Will Congress Fiddle While Our Republic Burns?

Here at Team Legal we are used to bad news. Hell, we live it every day. But trust when we say these are unprecedented and dangerous times.

What transpires in the coming weeks will be very telling of the depths of the fight ahead and just how strong, or weak, our constitutional foundation is. Shutterstock

In 1832, President Andrew Jackson flipped the U.S. Supreme Court the bird before moving ahead with a genocidal campaign of Native American removal. This past weekend, Donald Trump and most of the Republican leadership told the entire federal judiciary, and hundreds of thousands of protesters, to do the same so they could ban many foreigners from predominantly Muslim countries from entering the United States.

The parallels between these two situations are not only unsettling, but they are indicative of the fight ahead.

We are a nation of laws, checks, and balances. We are also a nation of institutional norms. With the Republicans controlling the executive and legislative branches, and President Trump and his advisers indicating that they are willing to ignore the judiciary when it suits them, we are in danger of tossing institutional norms by the wayside.

Unless Congress members step up in a real way and defend our republic, we’re all likely to spend the next four years watching it burn.

Unless you were trapped under something heavy during the weekend, you probably know that Trump signed an executive order, which we are going to call the Refugee and Visa Order, banning refugees from entering the United States for 120 days, banning Syrian refugees indefinitely, and blocking entry into the United States for 90 days citizens of the following seven countries, which are predominantly Muslim: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. In addition, the ban initially applied to nearly 500,000 green card holders, but the Trump administration has walked that back and is now permitting green card holders to enter the United States. This whole operation is nothing if not a giant clusterfuck.

The order invokes the 9/11 attacks:

The visa-issuance process plays a crucial role in detecting individuals with terrorist ties and stopping them from entering the United States. Perhaps in no instance was that more apparent than the terrorist attacks of September 11, 2001, when State Department policy prevented consular officers from properly scrutinizing the visa applications of several of the 19 foreign nationals who went on to murder nearly 3,000 Americans.

But of those 19 foreign nationals responsible for 9/11, 15 hailed from Saudi Arabia, and guess what country Trump decided not to ban? Saudi Arabia. He also left Lebanon and the United Arab Emirates (UAE) off the list, and wouldn’t you know it: Saudi Arabia, Lebanon, and the UAE are countries with ties to Trump’s businesses (We here at Team Legal are sure that’s merely a coincidence.) They are also the countries of origins of the 9/11 attackers; if we’re tracking national security justifications for the ban and all, that’s a detail that seems significant.

Who are we kidding? Of course we are not tracking any national security justifications, because there are none.

The executive order is cruel, un-American, and shameful.

It is also plainly unconstitutional, as Mark Joseph Stern points out in his Slate piece aptly titled “It’s Unconstitutional.

None of that matters to President Trump, though. Once Trump signed the order, federal agencies began immediately detaining hundreds of people around the country at airports, prompting lawyers nationwide to spring into action and challenge the administration.

So far, more than 30 lawsuits have been filed alleging that the Refugee and Visa Order is unconstitutional as applied to specific detainees, because it deprives them of their due process rights under the Fifth Amendment, and is also unconstitutional generally, because it violates the Establishment Clause of the First Amendment. (The Fifth Amendment says that no one can be “deprived of life, liberty or property without due process of law” and guarantees certain due process rights. The Establishment Clause says that the government cannot make any law “respecting an establishment of religion.”)

As Trump agents busy themselves deporting people who have a lawful right to be here, courts around the country have been either issuing injunctions blocking these deportations or issuing temporary stays, which, also effectively block these deportations. (Read this edition of Boom! Lawyered for a refresher on what an “injunction” is, and this edition for a refresher on what a “stay” is.)

Reportedly, however, border agents are ignoring these orders and continuing to deport people.

Trump and his agents seem to have decided to go the Andrew Jackson route, which considering that the president has surrounded himself with Jackson memorabilia, seems fitting.

The story of Andrew Jackson flipping the Supreme Court the bird is actually a rather interesting one, so let’s get into that a bit.

