“This is not who we are,” critics say about the refugee ban. But what if it is?

‘For all the recitations of Emma Lazarus — give me your tired, your poor, your huddled masses — the story of American openness to immigrants and refugees is more cramped, more Trumpian, than our national myths suggest. In order to understand and undo the Muslim ban (and given the prioritization of religious minorities in those seven countries, a Muslim ban it is) we need to understand why it is in fact in line with our history, even as it feels so un-American.’

Source: Vox

One thought on ““This is not who we are,” critics say about the refugee ban. But what if it is?

  1. How to Lasso a Runaway Executive
    Strange fact: through all the uproar of his first three weeks in office, President Trump only signed one bill into law, and that one only affected one person: Mattis’ waiver to serve as Secretary of Defense. But Trump issued several sweeping executive orders.
    Another strange fact: Congressional staffers, perhaps the most fiercely loyal people in Washington, signed nondisclosure agreements to “conceal from their bosses” that they were drafting those executive orders in violation of separation of powers.
    What does this tell you?
    Congress thinks it’s found a way to get around the laborious and potentially unpopular procedure of bicameral introduction, consideration, approval and presentment of bills – what we call passing a law. And if nobody stops them they may get away with it.
    Last week the Department of Justice claimed that as an executive order, the travel ban that is the subject of State of Washington v Trump not only has all the power of a law, it also has a power no law passed by Congress has: it can’t be reviewed by the courts. The authority behind it is unlimited. Neither its legality nor its constitutionality can be challenged.
    When Justice argued these extraconstitutional powers some Americans were angry and amazed. Others said, “Well, that settles it.” Judge Robarts of Washington’s Western District, and later the Ninth Circuit, were dryly incredulous. But Judge Gorton of Massachusetts in the First Circuit disagreed. And Congress and Trump are dead serious.
    The extraconstitutional powers they’re relying on are redelegation, plenary authority, and full sovereignty. While as concepts they’re archaic and some of the cases establishing them are anticanonical (no longer considered constitutional), the courts continue to let these powers gradually creep up.
    The Ninth Circuit may rehear State of Washington v Trump en banc, and it or a case on its replacement order may reach the Supreme Court. We need the High Court to shut down the underlying abuse by bringing United States law conclusively out of the nineteenth century.
    Congress faces an ongoing problem of legislating without making themselves unpopular with voters, while parties add demands. Whenever it can it eagerly abdicates its powers to someone else.
    Neither Congress nor state governments can make new powers; that takes Article V amendment. Nor can they transfer to anyone else the powers the people vest in them. But the courts have gradually allowed it.
    It’s called by several names:
    • a statutory grant or delegation of rulemaking authority
    • a charter
    • discretion
    • a procedural right
    But the proper term for it is redelegation. And it’s unconstitutional.
    The fundamental premise underlying the separation of powers is that we vested particular powers in particular places not arbitrarily but after twelve years of consideration and debate, including six years of trying to make our first effort, the Articles of Confederation, work. Separation of powers assumes powers will stay where we placed them in the Constitution. Only the people may remove powers and delegate them to someone else.
    SCOTUS recently upheld the people’s power to do just that. In Arizona State Legislature vs Arizona Independent Redistricting Commission, the people of Arizona had passed a ballot initiative to remove districting from their state legislature and delegate that power to a commission. The legislature sued, and the people won. (The public may have given the foxes the keys to the henhouse in that case, but the confirmation is still important.)
    The Preamble, Article VI, and Amendments IX and X cover the hierarchy of legal powers:
    1. the people’s right and power to establish a Constitution
    2. the Constitution, treaties and federal statutes, and any inalienable rights or powers not mentioned in the Constitution
    3. state constitutions and statutes
    4. anything else, including executive acts
    Presidents issue three kinds of acts, in declining order of authority:
    1. executive orders
    2. presidential memoranda
    3. presidential proclamations
    Every President but William Henry Harrison, who died after a month in office, has issued at least one executive order. Even Washington issued eight.
    We have asserted limits. When Bill Clinton tried to redelegate to himself by adding a fourth kind of executive act, a line-item veto, Congress refused. George W. Bush achieved the fourth act with signing statements, but a leery public questioned their power to negate parts of a law.
    Laws are more powerful than executive orders. But once allowed, redelegation tends to creep. It started with internal discretion – and with immigration.
