as considered under the laws I referenced above. This order made the DHS detain people who have valid legal arguments they can’t be held. Since the initial uproar, the Trump admin has wisely eased green card restrictions. That should remove the green card issue.
Second, the Trump administration did an incredibly poor job of drafting and implementing the order. While Trump certainly has the authority to do what he’s trying to do, he didn’t let the lawyers get him there the right way (this LawFare piece summarizes nicely). Nor did his administration instruct agencies on how to implement those orders correctly. There was mass confusion from the ground up on what ground personnel should do in order to correctly enforce the order. As the implementation smooths out and people know what to do, I expect you’ll see a more lawful and orderly version of the order. The legal challenges will still be there, but I do not believe they’ll be successful.
What about the former Acting Attorney General who was fired?
Trump fired former acting Attorney General Sally Yates because she instructed all the attorneys under her to not defend the executive order in their courts and jurisdictions. It’s important to note why she refused to defend the executive order. It had nothing to do with the constitutionality of the order. She understands the law and read the memo from the Office of Legal Counsel saying the order was legal. Her problem was that the order was neither “wise nor just”:
My role is different from that of the Office of Legal Counsel (OLC), which, through administrations of both parties, has reviewed Executive Orders for form and legality before they are issued. OLC’s review is limited to the narrow question of whether, in OLC’s view, a proposed Executive Order is lawful on its face and properly drafted. Its review does not take account of statements made by an administration or it surrogates close in time to the issuance of an Executive Order that may bear on the order’s purpose. And importantly, it does not address whether any policy choice embodied in an Executive Order is wise or just.
Jack Goldsmith at LawFare wrote an in depth takedown of this letter. I highly recommend it because he’s right on every point. The gist of his argument is that while Yates is right that the OLC has a narrow role, so does Yates. The DOJ and AG do not have power over policy or choices made by the administration. She does not get to choose what is “wise or just.” She effectively admits that the order is constitutional and can be defended. She chooses to oppose the order on grounds of politics and personal choice. Neither of which is afforded to an Attorney General. If Yates couldn’t perform her job, she should have resigned. Instead she grandstanded and gave Trump only one choice: fire her. Yates was an Obama era political appointee. She was headed out the door whatever happened. She used that time to grandstand personal politics in the Attorney General’s office. Which made Trump’s decision the only one and the correct one.
Trump’s Supreme Court Nominee: Neil Gorsuch
President Trump finally announced his long awaited nominee for the Supreme Court. His choice is Judge Neil Gorsuch of the 10th Circuit Court of Appeals. Gorsuch is 49 years old and has been on the 10th Circuit since nominated by George W. Bush in 2006. Gorsuch is routinely compared to the Justice he will be replacing: Antonin Scalia.
The reason so many legal scholars compare Gorsuch to Scalia is due to Scalia’s strong influence on Gorsuch’s judicial philosophy. Gorsuch described this himself in a speech:
Perhaps the great project of Justice Scalia’s career was to remind us of the differences between judges and legislators. To remind us that legislators may appeal to their own moral convictions and to claims about social utility to reshape the law as they think it should be in the future. But that judges should do none of these things in a democratic society. That judges should instead strive (if humanly and so imperfectly) to apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be—not to decide cases based on their own moral convictions or the policy consequences they believe might serve society best.
This is exactly Scalia’s judicial philosophy. The goals is for judges to judge, using the law before them, and not inferring what they want the law to be in a given case.
Ed Whelen at National Review Online has written an incredible essay of Gorsuch with a look at some of his opinions. It’s well worth your time. What you will hear lawyers say the main difference is between Gorsuch and Scalia is administrative law. Specifically, Scalia and Gorsuch differ on Chevron deference.
Scalia supported and helped create the doctrine of Chevron deference. What happens in law is that Congress passes legislation. A government agency is then tasked with fulfilling that legislation. In the Chevron case, the EPA’s regulations were at issue. Congress passed legislation on the environment and the EPA took that legislation and began interpreting the legislation and building rules and regulations around it. Congress oftentimes passes a framework and the agencies put the meat on the framework.
In Chevron, the Supreme Court ruled that courts must give deference to an agency’s interpretation of a statute. Normally, a court reviews a statute “de novo.” Which means the court can interpret the statute on its face or use case law. With Chevron in place, the courts have to defer to how the EPA interprets the statute and go with that interpretation. The only exception is if the interpretation by the agency is “unreasonable.” More specifically, the agency cannot interpret the statute in a way that is: “arbitrary, capricious, or manifestly contrary to the statute.” If the interpretation is not one of those things, the court must defer to the agency.
