by J.D. Munch
Resisting Trump feels at times like an exercise in futility. The Republican Party has control of Congress, which seems content to let Trump’s worst qualities and tendencies go unchecked. Our sources of information are deemed “fake news,” and his most ardent supporters still consider the administration as the only source of actual truth, no matter how easy it is to refute the absurd claims emerging. And the Conway-style arguments contain such torrents of refuse that keeping up with the falsehoods and absurdities is almost too much to handle. The resistance faces gaslighting techniques well beyond anything we have ever seen from the White House.
Fortunately, a few cracks are beginning to show. Resistance to Trump’s immigration order came swiftly and furiously. Protests erupted at airports and in cities across the country. People who had been sitting in sad resignation woke up in a big way, and even many conservatives started to recognize the significant problems in at least Trump’s approach and execution, if not some of the goals themselves. People went from caring to fighting.
Perhaps most importantly, after all the divisive rhetoric and the more slippery executive orders about a path to repealing the Affordable Care Act, about examining regulations and not passing new ones, here was something concrete, with vivid faces to the people harmed. Instead of the dance with alternative facts, Trump gave a standing target for attack. The courts had a chance to step in and make determinations. And Trump lost.
So does this mean Trump will fall into the appropriate place in our system of checks and balances, that the movement resisting Trump has won the day? Not necessarily. We need to work harder than ever. The power plays will not stop here; whether they proceed with the bluster and brute force we have come to expect or through a more nuanced approach remains to be seen, but those who would resist Trump must remain vigilant and be ready to respond on all fronts.
Why the Executive Order Is Unconstitutional
It is important to understand the astonishing breadth and actual focus of what Trump sought to accomplish in issuing his Executive Order. The Order frames the issue as simply a 90-day travel restriction on anyone from one of seven different countries: Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen. It suspended from entry or re-entry into the United States anyone born in one of these countries, whether or not they had a visa or even a green card. It justified the suspension on the basis of threats of terrorism coming from those countries.
The Order ran into a number of questions immediately; confusion reigned in the airports where police and Homeland Security forces attempted to implement it. People who thought they had earned the right to be in the country, based on vetting processes already in place, were suddenly held, with no ability to see a lawyer. The wisdom and legality of the policy were discussed. But in the end, it boils down to two questions: whether the Order unlawfully targets Muslims, and whether the President has the power to enter the Order without judicial review.
At first blush, the Order on its face does not impose a religious test. The text of the Order does not specify that it applies to Muslims, and certainly other Muslim-majority countries were not included in the restriction. But the Supreme Court has long held that if a facially neutral law appears to target a particular race or religion, it can still violate the Equal Protection Clause of the Constitution. And this is where Trump’s inability to control himself helps the resistance movement. He has many times called for a ban on Muslims entering the country. He has supports like Rudy Giuliani who proclaim proudly that Trump asked for a way to legally ban Muslims. The Order was not vetted carefully by government lawyers, but instead was pushed out by Trump and his inner circle—Steve Bannon and Steve Miller, two who have not been shy about their anti-Muslim and anti-globalist ideals. This does not occur in a vacuum.
Incredibly, the Trump administration argued that the intent of the administration did not matter, because the President has authority over the borders. Its position was not that the Order is not discriminatory, but that it doesn’t matter because a declaration of danger from the Oval Office puts complete discretion and control over those decisions into the hands of the President, with no oversight whatsoever. It claims control with no check on that power, no right for courts to examine the issue in the first place. It is a blatant power grab from Trump.
The courts that have looked at the issue, particularly in Washington state and the 9th Circuit Court of Appeals, have rejected this view—correctly. The President cannot act unilaterally to impose a religious test on citizens. The threat has to be real, and this kind of Executive Order has to be designed to avoid religious discrimination. Whether the President believes a threat is real isn’t enough; rather, there needs to be a threat and an attempt to address it without discriminating needlessly against a particular religious group. Trump cannot simply wave national security as a catch-all that means he can do anything he wants. Our government was created with checks and balances; Trump is treating it like his own military dictatorship.
With these rules in place, Trump has no case. The Supreme Court has ruled time and again that the President’s power to act in the interest of national security, while broad, still has constitutional limits. Unless he can show that his Order was carefully targeted to meet a specific threat, it cannot blatantly discriminate against one religious group. Trump has said specifically that his policy on whether to admit refugees and others from these countries will favor Christians. He has called for a Muslim ban in the past, and this Order represented the first step in trying to achieve it. The courts thus far have acted correctly in striking it down, though the battle may not yet be over. A revised Executive Order or a Supreme Court appeal is likely.