    “The Congress shall … make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.” Article I, section 8
    By a strict reading of the Necessary and Proper clause, even the purely internal administrative functions of the executive departments must be made by US law.
    We could stand on that but might be guilty of cruelty to Congress. Washington only had a couple of principal officers but more executive departments soon proved necessary. And after the Louisiana Purchase our holdings and population, and accordingly the legislative work, grew.
    “[H]e may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject related to the duties of their respective offices; …” Article II, section 2
    Article II, section 2 expects the President to consult with the principal officers of executive departments about their work.
    Since the text mentions these principal officers, Congress decided to allow them discretion – power to run the purely internal administration of their departments as they see fit – with minimal congressional involvement.
    Executive orders and department heads are redundant. If the President could govern the departments by orders, why have principal officers? And the Opinion clause suggests something fairly egalitarian, appropriate to a democratic republic. Government by decree is royalist in nature, the concept and form of government we fought the Revolution to leave behind.
    “He shall take care that the laws be faithfully executed …” Article II, section 3
    But Presidents needed to make sure those internal decisions didn’t violate the laws. The Constitution’s executive-department governance entirely by laws shifted to internal governance by principal officers under Presidential oversight.
    All policy affecting the public was still supplied by Congress as law. But the control Congress retained over executive policy affecting the public gradually degraded. Today, while it’s still considered and passed as law this is little more than oversight.
    (Congress would worsen the problem in 1929 by freezing the House at 435, limiting the work they could do, violating Article I, section 2’s Apportionment clause.)
    These creeping government rights and powers are called abdication and usurpation. That redelegation, abdication and usurpation are a problem for a democratic republic becomes clear when policy has the effect of law.
    Full Sovereignty
    Sovereignty is the right and power to act on the people’s behalf.
    Rights and powers we delegate to our government are quasi-sovereign: every power, and all government officers, remain subject to the public’s oversight not just by election but by our resort to the courts.
    The Department of State uses one quasi-sovereign power: they represent the American people with foreign powers. Prosecutors use another quasi-sovereign power: they represent the people in criminal cases.
    Full sovereignty is a right to act on the government’s behalf versus the people, or without concern for the people. It’s also called:
    • deference
    • sovereign immunity
    • executive privilege
    These are royal powers. They’re plenary powers. And they’re unconstitutional.
    “Congress shall make no law…abridging…the right of the people…to petition the government for a redress of grievances.” Amendment I
    The Constitution forbids the government from immunizing any offices or officers against the people.
    State and federal offices and officers would eventually claim sovereign immunity – a government right to immunity in cases filed by the people. This is an unconstitutional privilege, but it crept up gradually.
    In 1795 Amendment XI granted states full sovereignty in suits by foreign people or citizens of other states. These suits could no longer be filed in the Supreme Court but would be addressed in state courts, appealable to state appellate courts. The amendment couldn’t and didn’t try to grant states sovereignty over their own people.
    Meanwhile, the Supreme Court was the only federal court for a generation. When Congress created separate federal courts these agreed to a general rule of deferring cases involving both state and federal laws or policies to state courts.
    As the executive departments grew Congress made administrative courts to govern them, and federal and state courts deferred to them. The public retained the right to appeal their decisions to a federal court but only after exhausting administrative and state systems. This was prohibitively expensive for most Americans, and our control over executive policy faded.
    Plenary Power
    Plenary power and sovereignty were hot topics of public debate in the latter nineteenth century. This was the beginning of America’s age of empire, which would last until Alaska and Hawaii were admitted as states in 1948.
    Plenary authority is unlimited and unreviewable power, power that can be questioned or overridden by none. And it’s unconstitutional.
    Plenary power overlaps sovereignty, but its main effect is:
    • unreviewable power in an area of law
    • unlimited power in an area of law
    Because the two powers overlap, plenary powers are often mistakenly called sovereign powers, such as:
    • sovereign prerogative
    • fundamental sovereign attributes
    • inherent sovereign powers
    Since we the people empower the government, it can’t have unlimited or unreviewable power over us. The only unreviewable authority is our instrument the Constitution – and in its Article V we reserved the right and power to amend even it.
    Congress and state governments claimed plenary power over policies and rules that aren’t laws. The courts wrongly accepted this. No act of governance we authorize in the Constitution is exempt from compliance with it. No office created by it is immune against it.
    Even Congress’ internal rules, which Article I, section 5 authorizes Congress alone to determine, are subject to the Constitution that gives legal force to both the rules and the body that enacts them. If they weren’t, Congress could pass a rule that members would serve for life and the people couldn’t stop them.
