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Trump’s controversial Executive Order: Why the judiciary could create history

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[yt_dropcap type=”square” font=”” size=”14″ color=”#000″ background=”#fff” ] O [/yt_dropcap]n January 27th, 2017 which ironically happens to be Holocaust Remembrance Day, US President Donald Trump signed an Executive Order entitled ‘Protecting the Nation from Foreign Terrorist Entry into the United States’. The effect of the Executive order, inter alia, was to prevent the entry into the United States, irrespective of visa status, citizens of seven Muslim majority nations.

These nations were Iraq, Iran, Libya, Syria, Sudan, Somalia and Yemen. While subsequent developments exempted legal permanent residents (Green Card holders) from the ambit of the Order and a Federal Court ordering a stay on its operation, the broad essence of its import remains intact. While the Executive Order with its purported implications have met with indignation and moral outrage the world over, not limited to the citizens of the affected nations amidst chaos pertaining to its implementation within the United States, it is important to analyse the legal nature of Executive Orders and the possible routes through which the controversial order could be rightly overturned.

Presidential Executive Orders and their overturn

While there is no express mention of Executive Order’s in Article II of the US Constitution, the relevant Constitutional provision which deals with the executive branch of the government, the power has been an integral feature of the American political landscape. The rationale for the exercise of the power is furthering the legislative mandate of the Congress by issue of specific directions to subordinate executive authorities. However, despite the same there has practically been no limit on either the number of Executive Orders a President may issue or the substantive issues which such orders may address. The only limit on executive orders is the requirement of being harmonious with the Constitution and consistency with the relevant legislative intent which in this case is the Immigration and Naturalization Act, 1965.

There are 3 methods by which an Executive Order may be overturned. Firstly, Presidential overrule- this implies the sitting President revokes a previous order issued by him or revokes an order issued by a previous President. Secondly, Congress enacts a law overruling the Order and thirdly, the Courts striking down the Order. Given Trump’s consistent posturing against Muslims and anti-immigration rhetoric being an integral part of his political platform, it’s unlikely that the President would voluntarily backtrack on the order. The Congress could step in to frustrate the order by enacting a law that repeals the order, defeats its purpose or blocks funding for the mandate but it could be vetoed by the President. Such a veto can only be neutralized by a two-thirds majority in both houses. This implies the support of 67 out of 100 Senators in the Upper Chamber and 290 out of 435 Representatives in the Lower Chamber. Given the current Democratic Party strength of 48 and 193 respectively, it would be a herculean diplomatic effort to galvanize those numbers. However, the given the bipartisan independence that legislators can afford to adopt; such a successful effort on that front cannot be ruled out.This leaves the Judiciary as the final destination which can meaningfully thwart the executive order in light of broader humanitarian and constitutional considerations. If the same happens it would be only third instance in US history where the judiciary strikes down an executive order.

Youngstown Sheet and Tube Co. v. Sawyer (Steel Seizure Case-1952)

Popularly known as the Steel Seizure Case, the litigation was the first and only case in which a Presidential executive order was struck down by the Supreme Court. The case pertained to forceful acquisition of private property during the Korean War by the President on the logic that such a move was necessary to prevent labour- management disputes which could adversely impact steel production necessary to augment war efforts. The Court struck down the Presidential acquisition of Steel production facilities as an illegal infringement of private property claims which were beyond the pale of legislative authorization. Since the judgment in effect ended up protecting private property claims at the expense of organized labour it was viewed in liberal legal circles as regressive despite the landmark precedent that Presidential authority could not trample upon Congress’ domain of law making. Justice Jackson’s reasoning which is regarded as the most influential opinion of the case laid down a ‘three prong’ test which could be employed to assess Presidential executive orders. According to the test, the first category of Orders are those where the President has ‘maximum powers to act’ which is pursuant to an express or implied authorization by Congress. Executive orders falling in this zone should witness least judicial interference as they reflect a legitimate executive effort in giving effect to the legislative will. The second category of Orders also referred as to as the ‘Twilight Zone’ pertain to those executive orders which operate in a field where Congress is silent. In these cases, there should be a judicial determination whether the exercise of Presidential power operates in a zone which Congress implicitly sanctions executive discretion to deal with exigencies. The judiciary is supposed to exercise a middle of the road approach in these category of cases. The third category of Orders also referred to as the “Lowest Ebb Zone” refers to those orders which are made contrary the express or implied will of the Congress. In this zone, the Courts have the broadest leeway to strike down suspect executive order as the effect of the same is to defeat the purposes of a legislative enactment unless the exercise of such power is derived directly from the Constitution.

