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The following books by Robert Paul Wolff are available on Amazon.com as e-books: KANT'S THEORY OF MENTAL ACTIVITY, THE AUTONOMY OF REASON, UNDERSTANDING MARX, UNDERSTANDING RAWLS, THE POVERTY OF LIBERALISM, A LIFE IN THE ACADEMY, MONEYBAGS MUST BE SO LUCKY, AN INTRODUCTION TO THE USE OF FORMAL METHODS IN POLITICAL PHILOSOPHY.
Now Available: Volumes I, II, III, and IV of the Collected Published and Unpublished Papers.

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Friday, February 10, 2017

THE NINTH CIRCUIT DECISION

This is the judgment of my son, Law Professor Tobias Barrington Wolff:

"I have just finished reading the opinion of the Ninth Circuit in the dispute over the anti-Muslim Executive Order. The opinion is beautifully written and appears tightly reasoned to me. A few parts of the case involve areas of law about which I do not have particular expertise (like the due process rights of non-citizens with substantial connections to the United States) and there is some room for debate about the Ninth Circuit's decision not to modify the scope of the TRO (though there is also substantial authority for that decision). But I think overall the court got it right.

I am not joyful, however. I think it likely that Steve Bannon crafted this EO with the expectation that it would cause chaos and elicit protests and then be enjoined by the courts. At the very least, I am not prepared to treat this as a victory so much as a reassuring confirmation that our courts remain strong and independent -- which is welcome -- coupled with a continuing sober awareness of the menace now occupying the White House.

This EO was never meant to be policy. It was not designed as policy, it was not vetted as policy, and it was not rolled out as policy. This EO was intended to achieve a strategic outcome. One sinister strategic story is that Bannon seeks to use the next terror attack on the United States as an opportunity to blame our federal courts for threatening national security and thereby to undermine the rule of law. A story that is less sinister but still dangerous and ugly is that Bannon seeks to use this clash to amp up nativist sentiment and inflame their base. The most alarmist story to tell involves references to the Reichstag fire and a deliberate orchestration of an attack on America in order to usher in martial law and full-blown fascist authoritarianism -- a scenario that I am not yet ready to treat as likely, but that I cannot wholly dismiss.

Whatever the agenda underlying these recent events, it is important to understand that this was never about creating policy. We would make a serious mistake if we were to view the decision of the Ninth Circuit as a victory in the normal back and forth between courts and policymakers about the limits of the Constitution. That is not what this is.

4 comments:

Mark L. said...

As much as I'm suspicious that Bannon and Co. are trying to engineer a hostile takeover, couldn't the misfiring of the EO simply be due to incompetence? I don't think we should ever underestimate this administration, but how much does Bannon really know about the nuts and bolts of executive action and the law? He may have failed to consult the appropriate people because he didn't realize how necessary they were and that he simply wanted to do everything his way. He certainly has enough arrogance and audacity (see self-promotion to NSC). He may have thought shock and awe anti-immigration would feed the base because it would stick.




David E said...

Another good article on this:

http://www.nybooks.com/daily/2017/02/10/trump-travel-ban-in-court-ninth-circuit-decision/

Kate said...

A recent pair of articles, David Frum's cover story in the Atlantic (https://www.theatlantic.com/magazine/archive/2017/03/how-to-build-an-autocracy/513872/) and Ezra Klein's response in Vox (http://www.vox.com/policy-and-politics/2017/2/7/14454370/trump-autocracy-congress-frum) make a strong case that Trump is not the real problem. Congress, if it chooses, has the power to stop almost anything the President can do *today*. He couldn't confirm all these appointments without Congress; he can't fund anything without Congress; in the extreme case, he could be impeached by Congress.

The founders, as the articles note, were acutely aware of the possibility of an autocratic demagogue and designed the system to deal with it. What the founders didn't deal with is the idea that members of Congress might put their loyalty to their party above the power of their institution. That is, the situation we're in now, where Congress only acts as a check on Presidents who belong to the other party.

If we focus on Trump and Bannon, it's easy to feel paralyzed.

If we focus on Congress, our tactics change. We have to fight Trump/Bannon's initiatives in the short run, while Congress is asleep, but we have a powerful ally if we can only get Congress to wake up -- or change the Congress in 2018. Here's a website with lots of useful data about Congress: http://www.dailykos.com/stories/2017/1/3/1616470/-Check-out-our-comprehensive-115th-Congress-guide-with-election-data-demographics-and-member-stats
For example: the Democrats need 24 seats to take over the House. This is only part of what they lost during Obama's administration. And there are 22 seats currently held by Republicans in districts that voted for Clinton. (The districts are identified, along with the names of the Congressmen). The districts that were held by Democrats in 2008 can also be identified. I hope that someone like Obama is working on this plan as I type ...

Kate

Robert Paul Wolff said...

Kate, this is exactly right. That is why I have been haroing on the 2018 elections. If we can take back the House, the whole situation changes. ith the Senate too, we can stop him dead in his tracks.