No, Trump Cannot Declare an ‘Emergency’ to Build His Wall

If he did, and used soldiers to build it, they would all be committing a federal crime.

President Trump on Friday said that he was considering the declaration of a “national emergency” along the border with Mexico, which he apparently believes would allow him to divert funds from the military budget to pay for a wall, and to use military personnel to build it.

While it is hard to know exactly what the president has in mind, or whether he has any conception about what it would entail, one thing is clear: Not only would such an action be illegal, but if members of the armed forces obeyed his command, they would be committing a federal crime.

Begin with the basics. From the founding onward, the American constitutional tradition has profoundly opposed the president’s use of the military to enforce domestic law. A key provision, rooted in an 1878 statute and added to the law in 1956, declares that whoever “willfully uses any part of the Army or the Air Force” to execute a law domestically “shall be fined under this title or imprisoned not more than two years” — except when “expressly authorized by the Constitution or Act of Congress.”

Another provision, grounded in a statute from 1807 and added to the law in 1981, requires the secretary of defense to “ensure that any activity (including the provision of any equipment or facility or the assignment or detail of any personnel)” must “not include or permit direct participation by a member of the Army, Navy, Air Force, or Marine Corps in a search, seizure, arrest, or other similar activity unless participation in such activity by such member is otherwise authorized by law.”

In response to the Hurricane Katrina disaster in New Orleans, Congress created an express exception to the rules, and authorized the military to play a backup role in “major public emergencies.” But in 2008 Congress and President Bush repealed this sweeping exception. Is President Trump aware of this express repudiation of the power which he is threatening to invoke?

The statute books do contain a series of carefully crafted exceptions to the general rule. Most relevantly, Congress has granted the Coast Guard broad powers to enforce the law within the domestic waters of the United States. But there is no similar provision granting the other military services a comparable power to “search, seize and arrest” along the Mexican border. Given Congress’s decision of 2008, this silence speaks louder than words. Similarly, the current military appropriations bill fails to exempt military professionals from criminal punishment for violating the law in their use of available funds.

It is, I suppose, possible to imagine a situation in which the president might take advantage of the most recent exception, enacted in 2011, which authorized the military detention of suspected terrorists associated with Al Qaeda or the Taliban. But despite President Trump’s unsupported claims about “terrorists” trying to cross the border, it is an unconscionable stretch to use this proviso to support using the military for operations against the desperate refugees from Central America seeking asylum in our country.

It is even less plausible for the president to suspend these restrictions under the National Emergencies Act of 1976. From the Great Depression through the Cold War, presidents systematically abused emergency powers granted them by Congress in some 470 statutes, culminating in the Watergate fiasco. In response, the first section of the 1976 act terminated all existing emergencies and created a framework of checks and balances on the president’s arbitrary will.

If President Trump declared an emergency, Section Five of the act gives the House of Representatives the right to repudiate it immediately, then pass their resolution to the Senate — which is explicitly required to conduct a floor vote within 15 days. Since President Trump’s “emergency” declaration would be a direct response to his failure to convince Congress that national security requires his wall, it is hard to believe that a majority of the Senate, if forced to vote, would accept his show of contempt for their authority.

The Supreme Court’s 1953 decision in Youngstown v. Sawyer would be critical in Congressional consideration of such a decision. In a canonical opinion by Justice Robert Jackson, the court invalidated President Truman’s attempt in 1952 to use his powers as commander in chief to nationalize steel mills in the face of labor strikes. The decision imposed fundamental constitutional limits on the president’s power to claim that a national emergency — in this case, the Korean War — allowed him to override express provisions preventing him from using those powers domestically.

Trumpism Is ‘Identity Politics’ for White People

After Democrats lost the 2016 presidential election, a certain conventional wisdom congealed within the pundit class: Donald Trump’s success was owed to the Democratic abandonment of the white working class and the party’s emphasis on identity politics. By failing to emphasize a strong economic message, the thinking went, the party had ceded the election to Trump.