President Trump’s controversial Executive order while claiming to further the mandate of the Immigration and Naturalization Act, 1965 in effect ends up defeating the purpose of the very enactment and is a flagrant violation of the same. While the act prohibited racial quotas and barred discrimination on the basis of national origin of immigrants, Trump’s order precisely performs the mischief which Congress intended to prevent. This puts the Order in Justice Jackson’s “Lowest Ebb Zone” which ought to alert the judiciary of an imminent need to examine the nature of the Order vis-a vis the parent statute which while granting flexibility to the President to deal with immigration matters clearly lays downs the broad policy contours giving effect to Constitutional principles pertaining to due process, fairness and free exercise of religion while legislating the field of immigration. Thus the Order is a colourable exercise of power which while claiming to achieve a desired purpose, far from harmoniously realizing the stated goal ends up frustrating the original mandate itself.

Despite the immediate impact of the Steel Seizure case, the precedential impact of the case, in particular Justice Jackson’s opinion which is widely considered be the most significant ruling in the case should be the judicial basis to assess the credibility of President Trump’s controversial executive order. Given the principles laid down, there is every reason to believe the suspect nature of the order and its ability to achieve in letter and spirit any guiding Constitutional principle. The Judiciary, chiefly the US Supreme Court is at a pivotal point in history where the “least dangerous” branch of the government has the most “significant responsibility” to ensure the preservation of Constitutional values.

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‘Guns Don’t Kill People, People Kill People’: Time to retire

Mohammad Ghaderi

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Again, another mass shooting, again a school, again a troubled teen, a racist, a white supremacist, a Bloods or Crips gangster, a refugee, a war veteran, a mad policeman, a terrorist from al-Qaeda, al-Nusra Front or from the ISIL (Islamic State in Iraq and the Levant/Daesh) terrorist outfits … what difference does it make and again dead bodies lying on the ground in their blood. Who believes they were alive seconds ago. The story goes on and to my surprise it is having less effect than it used to have years ago. Why?

We are getting bad. We are not hurt anymore. Too much violence has made us numb.

What does the motto on the entrance of the United Nations building says? A poem by the Iranian influential poet Sa’adi, from the 13th century, the medieval period. The poem has many translations however one is this:

The sons of Adam are limbs of each other,
Having been created of one essence.
When the calamity of time affects one limb
The other limbs cannot remain at rest.
If you have no sympathy for the troubles of others,
You are unworthy to be called by the name of a Human.

Give it a thought, try to put it in practice, politician and statesmen in the United Nations, New York, United States. It is ludicrous that almost all of them call for end of wars, urge foe peace and tranquil but at the same time produce and sell arms.

War, violence and killing is simply unacceptable, nasty and painful in any kind and form, whether it occurs in a house, street, city, countries like Iraq, Syria, Yemen, Palestine or the United States of America.

U.S. teen confesses to mass shooting at Florida Marjory Stoneman Douglas High School

A troubled teen with alleged ties to a white supremacist group confessed on Thursday to murdering 17 people at his former high school in Florida, as the FBI (Federal Bureau of Investigation) admitted it had received a tip-off about the 19-year-old gunman yet failed to stop him.

As Americans reeled from the country’s worst school massacre since the horror at Sandy Hook six years ago, the U.S. President Donald Trump suggested the root cause of the violence was a crisis of mental health — and defied calls to address gun control.

Terrified students hid in closets and under desks on Wednesday at Marjory Stoneman Douglas High School in Parkland, texting for help as the gunman, Nikolas Cruz, stalked the school with a semi-automatic AR-15 rifle.

Cruz has been charged with 17 counts of premeditated murder, appearing on Thursday afternoon before a judge who ordered him held without bond.

After being read his legal rights, “Cruz stated that he was the gunman who entered the school campus armed with a AR-15 and began shooting students that he saw in the hallways and on the school grounds,” court documents showed.

