Three days are a whirlwind in Trump Land, and there was just as much sheer interrobang-inducing activity as one might expect. Obviously, this is not an exhaustive list. More things happened. These are just occurrences I pulled out as being noteworthy. (As always, these are cited, but I encourage readers to do their own digging.)
(1) Trump and the rest of the government appear to be at odds – again – with one another. Pence stated that the US would hold Russia accountable and that the US and NATO are still buddies. This is in spite of the fact that Trump trumpeted NATO’s obsolescence. Nevertheless, US officials are totes into the notion of getting more allies to meet NATO defense spending commitments and significantly less into focusing on Trump’s desire to become besties with the Kremlin.
(2) FBI is still FBI-ing and [says it is] pursuing three separate probes relating to the Russians hacking our election. They’re working coast-to-coast: Pittsburgh is trying to ID the people behind the breaches to the DNC’s computer system; San Francisco is trying to ID the people who posted John Podesta’s stolen emails; agents based in Washington are pursuing leads from informants, foreign communications intercepts, and financial transactions made by Russian individuals and companies who are thought to be linked to Trump associates. Related question – Why is James Comey even still employed at this point? (This whole thing is sounding more and more like a Keystone Cops short. Also, I feel like you can play Yakety-Sax in the background for just about anything that’s gone down thus far and have it some appropriate.)
(3) Bye-bye NSC aide, Craig Deare, who took it upon himself to deliver some harsh criticism of Trump (YAY CRAIG!!!!!) at a private, off-the-record think tank gathering. (So much for off-the-record, I guess. Deare was the senior director for Western Hemisphere affairs before he laid-into Trump and Bannon and “railed against the dysfunction paralyzing the Trump White House.” (Can I get this guy’s address to send him some cookies?) Obviously related is the fact that Flynn was ousted due to his sketchtastic conversations with the Russian ambassador, but the best part is Trump is still interviewing potential replacements after the fellow he wanted (Vice. Admiral Robert Harward) was like, “Thanks but….no thanks” when Trump asked him to step up.
(4) In keeping with the NSC nonsense and the struggle to find a replacement, Trump is down to three (3) candidates. [Former CIA Director] David Patraeus pulled his name from consideration (ouch), but Trump still has Keith Kellogg (acting national security advisor, John Bolton (former UN ambassador), and Lieutenant General H.R. McMaster (Army strategist).
**UPDATE as of 02/20/17 – McMaster has accepted the position**
(5) In keeping with the angry firing of criticizers: Ben Carson was pretty shocked to learn that one of his Housing and Urban Development staffers got the boot after Trump sniffed out some “writings” that were critical of Trump. Carson was “baffled” and “speechless” and apparently nobody told him that one of his closest aides was going to be escorted out of the building until after the fact. (Here are the writings)
(6) Trump is still dithering about with respect to that joke of an executive order: he insists that the new travel ban won’t stop green card holders or travelers already on planes from entering the United States. The Chief of Homeland Security is saying that there will be a “short phase-in period” to avoid people being stopped in transit. (Soooo, basically it might stop green card holders and travelers en route once the phase-in period is over?) Also, none of this is at all helpful from a legal standpoint, as the ban still implicates serious constitutional issues, regardless of whether green card holds can get in.
(7) Trump yelled at some more people again. It’s like, “eat breakfast, find a light switch, holler at some people” every day over there. This time, Trump directed his loud ire at CIA Director Mike Pompeo because Pompeo is apparently not being a terrific enough friend to Trump. Actually, it was because Trump thinks Pompeo isn’t pushing back hard enough against reports that say that the intelligence community isn’t sharing its secrets with Trump. So, baby tantrum. Again. The White House insists that Trump did not yell at Pompeo and goes even further to say that the two didn’t even have a conversation! Fake news! (But it shouldn’t be surprising that there’s serious dissension in the ranks, especially where the flow of potentially comprising information is concerned. Poor Bannon. He must hate it.)
(8) Betsy DeVos is out there gaining friends and allies! Lol kidding. Just the opposite, actually. She’s managing to irritate (and solidify already existent irritation) more people as she travels around to look at schools. She visited one in D.C. and took it upon herself to criticize the teachers for being in “receive mode.” According to DeVos, “they’re waiting to be told what they have to do, and that’s not going to bring success to an individual child.” (That’s rich, coming from a woman who didn’t know the difference between proficiency and growth.)
