Florida Democrats have patented how to lose elections, spin narratives internally to maintain some degree of control and make ideology all about the opposition to the other side rather than anything values based. Given the runaway success Florida Democrats have had in maintaining control of a weakened party and pushing business to consultants and campaign professionals who have almost nothing to show on their resume other than General Election losses (but importantly for the maintenance of control, lots of primary wins). I will note that the Democratic response to President Trump’s speech given by Governor Steve Beshear was excellent and perhaps means we will see more emphasis on economic issues and less on identity. But for now the critique of the Democrats remains because Beshear’s response is just an isolated data point until we see more evidence of a shifting Democratic narrative.
At President Donald Trump’s request, a portrait of former President Andrew Jackson now hangs in the Oval Office. Commentators have cast Trump’s populist appeal and inaugural address as “Jacksonian,” while others have tried to emphasize their major differences. One writer lauded Jackson as “the president who, more than any other, secured the future of democracy in America.”
However, these comparisons overlook experiences of marginalized people while defining history in terms of the ideologies of progress and American exceptionalism.
Jackson’s intolerant attitudes and harsh treatment of African-American and Native American peoples have not gone without mention. They are indeed inescapable. As a scholar who has written about Native American history and literature, I am aware of just how often the perspectives of native people are neglected in conventional historical discourse.
The criticisms Trump has directed against Indian casinos in the 1990s, along with his insult of calling Senator Elizabeth Warren “Pocahontas,” casts his veneration of Jackson in a particularly disturbing light.
Andrew Jackson and the Trail of Tears
Jackson was a staunch supporter of slavery and policies that forcibly removed Indians from their lands. The passage of the 1830 Indian Removal Act was aimed at isolating native peoples to prevent conflict over territory and allow increased settlement.
The solution, originally conceived by Thomas Jefferson, was to empower the government to evict native peoples living east of the Mississippi River from their lands. Those subjected to removal would be moved “beyond the white settlements” to distant reservations in the West, known at the time as “Indian territory.” It was a form of segregation.
In 1832, the Supreme Court struck down Georgia laws aimed at depriving the Cherokee people of their rights and property in Worchester v. Georgia. The court affirmed a degree of native political sovereignty and annulled state jurisdiction over native lands. It was the final case of the so-called Marshall trilogy, named for Chief Justice John Marshall – the author of the majority decisions – and established major precedents of federal Indian law.
The immediate effect of the decision was to grant protections to the Cherokee Nation, and by extension to other tribes. It could have prevented forced removals, but Jackson was reportedly indignant at the result. According to the famed journalist Horace Greeley, Jackson was said to have responded, “John Marshall has made his decision, now let him enforce it.”
Whether Jackson spoke those words has been contested by historians ever since. But his strong support for removal policy and subsequent refusal to enforce the court’s decision made his position clear. The response was a stern rebuke of the legitimacy of the Supreme Court, the doctrine of the separation of powers, the rule of law and ultimately the Constitution.
The result was the Trail of Tears, in which Cherokee and other native peoples of the Southeast were forced at gunpoint to march 1,200 miles to “Indian territory.” Thousands of Cherokee died during the passage, while many who survived the trek lost their homes and most of their property. Ironically, much of the land on which the Cherokee and other removed tribes were settled was opened to homesteading and became the state of Oklahoma some 60 years later.
Yet, the violent manner by which removal was carried out had been ruled illegal and unconstitutional by the Supreme Court in the Worchester case.
New assault on native rights?
The new administration is showing similar malice toward the legal status and rights of native peoples secured in American law. For example, Trump recently lifted President Obama’s injunction halting the construction of the Dakota Access Pipeline. Last week’s eviction of pipeline opponents from Sacred Stone Camp, led by the Standing Rock Sioux Nation, under threats of arrest has led to renewed uncertainty about native rights.
Statements by Trump’s advisers and government officials calling for the privatization of native lands guaranteed by treaties to seize valuable natural resources have only heightened these concerns.
