Washington, DC–(ENEWSPF)–January 27, 2017
Steve Bannon has no previous government experience. Steve Bannon is not an attorney. But Steve Bannon is apparently now the author of the fiats from on high that are tumbling out of the Trump White House like a pile of rocks smashing their way down a hill.
Two of Donald Trump’s senior advisors — neither of whom has any previous government or legal experience — have reportedly been writing executive orders without any input from the agencies they would affect.
Aides told Politico that Steve Bannon, the president’s chief strategist, and Stephen Miller, the senior White House advisor for policy, have made almost no effort to consult with federal agency lawyers or lawmakers as they wrote executive orders.
Bannon, the former chairman of Breitbart, and Miller, a Republican political operative who’s written most of Trump’s major speeches, are writing many of the orders based on ideas that came from transition officials or “landing teams” who weren’t working in the White House.
The orders have come so quickly, and from seemingly out of nowhere, that aides sometimes aren’t even sure which actions Trump will sign until they cross his desk.
The quick pace gives the appearance of momentum as the Trump administration gets up and running, but legal experts are concerned the White House is issuing “flawed orders that might be unworkable, unenforceable or even illegal,” the website reported.
GOP lawmakers complained they weren’t sure whether some of Trump’s executive orders, including his action to start the repeal of Obamacare, might conflict with existing laws because they hadn’t reviewed them.
Others have pointed out that Trump’s executive order on immigration includes only vague language on where funding would come from and does not consider the role of Congress in approving those payments.
Besides the problem of “looking like your getting things done” when you’re really just spinning your wheels with impractical and unworkable ideas we basically have a rank amateur adviser writing executive orders for a rank amateur President. Wonderful.
Bannon also recently climbed out of his Spider-crypt to scream at
the kids on his lawn the media to “keep it’s mouth shut.”
“The media should be embarrassed and humiliated and keep its mouth shut and just listen for awhile,” Bannon said in a telephone interview with the New York Times.
“I want you to quote this,” he said. “The media here is the opposition party. They don’t understand this country. They still do not understand why Donald Trump is the president of the United States.”
That’s not how this works, that’s not how any of this works.
Somehow this doesn’t surprise me because many of the executive orders seemed odd, even deluded, like his latest one to “investigate voter fraud”, but only in urban areas of states Trump didn’t win.
It will be a follow-up on the announcement yesterday to better understand voter fraud,” White House press secretary Sean Spicer told reporters aboard Air Force One, as quoted by The Hill.
He said that Trump will sign an executive action to launch the probe on Thursday, according to a report by McClatchyDC.
The President announced Wednesday that he will order a “major” investigation into voter fraud.
Later the same day, Spicer told reporters that Trump’s investigation will focus on “urban areas” in primarily Democratic states like New York and California.
First of all the President doesn’t tell the FBI or DOJ what or where to investigate. That’s a problem.
The idea that the Justice Department should be free from political interference is not rooted in any statute or explicit constitutional provision. Instead, it evolved through a series of internal policy memos and letters issued by past Justice Department officials from both parties, according to a POLITICO review of historical records.
Sessions, as attorney general, could decide to abandon or overhaul those policies, a concern heightened by Trump’s suggestions during the campaign that he could pursue politically motivated prosecutions.
The prospective relationship between the Trump White House and the Sessions Justice Department will get extra scrutiny because Trump during the campaign attacked the judge in a fraud case against him, threatened to make it easier to sue media organizations, and promised to jail his political opponent. Even though Trump backed off those latter two pledges since the election, legal scholars and ex-prosecutors have raised alarms about his occasionally stated disregard for the rule of law.
And now he’s threatening to let the FBI loose on our election process even when multiple investigations of so-called “voter fraud” have already been conducted and most have found bupkiss.
- In one of the most comprehensive investigations of fraud, Justin Levitt of Loyola Law School, Los Angeles turned up 31 credible instances of voter impersonation out of more than 1 billion votes cast between 2000 and 2014. Some of those cases may have been because of clerical errors. Levitt’s investigation suggests that while voter impersonation does indeed happen, it happens so rarely that the rate is approximately one instance out of ever 32 million ballots cast. This is similar to the odds of getting “heads” 25 times in a row on a coin toss.
- A five-year voter fraud investigation conducted by the George W. Bush administration “turned up virtually no evidence” of organized fraud, in the words of the New York Times. While the investigation did yield 86 criminal convictions as of 2006, many of those appear to have been linked to people misunderstanding eligibility rules or filling out paperwork incorrectly.
- In 2014, a two-year investigation into voter fraud by Iowa’s Republican secretary of state yielded 27 criminal charges, a number of which, again, were apparently related to mistakes or misunderstandings of voting rules.
- In December, a Washington Post analysis of news reports found four documented cases of voter fraud out of about 136 million votes cast. That would yield a voter fraud rate of one instance per every 34 million ballots, close to what Levitt’s investigation turned up. Two of those fraud cases involved Trump voters trying to vote twice, one involved a Republican election judge trying to fill out a ballot on behalf of her dead husband, and the last involved a poll worker filling in bubbles for a mayoral candidate in absentee ballots in Florida.
- A team of Dartmouth researchers undertook a comprehensive statistical investigation of the 2016 results, looking for evidence of abnormal voting patterns. They checked for evidence of noncitizen voting, dead people voting and tampering by election officials. They didn’t find any. “Our findings do strongly suggest, however, that voter fraud concerns fomented by the Trump campaign are not grounded in any observable features of the 2016 presidential election,” they concluded (emphasis theirs). “There is no evidence of millions of fraudulent votes.”
