State of Play: 31 Jan 2017

President Donald J. Trump’s Executive Orders and the Panicked Left

While it is, at present, only in the fever dreams of the far (read: insane) Left that President Trump is anything even akin to a dictator, should we, at some future point, find ourselves in a situation where President Trump is on the verge of transcending the restrictions of the Constitution, it will be because of the Left. The response to the handful of Executive Orders issued by President Trump in the last week and a half has been nothing short of actual insanity. What the Left hopes to accomplish with these tactics (if they can even charitably be called that) is anyone's guess at this point. However, it is worth noting that the actual effects are far different from anything the Left likely intends.

Empowering the Opposition

Much as the smugness, arrogance, and blind faith of the Left facilitated the election of Trump, their current hysteria, alarmism, and derangement will not have the effects they intend. In stark contrast to the state of the Left, those on the Right have been fairly quiet throughout the last week and a half. Why? On the one hand, the Right voiced its opinion on Election Day and now simply watches as President Trump actually keeps his campaign promises^[1]; on the other hand, the Right does not object to President Trump's actions and, even if the Right did object, recognizes that throwing temper tantrums, comparing people to Adolf Hitler, and being unabashedly hyperbolic doesn't tend to help.

Unreasoning and Unreasonable Opposition Breeds Resolve

In fairness, if we're going to dredge up Hitler, we may as well do so in context^[2] and with an eye toward accurate comparisons. Is President Trump a modern Hitler? Hardly. Sure, both were democratically elected^[3] and both ran on arguably populist platforms, but the comparison pretty much ends there^[4]. But let's play a game. Let's pretend that President Trump harbors some deep, dark desire to become an unassailable autocrat. How would he do it? Well, he'd recruit the Left.

Very few things solidify support for a politician like having to meet unreasonable, unwarranted, and irrational opposition. To President Trump's hardline supporters, attacks on Trump are not merely attacks on Trump; to these supporters, attacks from the Left are viewed as being against Trump, against his supporters, and against the country. This will serve only to solidify Trump's core of support on the Right.

Of course, this isn't to say that those on the Left of the aisle should sit down and shut up for four years^[5] (we can dream). However, the effectiveness of their opposition will not be measured by how many insipid signs they make, how many vehicles they (illegally) block on streets and highways across the country, and how many people they 'unfriend' on social media; rather, effective opposition will consist of all the usual, dull bits of opposition party politics (e.g., organizing for the next election, fundraising to support candidates, lodging legal challenges where warranted). Naturally, developing and pushing a narrative in opposition is effective (perhaps even necessary), but not when that narrative is incoherent, contradictory, and screamed by brightly-colored lunatics, dressed as genitalia, standing in the middle of the street with signs that wouldn't make even a passing grade in remedial English or in basic logic.

Immigration Order

President Trump's Executive Order on immigration was a reasonable action undertaken with sufficient warrant. While some may disagree with the Executive Order, and they are entitled to give voice to that disagreement, the sheer scope and volume of the hysterical screaming from the Left has been completely disproportionate and utterly ridiculous. With each passing day, fewer and fewer people will be able to muster the energy to take (even remotely) seriously anything said by known Leftists.

There are, significantly, some things the Left seems to have missed in its rush to condemn, riot, and generally be unpleasant. First, the countries included in the Executive Order were selected by the Obama Administration and included in legislation passed by the previous Congress. Further, these countries were not selected because they are Muslim-majority countries (n.b., it would likely not be unconstitutional even if that were the reason for their inclusion in the Executive Order).

Second, the President is fully empowered to take the actions he has taken. Under the Constitution, "[t]he executive Power [is] vested in [the] President of the United States of America." (Art II § 1 ¶ 1). What's more, the President has expansive and largely exclusive powers in the field of international relations (an obvious exception being the requirement of two-thirds approval of the Senate when it comes to treaties [Art II § 2 ¶ 2]). This power has been described by the Supreme Court as a "plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations – a power which does not require as a basis for its exercise an act of Congress." United States v. Curtiss-Wright (1936).

Further still, the President, while empowered to act in this area even absent the approval of Congress, does have Federal law on his side:

(f) Suspension of entry or imposition of restrictions by President

"Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate. Whenever the Attorney General finds that a commercial airline has failed to comply with regulations of the Attorney General relating to requirements of airlines for the detection of fraudulent documents used by passengers traveling to the United States (including the training of personnel in such detection), the Attorney General may suspend the entry of some or all aliens transported to the United States by such airline."

— 8 U.S. Code § 1182 - Inadmissible aliens

Of course, for some, this will raise questions as to precisely what an "alien" is.^[6] For that, we turn to 8 U.S. Code § 1101 - Definitions. To properly interpret § 1182(f), these are the relevant definitions:

"The term “alien” means any person not a citizen or national of the United States."

— 8 U.S. Code § 1101(a)(3)

"The term “national” means a person owing permanent allegiance to a state."

— 8 U.S. Code § 1101(a)(21)

"The term “national of the United States” means (A) a citizen of the United States, or (B) a person who, though not a citizen of the United States, owes permanent allegiance to the United States."

— 8 U.S. Code § 1101(a)(22)

"The term “permanent” means a relationship of continuing or lasting nature, as distinguished from temporary, but a relationship may be permanent even though it is one that may be dissolved eventually at the instance either of the United States or of the individual, in accordance with law."

— 8 U.S. Code § 1101(a)(31)

As should now be obvious, the President is empowered to exclude any foreigners he deems "detrimental to the interests of the United States". This is precisely what Trump has done. The actions were taken in compliance both with the Constitution and with governing Federal law.

Additional Argument for Banning Certain Classes of Would-Be Immigrants

Under 8 U.S. Code § 1182(a)(3)(D) ("Immigrant membership in totalitarian party"), specifically under subsection (i):

"Any immigrant who is or has been a member of or affiliated with the Communist or any other totalitarian party (or subdivision or affiliate thereof), domestic or foreign, is inadmissible."

Coupled with 8 U.S. Code § 1101(a)(37):

"The term “totalitarian party” means an organization which advocates the establishment in the United States of a totalitarian dictatorship or totalitarianism. The terms “totalitarian dictatorship” and “totalitarianism” mean and refer to systems of government not representative in fact, characterized by (A) the existence of a single political party, organized on a dictatorial basis, with so close an identity between such party and its policies and the governmental policies of the country in which it exists, that the party and the government constitute an indistinguishable unit, and (B) the forcible suppression of opposition to such party."

The impact of this should be obvious. Any would-be immigrant who "is or has been a member of or affiliated with … any … totalitarian party … is inadmissible". How does this impact would-be immigrants from the part of the world affected by President Trump's Executive Order? The answer is simple: Islam, as practiced in certain parts of the world, is a totalitarian ideology and constitutes a totalitarian party under existing US law.

It is the duty of the President to see that the laws are faithfully executed. This includes the foregoing prohibition on allowing members^[7] of totalitarian parties into the United States. It is completely reasonable for the President to suspend immigration from certain parts of the world while better procedures for vetting such individuals are developed. It is, in fact, only in keeping with his oath:

"I do solemnly swear that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."

— Constitution of the United States of America, Art II § 1 ¶ 8