InForum ^ | February 4, 2017 | Rob Port
I desperately want Donald Trump to be a good President.
If he could unravel the harmful policies of the Obama administration, and take a wrecking ball to entrenched bureaucratic and political power in Washington D.C., he could go down as one of our nation's greatest leaders.
Or he could become a laughing stock. An embarrassing political footnote. Something akin to Minnesota electing Jesse Ventura to be governor.
Sometimes the moment can make the man. I've been waiting for Democrats to rise to the occasion of the Trump presidency by becoming the loyal opposition.
Trump would be a better sort of president, I believe, if faced with principled, reasoned, rational dissent.
Unfortunately what we've gotten from the left has been petulance and a violent sort of extremism.
Trump's election was met with days of violent rioting.
Trump's inauguration prompted more violence and vandalism.
At the University of California Berkeley, home of another generation's Free Speech Movement, a College Republicans event featuring infamous pro-Trump provocateur Milo Yiannopoulos was canceled as left wing activists rioted. They threw bricks, set fires, vandalized campus buildings, and trashed local businesses. Ultimately a half dozen people were injured.
Some of you reading this might argue that Democrats who oppose Trump don't necessarily condone these violent acts, but they kind of do. Far from condemning the violence, they're encouraging it.
"This is just beginning," left wing celebrity and prominent Democrat donor Judd Apatow tweeted about the Berkeley riot.
Sen. Tim Kaine, Hillary Clinton's running mate, urged Americans to "fight in the streets" during an appearance on MSNBC this last week.
Former President Barack Obama himself encouraged activists disrupting American air travel over Trump's immigration orders, saying he was "heartened" by their activities which, in some instances, devolved into violence.
Former President George W. Bush has been largely silent on political issues in his years since leaving the White House. Obama couldn't extend that same courtesy to Trump for longer than 8 days.
In North Dakota, Chase Iron Eyes, nominated by North Dakota Democrats to run for the U.S. House last year, was arrested in what have often been violent and unlawful protests against the Dakota Access Pipeline.
Nor is this merely a national phenomena. Left wing commentators in North Dakota glibly refer to Trump administration officials as "white supremacists." Newspaper editorials blame "xenophobia" for perfectly valid concerns over refugee resettlement.
Back in 2009, before it was co-opted by various political factions, I was a member of the Tea Party movement. I helped organize rallies around the state attended by thousands of concerned citizens. I remember at the time being told by editorial boards and left wing commentators that we were extremists engaged in dangerous, ominous rhetoric. When we expressed support for states' rights and the 10th amendment, it was suggested that we were probably secessionists to boot.
When former Congresswoman Gabbie Giffords was shot by a deranged man in Tucson, Rep. Debbie Wasserman-Schultz, chairwoman of the DNC, blamed the Tea Party movement.
The Tea Party movement which, unlike the anti-Trump left, was responsible for exactly zero riots. Zero public beatings. The number of highways or airports blocked by rioting tea partiers? Also zero.
The Tea Party was never about secession, but today California liberals have started a real drive to remove that state from the union.
I guess violent rhetoric and secessionist movements are OK as long as they're perpetrated by people of the right political persuasion.
And even as Hillary Clinton voters riot in the streets, Democrats refuse to attend committee hearings on Trump's appointments. Democrats aim to obstruct Trump's Supreme Court nominee, though many of them voted for that same nominee when he was appointed to lower courts.
What this petulance and extremism from Democrats has left those of us inclined to be skeptical of Trump with nowhere to go. Their behavior almost seems to justify Trump's.
What a shame.
Opening StatementOn Friday, a Boston federal judge issued a 21 page decision debunking the arguments against Trump’s Executive Order suspending migration from certain countries pending further review. Later that same day, a Seattle federal judge who has been making the news lately (and not usually for the most flattering of reasons), declared his oral intention to sign an order limiting some aspects of the executive order. In the courtroom, whose position is likely to ultimately win?