In the 1820s and ’30s in Georgia, white dudes were trying desperately to force the Cherokees and other tribes from their lands and spread their white dude values hither and yon. One of the so-called values that white dudes loved to spread was Christianity. And in service to that, a handful of missionaries made it their mission to turn Cherokee natives into good law-abiding Christians.

(Take a moment to roll your eyes dramatically.)

In addition to forcing their religion upon the Cherokees, these white guys also began to advise the Cherokees in their battle with Georgia over Cherokee land. Annoyed that these white guys were interfering with Georgia’s removal program, Georgia passed a law that basically said white guys couldn’t reside in the Cherokee Nation without permission from the state.

Having no desire to tussle with the state of Georgia, most of the missionaries threw up deuces and left. But a few stayed, including a man named Samuel Worcester. He and the others who stayed were arrested, charged with violating the new law, and sentenced to hard labor in prison.

Worcester and his missionary pals appealed to the U.S. Supreme Court which, in 1832 in Worcester v. Georgia ruled that Native American nations were “distinct, independent political communities retaining their original natural rights” and that even though the Cherokees had signed away some of those rights in treaties with the United States, the Cherokee Nation was still a sovereign territory with a legitimate title to its land.

Georgia, in response, essentially scoffed in the Supreme Court’s face, refused to release Worcester and his crew from prison, and continued to demand that the Jackson administration help them kick the Cherokees off of their land.

Rather than enforce the Supreme Court’s decision against Georgia like he was constitutionally required to do, Jackson instead told the Cherokees that they either had to leave their land voluntarily or fall under Georgia’s jurisdiction, which would result in them being violently forced off their land.

In other words, no stupid federal court, not even the highest one, was going to stop Jackson and his supporters from doing as they damn well pleased when it came to grabbing Cherokee lands.

Fast-forward more than one hundred years and it appears Trump, his senior counselor Stephen Bannon, and Congress are intent on reimagining the Jackson episode into something even more dystopian.

In addition to enacting a blatantly unconstitutional religious ban, Trump officials reportedly began arguing that those stopped at airports were not really being “detained” nor were the spaces in which those individuals being held part of U.S. jurisdiction. If that argument sounds a little familiar, it should. It’s the same argument conservatives used to justify and enable U.S. torture practices during the Iraq War.

It also sounds quite a bit like the practices of the Chicago Police Departmentwhich operated a black-site detention unit known as Homan Square, where approximately 7,000 people “disappeared” for secret interrogations. This despite, you know, their constitutional rights, such as due process and equal protection guarantees.

No wonder the Fraternal Order of Police, the law enforcement union agitating for more military grade weapons to police U.S. citizens, is so enamored of Trump and his cronies. In the Trump administration, they see the potential to finally serve as an occupying army in U.S. cities.

Here at Team Legal we are used to bad news. Hell, we live it every day. But trust when we say these are unprecedented and dangerous times. Just a week into taking power and the Trump administration has already proven it has no regard for the rule of law, unless it is to bend and manipulate it to foster chaos and stifle dissent.

What transpires in the coming weeks will be very telling of the depths of the fight ahead and just how strong, or weak, our constitutional foundation is. The administration continues to flout court orders on its deportation order, effectively giving the middle finger to the entire idea of separation of powers and checks and balances. Congress, meanwhile, has largely stood by and watched this all unfold. Sure, there have been some “stern statements” and even a couple lawmakers joining in protests over the weekend.

But, sorry folks in Congress, that is not going to cut it. Either block full stop all of Trump’s nominees, or go ahead and put an asterisk in your bio that reads “refused to do their job and stand up to advancing fascism.”

While we wait for Congress to decide if it’s going to do anything more than finger-wag, lawyers working to enforce the orders against the administration have the option to seek a contempt ruling. That could prompt federal law enforcement officials to come to airports to make sure the court orders are followed or arrest those who refuse. Is that going to happen? Let’s hope so, because so far we’ve seen the president, his advisers, and Congress show they have no intention on listening to the people or respecting our laws.

There’s every reason to see the events of this weekend—from dropping the executive order late Friday to ignoring court orders left and right—as a trial balloon for how the Trump administration plans to govern: with an iron fist and in the name of white Christian nationalism.