Rather, as the first major test of the efficacy of resistance to Trumpism, this episode constitutes an important moment because it shows that broad, determined opposition may be able to prevent Trump from escalating this policy — and other, related immigration and terrorism policies — into something a whole lot worse.
In coming days, I’m told, the American Civil Liberties Union is likely to file a lawsuit that is designed to overturn the entire executive order. This lawsuit will be separate and distinct from the one that the ACLU filed over the weekend, which successfully blocked the deportation of people detained upon trying to enter the United States. The new lawsuit will try to get the entire executive order declared unconstitutional, on behalf of all of the people impacted by it.
“We are likely to file a broader challenge to the Executive Order in the coming days, and we’ll likely seek temporary relief,” Lee Gelernt, a senior lawyer at the ACLU’s national office and one of the main lawyers on the case, told me this morning.
The lawsuit that the ACLU filed over the weekend argued, on behalf of people detained upon entry, that the executive order violates their rights to due process and equal protection. It argued that the measure discriminates against them “on the basis of their country of origin,” and was “substantially motivated by animus towards” and “has a disparate effect” on Muslims. The judge who blocked their removal did so out of the belief that those detained and others like them have a “strong likelihood of success” in showing that their constitutional rights had been violated.
The new lawsuit will likely seek to overturn the entire executive order on similar grounds. A principal argument — though not the only one — will likely be that the measure was intended to discriminate against Muslims, and therefore constitutes religious discrimination against people who are legally permitted to enter the United States, violating equal protection.
Trump himself has been denying that the new measure constitutes a “Muslim ban.” But the new lawsuit will likely rely, among other things, on Trump’s own words to show that the measure is intended to achieve a similar discriminatory effect, albeit in a manner designed to pass legal muster. For instance: In the wake of the San Bernardino shooting, Trump explicitly called for “a total and complete shutdown of Muslims entering the United States.” And then, in a major terrorism speech in June 2016, Trump talked about this original Muslim ban and the idea of a ban on immigration from select countries as, in effect, the same proposal:
“I called for a ban after San Bernardino, and was met with great scorn and anger but now, many are saying I was right to do so. … The ban will be lifted when we as a nation are in a position to properly and perfectly screen those people coming into our country. … When I am elected, I will suspend immigration from areas of the world when there is a proven history of terrorism …”
The new executive order temporarily suspends entry by refugees for 120 days (Syrians indefinitely) and suspends entry by migrants from seven Muslim-majority countries for 90 days. Now, it’s quite plausible that the lawsuit cannot get this policy overturned in time.
But one of the main goals of this lawsuit — and of the broader outpouring of protest and opposition — is to block Trump from escalating this policy and others like it. If Trump so chose, after the 90 days has passed, Trump could extend the ban, and he could even broaden the list of countries targeted by it. There is precedent for this: After 9/11, a national registry for visitors was implemented that started out targeting only a few countries, but then that target list rapidly expanded to include at least two dozen countries, mostly Muslim-majority ones. It’s not hard to imagine the same thing happening again — with Trump’s executive order expanding into a broad ban on legal immigration from many predominantly Muslim countries — particularly if there were a major terrorist attack.
But if that were to happen, a lawsuit might be able to get the underlying mechanism declared unconstitutional, blocking it from continuing or expanding. This is also why the extraordinary show of national and global opposition we’ve seen is so critical. There has been a worldwide outcry. Intense media scrutiny has revealed the utter incompetence and recklessness of the measure’s drafting — and the profound folly of the underlying idea itself, which has handed terrorists a shiny new recruiting tool. Republican senators are condemning the measure.
All this has forced the Trump White House to back down in some respects. The White House reversed course on applying the measure to current green card holders, and Trump is making reassuring noises about the measure ending on schedule. And so, we can presume the Trump White House might pause before continuing or expanding this proposal or launching other ones like it. We can hope, anyway.
This is the first major test of whether popular mobilization and institutions such as the news media and the courts can mount a serious check on Trumpism’s worst impulses. Though these struggles are going to be long, intense, brutally difficult, and at times very dispiriting — with, let’s face it, an uncertain overall outcome — this is a somewhat reassuring start.
* HASTY ROLLOUT OF EXEC ORDER LEFT TOP OFFICIALS IN THE DARK: The New York Times reports that Trump signed this executive order even before John Kelly, his secretary of homeland security, had been fully briefed on it:
Kelly … had dialed in from a Coast Guard plane as he headed back to Washington from Miami. Along with other top officials, he needed guidance from the White House, which had not asked his department for a legal review of the order. Halfway into the briefing, someone on the call looked up at a television in his office. “The president is signing the executive order that we’re discussing,” the official said, stunned.