.. the meantime, Trump’s administration has seen that economic message almost entirely subsumed by the focus of congressional Republicans on tax cuts for the wealthy and plans to shrink the social safety net. But even as the message has shifted, there hasn’t been a corresponding erosion in Trump’s support. The economics were never the point. The cruelty was the point.
.. Nevertheless, among those who claim to oppose identity politics, the term is applied exclusively to efforts by historically marginalized constituencies to claim rights others already possess. 
.. Trump’s campaign, with its emphasis on state violence against religious and ethnic minorities—Muslim bans, mass deportations, “nationwide stop-and-frisk”—does not count under this definition, but left-wing opposition to discriminatory state violence does.
.. A November panel at the right-wing Heritage Foundation on the threat posed by “identity politics,” with no apparent irony, will feature an all-white panel.
.. But the entire closing argument of the Republican Party in the 2018 midterm elections is a naked appeal to identity politics—a politics based in appeals to the loathing of, or membership in, a particular group. The GOP’s plan to slash the welfare state in order to make room for more high-income tax cuts is unpopular among the public at large. In order to preserve their congressional majority, Republicans have taken to misleading voters by insisting that they oppose cuts or changes to popular social insurance programs, while stoking fears about

.. In truth, without that deception, identity politics is all the Trump-era Republican Party has.

.. Trump considers the media “the enemy of the people” only when it successfully undermines his falsehoods; at all other times, it is a force multiplier, obeying his attempts to shift topics of conversation from substantive policy matters to racial scaremongering.

.. The tenets of objectivity by which American journalists largely abide hold that reporters may not pass judgment on the morality of certain political tactics, only on their effectiveness. It’s a principle that unintentionally rewards immorality by turning questions of right and wrong into debates over whether a particular tactic will help win an election.

.. In the closing weeks of the campaign, the president has promised a nonexistent tax cut to the middle class after two years in which unified Republican control of government produced only a windfall for the rich
.. Trump’s nativism, and the Republican Party’s traditional hostility to government intervention on behalf of the poor, have had a happier marriage than some might have expected.

.. But that wasn’t what Trump promised—rather, his 2016 campaign pledged both generous social-insurance benefits for working-class white Republicans and cruelty for undeserving nonwhites.

.. Republicans are scrambling to insist that they will cut taxes on the middle class, offer robust health-care protectionsand protect Medicare, Medicaid, and Social Security, even as GOP leaders in Congress plot to slash all three to cut the deficit created by their upper-income tax cuts.

.. When armed agents of the state gun down innocent people in the street, when the president attempts to ban people from entering the U.S. based on their faith, or when the administration shatters immigrant families, these are burdens that religious and ethnic minorities must bear silently as the price of their presence in the United States.

And in the impoverished moral imagination of Trumpist political discourse, any and all white Americans who also oppose such things must be doing so insincerely in an effort to seek approval.

.. America is not, strictly speaking, a center-right or center-left nation. Rather, it remains the nation of the Dixiecrats, in which the majority’s desire for equal opportunity and a robust welfare state is mediated by the addiction of a large chunk of the polity to racial hierarchy. It is no coincidence that the Democratic Party’s dominant period in American history coincided with its representation of both warring impulses and ended when it chose one over the other. The midterms offer a similar choice for the American voter, in rather stark terms.

Reporter Covering Immigration Warns Government Is ‘Ill Equipped’ To Reunite Families

The thing that strikes me and that I think strikes anyone else out in the field at the moment is that it’s entirely unclear whether or not the government can comply with this order, so for the judge to say, we want the government to be able to reunite families within 30 days and to give these specific time frames for the government to do this would basically presuppose that the government knows where all of these separated children are, would have the means to connect these children with their parents. And I actually don’t think any of that is clear.

.. I think the government is pretty ill-equipped right now to effectuate these reunifications. And so it really remains to be seen whether or not the terms of this federal order, this judge’s order, can actually be met and executed by the government itself.

GROSS: The head of Health and Human Services, Alex Azar, told senators on Tuesday that he could find any child separated from their migrant parents, quote, “within seconds.” He said, there is no reason why any parent would not know where their child is located. He said that within keystrokes, within seconds, he could find any child.

.. you talk to parents who are in detention, who have been in detention in some cases for more than just several weeks but in fact for a few months who have had no contact or extremely limited contact with their children. So anecdotally, that is – you know, what the secretary says is wrong.

.. it’s a little bit misleading even how he’s framed that because basically what’s happened is this. You have parents who have been handled through a separate kind of branch of the federal bureaucracy. You have parents who are first charged with a crime, who are held in the custody of U.S. marshals pending a determination of whether or not they were guilty of that crime of crossing the border illegally. Then when they’re done with that process, they go into immigration detention where they’re held, oftentimes indefinitely, while they wait for an asylum claim to be heard.

