There been quite a bit of hay being made over Trump’s dumb spat with Chief Justice John Roberts over whether there are “Obama Judges” and “Trump Judges”.
So much attention has been paid to Justice Roberts rebuke and Trump’s counter argument about the 9th Circuit that the actually content of the judicial ruling that was recently struck down over immigrant asylum has been almost totally obscured. We’ve been so distracted by the food fight we’ve completely missed the ball. Maybe that’s because people don’t care, but they actually really should care because the Trump order that was struck down was flat out illegal on the basis of both U.S. and international law.
There is now way that even a “Trump Judge” would have gone along with that order which essentially would have allowed Trump to directly violate the express requirements made by Congress. It wasn’t a 49/51 decision, it was a total slam dunk.
WASHINGTON — The Trump administration, invoking national security powers meant to protect the United States against threats from abroad, announced new rules on Thursday that give President Trump vast authority to deny asylum to virtually any migrant who crosses the border illegally.
Administration officials declined to say who will be affected by the new rules, but it is widely expected inside the government and by advocate groups that Mr. Trump intends to deny asylum to migrants from Central American nations, some of whom are marching toward the United States in a widely publicized caravan.
The president, who made immigration and the caravan major issues during the midterm election campaigns, is expected to announce on Friday which countries the rules will apply to. They will go into effect on an emergency basis as soon as they are published in the Federal Register.
The regulations will overhaul longstanding asylum laws that provide the opportunity for people fleeing persecution and violence in their home countries to seek sanctuary in the United States.
On November 20th, the Judge struck down Trump’s new rule.
Judge Jon S. Tigar of the United States District Court in San Francisco issued a temporary restraining order that blocks the government from carrying out a new rule that denies protections to people who enter the country illegally. The order, which suspends the rule until the case is decided by the court, applies nationally.
“Whatever the scope of the president’s authority, he may not rewrite the immigration laws to impose a condition that Congress has expressly forbidden,” Mr. Tigar wrote in his order.
When Judge Tigar said that congress has expressly forbidden this, he meant literally they very expressly forbid not treating anyone who requested for asylum — no matter how they entered the nation — in the exact same manner as everyone else.
Sec. 208. (a) Authority to Apply for Asylum.-
(1) In general. - Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien's status, may apply for asylum in accordance with this section or, where applicable, section 235(b).
Trump’s order precisely and exactly violates the law. It’s Illegal. Period.
Trump tried to get around this by claiming that previous presidents have done the same thing:
Other presidents have taken strong action to prevent mass migration. In Proclamation 4865 of September 29, 1981 (High Seas Interdiction of Illegal Aliens), in response to an influx of Haitian nationals traveling to the United States by sea, President Reagan suspended the entry of undocumented aliens from the high seas and ordered the Coast Guard to intercept such aliens before they reached United States shores and to return them to their point of origin. In Executive Order 12807 of May 24, 1992 (Interdiction of Illegal Aliens), in response to a dramatic increase in the unlawful mass migration of Haitian nationals to the United States, President Bush ordered additional measures to interdict such Haitian nationals and return them to their home country. The Supreme Court upheld the legality of those measures in Sale v. Haitian Centers Council, Inc., 509 U.S. 155 (1993).
I am similarly acting to suspend, for a limited period, the entry of certain aliens in order to address the problem of large numbers of aliens traveling through Mexico to enter our country unlawfully or without proper documentation. I am tailoring the suspension to channel these aliens to ports of entry, so that, if they enter the United States, they do so in an orderly and controlled manner instead of unlawfully. Under this suspension, aliens entering through the southern border, even those without proper documentation, may, consistent with this proclamation, avail themselves of our asylum system, provided that they properly present themselves for inspection at a port of entry.
The problem with this is that in Sale v. Haitian Centers Council, Inc., 509 U.S. 155 (1993) the court sided with Bush 8-1 largely because his order involved handling immigration on the seas outside of U.S. jurisdiction, which was also the case with the previous order from Reagan.
Is Executive Order No. 12807 a violation of section 243(h) or Article 33?
No. In a majority opinion authored by Justice John Paul Stevens, the Court observed that Acts of Congress do not generally have application outside of United States territory, unless explicitly noted. And, it found that both section 243(h) and Article 33 are silent regarding extraterritorial application. In fact, the language of both suggests that only individuals who have already arrived on United States soil are protected, and their use throughout history confirms this interpretation. Thus, the judgment of the Court of Appeals is reversed.
Trump’s current order doesn’t involve the high seas, it’s about action taking place on U.S. soil and within U.S. Jurisdiction so that Sale excuse simply can’t possibly apply here.
He’s wrong. It’s not about Tigar being an “Obama Judge” he’s just. plain. wrong. It’s not even a hard call, it’s pretty easy.
Also by the way Trump has been closing the valid ports of entry to all asylum seekers.
President Donald Trump is continuing his assault on basic humanitarian protections at the U.S.-Mexico border. In recent days, the president has sent thousands of troops to the border to string miles and miles of barbed wire, overseen U.S. Customs and Border Protection’s decision to close ports of entry, and ratified CBP’s plan to “evict” 450 asylum-seekers marooned on bridges connecting El Paso, Texas, and Ciudad Juárez, Mexico.
