Editor’s note: Dr. Terry F. Buss, a fellow of the U.S. National Academy of Public Administration, wrote this article exclusively for Tuoi Tre News.
Why are state governments once again blocking Trump’s ban on visitors from several Muslim Middle East countries using federal courts?
Trump called for a ban on Muslim immigration to the U.S. as a major presidential campaign issue. Once in office Trump settled on a temporary ban of people living in seven (now reduced to six) countries that were engaged in conflict that was spilling over into Europe and was expected to come to the U.S.
Trump argued that many potential jihadists were slipping into the U.S. because they would not be properly vetted by U.S. authorities: refugees typically throw away their papers when fleeing a combat zone. Officials on the Greek Island Lesbos report finding passports and documents scattered by refugees fleeing Syria and Turkey. Governments in civil war also do not have or are unwilling to share documents of immigrants. And document and identity fraud is endemic, especially involving people smugglers.
Trump’s order calls for a 90 day ban on visitation from the six countries until “extreme vetting” can be developed and implemented. Democrats are presenting a united front in trying to overturn the order. States are taking the lead.
Republicans believe the country is under threat from terrorism and want to keep it out of the U.S. Trump voters do not want to see “their” American overwhelmed by immigrants whose “values” differ from Americans, who are taking away jobs from Americans, and who are costing American taxpayers billions in social welfare benefits the country cannot afford. Many believe Democrats are filling the country with “new” Democrat voters. Republicans want to take action now before the problem becomes unmanageable.
Obama supporters and Democrats believe that American has an obligation to take in immigrants in need. They believe that Americans should now pay the price for past injustices to outsiders and that the country would be better off it was more racially diverse. They don’t believe that refugees or illegal immigrants pose an “existential threat” to the country.
Whoever prevails in the battle over immigrants will substantially and forever change America, for better or worse.
Obama sets the stage
President Obama launched an approach that broke congressional gridlock bypassing Congressional authority whenever Congress was unwilling to approve his policies by enacting laws. Obama had spent much of 2009-10 successfully pursuing his comprehensive health policy reform in Congress where he controlled the House and the Senate, but he was unable to get votes from even one House or Senate Republican. Even though he won on health care, Obama failed on many other issues even when he controlled Congress. Obama wanted to reduce gridlock.
Much of Obama’s agenda began failing after the House of Representatives swung control back to Republicans in 2012; then again in 2014, when Obama also lost control of both the House and Senate.
Obama decided to take matters into his own hands issuing executive orders that have the force of law over his tenure, 2009-2016. Obama granted extended stays in the U.S. of 1 million young Latin migrants—called “Dreamers.” Obama illegally allowed millions of unaccompanied children from Central America. None of these had refugee status, and all were illegals. These groups joined the almost 11-12 million illegals already in the U.S.
Obama weakened enforcement by having border agencies relax efforts to stop illegals from coming in. Obama caused the court system to overflow, preventing many from ever being deported. Illegals not appearing in immigration courts were not pursued. Obama did not track illegals once in the country so no one knows what they’re doing. Many illegals were able to get benefits in schooling, health care and the like. At the same time, many city majors and state governors created “sanctuaries” where local and state officials would work against federal border and immigration agents. Obama did not sanction them even though they were breaking the law.
None of these actions affected legal or illegal immigration from the Middle East. What they did was make anti-immigration groups very nervous about immigration from the Middle East were these policies applied to them.
Obama’s paralysis over Syria lead to a civil war, a takeover by Islamic State of parts of Iraq and Syria, a civil war in Libya and Yemen, and conflict in Israel, Lebanon and Turkey. Obama ordered that 10,000 Syrians should be allowed into the U.S. as refugees. He later promised to take in another 100,000 more. On top of that, presidential candidate Hillary Clinton promised to take in tens of thousands more. This created a major policy debate for the 2016 presidential race and over the Obama legacy.
To execute the Obama strategy of flooding the U.S. with unprecedented numbers of immigrants both legal and illegal, Obama employed numerous executive orders bypassing Congress. Republicans, opposing the “social engineering” of the country, had the choice of either overturning the executive orders or taking Obama to federal court.