.. That’s – they’re in one – they’re sort of siphoned off to one side of the federal bureaucracy. Their kids are in an entirely different area. Their kids are under the care of the Department of Health and Human Services. And so there isn’t any coordination between those two different branches of government. So for the secretary of the Department of Health and Human Services to say, OK, well, we know where every kid is doesn’t really give us any of the meaningful information that parents are asking about, which is, OK, how do I connect my case to the case of my kid?

The government has all of these kids in its custody, but the parents are completely disconnected from them. And the secretary of the Department of Health and Human Services doesn’t have any truck with the agencies involved in detaining the parents of these kids.

GROSS: So if the agencies got together and said, let’s coordinate, would they have the means to do it?

.. BLITZER: I think whether or not the government can actually reunify families boils down to a question of political will. I think if the government were seriously interested in reuniting parents and kids, it could probably bring that about. One of the problems is that on the side of the Department of Health and Human Services – and more specifically, there’s an office at the Department of Health and Human Services called the Office of Refugee Resettlement. That’s the specific body that is in charge of caring for these kids who have been separated from their parents. That office is not equipped to deal with this kind of problem.

.. what the Office of Refugee Resettlement does is while it’s got these kids in its care, it tries to locate and vet sponsors for these children living in the U.S. so they can place these children with those sponsors. What’s happening here is something different. The process in some ways has been reversed.

These kids have come to the U.S. with their parents. They’ve been separated from their parents at the border. The government treats these kids as though they came to the U.S. alone, so the government effectively treats these children as unaccompanied minors. And so now the Office of Refugee Resettlement has to kind of reorient itself and now place these kids back in the custody of parents from whom they’ve been separated. And so the office isn’t really equipped to deal with that. And what parents are finding is they’re now having to go to the Office of Refugee Resettlement.

.. Now, to be clear, if a parent is in detention – if a parent is in immigration detention, that parent can’t easily take a phone call, make a phone call, get paperwork prepared, any of those things. But those parents, in theory – what they have to do is they have to convince the Office of Refugee Resettlement that the Office of Refugee Resettlement in fact has their child. And so the government is now, in some kind of surreal, perverse way, having to scrutinize the claim of a parent who has been separated from his or her kid at the border to ensure that in fact that is the parent of the kid that the government has in its care. And so even if there were the political will to do this, institutionally, there isn’t really the wherewithal to handle this particular kind of problem.

.. GROSS: You’ve spoken to mothers who had their children taken away from them by federal agents. Did the agents make any effort to identify the children and the mother so that they could be reunited? Were IDs taken? Were names taken? Were addresses – any kind of identifying information so that they can be linked up again?

BLITZER: This is one of the big questions. And in my experience, the women I spoke to – and I spoke to a handful of women in different stages of detention – of criminal and immigration detention. None of them had been told anything. None of them were given any information. At a certain point, the Department of Homeland Security, which is in charge of enforcing immigration laws at the border – at a certain point, the Department of Homeland Security seemed to have realized that it made a mistake by not even creating a kind of plan or protocol or tip sheet for parents who were in custody for how they could find their kids.

.. the government created what is essentially a flyer with a list of phone numbers on it – a 1-800 number for the Office of Refugee Resettlement, you know, the numbers of various government agencies that parents could call for advice about how to proceed in locating their kids. That is the extent of it. And the women I speak to have all said to a person that those numbers don’t work from within detention, that they…

.. GROSS: When you say, don’t work, you mean they’re busy or there’s no one – it just rings or it’s a dead phone number.

BLITZER: A mix of things. The problem I hear most often is that there are long wait times. So you call this number, and there might be a 20, 25 minute wait time. And if you’re in immigration detention, you’ve got 15 minutes on the telephone. And so even if these parents can get through to someone on the other end of the line, by the time they start to have a conversation, they have to get off the phone. And they can’t easily take a call back because they’re in immigration detention. And so the fact of this number existing hasn’t really helped them. So what’s happened – the ways in which parents in detention have oftentimes figured out where their children are is through the work of advocates, lawyers whom they’ve met while they’ve been in detention and just through word of mouth from inside detention centers.

.. But this has been the nature of how parents and children are locating each other. It’s been ad hoc. It’s been done through the ingenuity of individual parents in detention. And it’s been facilitated by lawyers and advocates along the border who have essentially filled the void left by the government, which never created a plan for dealing with this problem.