(9) The Trump administration is still after our domestic programs – Corporation for Public Broadcasting, Legal Services Corporation, AmeriCorps, and the National Endowment for the Arts and Humanities head-up the list. The stupidly infuriating thing about this is that most of the programs cost less that $500 million annually, which is less than half a drop in the bucket for the GOP-led government that is projected to spend about $4 trillion THIS YEAR. (Where all my fiscally conservative folks at?)
(10) Reince Priebus got very real with the shadow threats and advised Americans to take Trump’s attacks on the media “seriously.” This was after Trump went bananas on the press (for, like, the twelfth time) and denounced it as “the enemy” (you can find old quotations of Hitler doing the same thing, of course). Priebus thinks “the American people suffer” because of the media. (Frankly, I think the American people suffer because no one is teaching us how to think critically anymore, our education system is in the toilet, and everyone is more concerned about the next thing to whip themselves up into a frenzy over, but I guess that’s neither here nor there, as it’s too complicated for someone like Priebus.)
(1) Apparently Trump felt that Kellyanne Conway was onto something when she made up a terrorist attack, so he decided to go ahead and do the same thing! While at a campaign-style rally (because 2020 can’t get here soon enough, apparently) in Florida, Trump took it upon himself to reel off all the places in Europe that have been hit by terrorists (this was in the overall context of attacking refugee policies). This list included Sweden because….? No idea. But nothing happened “last night in Sweden” and Sweden was pretty confused. People speculated that he mixed it up with Sehwan in Pakistan, where there was an attack (what a president), but then Trump later said he got the information from a Fox News story (umm). (Also, the rally was just full of nonsense, including a point at which Trump tried to take credit for economic growth that came well before his time.)
(2) The Department of Homeland Security is OFF TO THE RACES with its sweeping new guidelines directed at illegal immigrants. The memos signed by the DHS secretary empower federal authorities to more aggressively detain (because they weren’t aggressive before?!) and deport illegal immigrants both inside the US and at the border. The White House says that the memos are under review by the White House Counsel, but given how legal issue of been going, this shouldn’t instill us with a significant amount of confidence… At least there’s nothing in the memo about mobilizing the National Guard, though.
(3) McCain apparently has had enough and took Trump to task (would that the rest of the GOP yes-men would take notes on this) over his “THE MEDIA IS THE ENEMY” comments. McCain was like, “Wellllll, actually, that’s how dictators get started.” This was during a Meet the Press interview and McCain was very much defending having a free press. He said: “When you look at history, the first thing that dictators do is shut down the press. And I’m not saying that President Trump is trying to be a dictator. I’m just saying we need to learn the lessons of history.” (But he probably is, though. Come on.)
(4) Defense Secretary Mattis also thought Trump was full of it, re: the media, and said that he does not see them as the enemy. He said he has had “some rather contentious times with the press” but that the press is “a constituency that we deal with.”
(5) Even Fox News, Trump’s favorite news ever, wasn’t into the “you are the enemy” comments. Chris Wallace told viewers that Trump crossed a line, and also attacked Priebus, telling him “you don’t get to tell “ the press what to do.
(6) Priebus is still loudly denying any involvement between Trump’s 2016 campaign and Russian officials. He does what little kids do when trying to get away with a lie: “I spoke with [so-and-so of high authority] and they said x, so…” Priebus said he spoke with high-level intelligence officials in Washington who told him that there was no such involvement. (But of course, we’re also hearing that intelligence officials are cutting the White House out of briefings and keeping them in the dark, so which is it, bud?) The Senate, for its part, is trying to make sure all Russia-related materials are preserved.
(7) Foreign policy experts think Trump is out of his tree. At the Munich Security Conference, diplomats, generals, policy experts, and security officials were all pretty put-off and concerned by Trump’s difficulty in finding somebody – anybody – to replace Michael Flynn. They were also not fans of his long and rambling news conference on Thursday, which was followed Saturday with a campaign-style rally in Florida (mentioned previously in Saturday’s list) where Trump suggested, wrongly, that something terrible had happened in Sweden.
(8) London doesn’t want Trump to visit Britain.
(1) Trump’s nonsense has bled over into Pence’s ability to control any sort of message to foreign dignitaries. Everyone is over the US. He went to Brussels and they were all like, “Yeah, no, we don’t really want to listen to you or pretend that everything is business as usual.” Donald Tusk (poor guy, his name is so close to Trump’s), the European Council President, said, “Too much has happened over the past months in your country, and in the EU for us to pretend that everything is as it used to be.” Pence was there to insist that Trump supports the EU bloc and that the US will continue its commitment EVEN THOUGH Trump has been hailing its disintegration. (You know things are AWESOME when the president and vice president can’t get on the same page.)
