Ninth Circuit Rules Against Trump

The Ninth Circuit issued a ruling on Trump’ immigration EO, maintaining a nationwide suspension of the order.

While I think that Trump’s ban was poorly reasoned and executed with the skill of a brass band falling down a flight of stairs, I’m a bit bothered by this decision for reasons David French gets into here:

Finally, and crucially, the court made a statement near the end of its opinion that is deeply, deeply troubling. In discussing the evidence before the court, the panel says this:

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.

Putting aside, for the moment, the administration’s inexplicable failure to include in the executive order or the record the extensive documentation and evidence demonstrating the threat of jihad from the seven identified countries (including terror attacks in the U.S., plots in the U.S., and a record of plots and attacks abroad), whether an attack has been completed in this country is not the standard for implementing heightened security measures. The president doesn’t have to wait for completed attacks to protect the U.S. from dangerous immigrants. He can see the deteriorating security situation on the ground, evaluate the intentions and capabilities of the enemy, and then act before the enemy can strike. Indeed, that’s the goal of national defense — to prevent attacks, not respond after the carnage.

I’ve been hearing versions of this argument over and over again. “No refugee has launched a terror attack against the US!” “No one from those seven countries has attacked the US soil!” “Since 9/11, more people have been killed by Right Wing terrorism than Jihadists!” For a while, I was swayed by these arguments. But I’ve come to realize that they are complete horse manure.

First, as French notes, the job of the federal government is to prevent attacks, not close the barn door after the horse has been stolen. If they have credible intelligence of an attack or a danger, they are supposed to act (within Constitutional limits).

Second, terrorist attacks are, by their very nature, stochastic. They are thankfully few and when you try to do any analysis of them, you are immediately swallowed by small number statistics. This is obvious when you think about it. Any sentence that starts with, “well, excluding 9/11 …” is just silly. 9/11 was the biggest terrorist attack in American history. It completely dominates the discussion. Our entire anti-terrorism policy is designed around preventing another 9/11. You simply can not exclude it from consideration and act like you’re clever for doing so.

It would take only one successful Jihadist attack to upset those numbers (indeed, the numbers changed dramatically after San Bernardino and Orlando). It would take only one attack by a refugee from, say, Somalia, to make those arguments completely moot. When your argument can be rendered useless by a singular event, it’s a terrible argument.

Think about where we were on 9/10. At that point, the most successful attack on American soil was the Oklahoma City bombing. Should Bush have therefore ignored the threat of Jihadists? On the contrary, many liberals slammed him for paying insufficient attention to the “Al-Qaeda determined to strike in US” memo.

Just to be clear: I think the danger presented by people coming into this country with visas or as refugees is low. But it is not zero. Can we quit pretending that it is?

(I would note, in passing, that deciding on the wisdom of a policy is not the Court’s job. Antonin Scalia used to note that the Courts were required to uphold laws that were ill-advised but passed Constitutional muster. He joked that he wished he had a stamp: “Stupid but Constitutional.” I’m not quite familiar enough with this case to opine on whether Trump’s order is legal or Constitutional. It may be dumb. I know many on this blog disagree. But even if we assume it’s dumb, it’s not the Court’s job to stop stupidity.)

President Clusterfrack

I said this in the comments on my last post, but wanted to put it above the fold. This is from Charles Cooke on the refugee ban:

The way that this was rolled out showed a staggering incompetence by the Administration. According to detailed reports, this was crafted by Rudy Giuliani as a way to get a Muslim ban through the side door. It was put out without vetting by the Office of Legal Counsel or the Department of Homeland Security (according to DHS, they were literally discussing on the phone when Trump signed the order). I know there are those of you who will say, “Good! Fuck the bureaucrats!” But those bureaucrats exist for a reason: to prevent screwups like this; to execute the President’s orders within the bounds of the law and the Constitution. The initial order exempted green card holders, but racist conspiracy-theorist Steve Bannon and Trump confidant Steve Miller overrode that. It was rolled out on a Friday with minimal instructions given to customs agents.

