Trump paved ways for his own impeachment

In less than two weeks since being sworn in as the 45th president of the United States, Donald Trump had turned the White House into a casino in which the house percentage is insured on every spin of the roulette wheel or slot reels. With no background in politics or law, and being a seasoned casino owner and maestro of the spins, Trump thinks the display of odd numbers even ten times in a row does not preclude the possibility of some lucky even numbers popping up in the next spin.

And, precisely due to such a mindset, he’d managed in the past to wriggle upward to obtain the nomination for the job of the presidency, to launch an effective campaign to that end, and make it to the end; despite cashing nearly three million less votes than his rival, Hilary Clinton.

For Donald Trump, gambles often made ‘bigly’ payoffs, his favourite word. This time around, that ‘bigly’ payoff may be his unceremonious and disgraceful downfall long before the end of his four- year tenure.  Why?  Because, his latest gamble is proving disastrous.

On January 27, he’d signed an executive order that had indefinitely suspended resettlement of Syrian refugees and all other refugee resettlement programs for 120 days and banned entry for 90 days of nationals from seven predominantly Muslim countries: Syria, Iraq, Iran, Sudan, Libya, Somalia, and Yemen.

The Executive Order (EO) so issued had unleashed total chaos, prompting thousands of protesters to descend upon airports and, the American Civil Liberty Union (ACLU) filing a number of lawsuits seeking to overturn the EO. The ACLU maintains the order is tantamount to a “Muslim ban” and a direct violation of the First Amendment. “This was a Muslim ban wrapped in a paper-thin national-security rationale,” said Anthony Romero, ACLU’s executive director.

As expected, the impact is proving excruciating for many people from the designated seven countries who have valid visas and other immigration documents, including green cards. Yet, many of them were either not allowed to board on flights heading to the USA, or detained upon arrival at US airports.

The White House is now embarking on a crisis management mission that is cracked at the seams due to the concerned agencies of the government being in the dark about the EO and its mode of implementation. When asked about the alacrity and the secretiveness of the EO, White House press secretary Sean Spicer said,  “It was done in the manner not to allow time to those harmful seeking to enter quickly.”  And, after four days’ ordeal, the Department of Homeland Security (DHS) announced on January 31 that green card holders will be waived of the restriction.

What is more troubling is that this controversial and ‘illegal’ EO on refugees and non-citizens states as a cardinal objective the insurance of ‘support for the constitution’ by those seeking entry to the USA while the president himself had violated the constitution (in this particular EO) on many counts and made himself vulnerable to impeachment.

As days go by, wrenching constitutional challenges lurk in the corner. For the federal judges do not, or rarely they do, delve into the constitutionality of a legal matter which the Supreme Court is more competent to deal with.

In coming days, cases will hit the Supreme Court floors for a decision on interpreting whether the president had acted unconstitutionally in issuing this particular EO. If so, the Congress will have no choice but to take on board the debate of a possible impeachment of the just elect president due to his violation of the constitution which he swore to protect.

The upcoming lawsuits are expected to deal with the constitutionality of the entire order, not just the part(s) which had affected over 127 individuals illegally detained in the U.S. on the very first day of the EO’s coming into force (January 27). The victims abroad will also have their share of arguments about rights violations and discrimina-tions based on religion and ethnicity. Historically, courts have often held that executive power over immigration is broad and plenary; which at times truncated the rights of non-citizens. Yet, non-citizens still have constitutional rights, as the courts had opined in a number of cases in the past.

Moreover, this particular EO relating to ‘Muslim travel ban’ raises issues of discrimination in so far as it relates to Equal Protection Clause of the 14th Amendment. The EO had singled out individuals for their religion and nationality by branding seven predominantly Muslim countries as the targets. The US immigration laws and regulations (especially 8 U.S.C) forbid such discrimination.

The order also violates the First Amendment by bringing religion to the test. It’s vividly discriminatory due to it suspending admission of all refugees but asking the secretary of homeland security to ‘prioritize refugee claims’ by members of a ‘minority religion’ (Christian) in any given country. This explicitly denigrates and de-prioritize Muslim refugees in majority-Muslim nations.