This rhetoric echos policies that oppressed native people in the past. These include allotment, extending from 1887 to the 1930s, which eliminated communal ownership and led to the taking of millions of acres of native land. This was followed by termination and relocation of the 1950s, aimed at eliminating the legal status of native people while sending individuals from reservations to urban areas, further depriving native peoples of their lands, liberty and culture.
Tribal leaders negotiated treaties in good faith to reserve what amounts to a fraction of their original lands, with all attendant rights. Privatizing tribal lands would be a violation of these treaties.
The casual rejection of these covenants heighten the insecurity among native people evoked by Trump. His esteem for Jackson and their shared attitudes toward their legal rights and status should give us pause. That journalists and historians continue to offer positive views of Jackson’s presidency in light of this legacy underscores how the suffering of native people continues to be ignored.
In response to real threats and public demand, cities across the United States and around the world are taking action to address climate change. We might think this is happening only in large, coastal cities that are threatened by sea-level rise or hurricanes, like Amsterdam or New York.
Research shows, however, that even in the fly-over red states of the U.S. Great Plains, local leaders in small- to medium-size communities are already grappling with the issue. Although their actions are not always couched in terms of addressing climate change, their strategies can provide insights into how to make progress on climate policy under a Trump administration.
My colleagues and I did a survey of over 200 local governments in 11 states of the Great Plains region to learn about steps they’re taking to mitigate the effects of climate change and to adapt to them. We found local officials in red states responsible for public health, soil conservation, parks and natural resources management, as well as county commissioners and mayors, are concerned about climate change, and many feel a responsibility to take action in the absence of national policy.
But because it is such a complex and polarizing topic, they often face public uncertainty or outrage toward the issue. So while these local officials have been addressing climate change in their communities over the past decade, many of these policy activities are specifically not framed that way. As one respondent to our survey said:
“It is my personal and professional opinion that the conservation community is on track with addressing the issue of climate change but is way off track in assigning a cause. The public understands the value of clean water and clean air. If the need to improve our water quality and air quality was emphasized, most would agree. Who is going to say dirty water and dirty air is not a problem? By making the argument ‘climate change and humans are the cause’ significant energy is wasted trying to prove this. It is also something the public has a hard time sinking their teeth into.”
In order to address the vulnerabilities facing their communities, many local officials are reframing climate change to fit within existing priorities and budget items. In a survey of mayors, we asked: “In your city’s policy and planning activities (for energy, conservation, natural resources management, land use, or emergency planning, etc.) how is climate change framed?” The following quotes give a sense of their strategies.
“In terms of economic benefit & resource protection. This framing was deliberate to garner support from residents who did not agree with climate change.”
“We frame the initiative as: energy savings (=$ savings), as smart growth/good planning, and as common sense natural resource management. Climate change is only explicitly referenced in our Climate Protection Plan adopted in 2009. Most initiatives fall under the “sustainability” umbrella term.“
“We mask it with sustainability, we call it P3 (People, Planet, Prosperity)”
“The initial interest in climate change came about as a result of concern about the potential for poor air quality affecting economic development in the City. Air quality and climate change were framed as being extremely related issues.”
“Climate change is framed as one of several benefits of conservation measures. Other benefits of conservation, recycling, walking, etc. include it’s ‘good for the earth’ (regardless of climate change), healthful, economical, etc.”
The results show that energy, economic benefits, common sense and sustainability are frames that are providing opportunities for local leaders to address climate change without getting stuck in the political quagmire. This strategy is being used across the Great Plains states, which include some of the most climate-skeptical areas of the country.
Local needs and values
Every region of the U.S. will need to address practical questions of how states and local communities can reduce emissions and adapt to climate impacts. Under the Trump administration, it is likely any progress on U.S. climate policy will continue at these subnational levels. That’s why a variety of experts argue that we should encourage the types of pragmatic strategies now being employed by local leaders in red states.
In our research we found local leaders focus on regional and local issues such as drought, energy and flooding. These are problems that are tied to climate change, but are already a priority on the local level. And the sought-for improvements, such as energy savings, health benefit and flood management, fit well with local needs and values.