.. you’ve got individual caseworkers at the Office of Refugee Resettlement who are absolutely trying their best to figure out where parents are.

The problem is they can’t see into the Department of Homeland Security, a different federal department, a huge federal department. They can’t see into that department to figure out where the parents are. So they’re kind of on their own. So what’s been happening is you might have an individual caseworker at the Office of Refugee Resettlement who’s got a 5-year-old kid and who is desperate to find that 5-year-old child’s parents but doesn’t have the means to.

.. On the other side, you might have let’s say a deportation officer at Immigration and Customs Enforcement, which falls under the Department of Homeland Security, who’s got a mother in his or her custody who is about to be deported who wants at least to try to reunite the parents before the mother is deported but who can’t figure out where the child is because that officer can’t see into the Department of Health and Human Services.

.. it’s been striking because a lot of these mothers have described to me the elation of caseworkers at the Office of Refugee Resettlement when they hear from a parent and say, oh, my God, finally, it’s you. They’re incredibly relieved because they’ve been, you know, desperate to figure out where the parent is while they’ve got the kid in their care.

.. the Trump administration said, OK, we do have a plan. It’s a plan that the administration described as reunite and remove. And the idea was we will reunite parents and children for the express purpose of deporting them together. And obviously, I mean, there are a whole host of problems with this, but one of them is that you are pressuring parents to wind down their immigration cases just so that they can be reunified with their children.

.. And so there are a lot of parents who have come to the U.S. seeking asylum – legitimately seeking asylum – and in some cases have very strong cases for asylum but because they’ve been separated from their kids, they essentially are under intense pressure to let their asylum claims go in order to find their kids. And the expense, of course, the cost of that is being deported together and essentially abandoning their asylum claim.

.. And so the administration in some ways is holding these children – you know, I’m reluctant to say holding these children hostage but that’s essentially what they’re doing. I mean, they’re using these children as leverage to pressure parents into backing away from asylum claims and just agreeing to deportation in desperation.

.. GROSS: Well, you wrote about one woman who agreed to an early deportation thinking that that would unite her sooner with her son and it didn’t.

BLITZER: That’s a common – and that’s a common occurrence in detention, where parents are just so distraught, so confused, you know, that woman who signed this voluntary departure order which led to her, you know, processing of her deportation papers, she was still so confused about what had happened. Her kid was ripped from her in a Border Patrol holding cell in El Paso. No one explained to her why this was going on, what this meant. A paper was put in front of her. There was no lawyer present. She didn’t entirely know what she was signing. She felt like, well, if at the very least I am cooperative with these people, maybe some good will come of it. Maybe I’ll be able to see my kid quicker. So she signed without even really understanding what it was she was signing or what that would mean for her future prospects with her child.

.. But people who are going through immigration proceedings aren’t given a lawyer. It’s up to them to find a lawyer. And so if they’re in immigration detention and they have to first find a lawyer from inside detention, it’s extremely difficult obviously. And so one of the ways that I’m seeing parents in immigration detention find lawyers to represent them and to help them find their kids has been through word of mouth inside immigration detention facilities.

.. BLITZER: El Paso is especially important because it is where the administration first tested out its zero tolerance and family separation policies in the summer of 2017. So the government officially announced all of this in May, but there were reports for months and months about families who’d been separated at the border. And a lot of those reports came out of this particular patch of the border in West Texas.

And what has since come out is that the administration decided to test out what this would all look like here. And so you’re in a place – sort of in one sense the laboratory for where this policy first began. And it’s now a place that is feeling the current chaos of the administration trying to rejigger the policy in ways that are really acute and dramatic to see.

.. BLITZER: I’ve never in my life seen anything even remotely like this. I mean, I’ve been meeting women who are crying so violently they can barely speak. I’m meeting women whose hands are shaking, who look at me with kind of a vacant gaze. It’s extremely upsetting to see.

.. This is a 9-year-old kid she had been separated from and she hadn’t seen since May 26, so almost a month. And she was just devastated. I mean, she looked physically ill. She hadn’t been sleeping. She looked like a fundamental part of her was missing. It was scary to see, physically.

.. But that morning, she spoke to her kid on the phone. This was for the first time now in close to a month. And it was like she clicked back into being. I’ve never seen anything like this. I mean, it was, like, just by virtue of having spoken to her kid, her eyes kind of started to zero back in on me. Her skin looked different. Her hair just seemed – just every – she seemed revitalized.