As a result, there was total chaos. Border agents had no idea what they were supposed to be doing and were detaining people at random, trying to pressure them into surrendering their green cards and asking them questions about politics. People in transit — including children, people visiting sick relatives, PhD students, volunteers who helped us in Iraq — were suddenly thrown into an unknown situation. Airports erupted in protests and confusion. There are even reports of federal agents refusing to comply with the court order to cease or the later DHS Secretary’s order to let in green card holders.

The engine of state is vast and complicated. You can’t just issue executive orders like you’re playing an online Be The President game. Our federal agents and agencies need what the hell they are supposed to be doing. Citizens, permanents residents and immigrants need to know what the rules are, not have the rug jerked out from them when they get off of a plane.

Had Trump said something like this: “One week from now, we will temporarily stop immigration from the seven countries that Obama designated as problems. Green card holders, dual citizens and those in transit will be allowed in. After we review our vetting procedures, we will consider whether or not to lift the ban,” people would have opposed it. But there would not have been the chaotic angry scene we saw this weekend.

(Trump is on Twitter saying that if he’d done this, a bunch of “bad hombres” would have rushed to get in under the ban. This is a monumentally ignorant thing to say. It is a very long and time-consuming process to get visas from those countries — to say nothing of booking travel. You can’t do it in a week. This a fantasy concocted to give post facto justification to his incompetence.)

Trump’s first week has been marred by these kind of unforced errors. And it may get worse, with him having elevated Bannon to the NSC in place of the DNI and Chairman of the Joint Chiefs. Is this what we elected? Is this what we want? Chaos, protests and confusion? A President who rules by executive orders put together by crackpots? Four (or God help us eight) years of blunders, mistakes and Constitutional violations?

Maybe some people want that. But don’t call it conservatism.

A Few Days in The Capital of the World

My blogging was light this week because I was visiting New York City with my extended family. I’ll be back up over the weekend with my thoughts on the RNC and so on. If you need some political meat to chew on, here’s the leak of the DNC’s internal e-mails which reveal an establishment — an a DNC chair specifically — who heavily favored Hillary Clinton, to the point of pushing garbage stories deleterious to Bernie Sanders. I expected as much. I’m still waiting for the big wikileaks bomb to drop in November when they reveal that Clinton put Trump up to running.

In the meantime, here’s a few thoughts from NYC:

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Obama Smacked Down. Yes, Again.

The Supreme Court split 4-4 on United States v. Texas. This lets stand the lower court ruling that invalidated Obama’s attempt to do immigration reform by executive fiat. And it really should have been 8-0.

I support immigration reform. I also support doing it through Congress, as the Constitution mandates. If Obama has the executive power to rewrite immigration law, so will Trump.

Texas Judge Blasts Obama DOJ

Texas v. United States is the lawsuit over Obama’s executive amnesty in which he tried to implement immigration reform around Congress. Obama lost in court, lost in the fifth Circuit and the case is now before SCOTUS. A ruling has yet to be issued. But today, the judge in the Texas case issued a scathing rebuke of the Obama DOJ:

A federal district judge on Thursday excoriated U.S. Department of Justice lawyers who are defending the Obama administration’s immigration plan, issuing an extraordinary order that questioned the department’s policing of attorney ethics and ordered certain government lawyers to take an annual ethics class.
Finding that Justice Department lawyers repeatedly misled the court about when the government would begin implementing new immigration directives, U.S. District Judge Andrew Hanen ordered any Washington-based Justice Department lawyer who wants to appear in any state or federal court in the 26 states that sued the administration to attend an annual legal ethics course.

“The United States Department of Justice … has now admitted making statements that clearly did not match the facts. It has admitted that the lawyers who made these statements had knowledge of the truth when they made these misstatements,” Hanen wrote. “This court would be remiss if it left such unseemly and unprofessional conduct unaddressed.”

Those of you familiar with Obama’s euphemisms will be interested in the latest. In their filings, the DOJ claimed that their lawyers “lost focus” and “the facts receded from memory”.

The lawyers in my twitter feed indicate this order and the angry language around it, is highly unusual. He literally said that the only reason he hasn’t disbarred them is because he legally can’t. This indicates lying and deception on an unprecedented scale.