For example, Fargo, North Dakota mitigates some of its greenhouse gas emissions and created a new source of city revenue by capturing the methane from its landfill facility and selling that gas to the electricity company. The city trash is now providing renewable energy for local residents and an industrial facility.
Perhaps the question facing us is: Should we reframe climate change and other environmental problems to fit the Trump administration’s priorities with a strong focus on practical solution ideas? For example, Trump has stated that infrastructure projects will be a high priority. That could easily translate into fixing the drinking water crisis experienced by Flint, Michigan and many other cities where it is likely to happen; Trump has also highlighted mass transit, which could help reduce air pollution and carbon emissions.
With an administration eager to expand fossil fuel development and consumption, the outlook for federal action on reducing climate-altering greenhouse gases is dire. Given that, reframing climate change to address cobenefit issues seems a logical strategy, and we can look for local government leaders in red states to show the way.
On Feb. 8 the U.S. Army Corps of Engineers reversed course and issued an easement allowing the installation of the Dakota Access Pipeline under Lake Oahe in North Dakota. That decision followed a presidential memorandum indicating that construction and operation of the pipeline would be in the “national interest,” and set the stage for a final showdown over the pipeline’s fate.
In response, two Indian tribes, the Standing Rock and Cheyenne River Sioux, filed new motions to halt the pipeline’s construction and operation. After an initial hearing on those motions, the federal judge on the case allowed construction to proceed but will be considering the Tribes’ claims before oil will pass through the pipeline under Lake Oahe. That means, unlike the voices of thousands who joined the Standing Rock Sioux Tribe in protest against the pipeline, the next chapter of this fight will be argued by a few lawyers in the pin drop silence of a federal courtroom.
Although the details of those arguments will be complex, as a legal scholar focused on Native American law I see the case addressing an essential question at the heart of our legal system: namely, how does federal law and judicial process protect the fundamental values and structure of the Constitution?
The central issues in the case are now whether the U.S. Army Corps of Engineers’ approval of the pipeline and easement illegally interferes with the tribes’ religious beliefs and whether the corps adequately considered the tribes’ water and other treaty rights before issuing that approval.
Religious Freedom and Restoration Act
According to the Cheyenne River Sioux Tribe, oil running through the pipeline would represent the fulfillment of a generations-old prophesy, passed down through the oral traditions of tribal members, that warned of a Black Snake coming to defile the sacred waters necessary to maintain the tribes’ ceremonies. Beyond the environmental concerns often at the center of the pipeline protests, the tribe’s motion for an injunction squarely defines final authorization of the pipeline by the Corps as an existential threat: destruction of the tribes’ religion and way of life.
The Constitution’s First Amendment guarantees the exercise of religion free from governmental interference. But the Supreme Court, in Lyng v. Northwest Indian Cemetery Protection Association, in 1988 upheld the Forest Service’s approval of a road across an area on federal land sacred to local tribes even while recognizing the road could have devastating effects on their religion.
Then in 1993, Congress enacted the Religious Freedom and Restoration Act (RFRA), which requires that the government demonstrate a compelling interest and use the least restrictive means to achieve that interest if its actions will substantially burden religious practice.
In other words, even if approving the Dakota Access Pipeline served a compelling governmental interest, RFRA may require the U.S. Army Corps of Engineers to show that the pipeline easement under Lake Oahe would have the least impact on tribal religion. That approach would be consistent with the Supreme Court’s broad application of RFRA in a 2014 case not involving tribal interests or federal lands and may pose a significant challenge to the corps, which considered but rejected a different route that did not pose the same threat to the tribes.
Both the Corps and company behind the Dakota Access Pipeline argue that the risk of spill from the pipeline is minimal and that the tribes failed to raise these religious concerns in a timely manner. In addition, the Corps contends that, consistent with the Lyng case, governmental action on federal land should not be restricted because of religious concerns raised by local tribes.
Thus, resolution of the case will turn upon whether the court recognizes the legitimacy of the tribal religious concerns and broadly applies RFRA or, instead, chooses to prioritize federal authority over federal land to the detriment of those concerns. The parties will argue whether the religious freedom issues support an injunction on February 27.