- Trump’s assertion of widespread voter fraud contradicts statements by his campaign’s lawyers, who stated unequivocally that “all available evidence suggests that the 2016 general election was not tainted by fraud or mistake.” The statement was made in a filing opposing Green Party candidate Jill Stein’s recount efforts in Michigan.
The impropriety of the President directing the power of the federal government to investigate ethnic people without any probable cause of reasonable suspicion is highly problematic and quite possibly a violation of the Civil Rights Act.
As is consistent with the @WhiteHouseLeaks twitter account these guys seriously don’t know what they’re doing, and the entire country is at risk while they learn these hard and costly lessons over and over again.
For example there’s the “American Pipelines” executive order which actually doesn’t make much sense.
The Secretary of Commerce, in consultation with all relevant executive departments and agencies, shall develop a plan under which all new pipelines, as well as retrofitted, repaired, or expanded pipelines, inside the borders of the United States, including portions of pipelines, use materials and equipment produced in the United States, to the maximum extent possible and to the extent permitted by law. The Secretary shall submit the plan to the President within 180 days of the date of this memorandum.
Trump wouldn’t make his own buildings using U.S. Steel, but he wants the Secretary of Commerce to somehow get private companies to do what he wouldn’t do with his own? How’s that supposed to work?
Then there’s his order on Sanctuary Cities.
Sanctuary jurisdictions across the United States willfully violate Federal law in an attempt to shield aliens from removal from the United States. These jurisdictions have caused immeasurable harm to the American people and to the very fabric of our Republic.
Tens of thousands of removable aliens have been released into communities across the country, solely because their home countries refuse to accept their repatriation. Many of these aliens are criminals who have served time in our Federal, State, and local jails. The presence of such individuals in the United States, and the practices of foreign nations that refuse the repatriation of their nationals, are contrary to the national interest.
The problem with the inherent threat of withholding federal funds unless so-called “Sanctuary Cities” comply with orders such as these is the fact there isn’t any legislation to back this up and the requirement to honor “detainer” requests by ICE is not enforceable beyond 48 hours.
Are states required to comply with detainers?
The short answer is no. The Department of Homeland Security’s own interpretation of the nature of detainers and a single court decision have been the only guidance on the issue so far. Federal regulation states the following about detainers (emphasis added):
(a)Detainers in general. Any authorized immigration officer may at any time issue a Form I-247, Immigration Detainer-Notice of Action, to any other Federal, State, or local law enforcement agency. A detainer serves to advise another law enforcement agency that the Department seeks custody of an alien presently in the custody of that agency, for the purpose of arresting and removing the alien. The detainer is a request that such agency advise the Department, prior to release of the alien, in order for the Department to arrange to assume custody, in situations when gaining immediate physical custody is either impracticable or impossible.
(d) Temporary detention at Department request. Upon a determination by the Department to issue a detainer for an alien not otherwise detained by a criminal justice agency, such agency shall maintain custody of the alien for a period not to exceed 48 hours, excluding Saturdays, Sundays, and holidays in order to permit assumption of custody by the Department.
In addition to this regulatory language, the only time the INA addresses detainers is in Section 287(d), which authorizes ICE to issue detainers only for violations of any law relating to controlled substances.
DHS interpretation: As CRS points out in its report on detainers, the word “shall” is usually understood as indicating a mandatory action in other contexts of the law. However, because the use of the word “shall” in this regulatory language is contained under the caption and within the section of the law relating to temporary nature of detention, DHS and its predecessor, INS, have long interpreted that the “shall” language of this regulation only prescribes the period of time for any detention at the request of ICE (48 hours), not that it requires adherence to the detainer or detention of the individual.
And the ability to change these laws and regulations is limited by — wait for it — the 10th Amendment.
This is where the Constitution comes into play. In addition to upholding DHS’s interpretation of the nature of detainers in Galarza v. Szalcyzk, the 3rd Circuit cited the 10th Amendment’s anti-commandeering principle, which bars the federal government from forcing states and localities to carry out a federal program or enforce federal statutes, as prohibiting federal entities from requiring states to hold immigrants for them. Additionally, one of the powers reserved to the states under the 10th Amendment includes “police powers.” In the context of immigration—the regulation of which is chiefly reserved to the federal government—states and localities have used their “police powers” to carry out laws or measures that address immigrants in their communities, including whether to participate in federal immigration enforcement and to what extent.
Also the attempt to use the withholding of Federal funds to force state compliance was fairly well struck down when the ACA attempted to use this same scheme to entice states to expand Medicaid.
The Court’s decision on the constitutionality of the Medicaid expansion is divided and complicated. The bottom line is that: (1) Congress acted constitutionally in offering states funds to expand coverage to millions of new individuals; (2) So states can agree to expand coverage in exchange for those new funds; (3) If the state accepts the expansion funds, it must obey by the new rules and expand coverage; (4) but a state can refuse to participate in the expansion without losing all of its Medicaid funds; instead the state will have the option of continue the its current, unexpanded plan as is.
So essentially unless the Federal government is specifically providing funds to pay for these detentions until ICE officers can arrive for a hand-off, they really can’t threaten the blocking of other funds which are meant for other purposes.
There have been bills such as S3100 introduced by Pat Toomey which attempts to implement this type of funds restriction plan, but it was filibustered in 2016 so that isn’t currently the law and Donald Trump can’t make it the law with a swipe of his pen.
Apparently rank government amateurs and non-lawyers like Bannon and Stephen Miller don’t know that.
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