Courts

Remember, We Are Gassing Children SO THAT Trump Can Violate A Court Order

Trump is gassing children in order to continue his illegal practices.

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If you think one will stop the other, you haven’t been paying attention. (Photo by Jim Lo Scalzo – Pool/Getty Images)

We all had our Thanksgiving weekends interrupted by the fact that America is now a rogue state that commits crimes against humanity. Some cried “this is not who we are” (note: this is exactly who we are). Trump forces were deployed to defend or downplay the administration’s actions: one Fox News commentator said that pepper spray could go on your “nachos” so it was no big deal, and no, I’m not making that up because I’m not a sick sociopath with the evil creativity to invent such an analogy. But most people are assuming that the gassing of unarmed refugees at the Southern border is just another example of Donald Trump’s deep racism and antipathy towards non-white immigrants.

That read is not wrong. And I am never one to downplay the racism and bigotry that caused Donald Trump and keeps him in power. But this particular act of evil is not just directed at the brown people Trump and his supporters think it’s okay to exterminate. The gas canisters launched at literal babies were indirectly being lobbed at the American courts and the rule of law.

I will explain.

Most of you noticed that Chief Justice John Roberts “rebuked” President Trump last week. I didn’t make a big deal of it, because the words of a judge who decided that people could be banned based on their religion don’t mean very much to me. But the mainstream media made a big deal of Roberts’s remarks. This is from CNN:

“We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” Roberts said in a statement responding to comments Trump made earlier in the week criticizing the US 9th Circuit Court of Appeals. “What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.”

(Where was your was your “rebuke” when the Senate was refusing to even meet with a nominee for the Supreme Court specifically because that nominee was an “Obama” judge? You sat in your high tower and said NOTHING for A YEAR while the institution you claim to care about was reduced to a mere exercise in raw partisan power. The Court has done nothing but DECLINE as an independent institution under your stewardship, and now you happily will vote with a guy whose seat was stolen for him, and another guy who repeatedly lied under oath and all but declared open partisan warfare during his confirmation hearing. To quote President Bartlet: Your indignation would be more interesting to me if it wasn’t covered in crap.)

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In any event, Donald Trump complained about “Obama judges” on the Ninth Circuit, Roberts clapped back, Trump tweeted back, and the media breathlessly reported on the lover’s quarrel between two men who are willing to use the law to discriminate against non-whites.

What went under reported was why Trump was angry at the Ninth Circuit in the first place. Last week, U.S. District Judge Jon S. Tigar blocked Trump’s unilateral change the asylum law.

As I have explained before (I’ll repeat it because traffic says none of you read it), Trump’s change to require people to present for asylum at U.S. “ports of entry” is a point-and-click violation of existing federal statute. It’s also a violation of international law and standards regarding asylum seekers. That the change is morally wrong and an expansive use of presidential power is somewhat besides the point. Trump’s asylum actions are straight-up illegal.

8 U.S. Code § 1158 – Asylum

(a) Authority to apply for asylum
(1) In general
Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for asylum in accordance with this section or, where applicable, section 1225(b) of this title.

People are interpreting Roberts’s rebuke as a stand for an independent judiciary. I’m interpreting it as him signalling to conservative court watchers that they do not have five votes to kowtow to the president on asylum. Should this issue get to the Supreme Court, Roberts is saying that he’s going to follow the statute. We know he’ll go along with executive bigotry, but apparently he requires it to be less openly violative of existing law than this asylum situation.

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When you understand the full backstory here, the Trump administration’s decision to gas children is revealed to be a reaction to Trump’s inability to change laws by executive fiat.

The law and the courts are clear: if you apply for asylum, you are entitled to due process of your claim. Trump can make all the threats he wants. He can make all the deals with Mexico he wants. If you make it to American soil and claim “sanctuary” you are entitled to a hearing.

Trump’s only strategy then is to keep people from making it here. And that’s why the gas canisters came out. Throwing pepper spray bombs at toddlers in diapers is Trump’s way of making an end-run around the American legal process.

And Roberts, your “independent judiciary” media darling, will probably find that the president has sufficient “commander-in-chief” powers to gas children on foreign soil.

Trump is a xenophobic bigot who commits international human rights violations. If you want to focus on that, I can’t blame you. Just don’t forget all of the ways conservatives, lawyers, and the media are enabling him to be a racist, international criminal.

In a country that respected the rule of law, Trump would be arrested for his actions.

Elie Mystal is the Executive Editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

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