Arbitrary or capricious decisions?
In addition to their religious concerns, the Sioux Tribes challenge the Corps’ decisions based on the rights they reserved in treaties made with the federal government in 1851 and 1868.
The Constitution recognizes treaties as the “supreme law of the land” and, according to a 2016 analysis done by the Solicitor of the U.S. Department of the Interior, both the Standing Rock and Cheyenne River Sioux retain treaty-reserved water, hunting, and fishing rights in Lake Oahe.
Before reversing course in February, the Corps refused to issue the easement last year in order to further understand and analyze those treaty rights.
Importantly, federal law generally allows courts to set aside arbitrary or capricious agency decisions. In a February 14th filing, the Standing Rock Sioux Tribe asks the court to review the Corps’ about-face under that standard and argues that the federal trust responsibility,recognized by the Supreme Court since the early 1800’s, demands more than just a cursory review of tribal treaty rights.
The parties will be briefing the treaty rights issues into March but the judge is keeping a close eye on Dakota Access’ progress in the meantime.
The ultimate fate of the pipeline will turn on how the courts recognize the rights asserted by the Sioux Tribes, rights rooted in the Constitution’s values and structure – precisely the type of rights our rule of law and federal courts are meant to protect.
“This can’t be happening.”
“I feel like throwing up.”
“I don’t want to get out of bed in the morning.”
“Life is going to get a lot worse for people like me.”
“I’m so sad I can’t even think about it anymore.”
“Things are never going to be the same again.”
I’ve actually heard these statements from people pained by Donald Trump’s election. Such sentiments convey a mix of disbelief, despondency, powerlessness and fear.
That said, there are many people who are thrilled with the new administration. As a psychologist who researches the ways discrimination experiences impact well-being, however, I am particularly sensitive to those in distress.
My research, and that of other social scientists, helps explain why a Trump presidency is difficult for so many people – and particularly acute for those who have already experienced trauma based on some of the issues identified with Trump.
For example, many women who have been sexually abused were deeply affected because of recorded statements he had made about grabbing women in their crotches. Additionally, many African-Americans who felt empowered and validated by an Obama presidency felt deep sorrow and fear at Trump’s election, due in part to published accounts of his father’s company not renting to African-Americans. There is some good news among all this; there are strategies for coping.
Repeated stress wears the body down
It has proven hard for those opposed to Trump to adjust to his election. Many have felt like they are in the middle of an ongoing stress storm. Immigrants, for example, are stressed over concerns about being deported and separated from their families.
Making matters worse, some are more vulnerable to this storm’s impact than others. The more storms a person has endured, the greater the damage this new storm can inflict.
Along with genetics, environment and behavior, social demographics like race, gender and age also influence the weight of the load. University of Michigan public health professor Arline Geronimus and her colleagues captured this phenomenon when they examined allostatic load in black and white women and men.
They found that black participants, particularly black women, were more likely to have higher allostatic loads than white women and white men, above and beyond the effects of poverty. In other words, black people generally carried more stress in their daily lives.
Age matters too. Allostatic loads were similarly distributed across race and gender prior to age 30. From there, however, the loads disproportionately increased with age, revealing racial and gender gaps that widened over time (white men consistently had the lowest scores, followed closely by white women).
It’s not easy being different
Some psychologists believe the stress of otherness – being viewed and treated negatively due to group membership – is one reason for the unequal “weathering” effect. Mounting evidence gives credence to this belief.
My research group, for example, found black, Latino and Asian undergraduates report significantly more individual and ethnic-group discrimination than white undergraduates. Similarly, almost 100 percent of the black college women my collaborators and I sampled reported experiencing racial discrimination. In both studies, incidences of discrimination were associated with depressive symptoms and, in some cases, anxiety.
So the interplay between high allostatic load and low social position increases vulnerability. This is not good news for the many people of color, women, undocumented immigrants, sexual minorities and Muslims who are stressed out about a Trump presidency.