Just a quick review of the two written orders can tell you which one is likely to win. The Boston judge cited a wide range of precedents for his decision in his detailed written order. The Seattle judge issued a short order devoid of almost any reference to any precedent, which is the “evidence” for lawyers on the law. Add in comments made by the Seattle judge verbally, and if any aspect of that is correct, the Seattle judge’s opinion will lose, and Trump’s position will win.
The Evidence
Both judges appeared to reject the position of many critics: both appeared to reject the position the First Amendment prohibits the order; both appeared to reject the position the Fifth Amendment prohibits the order; both appeared to reject the position that Congressional statutes prohibit the order. Both appeared to reject claims the order discriminated on the basis of speech or religion in any way that immigration law precludes or forbids. Instead, both agreed all that mattered is whether the laws had a “rational basis.”
Both judges appeared to reject the position of many critics: both appeared to reject the position the First Amendment prohibits the order; both appeared to reject the position the Fifth Amendment prohibits the order; both appeared to reject the position that Congressional statutes prohibit the order. Both appeared to reject claims the order discriminated on the basis of speech or religion in any way that immigration law precludes or forbids. Instead, both agreed all that mattered is whether the laws had a “rational basis.”
Here is where the Boston judge and the Seattle judge appeared to disagree. According to reports of what was said at oral argument in Seattle, the Seattle judge believes rational basis review requires the law-making branches of government “prove” with “facts” presented in court that their position is the correct one. As the Boston judge noted, this interpretation of the law — inviting the judicial branch to replace the elected branches of government — is directly contrary to precedent. This is why the Seattle judge’s opinion is likely to lose out ultimately, and Trump’s will prevail.
As the Boston judge explained, the Supreme Court provided that rational basis review merely means the law “bears some fair relationship to a legitimate public purpose.” The Supreme Court made clear rational basis review “is not a license for courts to judge the wisdom, fairness or logic of legislative choices.” (Heller v. Doe by Doe, 509 U.S. 312 (1993).
Immigration law includes a “delicate policy judgment” courts must not invade, as the Supreme Court itself said, and the Boston judge reiterated. Plyler v. Doe, 457 U.S. 202 (1982). As the Ninth Circuit reiterated, “we defer to the political branches in the immigration field.” Ruiz-Diaz v. United States, 703 F.3d 483 (9th Cir. 2012). As the Boston court noted, the order clearly and expressly relates to concern of “infiltration by foreign terrorists” from countries identified as a risk for just that without further vetting procedures put in place. Rational basis review “is not a genuine effort to determine the actual reasons for the law, nor to inquire into whether a statute actually does further the announced interest of government. All that is required is a) does a government interest exist in securing the country from terror?; and b) does the law limiting entrants purport to relate to that interest? It does not matter if the judge thinks it shouldn’t relate or won’t relate. That decision is for the lawmaker, not the law interpreter.
The Seattle judge seemed to believe no such vetting process was “rational” unless facts showed a foreign terror incident had already successfully occurred in this country. (Even under higher levels of scrutiny, the courts have never required the evil sought to be prevented actually occur before passing law to try to prevent it from occurring in the first place.) This is second-guessing law-making decisions, not seeing whether there was a “reason” given as the “basis” for the decision, which is all rational basis review allows in our tri-partite form of government.
Closing Argument
Second-guessing Trump’s decision is for elections, not judges. The Supreme Court long ago rejected such second-guessing as impermissible. The Boston’s judge’s thoughtful and deliberate decision follows the precedents, as the law compels. The Seattle judge’s decision tries to substitute for the legislative branches, which the law condemns. In the ultimate outcome of these decisions, memories of Super Bowls past will prove prescient: Like the Patriots, Boston will best Seattle once again
Robert Barnes is a California -based trial attorney whose practice focuses on tax defense, civil rights and First Amendment law. You can follow him at @Barnes_Law
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