.. Obviously, he’s scared. He wants to see his mother. But he told her that three days after they were separated, while he was in government custody, someone hit him because he wasn’t eating, and he wasn’t eating because he was so scared and he was so upset.

So she’s hearing this, and as a mother, this is tearing her apart. At the same time, she is so profoundly relieved that she could even hear his voice that that alone was enough to – it almost gave her the kind of energy to talk to me about the other stuff. So, I mean, what I’m seeing these women go through is – it’s nothing short of torture. I don’t know how else to put it.

.. What are the legal ways to seek asylum if you’re crossing the border from Mexico?

.. BLITZER: There are two ways you can come into the U.S. and seek asylum, essentially. One is through what’s called an official port of entry. So that is, essentially, a government checkpoint. It can be at an international bridge, at a kind of officially designated area, and you would go to officials from Customs and Border Protection, and you’d say, I’m seeking asylum. And they would give you a preliminary screening, and if you pass that screening, you would then be admitted into the country, pending a full hearing before an immigration judge. So that’s one way to do it.

The other way to do it – and, in fact, quite a common way to do it – is for people to cross the border anywhere they can – once they cross the border, to either turn themselves in to Border Patrol agents, or when they’re arrested, tell Border Patrol agents that they seek asylum, and the same process should hold.

.. So what the government has done is it’s trying to discourage people from entering that way, and it is part of a much broader war that the government is waging on asylum in general. So what the government is doing is it’s saying, OK, you’ve crossed the border illegally. You didn’t come through an official port of entry, so what we’re going to do first is we’re going to charge you with a crime. The crime is illegal entry, and you are going to face a judge. You’re going to serve a few days in the custody – in criminal custody, and then once that is done, we will pass you over to immigration authorities, and then you’ll sit in immigration detention. And if you’ve got asylum claim and you want to wait it out, good luck. That’s up to you. Your kid will have been separated from you by then. And you can see – you know, if and when you get an attorney to represent you, you can see whether or not your asylum claim passes muster.

.. And there are backlogs – immense backlogs in the immigration court system, so you’ve got months and months of delays if you want a judge to hear on your asylum claim. And one of the things the Trump administration has been doing for people seeking asylum is it’s saying, we’re going to detain you indefinitely while we wait to see whether or not a judge can rule on your asylum claim. So these parents face months in immigration detention to see whether or not their asylum claim will pass muster, and during that time, their kids are elsewhere.

.. What he doesn’t do at that time – this is last week – is he doesn’t say, our approach, which was called zero tolerance, which was the idea of prosecuting anyone who crossed the border illegally – he didn’t say that that approach was over.

.. By the start of this week, the government said, OK, we’re actually going to end the zero tolerance policy of prosecuting families who cross the border illegally because we don’t have the resources to keep it going.

.. OK, if you’re going to arrest parents and kids and keep them together at the border, where are you going to hold them? And there were no answers to these questions. And so the government kind of had to beat a retreat on that because there were just simply logistical questions about what it would even mean for them to hold parents and children together at the border. So that was early this week.

.. What does international human rights law say about the rights of asylum-seekers? And what does the Constitution say about that?

BLITZER: The current administration has had long-standing plans to dismantle the asylum system. This administration sees asylum law as a giant loophole. That’s the word that the president and the attorney general use to describe how asylum law affects people attempting to cross the border. But there are very specific international laws that dictate, basically, how the government has to treat people who come to the U.S. seeking asylum, fleeing for their lives. And one of those basic tenets is that the government cannot turn away someone and send that person knowingly back into harm’s way if that person goes through the right processes for seeking asylum.

.. And so one of the things that the administration has been doing is it’s been turning people away. And we haven’t – you and I haven’t even been speaking about what’s been going on at official ports of entry. At official ports of entry, you know, the attorney general says, look, if you want to be separated from your kids, do this right. Come to an official port of entry. Try to cross the right way. People are doing that. And Customs and Border Protection officials at the border at these ports of entry are turning people away and saying to asylum-seekers at the border – look, sorry. We just don’t have the resources to process you right now. We just can’t – we just – we’re full. You need to wait it out in Mexico for a little while until the numbers dissipate here and we have the bed space to accommodate you. That’s in violation of international law. That’s in violation of federal law. So that’s going on simultaneously to all of this.