While Scalia supported this doctrine, many court observers on both sides of the aisle have long wanted this doctrine struck down. The rule was meant to help judges interpret complex administrative law. EPA regulations and environmental law overall can be highly complicated. Chevron deference was meant to aid judges in reading difficult and complex statutes. But it also handcuffs judges from checking government power. Neil Gorsuch is known critic of Chevron deference and has recommended the Supreme Court re-review the doctrine:
In Gutierrez-Brizuela v. Lynch (2016), Gorsuch, writing for a unanimous panel, granted an illegal alien’s petition for review of a Board of Immigration Appeals order that he was ineligible to apply for lawful residency. In a separate concurrence, Gorsuch argued that the Supreme Court’s rulings in Chevron v. Natural Resources Defense Council (1984) (courts must defer to an agency’s reasonable interpretation of an ambiguous statute that it administers) and NCTA v. Brand X Internet Services (2005) (courts must overrule their own rulings about the meaning of existing laws in favor of later agency interpretations that satisfy Chevron) “permit executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design.” Gorsuch called for the Supreme Court to reconsider whether the Chevron doctrine is sound.
Gorsuch’s core complaint there is that Chevron deference permits the administrative state, the EPA, IRS, and all the other alphabet agencies, to take power from the 3 main branches of government. The 4th branch, the administrative branch, is wholly unanswerable to the public. Which is why Gorsuch and other critics, such as myself, have wanted to see Chevron deference removed to allow the courts more freedom to check the administrative state (there’s also historical familial link between Gorsuch and Scalia on the Chevron case).
There are many other examples of where Gorsuch will provide solid conservative leadership, such as religious freedoms. He’s well regarded as one of the sharpest legal minds on the right. So if you have any doubts, know that conservative legal circles were overjoyed with the Gorsuch selection. And all the attacks on him are baseless.
Fighting between Russia and the Ukraine intensifies
The last story I’m going to point out is the increase in fighting the last 5-6 days between Russia and Ukraine. The AP had the latest report:
Salvos of artillery shook eastern Ukraine on Thursday, the fifth day of escalated fighting between government troops and Russia-backed separatist rebels. Two Ukrainian troops were killed overnight and 10 others wounded, the government said, while rebels said one of their fighters was killed.
Shelling appeared to intensify after nightfall and both sides reported civilian deaths — two in Avdiivka and one in Donetsk city.
Reporters for The Associated Press heard Grad rocket launchers fired on both sides of the conflict during the night. In the afternoon, shelling was heard in the distance from Avdiivka, a government-held town just north of Donetsk, the largest rebel-controlled city.
At least 15 people have been reported killed since the fighting around Avdiivka surged over the weekend.
More than 9,700 people have been killed since the war with separatist rebels began in April 2014. An agreement reached nearly two years ago called for a cease-fire and a pullback of heavy weaponry by both sides, but skirmishes persist.
The new US ambassador to the UN Nicki Haley strongly condemned Russia’s actions. She reasserted Ukraine’s claims of sovereignty over the region. Sen. John McCain is urging President Trump to use this as a chance to push Putin back.
Which brings us to the $1 million question: will President Donald Trump push back against Putin? Trump has rescinded the paltry sanctions against Russia, imposed by the Obama administration. That is a very dangerous sign. Putin is a strongman and those types only respond to strength and power. You have to eventually fire a shot right across his bow to get him to pay attention. It’s no coincidence the fighting in Ukraine has intensified right as Trump takes office. Putin is using this as a test to see how Trump responds.
Ukraine is also watching closely. If they feel like they’re alone, they will look to anyone who will help to stop Russia. Ukraine, Turkey, and the Balkans are the border countries between the West and Russia. We need the border countries standing strong to impede a resurgent Russia. We need more sanctions and more might pushed against Russia. Not less. Trump needs to assert some spine against Putin.
Links for your radar
The News Media Needs to Keep You Angry – Intellectual Takeout
“Digital revenue—from advertising and subscriptions—is now a significant and growing part of news organizations’ budgets. Currently, digital revenue accounts for about $400 million (or 25%) of the New York Times’ yearly profit, and its goal is to double that number by 2020. The Washington Post also claims that its digital ad revenue is now a “nine-figure” business. News media’s digital revenue depends upon keeping people clicking on their stories, and anger is a proven motivator for generating clicks. It’s been dubbed “rage profiteering.””
