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Columns
Other view: The 9th Circuit makes the right call

This appeared in Saturday’s Washington Post.

It is possible to debate whether President Donald Trump’s immigration executive order was callous and counterproductive, as we believe it was. But there is no question that its rollout was sloppy and arrogant—and that includes the legal defense the government mounted when inevitably challenged in court. Four federal judges have now rejected several untenable claims the Trump administration made, and rightfully so.

A three-judge panel on the U.S. Court of Appeals for the 9th Circuit ruled Thursday that the Trump administration’s restrictions on travel from seven majority-Muslim countries will remain on ice while the courts work through whether the restrictions are legal. This is only the beginning of a long battle, but there are a few arguments the judges dispensed with upfront.

For example, the government argued that the president has “unreviewable authority to suspend the admission of any class of aliens.” The court easily batted down this dangerous contention: “There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy,” the panel wrote. “Although courts owe considerable deference to the President’s policy determinations with respect to immigration and national security, it is beyond question that the federal judiciary retains the authority to adjudicate constitutional challenges to executive action.”

In short: Trump needs to accept that he cannot rule by decree, without regard for judicial checks. The courts can and must block him when he overreaches, especially on matters of civil liberty and national security.

The government also argued that the court should ignore a glaring problem with the president’s executive order – that it appeared to apply to green-card holders and others with legal status that rightly led them to expect that they would be able to travel into and out of the United States—because the White House counsel’s office later issued an “authoritative guidance” lifting restrictions from lawful permanent residents.

The court fired back: “At this point, however, we cannot rely upon the Government’s contention that the Executive Order no longer applies to lawful permanent residents,” the judges wrote. “The White House counsel is not the President, and he is not known to be in the chain of command for any of the Executive Departments. Moreover, in light of the Government’s shifting interpretations of the Executive Order, we cannot say that the current interpretation by White House counsel, even if authoritative and binding, will persist past the immediate stage of these proceedings.”

In other words, the Trump administration’s erratic behavior has earned it no credibility with the judiciary, and it deserves no trust that any lawful elements of the order will be executed properly without supervision.

As if to illustrate that very point, Trump responded to the court ruling in his unsettlingly juvenile fashion, condemning the decision as “political” and “disgraceful.” GOP critics pilloried President Barack Obama for issuing a relatively mild criticism of the Supreme Court’s Citizens United decision. Trump, by contrast, continues to treat the judicial branch as yet another political enemy to bully into submission—behavior that reportedly led his own Supreme Court nominee to comment that attacks on judges are “demoralizing” and “disheartening.”

The independence of and trust in the judiciary are prerequisites for a free society. What sort of society does Trump want?


Mailbag
Letter: Disappointed in Otter

Disappointed

in Otter

I was distressed to read that Gov. Otter agrees that “Christian refugees deserve priority.” What about refugees who practice other religions (Jewish, Buddhist, or another); or those people who do not believe in God? The United States has excluded various religions over the years, but that is not who we should be today. We should be an enlightened country who values each person regardless of their religious belief.

As I look around our community, state and country, I see many people who contribute greatly to the strength of the United States who are not Christian. I also note that a small number of natural-born citizens from our own country have disgraced us by becoming terrorists and killing others. Please value each person regardless of their faith and welcome each person who comes to our country.

Mary Ann Gilmore, Twin Falls


Columns
Stapilus: What we criminalize

A century ago, Idaho was a legislative leader in passing a law that would be adopted not long after by almost half the states: The criminal syndicalism act. It’s a slice of history worth reviewing.

The background is this: In the teens the activist and relatively radical edge of the labor movement was the Industrial Workers of the World (members were called “wobblies”). Its success and scope was actually limited, but it was well known regionally and nationally: Anti-union forces talked them up a great deal in fearful tones. In Idaho they mostly were active in the northern lumber camps, and organizers appeared in southern Idaho farms. Their main tool was the strike (in some places, mostly outside Idaho, things sometimes went further), though they were accused of much more. Their demands were for such workers’ protections as an eight-hour day and more worker safety, but their rhetoric was strident enough that they conflicted with other union groups as much as they did businesses.

There was a genuine radical connection, and some IWW leaders really were close to then-emergent Communist Party organizations. As World War I approached, the organization was also accused of being in league with the kaiser. (You know, whoever was handy.) Most of the people in the field were simply active union members, but across much of the state, panic of the unknown and fear of the group was exploding. One academic study of the period noted that “the economic and social problem became an … IWW problem and led to an attack on unpopular doctrines and groups.”

With memories of Silver Valley mine worker violence then not quite a generation in the past, Idaho’s leaders were quick to line up against the wobblies. And in March 1917 the Legislature passed a law intended to get at them. This was the syndicalism act, which sought to ban “the doctrine which advocates crime, sabotage, violence, or other unlawful methods of terrorism as a means of accomplishing industrial or political reform.”

You’ll notice how un-specific the language is. That was considered a feature, not a bug, because the broad-brush accusations could easily be thrown around, and were. The point here is that purpose of the law had little to do with concerns about overthrowing the government (which already was covered by laws against treason, sedition and the like); that was the fig leaf. The real point was in suppressing the IWW. (The organization, much smaller and less active than it once was, still exists and is based in Chicago.)

The cover came off a few years later when Idaho legislators passed anti-union legislation criminalizing such acts as “work done in an improper manner, slack work, waste of property, and loitering at work.” And the anti-syndicalism law was eventually weakened by court decisions and later legislation. But in 1917 the measure passed because a relatively small group that actually affected Idaho at the edges was blown up into a terrible threat to decent society. It was made to seem so terrible that freedom of speech took a battering. (That battering would get much worse on a national level at the nation went to war.) For its part, the IWW declined in the ‘20s for its own organizational reasons, and never recovered.

Doesn’t take much for us to react badly; people are more easily manipulated than they would ever like to believe.

That’s no less true today than it was a century ago. It’s as simple as this: When someone points a finger and blames “them” for our problems, ask first what agendas are really involved. In the politics of today no less than back then, it’s a critical piece of intelligent self-government.