Cruz also admitted he discarded his rifle — which he bought legally in Florida — and tactical gear in order to blend in with the crowd to flee the campus, the documents showed.

The recent mass shooting at a school in Florida is the latest reminder that the United States is a “very violent country,” a journalist in Detroit says.

After the shooting, he stopped at a Wal-Mart store and then McDonald’s, Broward County Sheriff Scott Israel told reporters. He was detained 40 minutes later, after police identified him using school security camera footage.

Expelled from school for disciplinary reasons, Cruz was known to be fixated on firearms — and had reportedly been identified as a potential threat to his classmates.

In a somber televised address to the nation in response to the 18th school shooting so far this year, Trump vowed to make mental health a priority — after tweeting about the “many signs” the gunman was “mentally disturbed” — while avoiding any talk of gun curbs.

Earlier in the day, Trump had asserted that “neighbors and classmates knew he was a big problem. Must always report such instances to authorities, again and again!”

But U.S. authorities themselves were under scrutiny, after the FBI confirmed it was alerted last September to a message posted on YouTube, in which a user named Nikolas Cruz vowed: “I’m going to be a professional school shooter.”

In a statement, the FBI said it had carried out “database reviews and other checks” but was unable to identify the person who made the post.

Trump cites mental health, not guns, in speech on shooting

Declaring the nation united and grieving with “one heavy heart,” Trump promised on Thursday to tackle school safety and “the difficult issue of mental health” in response to the deadly shooting in Florida. He made no mention of the scourge of gun violence.

Not always a natural in the role of national comforter, Trump spoke deliberately, at one point directly addressing children who may feel “lost, alone, confused or even scared.”

“I want you to know that you are never alone and you never will be,” Trump said. “You have people who care about you, who love you, and who will do anything at all to protect you.”

However, the ones killed were alone when they were shot in cold blood in fear and hope. The ones who lost their precious lives had many hopes and ambitions.

Now they are dead, and it could be every and each one of us, at a school, stadium, concert hall, cinema, home, Middle East, Americas… anywhere, it could be.

Such incidents are cause of sorrow and pain, I cannot explain how I felt when I saw the horrible pictures of the Florida High School shooting, just like how I felt when I saw the massacre committed by the ISIL terrorists killing cadets in Camp Speicher in Tikrit, Iraq. At the time of the attack there were between 4,000 and 11,000 unarmed cadets in the camp. ISIL terrorists singled out Shia and non-Muslim cadets from Sunni ones and murdered them.

Who arms and supports terrorist groups like ISIL? No one can be so naeive to believe that they have just popped out. I recall the U.S. President Trump as saying on his election campaign to Hillary Clinton that the U.S. created ISIL. Well done!

While Trump stressed the importance of mental health and school safety improvements, his latest budget request would slash Medicaid, the major source of federal funding for treating mental health problems, and cut school safety programs by more than a third. Last year, he signed a resolution blocking an Obama-era rule designed to keep guns out of the hands of certain mentally disabled people.

Trump’s silence on guns was noted with displeasure by many who are seeking tougher firearm restrictions. But the White House said the president wanted to keep his remarks focused on the victims.

Before he was a candidate, Trump at one point favored some tighter gun regulations. But he embraced gun rights as a candidate, and the National Rifle Association spent $30 million in support of his campaign.

During his brief, televised statement, Trump said he wanted to work to “create a culture in our country that embraces the dignity of life,” a phrase likely to resonate with his conservative base.

In contrast, former President Barack Obama tweeted out a call for “long overdue, common-sense gun safety laws.” Obama wrote: “We are grieving with Parkland. But we are not powerless. Caring for our kids is our first job.”

In reacting to previous mass shootings, Trump has largely focused on mental health as a cause, dismissing questions about gun control. After a shooting at a Texas church in November left more than two dozen dead, the president said, “This isn’t a guns situation.”
The US has averaged one school shooting every 60 hours since the beginning of 2018, data shows.

Trump was criticized in early August for saying that both white nationalists and counter-protesters were responsible for the violent clashes at a white nationalist rally in Charlottesville, Virginia.

While Trump has offered somber responses to some tragedies, he has also drawn criticism for other reactions.