Why the Order Is Bad Policy
Beyond the Order not being within the bounds of presidential authority, it creates problems in at least two ways. First, it punishes people who have gone through the legal channels to gain admission into the United States. Many universities have foreign-born students who have educational visas and pay tuition for the sake of studying in American schools. Foreign nationals granted visas after serving our military, often at great personal risk to themselves, have also been banned. Refugees who have waited two years to escape their current situations were turned away.
So Trump has clamped down on people from these countries in the name of national security. He wants to stop the terrorists from coming in and harming Americans on our soil. Why would anyone want to resist Trump on this point?
Well, as is often the case with our new president, there is a gut appeal for many to what he says, until we look at the facts involved. First, no one from any of the seven countries specified has been involved in a terror attack in the United States, on 9/11 or in the years since. Nationals from other nations have carried out attacks on U.S. soil, including Saudia Arabia. And interestingly enough, Muslim-majority nations not included in the ban are countries in which Trump has done and is doing business. The ban, in short, targets countries that have not carried out any attacks and casts a wide enough net to capture many friends of our country. In doing so, it punishes people—particular refugees from a war-ravaged Syria—who may be in grave danger where they are now.
From a simple humanitarian perspective, this is terrible. The Order, if it were to be put back into effect, would hurt people who only want a better life, the kind of people by whom this country was founded. But even if you take a cold, calculating look at what must be done for the sake of national security, this Order is not something that will make America safer. In fact, taking a stance that positions Muslims as the enemy not only disrespects the vast majority who practice their religion peacefully, but also gives fodder to those who want to turn more in those countries against the United States. When terrorist groups want to recruit more people against the United States, pointing to a president who already views them as the enemy serves as a powerful weapon.
One of the important aspects of President Obama’s time in office was his recognition that the United States is not alone in the world, and should not act as though it is. Yes, the world holds dangerous people who want to do us harm, for ideological or economic reasons. But to try to isolate our country from the rest of the world, to hide from large swaths of people because a few of them may be dangerous, only takes away from those who would work to defend us. A ban that sweeps in those who served our country in conflicts in their own countries provides a haunting, clear example of a willingness to turn away friends who have worked to help and protect our country and our military members overseas.
Why Resisting Trump Here Matters
If we view Trump’s overreach on his travel ban as just a blunder, we miss something critical happening. The authority the President enjoys as Commander-in-Chief, and the role he plays in protecting our country’s borders, serves as the closest to autonomous power Trump possesses. His Executive Order sought to test the limits of that power. If he could unilaterally seal our borders to those from specific countries simply by declaring terrorism from those countries a threat to our nation’s security, what else could he do? He has declared widespread voter fraud with the same dearth of evidence as he held for the terrorist threats from the seven named countries. He has pushed false narratives on a multitude of issues, testing the credulity of a nation and finding disturbing levels of acquiescence. He has declared the United States to be a night dark and full of terrors, with himself as the only person on whom we can depend to save us.
In the whirling dervish of lies Trump’s administration has created, the pattern emerging is twofold. First, the post-truth world he has pushed to create allows him incredible room to maneuver. If a president can invent a truth that millions accept, he has what we may call novel power—both in the sense of being new and in the sense of being his own story, where he occupies the place of the omniscient, omnipresent narrator to turn the story whichever way he pleases. Those from these countries are terrorists; those from countries where he does business are not. Muslims are bad; the white supremacists who helped push his campaign are not. We can envision him drafting his story, seeing what works and where he has to carve a different path to the conclusion he envisions.
And what is that conclusion? We can only guess at this point, but considering that Steve Bannon sits as the most powerful man in the administration, that guess has some evidence behind it. Bannon has long been an isolationist, pushing racist narratives through Breitbart into an increasingly wide alt-right audience. What once was a disturbing voice on the radical fringes of right wing media now whispers into President Trump’s ear. Multiple reports out of the White House report that he and Stephen Miller have personally authored the majority of Trump’s Executive Orders, including the travel ban from Muslim-majority countries. These Orders have poured out at the outset of this presidency, all pressing an agenda in which the President seeks to assert power unchecked by Congress or the courts.