The ugliness all started with Bork – The NYT Opinion pages, 2011
“I bring up Bork not only because Sunday is a convenient anniversary. His nomination battle is also a reminder that our poisoned politics is not just about Republicans behaving badly, as many Democrats and their liberal allies have convinced themselves. Democrats can be — and have been — every bit as obstructionist, mean-spirited and unfair.
I’ll take it one step further. The Bork fight, in some ways, was the beginning of the end of civil discourse in politics. For years afterward, conservatives seethed at the “systematic demonization” of Bork, recalls Clint Bolick, a longtime conservative legal activist. The Atlanta Journal-Constitution coined the angry verb “to bork,” which meant to destroy a nominee by whatever means necessary. When Republicans borked the Democratic House Speaker Jim Wright less than two years later, there wasn’t a trace of remorse, not after what the Democrats had done to Bork. The anger between Democrats and Republicans, the unwillingness to work together, the profound mistrust — the line from Bork to today’s ugly politics is a straight one.”
The White House Just Charted a Dangerous Course With NSC Machinations: Trump’s national security coup cuts military and spies out of big decisions – John R. Schindler
“That said, the weekend’s immigration EO accomplished what may have been its actual purpose—distracting everyone from the White House’s far more consequential changes to the National Security Council. The NSC has been around since 1947, but it’s not the sort of outfit that usually generates much public interest. Customarily staffed by wonks who excel at giving briefings, the NSC isn’t particularly exciting, but it’s enormously influential in policymaking.”
“Under full repeal, however, not only would premiums automatically fall for the vast majority of Exchange enrollees, but Congress could proactively provide a safety net for those who still cannot afford coverage and enact further reforms that improve healthcare for all Americans. Medicaid block grants, expanded health savings accounts, and other reforms would make healthcare better, more affordable, and more secure through lower prices and more sustainable coverage. Congress could even do it all in one bill.
Under the GOP’s partial-repeal strategy, by contrast, the CBO estimates ObamaCare’s regulations would cause premiums to rise an additional 20-25 percent next year and to double over the next decade. The regulations would cause health insurance markets to collapse, such that ten percent of Americans would not be able to purchase coverage at any price. All told, partial repeal would leave uninsured nine million Americans who would have insurance under full repeal.”
A Senate subcommittee is launching an investigation into Russian interference in the 2016 election and how to prevent similar attacks in the future, subcommittee leaders announced Thursday. …
They said the investigation will focus on Russia’s methodology in the 2016 election and “possible avenues to help prevent and deter” foreign attacks and ensure the FBI is properly funded to handle these threats. It will include both open and closed hearings.
“The death of Chief Petty Officer William Owens came after a chain of mishaps and misjudgments that plunged the elite commandos into a ferocious 50-minute firefight that also left three others wounded and a $75 million aircraft deliberately destroyed. There are allegations — which the Pentagon acknowledged on Wednesday night are most likely correct — that the mission also killed several civilians, including some children. The dead include, by the account of Al Qaeda’s branch in Yemen, the 8-year-old daughter of Anwar al-Awlaki, the American-born Qaeda leader who was killed in a targeted drone strike in 2011.
Mr. Trump on Sunday hailed his first counterterrorism operation as a success, claiming the commandos captured “important intelligence that will assist the U.S. in preventing terrorism against its citizens and people around the world.” A statement by the military’s Central Command on Wednesday night that acknowledged the likelihood of civilian casualties also said that the recovered materials had provided some initial information helpful to counterterrorism analysts. The statement did not provide details.”
Quote of the week
Journalism is destroying itself.
For decades we warned media having a 90+% 1-political party makeup was dangerous. Now you’re committing suicide through confirmation bias.
My patience for this ran out a long time ago, so I’ll put on a white suit and dance on journalism’s grave. You did it yourselves. And it wasn’t “fake news on Facebook” that killed you, you arrogant assholes. It was you. Reporters that became activists. But your industry is dying and you all know it. So ride those outrage clicks to the last dollar.
Media is also driving Trump-haters like me to reluctant support, because it is YOU that is dangerous. America is in crisis because of YOU.
– John Ekdahl, hitting the nail on the head watching the media coverage of Trump. The new rule I’ve had to start following is wait 12-24 hours after any negative Trump report just to see if its true. News media is reporting anything and will maybe verify it later. The rage profiteering, which is based of the shame culture I’ve written about, has effectively killed journalism. Instinctively, you know any report on TV is likely false on some level. Hyperbole and headlines isn’t news. Trump didn’t bring this problem. He just revealed it.
Thanks for reading!