(2) Trump and his Defense Secretary, James Mattis, also can’t agree on things. Mattis told reporters that “we’re not in Iraq to seize anybody’s oil.” Trump, of course, has said “we should have kept the oil. Maybe we’ll have another chance. “ (I mean, to be fair, though, he’s just saying exactly what the line of thinking probably was when we went into Iraq.)
(3) NOR can Trump and his former aides. Cory Lewandowski, Trump’s first campaign manager, conceded that there was no evidence for Trump’s claim that Massachusetts Democrats were brought into New Hampshire by bus on Election Day to steal the state for Hilary Clinton. (YA THINK?! There’s no evidence anywhere that there was any kind of election fraud that hurt Trump.)
(4) Trump revised his travel ban! But….it targets the same seven countries as the first one. It does, however, exempt travelers who already have a visa to travel to the US even if they haven’t used it yet. Green card holders and people with dual US and any of the seven countries citizenship are exempt. Authorities are also no longer directed to single out and reject Syrian refugees.
(5) Russia thinks Trump is a naïve risk-taker. I’m sure this will go over very well with Trump, once he hears about it.
(6) Less funny than the above: statisticians are getting concerned about the possibility of “alternative economic facts” and doctored data is the US economy takes a southward dip. Trump hasn’t nominated anyone to the Council of Economic Advisors, which provides the president with objective economic analysis and device. The concerns are rooted in the fact that Trump keeps casting data in flat-out wrong ways. He is also using sketchy math to make his budget projections.
(7) THE MOST UNSURPRISING THING ON THIS LIST: the Republican health proposal would redirect money from poor people to rich people. Their plan is to substantially cut state funding for providing insurance to low-income adults through Medicaid and to change the distribution of tax credits by giving everyone who is uninsured the same flat credit, regarding less income. Thus, a 64-year-old multimillionaire would get the same amount of financial assistance as someone his age, living in poverty, and he would get substantially more money than a poor, young person. More upsetting still is that the draft proposal contains provisions that could be passed through a special budget process, requiring only 50 senate votes. It also would fulfill Trump’s promise that the repeal and replacement of Obamacare would take place “simultaneously.”
(8) Because employers are always just at the cutting edge of being jerks, more than 100 protestors across the country were fired after they joined the “Day Without Immigrants” demonstration. Employers are obviously within their rights to fire employees, but that said, it doesn’t detract from the general crumminess of said employer. In true American fashion, there are already boycotts shaping up to target the businesses that fired immigrant workers.
(9) Trump might be about to lose YET ANOTHER nominee. This time, his Navy secretary may be on the verge of withdrawing. Philip Bilden is a former Army Reserve military officer with little naval experience (but why not nominate him?? Just look at the Department of Education… And also…the presidency) and has experience some pushback based on his lack of familiarity with Navy issues. He’s also been having some trouble separating himself from his financial interests. (Trump must feel like he’s looking into a mirror.) The White House, for its part, denies that Bilden is reconsidering his nomination.
(10) Pence is doing damage control and saying that Flynn misled him about the nature of his conversations with Russia. This is due to Flynn having said (in his [forced] resignation letter) that he “inadvertently” gave “incomplete information” about multiple calls he had with the Russian ambassador. Obviously, this was after he’d said that he hadn’t spoken with Russian officials about pending sanctions (spoiler alert, he had).
(11) Milo Yiannopoulos further confirmed his identity as pond scum by advocating for sexual relationships between “younger boys and older men” and, in doing so, lost his slot at the Conservative Political Action Conference. Yiannopoulis “deeply regrets” the way his comments were interepreted (um, okay) and CPAC was quick to say that it does not endorse “everything a speaker says or does.” CNN’s Jake Tapper was quick to attack CPAC as well.
HEYO. It was unanimous. Not a single one of the judges thought Trump (okay, actually Bannon-the-ghost-writer) was within his executive power to put our border on lockdown in the way that he did.
“On the one hand, the public has a powerful interest in national security and in the ability of an elected president to enact policies. And on the other, the public also has an interest in free flow of travel, in avoiding separation of families, and in freedom from discrimination. We need not characterize the public interest more definitely than this… The emergency motion for a stay pending appeal is denied.”
Trump, for his part, got quite bent out of shape and had his usual Twitter tantrum (twittrum?). IN ALL CAPS THOUGH, SO YOU KNOW HE MEANS BUSINESS.
