But there was nothing conventional — or legal, or constitutional — about what happened after a federal judge, Ann Donnelly in U.S. District Court in Brooklyn, issued a ruling on the order. (A federal judge in Alexandria, Leonie Brinkema, later issued a similar ruling in a similar action on behalf of some people who were detained upon arrival at Dulles International Airport near Washington, D.C. Brinkema’s order went further than Donnelly’s, mandating that those people at Dulles be allowed to talk with lawyers.)
Customs and Border Patrol agents kept stopping and preventing people covered by the executive order from entering the United States, detaining them in direct violation of the judges’ orders. CBP agents at Dulles, informed by representatives of the American Civil Liberties Union that the detainees were entitled to legal counsel, responded, “That’s not happening.”
That means one of two things: Either the judges will hold a federal official, likely someone with CBP, in contempt, or the rule of law is dead in this country. And I’m not sure even a contempt citation with actual jail time would convince the Trumpites not to do what they’re doing.
As Yonatan Zunger writes at Medium:
That is to say, the administration is testing the extent to which the [Department of Homeland Security] (and other executive agencies) can act and ignore orders from the other branches of government. This is as serious as it can possibly get: all of the arguments about whether order X or Y is unconstitutional mean nothing if elements of the government are executing them and the courts are being ignored.
Zunger asks whether this is the beginnings of a coup. When executive-branch officials directly disobey a federal judge’s orders, I think the answer is probably yes.
The judges’ rulings empower the U.S. Marshal’s Service to enforce those rulings. Were I Judge Donnelly or Judge Brinkema, I’d have whoever was overseeing the CBP at JFK Airport and Dulles, respectively, in jail, and possibly higher-ups as well.
And even if the judges did that, I don’t know whether it would be enough. I honestly do not believe the Trumpites are going to stop until they are forced to. And it is clear that the Republican Party in Congress, supposedly a check on executive power, does not have the will to force them to.
And if that didn’t bug you, consider this: Steve Bannon, the unreconstructed Nazi who is now Trump’s top advisor, has been given a seat on the National Security Council — and the Chairman of the Joint Chiefs of Staff, the nation’s top military officer, has been booted out of the group.
My friend David Gwynn said this on Facebook:
Steve Bannon is basically your crazy alcoholic uncle who lives in a broken down trailer on the outskirts of Merced. And he tells the President what to do. This should frighten just about everyone.
This is true, but it’s even more appalling, as Gail Young posted in the Facebook group Indivisible Concord:
Bannon has no government, intelligence, or high-level military experience; his experience is leading a propaganda outlet (Breitbart News) that peddles nationalist and white nationalist viewpoints.
This would be deeply concerning in and of itself. But one of the jobs of the NSC is to oversee a secret panel that authorizes the assassination of “enemies of the United States Government” – including American citizens. These targeted killings are fully authorized by law under the Congressional military authorization act following 9/11. There is no trial, no due process, and no public record of the decision or the assassination itself.
Just to recap the absurdity: the President of the United States has appointed a known propagandist, nationalist, and white supremacist to replace the highest military advisor in the country on a council that authorizes secret, legal, targeted killings of American citizens (and others) without due process.
And if you’re thinking, “Oh, they’d never do that to a U.S. citizen,” well, they already did, when President Obama ordered the extrajudicial assassination of Anwar al-Awlaki. I said at the time that Obama should have been impeached for it.
So, you folks who like to say, “If I’d been there back then, I’d’ve …,” here we are. It’s time to do whatever you would have done.
UPDATE, 8:06 p.m. 1/30: A federal judge in Los Angeles, apparently annoyed that ICE deported a man in violation of HIS order, has ordered ICE to go bring him back, per the L.A. Times. That’s good, but holding some people in contempt, too, would’ve been better.
UPDATE, 9:35 p.m. 1/30: Earlier today, Sally Yates, the acting attorney general, announced that the Justice Department would not defend Trump’s executive order on immigration in court. A few minutes ago, Trump fired her. He said in his statement that she had “betrayed the Department of Justice.” This is, of course, bullshit of the purest ray serene. She swore an oath to uphold the Constitution — not the Justice Department or any president or administration — and that’s what she did.
Trump and Bannon are basically claiming that they are the Constitution. This is officially the biggest constitutional crisis since Iran-contra, if not the 1973 Saturday Night Massacre.
UPDATE, 8 a.m. 1/31: Steve Benen at MSNBC reminds us of some fairly recent history. Scene: Sally Yates’s confirmation hearing in March 2015 after being nominated to the post of deputy attorney general:
At the time, none other than Sen. Jeff Sessions (R-Ala.), now Trump’s nominee to be attorney general, reminded Yates that she’ll have to be prepared to stand up to the White House should a president urge her to do something she considers unlawful. From the transcript:
SESSIONS: Well. you have to watch out, because people will be asking you to do things you just need to say ‘no’ about. Do you think the attorney general has a responsibility to say no to the president if he asks for something that’s improper? [„,] If the views the president wants to execute are unlawful, should the attorney general or the deputy attorney general say no?
YATES: Senator, I believe the attorney general or the deputy attorney general has an obligation to follow the law and the Constitution, and to give their independent legal advice to the president.
Two years later, Yates did as she promised. For her trouble, Donald Trump fired her and accused her of “betraying” the Justice Department.
History will remember only one of them kindly.