Is the Trump administration inviting a constitutional crisis in the United States District Court (USDC)? Despite the fact that any half-conscious sot could, in a few Google clicks, find lists of refugees or immigrants from the seven subject countries caught committing or attempting to commit acts of terror, which would justify the temporary ban, when asked by the 9th U.S. Circuit Court of Appeals, the administration demurred. Citing how quickly the case had developed, the Department of Justice (DOJ) merely raised and referred to the conclusions of the previous administration regarding the threat of immigration from the specific targeted nations.
It almost appeared as if the DOJ did not want to answer the question. Why wouldn't the administration want to justify the ban? Moreover, the DOJ did not offer, at least from what this author read online, to supplement the record with actual instances of immigrants from the specified countries representing a threat.
There is little question the court's injunction faces some important legal issues:
- A nationwide injunction issuing from a single USDC is, although with some precedent, difficult to support;
- Immigration is, according to Congress, a peculiarly executive function, and Congress has granted great deference to the Executive Branch;
- Without a sitting ninth Justice, the U.S. Supreme Court may deadlock on any issue, keeping the lower court ruling in place. Whether the result is good, one might think, depends on whether you support or don't support the ban. But, consider the possibility that there is a different objective than just a temporary ban on certain immigration.
Most people forget that the USDC system is NOT a constitutional court system. It is a statutory system. Congress established the system, and grants to the courts subject matter jurisdiction, which Congress can remove. Are the people in the Trump administration prescient enough to invite a crisis in order to justify weakening a court system that it finds "obstructive" on several fronts? My article, "The real significance of the ‘Executive Order on Enhancing Public Safety in the Interior of the United States’ suggested that a prior Trump administration order on immigration "represents governance at a very high level, a level many thought Trump incapable of reaching." Outlining the sophistication of the order, and its objective to create a narrative, I concluded that the order "establishes the Trump administration as self-aware, proactive, and formidable."
The media, and apparently some in the Trump administration, would suggest that the executive order creating the temporary ban was, in contrast, not governance at its best, but a comedy of errors in its conception, drafting, and implementation. Is it possible, though, that the chaos, the resulting challenge, and the resulting crisis is welcome and intended? It would explain, for example, initially leaked stories suggesting that the EO was not vetted nor communicated to key secretaries, which later turned out to be false. These stories, and confusion whether the ban applied to those already-issued green cards or those otherwise previously admitted to the U.S., only added to the hysteria following the rollout of the order.
What if the real objective is support for restricting the power of the USDC to judicially review certain actions of the executive branch, or certain congressional legislation? An administration with the ability to achieve a defined objective is something the media is not even considering as it continues to be manipulated into believing, for example, that Steve Bannon runs the White House. Is it possible, that there is value to the Trump administration in its political adversaries seeing it as feckless, inexperienced, and helpless? Is it possible that, as with its previous immigration executive orders, the Trump administration is trying to develop and change the narrative, and the electorate. How many voters who otherwise would cringe at any other congressional effort to limit the subject matter jurisdiction of the USDCs, might support an effort to check "activist federal courts," particularly in a case popular with many Americans, In which the court system was incapable of operating properly due to circumstance?
The first month of the Trump Presidency may go down in history as the first effective use by a president of political "rope-a-dope."
Originally published in American Thinker. The original article can be viewed here:
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