Professor Gilbert Morris posted this piece on his Facebook page on 11 February:
TRUMP AND THE COURTS: THE PATH TO RUIN:
President Trump “lost” a legal action at the 9th Circuit Court of Appeal recently. It is fascinating to observe the animated stupidity in the White House, the US Congress and Senate – not to speak of the media – as they ruin the America they claim to love.
It is stunning to observe how clueless they seem about how their own system actually works.
One listens to pundits discuss the law and one is shocked at the poverty of legal reasoning by senior legal scholars and lawyers in the US.
An example is former US Congressman (a lawyer) Joe Scarborough – of “Morning Joe” on MSNBC. (Thank heavens I watch in airports only). Joe has gone batty over some blogger saying that the underlying legislation granting the President his powers in immigration had been ignored in the 9th Circuit’s ruling. Then as he does, he squeaks and squeals about how shocking it is that the legislation was “ignored”.
Jesus Christ – how does one answer stupidity?
First, the court can answer ONLY what is before the court. The issue of the President’s power under the legislation was not presented to the court. Or fact government lawyers made the foolish argument that the President could do as he pleaded.
The questions before the court were:
Who has STANDING to being an action? (“Standing” means basically who are the injured parties with the right to stand before the court?)
What are the “due process” rights that extend from STANDING?
Does the focus on Christians in largely Muslim countries show an unconstitutional bias?
And is the President’s power reviewable or does he possess the power – as Trump says himself – to do whatever he wants?
Second, the court turned to the foundation of the US legal system: the rule of law.
The rule of law means that NO ONE – most of all a President – can do whatever he wants. He may do what legislation permits him to do SUBJECT TO THE CONSTITUTION!
That is, no matter what legislation says, if it says something that the constitution forbids, that section of the legislation is dead.
Who determines this?
In the US system the courts are equally as powerful as the President. And it’s the power of the court to tell any President ‘you have gone too far’. (Marbury v Madison 1803).
Third, the President DOES have the obligation and power to protect the country. The problem is that claims matter. If you say stupid racist xenophobic statements then impose a sloppily written ban, then say the ban is needed urgently but it’s seems focused on a religion group and your senior advisor and your national security advisor made repeated hateful statements about that ENTIRE group, you can’t faint from surprise when your policy is challenged.
When it is challenged and the President says we need this ban urgently, the courts say show us the urgency. This is where bullshit meets facts.
Even at the Supreme Court, if Mr Trump insists – on this unnecessary claim – that there is an urgent need, he will have to show what is different between a month ago in the Obama administration and now.
Now there is a powerful argument on Mr Trump’s side: it is NOT President Obama chose the 7 countries as the White House and idiot barkers in the media say constantly. It is also NOT an issue that Trump has no hotels in those places. Rather, it is that those countries lack credible systems with documents – birth certificates, drivers licenses – that can be relied upon to ensure the proper vetting of persons. (Given the inefficiencies and corruption in Caribbean countries, we may soon find ourselves on such lists).
Therefore: if the Trump White House had produced an executive order that said the danger is the systems in these 7 nations, and we are likely to add additional nations as the case maybe, with exemptions for green card holders and reviewable visas, this would be over.
However Mr Trump seems to be demanding the right to advance stupidity. And the Democrats seem more delighted to poke a finger in Trump’s eye, than concerned.
For myself, I see both sides here: I do not argue for things. I argue against things. I do not argue for what I like. I argue for what the facts allow, and demand consistency wherever it leads. As such, I never have followed political parties as they are mere bastions of ideological gasbaggery spouting self-serving factless batshit.
But here is where the tragedy in America will come:
The courts are right about Mr Trump’s silly order in the manner of its drafting and implementation. They are right that the arguments are complex and not as simple as Mr Trump says foolishly. Mr Trump’s attack on judges and misunderstanding of the American legal system is disgraceful. The silence of Republicans and their leadership is felonious cowardice.
However, if an attack occurs in America, no matter the facts, Mr Trump will say it’s the fault of the courts; that law and legal argument does not matter, and what matters is ONLY he knows and is right about protecting America.
Then out of fear, ignorance, lack of knowledge of their own system, many more Americans will simply run toward the president’s position, undermining the courts, and their constitutional protections, possibly ruining the relevance and prestige of the courts for good.
Note from Editor: the Americans are thinking now that in order to come to the US and to get a visa in the future you will need to give them your password for your e mail and Facebook page. Interesting.