The Times also reports that Defense Secretary James Mattis was not consulted. But Bannon thought the executive order was necessary to “shore up Trump’s base,” which was obviously more important than briefing top national security officials.
* BANNON CONSOLIDATES POWER IN WHITE HOUSE: Steve Bannon has now been given a seat on the National Security Council, and Politico sums up the influence that he and former Jeff Sessions aide Stephen Miller have amassed:
They’ve been responsible for setting an “action plan” for Trump’s first weeks. … The plan has so far produced executive actions weakening Obamacare, beefing up immigration enforcement, and freezing federal hiring — and on preventing refugees and visa-holders from majority-Muslim countries from entering the U.S. “He’s telling Trump that he can do everything he said he would do on the campaign trail,” said a person close to the administration.
And Politico reports this has endeared Trump to Bannon. If it portrays Trump as a “man of action,” who cares if it’s also an epic moral, substantive and political disaster that’s causing global turmoil?
* COUNTRIES IN TRUMP’S BAN AREN’T MAJOR TERROR SOURCES: The Wall Street Journal delivers a dose of reality:
Of 180 people charged with jihadist terrorism-related crimes or who died before being charged, 11 were identified as being from Syria, Iraq, Iran, Libya, Yemen, Sudan or Somalia, the countries specified in Mr. Trump’s order. … None of the 11 were identified as coming from either Syria, Libya or Sudan, and none of the 11 were involved in any major U.S. plot resulting in the deaths of Americans, including the attacks of Sept. 11, 2001.
Yes, but other countries that might have been included on the list are places where Trump has done business, so …
* NO REFUGEES HAVE CARRIED OUT RECENT FATAL TERRORIST ATTACKS: CNN delivers another dose of reality:
No person accepted to the United States as a refugee, Syrian or otherwise, has been implicated in a major fatal terrorist attack since the Refugee Act of 1980 set up systematic procedures for accepting refugees into the United States, according to an analysis of terrorism immigration risks by the Cato Institute. Before 1980, three refugees had successfully carried out terrorist attacks; all three were Cuban refugees, and a total of three people were killed.
No problem. The Trump White House can just come up with a set of “alternative facts” that show what a menace refugees really are.
* GIULIANI EXPLAINS TRUMP’S EXEC ORDER: Some argue that the new executive order isn’t a “Muslim ban.” Rudy Giuliani gave away the game on Saturday night, saying this:
“When [Trump] first announced it, he said, ‘Muslim ban.’ He called me up. He said, ‘Put a commission together. Show me the right way to do it legally.’ And what we did was, we focused on, instead of religion, danger — the areas of the world that create danger for us. … And that’s what the ban is based on. It’s not based on religion. It’s based on places where there are substantial evidence that people are sending terrorists into our country.”
The White House did not immediately comment on this, so given the speaker, it’s possible this is pure invention. But hopefully more reporting will get to the bottom of it.
* NO, THE PRESS ISN’T GOING TO SHUT UP AND LISTEN: E.J. Dionne has a nice response to Bannon’s insistence that the media is the “opposition” and should shut up and listen:
When confronted with untruths, all journalists have one and only one choice: to call them what they are. They cannot, without misleading the public, pretend that there are two sides to a purely factual question. Further, they need to avoid vague language about facts being “in dispute” when there is absolutely no question about what the facts are … reporters may indeed seem “oppositional” when they confront an administration that, day after day, shows so little regard for fact or truth. But this is not the media’s problem. It’s Trump’s.
Exactly — and as I’ve argued, it is facts and reality, ferreted out by a dogged and determined press, that pose a major threat to Bannon’s grand designs, and he knows it.
* TRUMP’S DUMB PLAN TO MAKE MEXICO PAY FOR THE WALL: White House press secretary Sean Spicer has floated a tax on imported goods to fund Trump’s border wall. Paul Krugman explains why this won’t actually fulfill Trump’s vow to “make Mexico pay” for it, and adds:
The White House press secretary created a diplomatic crisis while trying to protect the president from ridicule over his foolish boasting. In the process he demonstrated that nobody in authority understands basic economics.
Remember, Spicer was forced to lash out at the media for accurately reporting on the inaugural crowd size, because it angered Trump. Everything is about protecting Trump from ridicule. Tough job!