APA Board Statement in Response to Executive Order on Immigration

Dear APA,

Update: Senator Feinstein has sponsored a bill against Trump’s ban in the US Senate. Senator Schumer asked that it be given expedited hearing, but that motion was blocked by a Republican Senator. President Trump mocked Schumer for being emotional at a press conference, and responded with bullying tweets. A Democratic protest on the Supreme Court steps was also ignored. I therefore do not believe calling upon President Trump to reverse his ban is a plausible strategy. And a Republican Congress, with the exception of Senator McCain and a few others, is unlikely to go against the White House, especially on supposed national security issues arising from the war on terror. Senator Ryan, for one, has come out in support of Trump’s ban. Although I place some faith in the efforts of Senator McCain and Senate Democrats to stand against Trump’s executive orders, the ability of Congress to block executive orders is severely limited. Congress can de-fund Trump’s agencies, but that is also unlikely and also takes time. And Trump can veto Congressional legislation. The immediate option to block Trump’s orders is to challenge them in court, and to support the lawsuits which have been filed to block them by temporary injunction. It is encouraging that a US District Court has stayed (issued an temporary injunction against) the immigration ban. But that ruling is temporary and will be challenged, and the challenge will go on for some time. I suggest that if the APA is seriously interested in challenging Trump’s executive orders, the APA should join with the lawsuits filed by, for example, the ACLU and the Council on American Islamic Relations, claiming a cause of action based upon injury to international students seeking professional study in the US, and joining a class action on their behalf, while arguing that international students have standing to sue based upon concrete injury they are suffering. Pursuing a lawsuit is also of a long-term process, but at least would probably result in staying the executive order during litigation, and stands a good chance of finally succeeding in having Trump’s executive orders declared unconstitutional, thereby perhaps also taking a first step towards limiting the unconstitutional inflation of sovereign executive power that allows Trump to make those orders, in the first place.

Additionally, I’d like to share an irony I encountered in researching this post. When I looked up a Google entry on Congress blocking executive orders, I found a Constitution Center website briefing Republican Congressmen on how to block the Obama administration’s executive orders. Here it is, if anybody’s interested: http://blog.constitutioncenter.org/2014/11/what-constitutional-options-remain-for-the-gop-to-block-obamas-executive-order/ I suspect the information is correct. But it’s ironic that the Democratic establishment and its leftist-liberal backers, who did not oppose Obama’s unconstitutional inflation of sovereign executive authority to carry out drone strikes and bombing campaigns that have killed thousands of innocent people, should now find themselves on the other side of the bench. I do not say this to detract from the protests against Trump’s executive orders, or to disparage the sincerity of the beliefs of the Democratic opposition or APA members. It’s simply that I’ve been uncomfortably aware for many years of the danger of the inflation of executive authority and the erosion of checks and balances under the false pretext of the state of exception or state of emergency imposed under the war on terror, which has continued for the past eight years under the Obama administration. And I only wish the situation had not reached this point.

I continue to believe that the only effective method of opposing Trump’s sovereign presidency-by-diktat is to challenge his executive orders in court, and to ask Congress to pass legislation restoring the constitutional system of checks and balances which was destroyed by Congressional legislation giving the president and executive branch sovereign authority after Sept. 11th to carry out the war on terror. But certainly the APA, like the ABA or the MLA, could play a role in that process, by supporting lawsuits against Trump’s unconstitutional orders, and supporting those Congresspersons of both parties who oppose them. Not to mention simply educating the public about the danger to the American constitutional system we now face.

I hope I am not burdening my fellow critical thinkers with these comments. But I’ve spent some time researching and thinking about these issues, and I’d like to pass that on. I of course welcome comments and opposing viewpoints, friendly or otherwise. Thank you.

Eric D. Meyer

I only add this article from Jonathan Freedland at The Guardian (1 February 2017), which, I think, makes the danger of Trump & Co.’s actions to American democracy quite clear:

Here are the questions Trump’s supreme court pick has to answer
Jonathan Freedland

…Even after the judges had spoken [declaring an injunction against Trump’s immigration policy], Customs and Border Protection (CBP) staff continued to enforce Trump’s executive order. CBP officers kept lawyers from speaking to detainees, even after a court judgement had said they could. When elected congressmen and women called and asked for information, the CBP put the phone down on them. And, even after the court rulings, the White House insisted that the executive order still stood.

The significance of this is enormous. It means that the executive – in the form of both the White House and the Customs and Border Protection agency – was refusing to bow to the judiciary. That position was perhaps articulated best by the CBP officer who, when asked by two members of Congress who exactly he was reporting to, answered, “Donald J Trump”.

This is not how a country governed by the rule of law – rather than the rule of men – operates. In authoritarian societies, in a dictatorship, you might expect a border guard to say he obeys the orders of the supreme leader rather than the courts, but that is not what the US constitution demands. It is why the implementation of the refugee ban was not just morally repugnant – witness press secretary Sean Spicer’s defence of the detention of a five-year-old child – but also chilling. And it is why many commentators were raising the prospect of a constitutional crisis.