Above all, the Trump team can hardly overcome a landmark 1982 Supreme Court ruling that read:  “The clearest command of the Establishment Clause of the First Amendment is that one religious denomination cannot be officially preferred over another.”

Another blatant violation in the order is the denial of due process to the victims. In the past, the Supreme Court had allowed individuals to be excluded at the border; only after case-by-case review and administrative process outlined and authorized by laws and regulations. This EO robbed the due process accorded under the Fifth and the 14th amendments to those affected.

As well, in the over 200 recorded instances since the coming into force of this EO, a flurry of habeas corpus petitions kept arriving at courts looking for whereabouts of people detained.

Finally, there is the quintessential family reunification rights of the victims, which too is ensured by the constitution. The Supreme Court’s previous upholding of family reunification rights aside, there are codified statutes in the immigration laws that ensure such rights.  The President had trumped all such laws.

Faced with a barrage of legal and ethical onslaughts, a visibly distraught Trump insisted that his purpose was to halt immigration from areas afflicted by terrorism. “This is not about religion,” he said in a statement on Sunday evening. “This is about terror and keeping our country safe.” His learned counsels may also argue that national security interests should always outweigh constitutional rights. The court however is likely to reject such a notion and maintain that national security concerns can be addressed in a constitutional manner.

The other defence of the president is contained in the very narrative of the EO that states: “By the authority vested in me as President by the Constitution and laws of the United States of America, including the Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq., and section 301 of title 3, United States Code, and to protect the American people from terrorist attacks by foreign nationals admitted to the United States, it is hereby ordered ………”

There is, however, no defence for the president as to why his EO did not exclude the ‘special immigrants’ who are defined in the same law he quoted (8 U.S.C. 1101 (27) (A)) as “an immigrant, lawfully admitted for permanent residence, who is returning from a temporary visit abroad.”

More importantly, the Supreme Court judges are adept in assessing the intent and the actions of the president, which will weigh in heavily in determining the constitutionality of the “Muslim Ban’ order. For instance, there are many tweeter messages in which Trump proclaimed to enforce “total and complete shutdown of Muslims entering the United States.”

Recklessness and moral instability are also factors likely to impact the outcome of a constitutional challenge to Trump’s ‘Muslim ban’ EO. The fact that the incumbent attorney general (acting), Sally Yates, was fired by Trump on Monday after she defied the travel ban and ordered public prosecutors not to defend it in courts is an illustration of such lack of moral compunction of the new president.

Sally’s sudden removal reinforced how dictatorial the president intent to be. As the acting attorney general, her job was to provide independent legal advice to the president, his team and the Department of Justice (D0J). She had pronounced her decision of ‘non-compliance’ only after four U.S. district judges—in Brooklyn, New York; Boston;

Alexandria, Virginia; and Seattle—issued temporary rulings blocking aspects of the Muslim ban order.

The US democracy is faced with a tryst with the destiny, and, make no mistake that the constitutionality of the ‘Muslim ban’ EO is challengeable on due process, equal protection, as well as on breaching First, Fifth and the Fourteenth Amendments that proscribe discrimination and prohibit the government from enacting laws “respecting the establishment of religion.” The ‘religion test’ of the EO will be vigorously debated to define the legality of the president’s ‘anti-Muslim order.

Good news is: amidst the ongoing chaos, some immigrants were released from detention, but many are yet to see volunteer lawyers showing up at airports to provide free representation. The pandemonium had meanwhile prompted Democratic congressman Don Beyer to tweet on Sunday afternoon: “We have a constitutional crisis today. Four Members of Congress asked CBP officials to enforce a federal court order and were turned away.”

An MSNBC commentator, Chris Hayes, composed the rest of this pathetic narrative by writing: “$64,000 question is: are they (DHS) being told to violate the court order by the White House? If the White House is, in fact, directing DHS and CBP to violate a crystal clear court order, the rule of law has completely broken down and we are in a truly unprecedented situation here.” May God bless the USA. Ameen.

Shahid Islam is an acclaimed author, columnist, and a long-time practitioner of immigration and international laws.

Source: Weekly Holiday