Republicans choose to go to court. Executive orders were difficult to overturn, because Obama could block them. Republicans were quite successful in blocking Obama in court, however, as many of his orders were blatantly unconstitutional, and hence against the law. Several on immigration were ignored, however.
So Obama set the precedent of bending the law through his executive orders; coupled with ordering border and immigration officers to ignore laws that Obama didn’t like, and failing to hold “sanctuary states and cities” to enforce federal regulations.
The legacy of Obama and Trump today
Trump campaigned on a platform of using Obama’s approach to undo Obama’s “accomplishments,” particularly on immigration. On taking office in January 27, 2017, Trump signed his own executive order temporarily (for 90 days) banning visitors, refugees, and immigrants from seven Muslim countries. During the ban, Trump wanted his agencies to devise an “extreme form of vetting” that would verify that potential terrorists were not entering the country.
On February 9, 2017, the State of Washington filed suit in federal court against Trump that blocked the order. Washington is one of the most liberal states, controlled by the Democrats. Obama’s supporters essentially went to the courts to block Obama in the same way as did Republicans when they opposed Obama. Yesterday, Washington, and other Democrat-controlled states have now filed another suit to block Trump’s revised order.
What can we conclude from this. Traditional democratic processes are in big trouble.
Let’s start with the view that the people elect public officials to represent their views and enact policies they favor. When Obama began launching dozens of policies bypassing Congress and flaunting the Courts, he set a dangerous precedent for Trump to follow. Trump will now bypass Congress and hope that his executive orders do not become overturned by the Courts.
This is a problem. Polls have mixed results. Most show Americans evenly divided on the Trump’s travel ban. But three-fourths believe Obama led country in wrong direction and Trump is headed in the right direction.
The problem with the Courts is they have become highly political in and of themselves: they are not objective referees whose function is to fairly apply the law. Now, many courts have become legislators creating law which is not their job. The spat between Obama and Trump is a case in point.
The Courts, U.S. Constitution and case law generally hold that the President has wide sway in making policy and acting in the foreign affairs arena. The recent court decisions against Trump suggest that this is not the case, hence the “stay.” This finding will likely be overturned in the U.S. Supreme Court, which itself has become politicized.
Previous presidents have banned visitors from countries. President Jimmy Carter banned Iranians from the U.S. when jihadists took over the American embassy in 1979.
Interest groups also try to politically influence court decisions. Tech companies, Microsoft, Google, Amazon, are claiming that the temporary ban affects their businesses. Yet the H1B high tech visa goes overwhelmingly to Indian and Chinese workers and only a handful from Iran, Syria and Iraq. The Court seems to ignore who is really injured by Trump’s action.
This also brings up the point that states cannot go to court to defend their citizens. Rather citizens must go to court themselves. This basically gives Washington standing to go to court even though the state is not affected.
Strangely, the court allowed past campaign statements by Trump and his advocates to be entered into the court proceedings. Trump had said at one time as a candidate that he favored a “Muslim ban.” But he then retracted it on several occasions. The court, however, accepted the argument claiming that Trump was discriminating against Muslims. Yet the vast majority of Muslim nations are not affected. This is very scary: anything one says can be used against one in a court of law if you get elected to office. Additionally, this decision converted a geographical issue into a religious one. Jews and Christians also live in the banned countries.
Inability to get one’s way politically at the national level then impose it on the country has led to a new wave of “federalism”—the idea that states and the federal government have certain rights that cannot be trampled on by one another. The states suing Obama were all Republican.
The states suing Trump are all Democrat. We can expect huge upcoming battles between states, courts and presidency as power shifts, from Democrat to Republican. This is what happens when courts make political decisions rather than legal ones.
Trump has the duty and opportunity to fill nearly 300 open seats on federal courts, and one Supreme Court justice. Obama’s court system is still in place. Once Trump reengineers the courts decisions will likely swing Republican.
Politicians have abandoned the “rule of law” making decisions based on who has the most power. This may not end well.