Trump’s Plan to Circumvent the People
With the 9th Circuit Court of Appeals shutting down—for now—the ban, Trump has fired back with his usual Twitter outburst. After calling the District Court judge in Seattle a “so-called judge,” he has declared to the 9th Circuit that he will “SEE YOU IN COURT.” The easy attack here is to consider this a toddler-esque tantrum, an absurdity in threatening a court with court that only this president could ever perpetrate. But when we let ourselves get caught up in the silly bombast, we fall into the trap. We need to see and then call out the bigger picture: Trump attempting to delegitimize the one branch of government best positioned to stop his push for power.
Congress holds Republican majorities, pushed forward through a combination of gerrymandering and a base that shares many voters with Trump’s support base. We live in a world in which our Senators and Representatives are constantly running for re-election, and when their constituents have voted in Trump—as astonishingly is the case for most states in the country—it will take either tremendous acts of courage or an uprising from their home states and districts to push them to oppose the President. And while tepid voices have emerged from time to time, we have no real evidence at present that the Republican majorities will actively resist even the most xenophobic and misogynistic aspects of Trump’s agenda.
The courts, on the other hand, provide a potentially significant road block to his would-be totalitarian path. Trump realizes this. His position, defended by the Department of Justice at his command, has been that in areas of national security, he has absolute authority in which the courts cannot intervene. He was shut down in this round, but we can expect the litigious President to continue to press these boundaries and look for ways to expand his power. He will look first to push through with blunt force, and then to create legitimacy for his actions with the support of the Republican Congress.
So with the plan to delegitimize the courts and steamroll Congress, Trump can position himself to hold potentially more power than any other President, with the darkest possibilities lurking. Add in his power to appoint judges with little opposition—he has already called on Republicans to eliminate the filibuster and supermajority requirements for even Supreme Court Justices—and we face a real possibility of a government not of, by, and for the people, but in fact despite the people.
Fortifying the Resistance
With the path before us, we need to keep up the fight. Look at the great comebacks in sports history, and you will see a common theme: all began with a single moment, a critical point at which one person or team grabbed hold, stared a deficit in the eye, and refused to fold. Miss on that moment, and the comeback would fail. Seize it, and the improbable can begin to unfold.
That moment is here. Trump has felt a setback, but one that will not keep him down for long. He has too little institutional opposition to sit back and lick his wounds. He knows he has a chance to push his ideas through, and will continue to find ways to do so unencumbered by constitutional restraints. The resistance cannot settle for poking fun at his idiosyncrasies or hiding from his bolder strokes. We have to fight, intelligently and forcefully, to stop the attacks on the people of the United States and the policies that harm the broader world in which we all live.
The Muslim travel ban showed how this can work. Abuse of those not in a position to defend themselves, a clash with Congress and a court order, and outrage from others who saw what was happening converged in a very short time span. The protests at the inauguration, including the women’s marches in Washington and across the country and the world, showed the potential for fighting back, the magnitude of the opposition to his administration. But it was all chasing shadows at the time, guessing what he meant and what he didn’t, what was policy and what was bluster. Here was something tangible, a despicable act that flew past the boundaries of what was right and what was constitutionally permissible. And with that, Congressional representatives pushed into action, buoyed by full-throated cries for justice from across the country. The ACLU and other organizations got involved, and the resistance got its first win in a head-to-head battle.
This should provide the blueprint for future wins. The individual lies and misdirection will always matter, but not as entities unto themselves. Rather, we need to focus on what they are moving toward. The Executive Order banning Muslim foreign nationals was a broadside push for nationalism, but it represented more a push for a strongman-style show of power. The lies about election fraud come in part from vanity, but point more toward active voter suppression efforts down the road. The accusations of “fake news” demonstrate narcissism, but more direct us to an era in which he attempts to control the narrative through alt-right outlets and his press secretary as a de facto state media arm. The problem isn’t the immediate absurdity before us, but the endgame to which these absurdities might lead.
In chess, the best players win by thinking several moves ahead of their opponents. They recognize patterns and position themselves to defend and counter before the other player can change course. The resistance needs to take this approach, and prepare to counter Trump’s attacks on constitutional structure and democracy. We know he admires ruthless dictators, and we are beginning to see his playbook come into focus. He bullies, he yells, he tweets, and he angles to consolidate his power. Our task is to pick off those efforts, and move to respond: by mobilizing our fellow voters, by encouraging resistance to Trump in the congressional members willing to fight for what is right, and by keeping the intensity boiling for the midterm elections to come. We will have setbacks, and we will have moments we are not sure we can emerge from the fog in which we are operating. But continue to resist. This goes beyond mere politics; our Constitution itself depends on us.