    Article I, section 6 frees Congressional speech and debate from review anywhere but in Congress. This doesn’t make it immune from review. It just requires reviewing its legality and constitutionality in Congress itself. And the Speech or Debate clause doesn’t apply to laws or to orders, policies, rules, memoranda, proclamations, or any other act of governance. They’re not speech but acts.
    The nature and effect of an act of governance determines whether it must be a law or can be an order, policy, or other act. Neither labeling a law by some other name nor passing it by some other procedure changes its nature or effect.
    Read as a whole document, the Constitution makes clear that any act of governance that impacts any person’s
    • rights,
    • responsibilities,
    • powers,
    • privileges or
    • immunities
    is a law and must be introduced, considered, and approved by Congress, signed by the President, and subject to judicial review.
    Beyond purely internal function, is plenary power constitutional?
    How can it be?
    United States law can impact foreign nationals’ rights, powers, privileges and immunities in three ways:
    • treaty
    • declaration of war
    • immigration law
    Treaties must be approved by the Senate. Only Congress can declare war or make immigration law. We delegate to Congress the power to make national security policy or law. The President has power to conduct wars once declared, but Congress secures our borders.
    Article I, section 8 of the Constitution begins, “Congress shall have power to …” and continues with a list of powers exclusive to Congress, including:
    “…provide for the common defense…”
    “…provide for calling forth the militia to […] repel invasions…”
    “…define and punish piracies and felonies committed on the high seas, and offenses against the law of nations…”
    “… (under “declare war”) …make rules regarding captures on land and water…”
    The list also includes:
    “…establish a uniform rule of naturalization…”
    The notorious Promise of 1808 clause in Article I, Section 9 deferring the slavery question also confirms Congress’ power over entry:
    “The migration or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight…”
    Article II, section 2 delegates to the President the powers to:
    • make treaties with the Senate’s advice and consent
    • appoint ambassadors the same way
    • receive foreign ambassadors.
    He’s also Commander in Chief of the military when in active service, and commissions their officers.
    The President has this much delegated authority over foreign affairs, but immigration law isn’t about our relationships with foreign governments, it’s about the temporary and permanent composition of the United States population. And that begins at our own borders. Our borders are under Congress’ sole authority.
    Congress’ foreign powers and the Necessary and Proper clause have been ground down by degrees. Any veteran of one of our undeclared wars knows how warlike they can be.
    Although we limited the President’s role to execution, having a face for the United States proved popular and the concept of the President as leader grew through the years. Internal departmental orders gradually included some policy. It’s easy enough to word one to make officers follow a policy. The people gradually questioned the President’s authority to act less often.
    When we survived the Civil War intact and with our founding principles reaffirmed by the end of slavery, the western world had to admit a constitutional democratic republic could work. The giddy period that followed almost obliterated those founding principles as the United States government began conducting its affairs in ways more and more like the ones we’d left behind with English rule.
    Because the President serves as our sovereign representative to foreign nations, Presidents began to claim full sovereign power in foreign affairs. After all, if something was less than a treaty, declaration of war, or naturalization law it was just foreign policy, right? Somebody had to make those smaller decisions. The courts weren’t working with foreign powers and should stay out of it. And Presidents were dealing with kings and dictators. Wasn’t it good for America’s position that a President be their equal?
    Soon sovereignty, the plenary power of kings, began to creep up past quasi- sovereignty, the reviewable power of government in a constitutional democratic republic. Congress, the executive, the states and the courts began to use the word sovereignty in ways the Constitution doesn’t authorize.
    For almost our first 100 years, the United States’ borders were officially open. When states passed laws limiting the immigration of poor people the courts rejected them. But by 1875 we could see the Pacific from the Capitol and the sense of a space too large ever to fill was ending. Eastern cities had become as crowded as any city in Europe as the gold rush led to the myth of “streets paved with gold” – in a land of confirmed freedom from monarchy and theocracy.
    Empire was one response. Fear of sharing our power and resources with strangers was another.
    In 1889 Chae Chan Ping v United States brought presidential plenary power into caselaw, and did it in an immigration case. The uniform rule of naturalization no longer covered all matters of immigration. This infamous case is now anticanonical. It’s no longer eligible for use as precedent. This should invalidate any part of decisions since that rely on it as precedent. The President’s current claim relies on a long chain of such decisions.