Strategies that can help
Before giving in to despair, there are reasons for cautious optimism. Psychological research points to promising coping techniques shown to lighten allostatic load and mitigate negative stress outcomes, even among those exposed to prolonged high-stress situations.
Avoid avoidance. As tempting as it might be to address negative feelings through avoidance – think excessive shopping, working, drinking, eating, gaming, online surfing – doing so can be detrimental in the long run. Instead, choose behaviors shown to improve mood over time, like exercise and meditation. Mindfulness-Based Stress Reduction (MBSR), a standardized eight-week program that teaches mindful meditation, shows great promise at reducing stress and improving mood in a wide variety of populations.
Problem-solve. Taking action to address a perceived stressor can be therapeutic. Called problem-focused coping in the psychological literature, this technique has been shown in my research and that of other social scientists to buffer the negative health effects of stress. Donating time or money to a preferred political candidate, party or cause or participating in a protest or letter-writing campaign are examples of problem-focused actions.
Seek support. An aspect of problem-focused coping worthy of individual attention is social support. Connecting with empathetic others has the interrelated benefits of reduced stress, lower allostatic load and improved health and well-being. A solid support network doesn’t have to be large. It can contain just a few people you perceive as reliable. Need to build your network? Start by reaching out to those already in your life that you’d like to know better. Joining civic organizations or neighborhood groups are also good options. If you go this route, facilitate connections by volunteering to help the organizers.
Get help. Sometimes our coping efforts don’t yield desired results, or we can’t bring ourselves to try anything. In these situations, professional help might be warranted. The American Psychological Association is a great resource for information about the benefits of psychotherapy and how to go about finding a therapist.
If you plan to endure the social changes under way with gritted teeth and clenched fists, I invite you to experiment with the above techniques to find what combination might work for you. Four years is a long time to be battered by a storm; preparation could mean a lot less damage, especially if previous storms have worn you down.
As Trump said this at the National Prayer Breakfast, his focus was on permitting religious groups to play a more vocal role in political campaigns. Our experience in researching nonprofit organizations, however, suggests there would be much wider and likely negative ramifications if he fully follows through on his pledge.
To understand the impact, we need to examine the Johnson Amendment and consider how the president might seek to alter it.
At its simplest, it means that a charity cannot encourage people to vote for or against a particular candidate for public office – though it can discuss political issues generally. So a nonprofit organization must choose between being designated a charity, which affords it the right to receive tax-deductible contributions, or another tax status that provides more leeway in politicking.
Even before its passage, however, the IRS took a dim view of charities engaging in political activities. To the IRS, such activities didn’t further a “charitable purpose,” such as helping the poor, maintenance of public monuments, advancement of religion or the defense of civil rights.
Opponents claim the statute violates their rights under the First Amendment to freedom of speech and religion, while proponents argue it ensures the charitable tax deduction is not inadvertently subsidizing political speech.
But since it applies to all charities, any attempt to “destroy” the amendment would affect the behavior of more than just pastors and priests. Schools, hospitals, addiction centers, food banks and other charities all could then advocate for or against candidates to some extent without losing their charitable status.
Tweaking the Johnson Amendment
Despite his rhetoric, Trump is unlikely to try to entirely eliminate the amendment, in part because his aim seems to be focused on religious speech.
So a bare minimum change could be an executive order that explicitly states that the administration will not enforce the law against religious groups as long as the political activities are conducted as an ancillary part of regular operations.
This would generally ensure that a preacher would not jeopardize a church’s tax-exempt status by supporting a candidate from the pulpit. A move like this would largely be symbolic since there is little evidence that the IRS has sought to revoke the charity status of a church whose preacher violated the ban, such as on pulpit freedom Sunday. The Treasury Department and the IRS may already believe that enforcement of the amendment in this context is impractical and may even violate laws protecting religious freedom.
Such a limited executive order would mean the IRS would still enforce the law when a church is engaged in more secular activity, such as acquiring a billboard to favor or oppose a particular candidate.