After the Orlando shootings at a gay nightclub that left 49 dead in June 2016, then-candidate Trump tweeted, “Appreciate the congrats for being right on radical Islamic terrorism.” In the wake of a deadly terror attack in London last June, he went after Mayor Sadiq Khan on Twitter.

Sadiq Khan compares the US president’s rhetoric against Islam to tactics used by ISIL to inspire terror attacks in Western cities.

First published in our partner Tehran Times

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On Jettisoning Failed Leaders and Mass Shootings in the U.S.

Dr. Arshad M. Khan

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The scene is the House of Commons; the date May 7, 1940.  A simple motion to adjourn for the ten-day Whitsun recess is of little concern to Prime Minister Neville Chamberlain who has a comfortable 213 seat majority.  Then things take a turn.  A plan approved by the first Lord of the Admiralty Winston Churchill to land troops in Norway and engage the Germans directly has been a disaster with huge losses, and the eventual naval evacuation of the expeditionary force — an Arctic Dardanelles planned by the same man.

Chamberlain rises to defend Churchill and the conduct of the war in what has now come to be known as the “Norway Debate”.  In the most unlikely of scenarios and with no evidence of Winston trying to put his name forward — in fact the opposite — when the tide turns against Chamberlain, within three days as more favored candidates are shed, he has become prime minister.  Such is the parliamentary system.  Margaret Thatcher is another example, toppled shortly after success at the polls.

The American system, however, puts the president beyond such reach other than through a laborious impeachment.  Analogous to the third Roman Emperor Caligula, Donald Trump, too, has no military or political experience.  Caligula made his horse a senator or some say consul; Trump has the equivalent running government departments and agencies.  Caligula declared himself a god; Trump tweeted he is a ‘stable genius.’  If Caligula’s reign ended with assassination, Trump’s will be more prosaic — just disaffected voters.

Another mass shooting this time at Marjory Stoneman Douglas High School in Parkland, Florida.  Seventeen are dead and  many more injured.  The gunman, identified as Nikolas Cruz, used an AR-15 assault type rifle, a weapon far deadlier than a pistol — perhaps he watched the coverage of the Las Vegas shooting.  He was a former pupil who had been suspended from the school, and who students recalled as disturbed and scary.

President Trump in his remarks following the incident did not bring up the obvious question of why an AR-15 was so easily available for purchase.  Gun owners and the gun lobby are part of his constituency.

Following a mass shooting in April 1996 when a man armed with two semi-automatic rifles killed 35 people in Port Arthur, Tasmania, the Australian government put together strict gun laws.  They were supplemented with a mandatory gun-buyback program through which 650,000 firearms were destroyed.  Did the program work?  The data tells the story more vividly:  From 1979 to 1996, Australia suffered 13 mass shootings; since 1997 it has had none.

Under his usual theme of ‘guns don’t kill people, people kill people’, President Trump continues to talk about finding ways to deal better with disturbed people.  The sure Australian way is to stop them acquiring guns.

Lost in the Florida school story was another shooting the same day when trigger-happy guards let loose at a National Security Agency entrance.  The forested area is a confused mass of entries and exits.  It has happened before that somebody inadvertently makes a wrong turn and panics when faced with shouting armed guards.  In this incident, bullet holes can be seen in the windshield and the three men in the car were injured.

Introducing the Gates Foundation’s annual philanthropic letter a few days ago, Bill and Melinda Gates appealed to Donald Trump to not cut foreign aid — “even a 10 percent cut could lead to 5 million deaths in the next decade”, Bill Gates warned.  Will President Trump listen?

Despite the many wonderful aspects the U.S. Constitution and the Bill of Rights, when it comes to jettisoning incompetent leaders, it is difficult to best the parliamentary system for immediacy.

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Trump’s new nuclear doctrine just rhetoric

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Recently the US President Donald Trump unveiled his new nuclear doctrine which had remained unchanged since 2010. Many experts consider Trump’s new doctrine which enjoys many ambiguities as just campaign rhetoric. To shed more light on the issue we reached out to Prof. Filip Kovacevic, University of San Francisco geopolitics.

The US new nuclear doctrine was published several days ago. This document had remained unchanged since 2010. What are the reasons for new changes?

