Once again, a federal judge has held that a Trump proclamation on immigration violates U.S. law. This time, the issue was Trump’s order that people arriving in the United States without going through a designated border checkpoint could not apply for asylum. That order contradicts the explicit language of U.S. asylum law passed by Congress years ago.
“Whatever the scope of the president’s authority, he may not rewrite the immigration laws to impose a condition that Congress has expressly forbidden,” said U.S. District Judge Jon Tigar.
Trump promptly denounced Tigar as “an Obama judge,” which led to a highly unusual rebuke from U.S. Supreme Court Chief Justice John Roberts, who issued a statement saying, “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.”
Trump snarked back against the Chief Justice and the federal court system on Twitter. Of course he did. (In case you are wondering, the chief justice was appointed by Republican President George W. Bush, and is known as one of the conservative majority on the Court.)
In another challenge to the rule of law, the Trump administration continues to look for new missions for the U.S. troops stationed at the southern border. So far, the troops have been stringing razor wire and building shelters. Reuters reported that the administration is now considering tasking the troops with medically screening migrants.
“In Tijuana and other ports of entry, CBP officers are trained to check migrants and travelers for obvious signs of infectious conditions, like fever, bleeding from the eyes or other symptoms of ‘quarantinable and communicable diseases,’ according to a 2015 report by the Congressional Research Service.”
Whether or not that rather bizarre mission materializes, the White House just issued an order, signed by John Kelly, authorizing law enforcement roles and the use of force by border troops. Apart from the question of whether the chief of staff has authority to sign such an order (probably not), the order looks like a violation of the 1878 Posse Comitatus Act.
“Throughout U.S. history, civilians in and out of government have generally acknowledged that neither service members nor politicians should use the military as a domestic coercive or policing instrument. This is explicitly forbidden by the Posse Comitatus.
“Why is this a worry? In the extreme, routinizing the use of the military to advance political goals raises concerns about a slippery slope toward political violence and even coups. If officers and their institutions are used to legitimize a domestic political agenda, partisans eventually could threaten opponents with force, not just electoral losses. Coups evolve when the military itself, in an effort to protect its own interests, uses its coercive power to assume control of the government.”
Secretary of Defense John Mattis “clarified” on Wednesday, saying that the order just gives him the power to direct the troops to use force and make arrests, and that he has not done so. Further, said Mattis, most of the troops on the border are unarmed and will remain that way:
“We are not doing law enforcement. We do not have arrest authority,” Mattis said. “Now the governors could give their [National Guard] troops arrest authority — I don’t think they’ve done that — but there is no arrest authority under Posse Comitatus for the U.S. federal troops. That can be done but it has to be done in accordance with the law….
“Detention, I would put it in terms of minutes. In other words, if someone’s beating on a border patrolman and if we were in position to have to do something about it, we could stop them from beating on them and take them over and deliver them to a border patrolman who would then arrest them for it.” [Emphasis added]
Meanwhile, the migrants wait on the border: tired, hungry, desperate, but peaceful.
“Less than a week old, the shelter has assumed the squalor of an overwhelmed refugee camp, and the rhythms of enforced idleness have taken hold. One group spends hours watching karaoke singers at an end of the basketball courts there, while men bet on cards at the other. Children dart around a playground. Women fold donated blankets in the reflexive gestures of tidying up at home, now just a tiny patch under a large tent.
“City officials, who fear that as many as 10,000 migrants from this caravan and two more behind it may ultimately alight in Tijuana in the coming weeks, are scrambling to provide for them….
“The migrants often reveal little emotion when recounting the violence they have fled, as if admitting grief could lead to a despair that would paralyze them at the very moment they need to keep pressing ahead.
“They killed my whole family, my father, my mother and my two brothers,” said Jose Miguel Martínez, a rail-thin 18-year-old from El Salvador. He said he had been spared because he was in the military at the time — but never received a police report or death certificate.
“Orbelina Meléndez, 36, watched as her husband was shot in front of her in Tegucigalpa, the Honduran capital, and then received death threats. She has no police report. “When you are poor, they do not investigate and it remains unpunished,” she said.”
On the U.S. side of the border: right-wing militias, military troops, and National Guard soldiers wait to for the arrival of the migrants. That arrival is controlled by border officials, who are processing less than 100 asylum seekers daily. Even before the arrival of the first members of the caravan, more than a thousand people waited for their turn.