A more aggressive posture would be if Trump issues an order telling the IRS not to enforce the ban on churches under any circumstances. Although the idea of a president choosing to not enforce a law dutifully passed by Congress may seem odd and problematic, presidents have wide prosecutorial discretion.
President Obama, for instance used this power to direct his Justice Department to curtail enforcement of some violations of drug and immigration offenses. Its use can also run into legal challenges, as was the case with Obama’s immigration efforts.
On the legislative side, Congress is already pursuing its own modest efforts, such as the Free Speech Fairness Act. That would allow charitable groups to engage in political speech when it’s a normal part of their activities and the costs of doing so are “de minimis” – so no national candidate ads, for example.
While the impact of this bill remains uncertain, it would likely eliminate none of the challenges of enforcing the current ban and might raise more problems.
More ambitious approaches
A more ambitious legislative approach short of killing the amendment would be to add a carve-out that exempts houses of worship altogether. Such an effort would seem consistent with Trump’s goal of permitting religious groups more leeway in supporting candidates. An unintended consequence would be to increase the need for the IRS to answer the question of what constitutes a church.
In other words, this would almost certainly increase the flow of groups seeking church status. Besides forcing the IRS to answer that difficult question – what’s a church – it may also undermine public perceptions of churches more broadly.
If one takes the most literal interpretation of the president’s pledge, his aim would be to permit politicking by all charitable organizations. He might pursue this goal through an executive order, but a permanent change would require a legislative solution.
A full repeal of the amendment would have the potential to upend the entire nonprofit sector. After all, limitations on politicking provide a key line between organizations that can receive tax-deductible charitable contributions and those that cannot (e.g., social welfare organizations and political action committees).
A repeal would also open a new pathway for avoiding laws on the disclosure of campaign contributions, creating another so-called dark money channel.
If this line were removed, we should expect to see many organizations that are ostensibly political in nature seeking charity status so they can raise funds through tax-deductible gifts from undisclosed donors. And many nonprofits that weren’t previously political would likely expand to add such spending to their portfolio of activities.
Many fear that blurring the lines between goals intended to serve the general public and those aimed at special interests would undermine public trust in charities and ultimately even put the charitable deduction at risk. With this in mind, prominent nonprofit groups have objected to efforts to repeal the Johnson Amendment.
The push against repeal by charities should be a good indication of its potentially damaging effects. It’s not often that organizations push to retain limits on themselves.
A tricky business
Even if the prohibition goes away, unlimited political activity and its enforcement would remain a problem. That’s because political activity itself does not further a charitable purpose. And the IRS would still have to police whether charities were engaged in too much of it to justify charitable status.
Additionally, determining whether a particular comment or speech is even political can be quite difficult. For instance, if a minister gives a sermon asking his congregation to compare two candidates for office and determine whom Jesus would pick, has the minister engaged in political speech in his capacity as a representative of the church? The IRS has issued guidance with 21 different situations to explain how it makes such determinations.
At the moment, Congress appears reluctant to completely dismantle the Johnson amendment, perhaps because of the concerns we’ve listed above or others. So the likely change, if any, would be a minor shift that gives some nonprofits additional leeway to engage in political speech.
But as we’ve shown, even modest changes to the amendment in this direction are risky and could lead to unintended consequences tantamount to “throwing the baby out with the bathwater.” Given this unclear and treacherous territory on which he has embarked, the president would be wise to tread carefully.
Thursday’s appellate court opinion, which denied President Donald Trump’s appeal concerning his immigrant ban executive order, was unsurprising. It cautiously declined to upset the status quo, temporarily continuing to prevent the executive order’s enforcement nationwide. But it also allowed for further briefing and argument.
As a constitutional law professor and former Justice Department litigator, I see the court’s reasoning as suggesting deep skepticism of Trump’s position and, at the same time, spotlighting the main issues for the further appeals that will inevitably follow.
The order, then the ban
Among other things, the executive order bans for 90 days the entry of any nationals from seven majority Muslim countries. It imposes a 120-day ban on admitting refugees, and an indefinite ban on Syrian refugees. Further, priority is to be given to members of minority religions in their home state once the ban on admitting refugees runs out. This would have the effect of favoring Christians.
