If you read all 86 pages of the 9th Circuit’s devastating ruling against Whiny Baby Donald and his travel ban, the big message — never explicitly stated — comes through like thunder: the judges are not ready yet to allow the neonazis in the White House to permit wholesale fraud against the courts.
Had the same arguments and judgments been written against what the ruling calls EO1 (the first Executive Order, the one Whiny Baby likes), then that could not be said. Lawyers write bad papers sometimes.
But after their errors have been shown to them (and the whole world), if they repeat the same errors, the judges are going to be irritated.
The 9th Circuit judges are vastly irritated.
Even if, as the judges said is not the case, Whiny Baby could have made a persuasive case, he did not even try. The Immigration and Naturalization Act requires specific steps (and consultation with Congress) to even think about doing what Trump did. He didn’t bother.
That he did not bother confirms the suspicion that 1) he had (and has) no intention of acting lawfully and 2) he had no intention of having a temporary travel ban.
(Note: the ostensible purpose of EO1 and 2 was to allow time for reviewing and improving the clearance procedures for certain applicants. Some on the left have said, see, it has been far longer than 90 days, and the new rules have not been announced. But this is unfair: Judge Watson enjoined the agencies from initiating an internal review, but the appeals court removed that. The clock is now running on the 90 days. Mark your calendar; the revised procedures should be announced around Sept. 11.)
Not only did the EO not provide the necessary determinations when WBD signed it, when the District Court enjoined it, the government lawyers did not bother to rebut the assertion of failure (page 14).
The ban was intended to be permanent.
However, in reality, the ban was not addressed at the 6 or 7 countries, or even at its root against Muslims. It was really aimed at fearful, ignorant Americans — of whom there are many —and their votes and support in opinion polls.
When times are troublous, the cry of “the nation in danger” is often a vote-getter. The nation does not have to actually be in danger; as the appeals court noted, no one from any of the target countries has ever committed an act of terror in the United States.
The danger is mythical and the rightwingers didn’t even pretend to the court that it is anything but.
However, something up toward half the population is terrified. The terrorists have won without committing any act.
(If WBD were really concerned about religiously motivated acts of violence, he would be ginning up a campaign against Christians, who are the source of more political violence in America than any other cult, or than all other cults combined.)
RtO has warned now for months about the rightwing assault on the courts. The courts have noticed. The appeals judges observed that (quoting a 1977 opinion), “Over no conceivable subject is the legislative power of Congress more complete than it is over the admission of aliens.” (Page 33) The assault on the courts is also an assault on the legislature but the Republicans in Congress are too bemused by their chairmanships to see that.
About claims that a president has an inherent superior power to defend the nation, the court tartly says, “National security is not a ‘talismanic incantation’ . . “ (Page 43)
Even presidents have to comply with the laws.
The 9th Circuit judges said they didn’t have to get to Hawaii’s claims about constitutional rights, since WBD’s misfits had so completely screwed up even the bare machinery of following the statutes. But it is pretty clear that if Congress were to rewrite the statutes(which the court advised it could do), the constitutional claims would still be powerful.
Listing the many deficiencies in EO2, the judges wrote, it “does not provide any link between an individual’s nationality and their propensity to commit terrorism or their inherent dangerousness.” (Page 39)
The judges did not cite the WorldWar II absurdity that locked up antiNazi German aliens (many of them Jews) because of their nationality. That was more evident in Britain than in the United States, although it happened here, too.
Nationality is a state of mind, and that should be evident above all to the quivering cowards in the Republican Party who are so exercised at the thought that white people from European countries are traveling to fight for the Islamic State in the Mideast.
The mistakes of World War II ought to have taught us something, but clearly they did not. This blade cuts both ways. In a summary list of immediate harms to Hawaii interests, one is reduction of tourism.
In 1942, when German submarines were torpedoing scores of tankers and freighters moving up and down the East Coast, at night, using the backlight from beach towns to silhouette their targets, the Navy proposed a blackout. Numerous mayors squealed loudly that that would ruin the tourist trade. The lights stayed on and sailors burned to death in oily seas.