The reality is that potentially thousands of migrants cross “illegally” because the U.S. Customs and Border Protection systematically and unlawfully rejects their asylum attempts at official ports of entry. Asylum-seekers have no meaningful choice otherwise. For at least the past two years, brazen CBP misconduct has led to mass migrant prosecution under federal “illegal entry” and “illegal re-entry” charges. Thanks to former Attorney General Jeff Sessions’ prioritization of the issue, 2018 saw entry-related arrests skyrocket with nearly 60 percent of all federal criminal prosecutions having been immigration-related. As of June, in the five federal districts along the Southwest border, only 6 percent of all prosecutions were for anything other than immigration offenses. Indeed, the Justice Department openly admitted it was diverting resources from drug-smuggling operations to incarcerate migrants. This has clearly been part of a broader political strategy of vindicating President Donald Trump’s xenophobia: The Trump administration’s nativist rhetoric is more effective when our immigrants are manufactured into criminals, not portrayed as tired, huddled masses of refugees.
— so he’s also full of shit.
If he wanted to change this he would’ve had to go to Congress first, and even that would have been problematic because this provision is enabling legislation for the 1951 UN Convention on the Refugee which was ratified by the Congress in 1968.
Trump’s position as expressed by Homeland Secretary Kirstjen Nielsen and Huckabee-Sanders has been that the injuction by Judge Tigar is a “dangerous” because apparently Trump’s need to toot a national security bullhorn is more important than his requirement to obey the law.
“Let me be clear, this court from a chamber in San Francisco has replaced the president’s judgment with regards to the fully delegated authority to determine what is a true national security threat to our nation’s sovereignty,” Nielsen told reporters. “This is a dangerous ruling, and given last year’s Supreme Court ruling on this issue, will undoubtedly be overturned.”
The White House then released a statement saying it would “open the floodgates” for more migrants to enter the country illegally.
“This temporary injunction is yet another example of activist judges imposing their open borders policy preferences, which are rejected by the overwhelming majority of the American people, and interfering with the executive branch’s authority to administer the immigration system in a manner that ensures the Nation’s safety, security, and the rule of law,” Sarah Huckabee Sanders said in a statement.
The Trumpsters are literally saying here that Trump's national security ideas — even when their based on bullshit like that claim that a high number of criminals, secret Muslims who must be members of ISIL, and lepers are hiding among the migrant caravan standard probable cause would require that he generate proof of these allegations in specific cases before establishing a blanket policy that punishes the innocent and possibly guilty alike.
Trump has argued that he can do this because Obama signed the executive orders for DACA, but that was a policy that was based on the idea of prosucetorial discretion. Just because someone breaks a law doens’t mean every case is the same, or their circumstances are the same. The law does allow police, prosecutors and judges to pursue lesser options than constantly using the maximum options each and every time. They have the option to grant leniency when the subject happens to merit it just as the DACA kids are required too.
Frankly the proper analogy to this policy would be Bush’s attempt to twist torture into becoming “legal.” He took various executive steps from declaring that “unlawful enemy combatants” were not covered under the Geneva Conventions which his then Attorney General Albert Gonzales argued were prevent him from being prosecuted for War Crimes.
He signed the January 25, 2002, memo to the president arguing that the 1949 Geneva Conventions offer no protection to any prisoners seized in Afghanistan; the memo dismissed some of the Geneva provisions as "quaint." This memo signaled Bush's break—over vigorous objections from Secretary of State Colin Powell—with the generous interpretation of the Geneva Conventions used under every president from Harry Truman through Bill Clinton. It also led to Bush's refusal to provide the individual hearings required, both by Geneva and by Army regulations, for the hundreds of alleged "unlawful combatants" at his Guantanamo Bay prison camp.
Bush also attempt to use the OLC to write memos that denied that waterboarding, stress positions, induced hypothermia and sleep deprivation were “not” torture besides the fact that the U.S. had previously prosecuted people for waterboarding including executing former Japanese Soldiers, three out of those four techniques can kill people — and some detainees were killed by hypothermia and stress positions — and the forth option can lead to symptoms of schizophrenia.
Bush tried to claim all this inhumanity was necessary for national security too, and he was just as full of shit as Trump. Now to cap it all off Trump has illegally had John Kelly authorize SecDef Mattis to have his troops stationed at the border use “deadly force” even though that’s flatly illegal too.
The Trump administration has given U.S. troops along the southern border permission to use force in protection of federal Border Patrol agents, but there has been no decision to alter the military’s mission there, Defense Secretary Jim Mattis said Wednesday.
Mattis, speaking to reporters at the Pentagon, said he was reviewing an order the White House issued late Tuesday for service members deployed in support of Customs and Border Protection (CBP) personnel in Texas, Arizona and California.
According to the order, signed by White House Chief of Staff John F. Kelly, military personnel may use “a show or use of force (including lethal force, where necessary), crowd control, temporary detention and cursory search” to protect CBP.
But there really isn’t much that Mattis can legally do here regardless of what the WH tells him.
Migrants arriving at the border will now see a sizable U.S. military presence — more than double the 2,000 who are in Syria fighting the Islamic State group — even though their mission will be largely a support role.
That's because the military is bound by the Posse Comitatus Act, a 19th- century federal law that restricts participation in law enforcement activities. Unless Congress specifically authorizes it, military personnel can't have direct contact with civilians, including immigrants, said Scott R. Anderson of The Brookings Institution.
Asked about the use of weapons, O’Shaughnessy said the active-duty troops have been given clear guidance on the use of force and there will be unit and individual training to make sure they know what they can and can’t do. Generally, U.S. troops are authorized to use force in self-defense.
Trump’s doing everything he can to create a new Kent State mass murder event on the border, where U.S. Troop are maneuvered into a position to open fire on desperate, starving, traumatized, exhausted and unarmed civilians.
It’s despicable. It’s deplorable. It’s fucking criminal.
And it’s totalitarian, happening right under our noses while we argue about judicial bias.