It sounds overblown, but if Trump’s White House is ready to defy the courts, then that is precisely the right term. The courts are meant to be supreme: nobody, not even the president, is above the law. (This was the issue at the core of the Watergate scandal.) The trouble is, the courts have no means of enforcement – no battalions – of their own. (A limited number of US marshals doesn’t really count.) So if the executive decides to ignore the judges, it is the executive – the president – who has the muscle. The only institution that can stop him is the Congress, through the power of impeachment. But that is of little comfort when the Congress is safely in the hands of the president’s party.

EDM: And I add: And when the monopoly on violence rests with the sovereign executive branch: i.e., President Trump.

https://www.theguardian.com/commentisfree/2017/feb/01/neil-gorsuch-us-supreme-court-constitution?

I also remind myself that Trump has already fired the US Attorney General, precisely for refusing to obey his executive order on immigration.

The question is whether the sovereign executive branch and its monopoly on violence are above the law—in which case we are either in a state of exception, a state of martial law, a state of war, or simply a dictatorship (i.e., the sovereign rule of violence)—or whether the sovereign executive branch can be made to obey the law by the courts, which have no enforcement power, except the sovereign executive branch—and, if so, by whom? Briefly: Who will enforce the US Supreme Court’s decrees against Trump’s rule by diktat, if not the sovereign executive branch: i.e., Trump?

For those who question the philosophical relevance of this question, I add that this is precisely the question Giorgio Agamben has been raising for many years, since his “State of Exception” in the Homo Sacer series. But Agamben does not recognize that American democracy and the US Constitution were designed to prevent this situation from occurring, by placing checks and balances on the sovereign executive branch. And Agamben does not answer the question: What happens if the American government breaks down, and absolute power and its monopoly on violence rest with the sovereign executive branch? Which then places itself above and beyond the law, and the rule of law breaks down. And a state of war within the state of law breaks out…

The further question is, then, whether the checks and balances of the US Constitution and the American democratic system will hold up against Trump’s attacks. And if not: What is to prevent the slide into a sovereign dictatorship of violence? if not the sovereign executive branch…

Instead of descending into chaos and violence, then, I suggest that we insist that the US Congress, the US courts continue to uphold the US Constitution and its strict limits on the powers of the sovereign executive branch in this dangerous constitutional crisis.

EDM

If anybody’s still interested (or still worried…) here’s Rosa Brook’s answer to the question I pose: What if Trump employs the sovereign executive branch and its monopoly on violence to seize power by coup d’etat, rule by executive diktat (which he’s already doing…) or, for example, to launch a nuclear war against Pago-Pago?

Brooks is funnier than I am, but still raises the serious questions:

https://foreignpolicy.com/2017/01/30/3-ways-to-get-rid-of-president-trump-before-2020-impeach-25th-amendment-coup/

The fourth possibility is one that until recently I would have said was unthinkable in the United States of America: a military coup, or at least a refusal by military leaders to obey certain orders.

The principle of civilian control of the military has been deeply internalized by the U.S. military, which prides itself on its nonpartisan professionalism. What’s more, we know that a high-ranking lawbreaker with even a little subtlety can run rings around the uniformed military. During the first years of the George W. Bush administration, for instance, formal protests from the nation’s senior-most military lawyers didn’t stop the use of torture. When military leaders objected to tactics such as waterboarding, the Bush administration simply bypassed the military, getting the CIA and private contractors to do their dirty work.

[But shouldn’t we also mention Obama’s drone strikes here? And since when is targeted assassination better than torture? EDM]

What would top U.S. military leaders do if given an order that struck them as not merely ill-advised, but dangerously unhinged? An order that wasn’t along the lines of “Prepare a plan to invade Iraq if Congress authorizes it based on questionable intelligence,” but “Prepare to invade Mexico tomorrow!” or “Start rounding up Muslim Americans and sending them to Guantánamo!” or “I’m going to teach China a lesson — with nukes!”

It’s impossible to say, of course. The prospect of American military leaders responding to a presidential order with open defiance is frightening — but so, too, is the prospect of military obedience to an insane order. After all, military officers swear to protect and defend the Constitution of the United States, not the president. For the first time in my life, I can imagine plausible scenarios in which senior military officials might simply tell the president: “No, sir. We’re not doing that,” to thunderous applause from the New York Times editorial board.

—But Brooks doesn’t point out that’s its tantamount treason and punishable by capital punishment for US military personnel to refuse to obey an order from the commander-in-chief, even if he’s a lunatic. (Just ask Bowe Berdahl or Brad Manning about that…) And Brooks’ answer still leaves the big question hanging: What if the US military decided to obey that order? And to join the sovereign executive branch in a dictatorship?

And who in America would stand up to a military coup d’etat? The anti-fascist anarchists smashing windows? The far-right libertarians with their assault rifles? Or just us wimpy non-violence types, who wouldn’t stand a chance against any or all of the above…

What’s the options for civil disobedience or non-violent resistance in the world of ‘the nuclear option’?

I submit it’s worth thinking about. Before it happens…

EDM