But the Court had its reasoning (and in my novice lawyer opinion, it was darn good reasoning). Here’s a rundown of the opinion (which you can read here):
Court considered several factors:
- Whether the government has shown that it is likely to succeed on the merits (because you need to show that your case is probably gonna win in order to be granted a stay – the Government moved for an emergency stay of the enjoined Executive Order. Basically, everyone is just hollering “STOP” from all sides.)
- The degree of hardship caused by either the stay or its denial.
- The public interest in granting or denying the stay.
Court recognized that it didn’t have a whole lot of information to sift through at this stage (because discovery hasn’t really happened because everyone has just been scrambling around and hollering “STOP.” See above.)
Court was also mindful that its analysis of hardships and public interest involved “particularly sensitive and weighty concerns on both sides.”
Buuuutttttttt…“Nevertheless, we hold that the Government has not shown a likelihood of success on the merits of its appeal, nor has it shown that failure to enter a stay would cause irreparable injury, and we therefore deny its emergency motion for a stay.” Boom.
The legal breakdown:
Jurisdiction (the states argued that the Court didn’t have jurisdiction because a Temporary Restraining Order is not usually appealable – Court was like, “nah, we totally have jurisdiction because this situation is weird and extraordinary because it ‘possess[es] the qualities of a preliminary injunction.’” (And those are appealable.)
Standing (because, remember, the Government argued that the states couldn’t bring the case because they didn’t have enough skin in the game. Basically.) – States argued that they absolutely had enough skin in the game because their public universities were harmed by the EO (stranded students, trapped faculty, affected research, trouble recruiting, etc.). The Court was on-board and decided that the states had third-party standing and it could hear the case.
- More specifically: “[The states’] proprietary interests [are] traceable to the Executive Order. The necessary connection can be drawn in at most two logical steps: (1) the Executive Order prevents nationals of seven countries from entering Washington and Minnesota; (2) as a result, some of these people will not enter state universities, some will not join those universities as faculty, some will be prevented from performing research, and some will not be permitted to return if they leave.”
- The Court felt pretty confident that states’ issues would be solved if they obtained what they wanted: chiefly, a declaration that the EO violates the Constitution, and an injunction keeping it from being enforced.
Whether the Court had the Power to Review the Executive Order (because the Government [editorial comment: so full of shit; I’m surprised they tried it] argued that “the President has unreviewable authority to suspend the admission of any class of aliens.”)
- Court got really offended here, actually. You can just tell. It would have been down with the principle that great deference is owed to immigration and national security policy determinations of the political branches. SO DOWN. But that’s not where the Government went.
- INSTEAD, Government took it further and argued that all of the President’s decisions about immigration policy (especially if they had to do with national security concerns) were flat out UNREVIEWABLE. Even when those decisions were unconstitutional. Government said that “it violates the separation of powers for the judiciary to entertain a constitutional challenge to executive actions such as this one.”
- Court was offended. Court, in a more polite and courtly way, said “Yeahhh…no….gtfo and stop making up laws, guy.” What it actually said was, “There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy. Within our system, it is the role of the judiciary to interpret the law, a duty that will sometimes require the ‘[r]esolution of litigation challenging the constitutional authority of one of the three branches.’ We are called upon to perform that duty in this case.” (i.e., you pulled that whole line of argument out of your ass; what were you thinking? That is LITERALLY OUR JOB and we are going to do it right now.)
- Then the Court gives lots of examples about all the times it came in and reviewed executive actions (really hammering that Government attorney into a hole). It’s pretty clear that the 9th Circuit is making a very clear record, on the off-chance the Supreme Court takes the case, that precedent is WAY AGAINST the Government on this one.
- The Court also calls out the Government for making the rookie mistake of NOT INCLUDING THE WHOLE QUOTE AND LEAVING OUT THE BITS THAT CONTRADICT ITS ARGUMENT. So that was cringey. Court told Government that it was just…wrong. And not only was it wrong, but the case it was wrong about didn’t actually even apply, anyway.
- This section goes on for a very long time – I recommend reading it if you have the time – as the Court seems very keen on letting the Government know that it is the Court and it does get to review things and the Government better sit down and stop talking while it’s ahead.
- I wouldn’t be surprised if, in retrospect, the Government is thinking that maybe it shouldn’t have made this argument. (Although, it’s honest to God so bad that it makes me wonder if someone in DOJ was trying to pull off some intentional sabotage.)