According to the US military establishment, the most important reason for changes is that the world has been a more dangerous and geopolitically unstable place. What the generals are not saying, though, is that it was their own actions which are responsible for this state of affairs. The hegemonic US foreign policy, the attempt to force a neo-liberal Pax Americana on the diversity and richness of the world’s cultures and traditions, is the cause of the present world problems.

Of course, you won’t find this stated openly in the doctrine. What you will find there, in a typical manipulative fashion, are the accusations of others for the problems that the US foreign policy has caused itself. In fact, this hypocritical pattern of behavior, where you take the legitimate reactions of others to your own provocations and aggressive moves as the main cause of tensions and conflicts, goes back many decades into the past.

What is the most significant difference between the new doctrine and the previous one?

In my opinion, the most significant difference is that a lot more money will be poured into the development of nuclear weapons. This will inevitably lead to a nuclear arms race with other states and to the proliferation of nuclear weapons as more and more countries will want to acquire them. But it will bring tremendous profits to the US military-industrial complex. In fact, the Trump administration is completely under the control of this section of the US corporate oligarchy. Trump is essentially breaking down all the institutional checks and balances in the US political system and paving a way for a military dictatorship. I have no doubt that the next US president will be a military officer. This means that we are about to see more wars and more deaths around the world, including in the Middle East. Many old, frozen conflicts will be re-opened across Asia and, apparently, the US is also setting a stage for the first-time use of a low yield nuclear weapon. Let’s not forget, though, that the bombs with depleted uranium have already been extensively used in the US /NATO conflicts, starting with the attack on the Federal Republic of Yugoslavia in 1999, causing horrific public health and environmental problems for generations to come.

In new doctrine, the use of nuclear weapons is allowed in extraordinary situation. There are some ambiguities around this. What are those extraordinary situations exactly?

The fact that the US reserves the right to respond with a nuclear weapon to a non-nuclear attack is nothing new. In fact, the US dropped nuclear bombs on Hiroshima and Nagasaki even though there was no nuclear threat from the Imperial Japan. However, what is new in this doctrine is that now the US considers the potential use of a nuclear weapon against a large-scale cyber-attack. This is extremely worrying, because, as is well known, it is very difficult to correctly attribute the source of a cyber-attack. This could make a false-flag attack by some rogue terrorist faction or by the inside provocateurs misinterpreted as an attack by another nuclear power and lead to the nuclear annihilation of all life on Earth.

As the US considers the first strike on Russia acceptable, it means the spirit of the cold war is governing this new doctrine. Why has the US taken this approach?

Provoked by the rapid and aggressive expansion of the US political, economic, and cultural influence in Central and Eastern Europe under the umbrella of NATO, Russia has embarked on the campaign of re-arming and strengthening its defense and security apparatus in recent years. It appears that the US thought that Russia would cave in under its demands and accept to be a third-rate power in Eurasia. However, this was a serious misunderstanding of the Russian history and tradition. Now that Russia pushes back, the US establishment does not know what else to do but to make threats. However, these are empty threats because any kind of use of nuclear weapons against Russia or against its allies within the Collective Security Treaty Organization would quickly lead to mutual destruction. The spirit of the old Cold War has returned, and it will be with us for a long time to come. Accordingly, we will see the flare-up of proxy conflicts and covert actions across the world.

How do you assess the US new doctrine toward Iran? What are the new points?

Iran is one of only four states separately mentioned in the doctrine. The others are Russia, China, and North Korea. Iran is given the least coverage because it is not seen as an immediate nuclear danger to the US .The main emphasis is on what will happen after the Joint Comprehensive Plan of Action (JCPOA) ends in 2031. It is stated that after this period, Iran will be able to produce a nuclear weapon within a year. Interestingly, there is no mention of the US getting out of the JCPOA before that time, which is in contradiction to what the US president Donald Trump has been saying recently. It appears that Trump’s statements are just campaign rhetoric intended to please some important and wealthy interest groups, but that, in reality, it will be difficult for the US to get out of the JCPOA, considering that all other signatories are still backing it. However, this is not to say that the US will not use all other means at its disposal, including its vast media and intelligence resources, to sow discord within the Iranian political elite and create an economic and political crisis in the country.

First published in our partner Mehr News Agency

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