After a Seattle federal judge ordered a nationwide halt to enforcing the executive order on Feb. 3, the Trump Justice Department petitioned the three-judge appeals court to lift the injunction. The case went up on appeal on an emergency, preliminary basis.
Violating due process
In its Feb. 9 opinion, the panel of the Ninth Circuit Court of Appeals found it likely that the states of Washington and Minnesota had legal standing to sue, and that the executive order violated the due process rights of at least some of those it affected. It reserved the question of whether the executive order violated the separation of church and state, but noted these are “serious allegations” that raise “significant constitutional questions.”
However, because it was an emergency appeal by the government to immediately undo a temporary lower court order, the government had a heavy legal burden. The court’s preliminary decision that the government failed to meet that heavy burden doesn’t necessarily mean the court couldn’t change its mind later. Nonetheless, the tenor of the opinion sounded skeptical of the Trump position.
Almost half the opinion dealt with the government’s procedural objections about whether the case even belongs in court. CitingSupreme Court cases, the appeals court ruled that the state universities represented by the state government lawyers could indeed sue on behalf of foreign-born students, faculty and staff who could not study, teach or work because of the travel ban. And, while the appellate judges acknowledged that courts should show deference to the president on national security and immigration issues, they sharply rejected the Trump administration’s gutsy and novel argument that the courts had no power to review the executive order, citing severalrecent Supreme Court cases.
On the merits, the panel came down most strongly on due process issues. The Constitution’s due process clause says that before the government can restrict someone’s freedom of action, it must give affected persons advance notice and a hearing.
Even noncitizen aliens have due process rights, if they are in the U.S.. The appeals court stated that the executive order most clearly violates due process because it affects holders of lawful visas and “green cards” who are present in the U.S., or who have been in the U.S. and are only temporarily abroad.
Lawyers for the government attempted to argue that the executive order didn’t really apply to green card holders, or even, ultimately, visa holders. They argued there was no need for a court order against enforcement. But the judicial panel was having none of it. In a hint of skepticism toward the administration’s reliability, the court expressed doubt that anyone other than the president had the authority to change the effect of the executive order. It said it couldn’t be sure the government lawyers’ take on the executive order would “persist” for long, “in light of the government’s shifting interpretations of the Executive Order.”
More fundamentally, the appeals court ruled, even people who the government clearly views as falling under the executive order – like those present in the U.S. illegally – still have due process rights.
The panel was more cautious regarding the establishment clause claim, where the state governments argued the ban clearly targeted Muslims, thus violating separation of church and state. It did say it was proper to give weight to the “numerous statements by the president about his intent to implement a ‘Muslim ban,’” but it was not prepared to say much more at this early stage of the proceedings.
Crucially, the appeals court declined to narrow the nationwide scope of the Seattle judge’s injunction against enforcing the executive order.
In a “sauce for the goose is sauce for the gander” moment, the judges noted the recent case where a single federal judge had controversially blocked enforcement nationwide of an Obama executive order on immigration. The conservative appellate panel in that 2015 case had ruled that a court order covering only that court’s part of the country would lead to an unwise “fragmented” immigration scheme rather than a “uniform immigration law and policy.”
The opinion is also notable for what it did not discuss.
At oral argument, the parties had raised the possibility of remanding the case back to the trial court for the taking of more evidence. There was no mention of this in the final opinion.
Oral argument also dealt with a federal statute barring discrimination based on national origin regarding visas. I recently argued this was the strongest argument against the executive order, but the opinion contains no discussion of it. This might be because that legal claim would not affect non-visa holders like refugees and persons with green cards.
Ultimately, this is a clear defeat for the Trump administration. But, given the necessarily preliminary nature of these emergency proceedings, it may not be a permanent one.
Trump can continue to argue before this three-judge panel, appeal their decision to the full 29-judge-strong Ninth Circuit Court of Appeals, and, ultimately and predictably, move on to the Supreme Court. Given its fast-track nature, the case will likely reach the Supreme Court before the current vacancy is filled.