So, looking across the big pond at the current running battle over Trump’s immigration ban, a though occurred to me.
Irrespective of the nature of the ban, or the political colour of the parties involved, there seemed to be a remarkable power play occurring, that of the POTUS asserting sole sovereign power over the question. To me, this, and any precedent that might grow from it, would appear to be a much bigger game to be playing for than a few months temporary travel ban.
So, the question for those closer to the ground - how much is this weighing on the states that are opposing the ban, and the machinations that seem assured to escalate this to the SCOTUS?
As a play guaranteed to get just about everyone’s back up this seems to be about as good as it gets.
I wasn’t aware that the states controlled US immigration policy. One assumes Arizona can’t announce, “*Don’t care what **United States Citizenship and Immigration Services *says we’re gonna allow 5 million a year into Arizona.”
No, but the issue seems quite wide. States may well care that their elected members of congress and the senate may have no say. And if it makes it to SCOTUS, there are likely to be lots of interested entities, many with proper standing. States just seem to be this weeks players.
Well, I think most are Republican, and those precious inmates know they owe the triumph to Trump, are grateful, and don’t want to rock the boat. Back to promoting creationism and stomping on trade unions forever and ever ( even if these are not issues close to Trumpo’s heart ).
Alas ! regardless of their doom,
The little victims play;
No sense have they of ills to come,
Nor care beyond to-day.
Well it becomes a long term question. If this sets precedent, the next Democrat POTUS gets to wield the same powers, etc. I just can’t see members of either the house or the senate or indeed SCOTUS being exactly pleased about the idea of POTUS accreting sovereign powers.
Trump chattered about not liking the requirement to follow the law, but note that the customs service made it very clear from the moment the court ordered the suspension of the EC that they were no longer enforcing the order. Trump may bloviate, but the rest of the Government is far more duty bound. Trumpism may seep into the bureaucracy over time, but it hasn’t gotten anywhere yet.
And in fact, the President does have the power to do what Trump is trying to do. I don’t like it, but no one really doubts the President can do this. Trump did a lousy job the first time around. For that reason the administration is thinking they will just write a new EC and do it right this time rather than bother to fight the old one in court. There will be lawsuits, and Trump’s record on this subject isn’t going to help, but in the end the President can win this. What will be interesting is how long the administration keeps up the ban. They gave themselves 90 days to come up with a new “extreme vetting” process in the beginning. I can see them winning the ban in court and then quickly ending it because they have a new vetting program in place. It won’t be any better than the current system, but it will be different enough to call it extreme.
Part of Trump’s problem is that now that he has the entire Government to tell him how good his ideas are, he is finding out most of his ideas stink. His cronies keep up a brave front, but even they are learning that if they pass their ideas around for review they get an earful, and if they don’t pass the ideas around the ideas blow up in their faces.
Trump thought running a few casinos into the ground and building some golf courses gave him all the experience he would need for the big leagues. Now he is learning just how unprepared he is. All Presidents are unprepared, there is no other job like President of the US and almost all realize it, but Trump came into the position thinking he was ready. A painful error-for everyone.
There has been a long term power play, pitting POTUS against Congress. And yet Congress specifically delegates certain of its powers to POTUS and the members of the Executive Branch under his authority.
To step away from the current immigration debate let’s take a step back a few years and look at the minimum coverage requirements under the PPACA, perhaps better known as Obamacare.
Congress could have gone into great detail, listing specific medical procedures which must be covered for a plan to be minimally compliant. And any change would have required a new law. So though it was within their authority to do so, they chose instead to delegate that control to the Executive Branch, specifically the Secretary of Health and Human Services, for them to issue regulations with the force of law.
But it is easier to change regulations. And that could be for good or for bad, depending on your point of view. A Sec of HHS would have the flexibility to issue a new regulation requiring coverage of a newly developed vaccine. Or a new Sec of HHS under a new administration could eliminate mandatory coverage requirements for certain treatments, medicines, or procedures (say birth control, for example?).
Similarly with immigration matters, under the Constitution the Congress is specifically granted control over naturalization. And yet they have turned around in the Immigration and Nationality Act (INA) and granted control to the Executive Branch with regards to certain matters related to immigration.
In the Immigration and Nationality Act the Congress specifically listed some categories of persons who are ineligible for naturalization (deserters from the US armed forces during a time of war, for example. See Sec. 314. [8 U.S.C. 1425] ) but left it up to the Executive Branch to define others (prohibition of entry to persons with certain health conditions as defined by the Secretary of HHS in consultation with the Attorney General. See Sec. 212. [8 U.S.C. 1182])
Sometimes those powers delegated to the Executive Branch are rather subject to the political winds
The Congress made a class of persons inadmissible, but left it up to the Secretary of State to determine what makes for “potentially serious adverse foreign policy consequences”. That is a loophole and a half.
All this on delegation of authority, but courts have held that some delegations of authority are unconstitutional. Also, if a law would violate the constitution, any regulation that does the same would also violate it. And banning green card holders is likely illegal. Never mind people who have already been subject to extreme vetting.