The real and grave threat Trump poses

The Washington Post draws the link between Trump’s constant relentless lying and the obstacles he’s beginning to encounter in the courts.

(Three weeks in. It’s taken him only three weeks to get to this point.)

Trump’s defiance might work well as political theater, and there’s no denying that it made for an effective presidential campaign. But as a legal strategy, it’s already hitting roadblocks.

The first came last week, when a federal judge froze his controversial executive order shutting U.S. borders to refugees and migrants from seven mostly Muslim countries.

But the real blow came Thursday, when an appeals court upheld that freeze. In a unanimous opinion, a three-judge panel on the U.S. Court of Appeals for the 9th Circuit found that the government had failed to show why the travel ban needed to be immediately reinstated, as The Washington Post’s Matt Zapotosky reported.

And that’s because they can’t, and that’s because there is no such why. They don’t have an explanation for why they chose those seven countries and were in such a mad tearing hurry about it – other than “wull we figure if we show them how tufff we are they’ll be scared and stop, plus also the unemployed coal miners love it when we do that.”

In court papers, the government argued that the president’s authority to suspend immigration was “unreviewable,” meaning the court couldn’t check his power. That seemed to alarm the judges.

“There is no precedent to support this claimed unreviewability,” the opinion read, “which runs contrary to the fundamental structure of our constitutional democracy.”

And that’s a very big deal. Determined authoritarians can break down structures of that kind, so Trump must be stopped.

The Trump administration says the travel ban is necessary to protect national security and defend the country against terrorism. Trump has even gone so far as to assert on Twitter that if a terrorist attack did happen, the judiciary would be to blame.

While language like that might play well with the base, it didn’t impress the court, suggested Mary Fan, an immigration and refugee law professor at the University of Washington School of Law.

“The court can’t abdicate responsibility in the face of fear-filled words like ‘terrorism’ or terms of deference like ‘national security.’ These are, of course, important interests, but you have to have substance behind the words,” Fan told The Post.

“You can’t just play upon these fears without giving the court a substantial reason to justify extreme exercises of power,” Fan said.

Indeed you can’t. We’ve been here before. The deployment of fear-filled words is how the Japanese internments happened.

Trump’s attacks on the judiciary will likely continue, but he’ll have a hard time bashing individual judges on the appeals court because the opinion was unanimous and unsigned, said Jonathan Hafetz, a constitutional law professor at Seton Hall University School of Law. Writing on the legal blog Balkinization, Hafetz described the 9th Circuit’s ruling as an “important moment in the defense of judicial independence.”

“President Trump, from his reckless implementation of the Executive Order to his flagrant attacks on the integrity of federal judges hearing these challenges, has transformed the case into an early — and critical — showdown over the independence of the judiciary in the United States,” Hafetz wrote. The judges, he added, may have penned the opinion unanimously because they “recognize the real and grave threat Trump poses to the foundations of the constitutional order.”

He’ll do it if we let him. Make no mistake about that.

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