Well, the hits just keep on coming. Yesterday, acting attorney-general Sally Yates was sacked by Donald Trump, two hours after she announced that the Department of Justice would not defend against legal action against Trump’s executive orders on immigration and refugees. A new acting attorney-general, Dana Boente, has been appointed by Trump, and he will reliably defend the executive orders. There are now half a dozen varying judgments against the executive orders. They will all come before the Supreme Court.
Trump’s sacking of Yates is perfectly constitutional and proper — all executive power is invested in the President and delegated to cabinet members. Yates knew that, and she knew that Trump would sack her; it was a political act (a quite legitimate one). Some are calling it the “Monday Night Massacre”, in comparison to Nixon’s “Saturday Night Massacre”, when he sacked his attorney-general and special prosecutors at the height of Watergate. It’s nothing like that at all.
Team Trump treated Yates’ sacking with typical gracelessness, maximising the politics, releasing a statement decrying her “betrayal”, another instalment of “enemies within” politics, but that’s just politics. More concerning was the question of how much of the chaos at airports is a product of simple confusion, and how much comes from explicit orders down the chain of executive command.
Customs and Border Protection officers have been denying lawyers access to detained travellers, even in the face of explicit court orders demanding that such access be allowed. In one case, in Dallas, a judge had to issue a follow-up order to “get someone back” — an Iranian who had been put on a plane to Dubai in contravention of an earlier order.
This could be team Trump/Bannon testing the limits of their authority and how much they can get away with — but it could also be the confusion that sometimes develops between the judicial and executive branches in the US. This occurs quite a lot at both state and federal level: someone gets a court order — to stop a bulldozer, a deportation, a worker lock-out — and the local authority, sometimes just a cop at a barrier, doesn’t honour it. Then a second court order has to be got, commanding Sargent Joe Palooka to do X, Y, Z on pain of being cited for contempt of court, and at that point they listen.
Happens all the time, and here also, the accusation that this represents a constitutional crisis is misplaced. As are the comparisons of this entry/immigration/refugee ban –– stupid, cruel and counterproductive as it is — to WW II, and the Western refusal of Jewish refugees from Germany. Refugees from Syria and Iraq aren’t being sequestered in those countries — UNHCR camps in Lebanon and Turkey are taking anyone who can get out, and Europe is taking more than a million of those. In 1938 and 1939, shiploads of Jews were being turned back by everyone (except the Dominican Republic) to dock back in Germany and face later extermination — or in some cases, to sink mid-ocean, with all hands. That’s not the US under Trump; that’s us, under governments of all stripes. The protests against these executive measures are absolutely right and good; the overblown rhetoric, and the gesture politics, will simply advantage Trump.
The implicit values of the progressive class were on display with the announcement by Starbucks chair Howard Schulz that the coffee chain would employ 10,000 refugees worldwide; one can imagine the reaction to that in regional Ohio and Indiana, where people who had full-time gigs before 2008 are getting by on 20, 15, 12 hours a week. The Screen Actors Guild awards were another chance for this sort of grandstanding, with the cast of Stranger Things announcing that America was a refuge for every “freak” who wanted to come along. Since most refugees are conservative people from traditional societies who would have done almost anything rather than leave, that’s … well, it’s revealing. The refugee, a figure of circumstance and bad luck, is being enrolled as a heroic figure by progressive thought leaders, distancing them and their class even further from the mass of people, who are wary of taking in strangers from war zones. Unsurprisingly then, Trump’s executive orders would appear to be polling well, with approval trumping disapproval by six to 10 points in various polls.
While all this was going on, a separate drama was playing out in Congress, where Democrats face some tough strategic choices. In committees and in the Senate, the Democrats have the opportunity to block and filibuster Trump’s cabinet picks. They have done so in two committees — by depriving them of quorum — whose vote is required to move on the Treasury, Health and Human Services and Small Business Administration secretary picks to full confirmation. The move was prompted by demands from their base that they take a more militant approach and the threat that those Congresspeople who voted through Trump’s picks would be subject to primary challenges ahead of the 2018 midterms.
That is similar pressure that the Tea Party applied to the Republicans. But it’s a dangerous game, because many are not in possession of the facts — the most important of those being that the Republicans have a “nuclear option”: the abolition of the filibuster in the Senate. The Senate filibuster — requiring 60 of 100 votes to move a bill onto a vote — has no official place in the constitution; it’s a convention and can be done away with (the hardcore filibuster, where you have to keep speaking, reading from Dickens and cookbooks, pissing into a catheter strapped to your leg, etc, is harder to do away with, but it merely delays things for a day or two). Removing the filibuster requires only a simple majority vote of 51, and the Republicans have that. They have left the filibuster in place, as did the Democrats — by and large; Harry Reid partially removed it during the second Obama term — because it is in the interests of Senate power, as a chamber, not to destroy it.
The reason they may now do so, in response to Democrat tactics, is that the big one is coming up: the confirmation of Supreme Court justice nominee Neil Gorsuch to fill the vacancy created by the death of Antonin Scalia. Seating Gorsuch would return the court from its current de facto 4-4 liberal constellation (in that liberal decisions in lower courts are not overturned if there’s a 4-4 split at SCOTUS) to a 5-4 conservative majority, with the occasional switch from Justice Anthony Kennedy. It would also prepare the way for a second conservative, should either of the two liberal judges in their 80s die or have to retire for illness. At that point, the right has got the hat trick, and America will really change.
Perhaps believing that the Republicans will do all that anyway, the Democrats have gone ahead with the committee blocking — showing guts in the one situation where a degree of discretion and strategy might have been the wiser course. We shall see within a day or two. But by then the news will have changed all over again. The hits just keep on coming*
*a much underrated album by Michael Nesmith from the 1970s. The song Joanne can be seen as a strange, prescient allegory for the 2016 election