    Presidential power over citizenship directly violated Article I, section 8 but Congress and the courts were no longer reading the text strictly. It didn’t directly affect most Americans, but Presidential plenary power had crossed the border.
    Congress took back its power over immigration in 1920’s National Origins Act but by that time was establishing a power to redelegate its own powers by statute. Sometimes to the states, sometimes to the executive branch. The courts allowed it. After all, it wasn’t as if policy would have the force of law.
    United States vs Curtis B Wright Export Company in 1936 found that powers delegated in the Constitution are inherent sovereign powers. Even when those powers are redelegated.
    This was awesome new power, entirely unauthorized by the Constitution. Inherent powers are not only plenary, they can reduce the public’s inalienable right and power to change our government. The Presidency gained the most by this upgrade. Remember, executive orders that make policy binding on the public under any circumstances were authorized by Congress and the courts with no support in the text.
    Congress redelegated its authority over immigration to the President in 1952’s Immigration and Nationality Act (often amended, most recently by 1996’s Illegal Immigration Reform and Immigrant Responsibility Act).
    1953’s Youngstown Sheet and Tube Co et al v Sawyer is famous for restraining a President’s creeping powers. In fact, it expanded them. President Truman was barred from using war powers to seize the factory, which was private property, but a concurring opinion by Justice Robert Jackson created a precedent allowing executive orders to have as much force as law if the President acts in accordance with the first level of a three-level scale. Below that it loses authority:
    1. with express or implied authority from Congress
    2. in an area where Congress has so far been silent
    3. in defiance of congressional orders
    In the mid-twentieth century the civil rights movement and other developments increased understanding of inalienable rights and civil liberties like Amendment V’s Due Process clause. Cases began to prove limits to each of the extraconstitutional powers, but old statutes and precedents remain and SCOTUS has yet to address them head on.
    How to Restore the Rule of Law
    Either Congress or the Supreme Court can end redelegation, full sovereignty and plenary power once and for all. Congress will resist this but the Court can do it because exercising these powers violates the Constitution.
    They’re unlikely to do this on this case. It can be decided on narrower grounds. And these violations are longstanding, have some precedent behind them, and are popular with the other branches. We should press the Court to address them anyway. This is not a common-law country but a constitutional one. The current trend towards populism emerges largely from a frustration with government caused by these creeping powers. And if not addressed in this case, President Trump’s stream of executive orders promise there will be other cases.
    We can’t let the Court declare the case unreviewable. That precedent would prevent any federal court from ever addressing any immigration order by a President ever again. Naturally the other extraconstitutional powers would then start to creep until executive orders covered everything Congress used to do, without being subject to challenge.
    Are we then supposed to put up with our gerrymandered, privately financed, voter-suppressed and possibly electoral-frauded-in Congress sneaking whatever they want over to the White House to be issued as an unreviewable executive order?
    And how can we keep these unlawful powers from creeping even more?
    If SCOTUS won’t address it now, they can establish a temporary middle ground.
    The following set of standards for executive action, consistent with the absolute most the Constitution might possibly be claimed to allow, can be used as a test. It’s rough and could probably be improved. The public needs to debate the concept of a test and these particular standards. Others may be needed.
    The first standard is compliance with the Constitution, United States and state law, and treaties. Even local ordinances. United States courts must have jurisdiction over all United States actions without exception. Even the military must be subject to United States law; federal or constitutional questions in military courts must be appealable to the Supreme Court.
    The second standard is narrow focus. If Congress can do it, the President is barred from it. An executive order must be as narrow as possible. This includes but is hardly limited to only making executive orders to officers under the President, and only ordering them to do something within their office’s jurisdiction. Anything that impacts any American or foreign person’s inalienable rights or powers, or their privileges or immunities, is a law and must be passed as a law unless a proven state of national emergency arises when Congress is unable to meet.
    The third standard is emergent necessity. The order must be needed to resolve an immediate state of national emergency or to stabilize the situation until Congress can meet.
    The fourth standard is expiration as soon as Congress next meets. Congress will have to pass it by the usual process.
    The fifth standard is a prior written opinion by the head of the relevant department. The President’s access to such written opinions is expressed in the text, which suggests that these principal officers have some authority.
    Plenary power and sovereignty have crept too far into US government. We have to shut them down. That means fighting for a ruling against all three unconstitutional powers, and not settling for less than the above even temporarily.


Comments are closed.