- Seriously, this section takes up most of the opinion, I’m pretty sure. Just the Court telling the Government how wrong it is. About everything. (Schadenfreude at its very finest!)
The Legal Standard of Review – Just the Court discussing how it analyzes a motion to stay. Significantly less thrilling than the former section.
- Four questions: (1) Whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) Whether the applicant will be irreparably injured absent a stay; (3) Whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) Where the public interest lies. The first and second factors are the most critical.
- Court’s like, “We conclude that the Government has failed to clear each of the first two critical steps.”
Likelihood of Success – Due Process (Government cannot deprive individuals of life, liberty, or property without due process of law. That’s the Fifth Amendment, folks.)
- The Court didn’t think the Executive Order provides what due process requires (“notice and an opportunity to respond”) such as “notice and a hearing prior to restricting an individual’s ability to travel.”
- It then points out that the Government didn’t even try to argue that the Order did such a thing but rather argued that most of all of the individuals affected by the Executive Order have no rights under the Due Process Clause.
- Aaaand again, the Court points out just how wrong the Government is when it states, “The procedural protections provided by the Fifth Amendment’s Due Process Clause are not limited to citizens. Rather, they ‘appl[y] to all ‘persons’ within the United States, including aliens,’ regardless of ‘whether their presence here is lawful, unlawful, temporary, or permanent.’” (Guys, it’s actually really weird how wrong most of the Government’s arguments are. Like…REALLY weird. Maybe Bannon wrote them, too.)
- The Court then gives a long list of all of the things that the Government failed to establish that it should have established in order to show that it had a likelihood of success.
- My favorite is when the Court throws some serious shade at Trump (who, let’s be honest, probably won’t pick up on it because nuance isn’t his thing) and the White House counsel: “Nor has the Government established that the White House counsel’s interpretation of the Executive Order is binding on all executive branch officials responsible for enforcing the Executive Order. The White House counsel is not the President, and he is not known to be in the chain of command for any of the Executive Departments.” (Basically the Court is saying “why the heck are you listening to Trump? Who cares? He doesn’t know what he’s talking about.)
- Then the Court calls out the Government for its “shifting interpretations” of the EO, which effectively undermined the Government’s ability to show that the allegedly wrongful behavior could not reasonably be expected to recur.
- Just to cover its butt, the Court went ahead and also said that even if the due process claims of lawful residents were no longer a part of the case, the Government would still fail and that, no, the TRO was not overbroad, thankyouverymuch.
Likelihood of Success – Religious Discrimination (No law respecting an establishment of religion may be made. That’s the First Amendment, guys! Aka Establishment Clause.)
- Any law that has a religious, not secular, purpose violates the First Amendment. This includes any sort of “preference” to a religion because that sends the message to anyone outside of that religion that they are not full members of the political community.
- The Equal Protection Clause also prevents Government discrimination based on religion.
- The states obviously brought in all the tweeting Trump has done over the past year in support of their argument that the EO violates the Establishment and Equal Protection Clauses, because what lawyer worth her salt WOULDN’T bring them in?!
- They also drew the Court’s attention to the part of the Order that gave favoritism to “minority” religions. (Sections 5(b) and 5(e)).
- The Court could consider these things because courts are allowed to consider evidence of purpose that exists outside of the text of the challenged law when dealing with Establishment and Equal Protection Clause claims.
- Court determined that the States’ claims raised “serious allegations and present[ed] significant constitutional questions.” But it held off on saying whether the Government had a likelihood of success because it had already failed to meet its burden on the due process claim and the Court wanted more information.
Balancing Hardships and Public Interests
- Court: “The Government has pointed to no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States.” (LOUDER FOR THE PEOPLE IN THE BACK. The people from the banned countries are not responsible for attacks against the US and the Government couldn’t counter that!)
- Court again (the Court doesn’t need my help here): “Rather than present evidence to explain the need for the Executive Order, the Government has taken the position that we must not review its decision at all.” (LOLZ, Court already covered that one earlier.)
- Basically, the Court suggests that the Government is a whiny baby and has a pathetic claim next to the public who will suffer all kinds of harms (students separated from families, students and employees stranded, etc., etc.), plus an impingement on the interest in free flow of travel, freedom from discrimination, etc. – “We need not characterize the public interest more definitely than this; when considered alongside the hardships discussed above, these competing public interests do not justify a stay.”
“For the foregoing reasons, the emergency motion for a stay pending appeal is DENIED.”
Post to follow.
**Disclaimer: This isn’t a fact. It’s totally a feeling.**