.. There are claims that can be made and that I think are quite persuasive that say, you know, detaining asylum-seekers indefinitely amounts not only to a denial of basic due process rights but is meant to force people out of pursuing asylum claims. And that would also be in violation of international and federal law.

..I mean, it’s obviously chaotic. It’s just one thing after another – an executive order, contradictory statements by the head of Customs and Border Protection and the attorney general. I mean, there’s been every manner of confusion and doublespeak from the administration. But in some ways, describing this all as chaos kind of belies some of the more systematic thinking from inside the administration about the need to dismantle the asylum system as we know it.

.. This is all part and parcel of an agenda that the administration came into office with. And there were – you know, there are documents that show this kind of concerted thinking. There have been meetings within key departments – within the Department of Homeland Security, the Justice Department, at the White House – in which officials discussed exactly this range of possibilities. I mean, there was a meeting a year ago at the Department Homeland Security where each and every one of the things you are seeing right now was broached as a policy proposal.

.. also gang violence. He dismissed that also as grounds for seeking asylum in the U.S. He justified this reasoning by saying, look, neither an abusive spouse or a dangerous gang are, quote, unquote, “state actors,” which is to say, you know, we can’t understand these threats as technically qualifying as legitimate threats under asylum law.

.. It’s impossible to calculate how many lives will be affected by a decision like that. I mean, tens of thousands might be lowballing it.

.. 90 percent of the cases I get that I refer on to a judge as being legitimate claims that a judge should hear – 90 percent of those cases involve either domestic violence or gang violence as the grounds for someone seeking asylum. So you can imagine – if 90 percent of those cases now don’t have the same basis that they did before Jeff Sessions’ decision, they’re just going to be countless people whose lives are put at risk because of Jeff Sessions’ decision.

..  you’ve said that you think the Trump administration has manufactured the current immigration crisis. What do you mean?

.. BLITZER: The numbers of people crossing the border have gone up in recent months compared to kind of where they were when Trump first took office. But if you pan out and look at these numbers in full context, the number of people attempting to cross the border right now, the southern border, it’s not terribly high. And it’s basically what it was at the end of the Obama administration. And so what we’re seeing right now is the administration talking about a crisis that it needs to solve at the border. That crisis is entirely of the Trump administration’s own making.

And so what’s been going on with parents and kids, all of these questions of, well, where do you hold all these people who you’re prosecuting? The government is reeling because it doesn’t have the resources to stand up detention centers in time. This is why you’re seeing news about tent cities. This is why you’re seeing news about Immigration and Customs Enforcement trying to enlist criminal penal facilities to hold inmates temporarily who’ve been apprehended at the border.

All of this stuff, all of the chaos you’re seeing, what is a crisis now is the result of this administration’s policy to prosecute families who are crossing the border. But had they not pursued this policy, there would not have been a crisis of these proportions.

.. But the people who wrote that in the first place – Stephen Miller, Gene Hamilton, these guys we’ve been discussing – these are also the people who are in the driver’s seat when it comes to policies along the border. And so for them, a victory from the Supreme Court at a moment like this is definitely motivating for them to continue to kind of keep their feet on the gas here.

A Lesson in Demonizing Refugees

Trump’s preoccupation with foreigners “taking advantage” of Americans could still usher in an Australian-style future.

.. Australia does not separate the children of “unauthorized arrivals” from their parents, but it does detain entire families in horrible conditions, sometimes for years.

.. The only way to deter people desperate enough to risk death on their journey to a new country is to threaten them with conditions worse than the ones they fled.

A United Nations report from 2017 cites isolation, overcrowding and limited access to basic services on Manus and Nauru, along with “allegations of sexual abuse by the service providers” and continuing reports of self-harm and suicide.

.. About 80 percent of the asylum seekers detained on Nauru and Manus are ultimately found to be refugees. But with no prospect of ever being allowed into Australia, hundreds decide to return to their countries of origin.

.. While a quarter of the population say policies are too tough, higher numbers usually say policies are too soft. Some Australians see refugees from predominantly Muslim war-torn countries as national security threats, and believe they must be dealt with as harshly as possible.

.. Many others resent those who arrive by boat as “queue-jumpers” who have unfairly circumvented Australia’s laws, unlike the “legitimate” refugees who wait for years in United Nations refugee camps.

.. Politicians justify draconian measures with appeals to Australians’ sense of fairness and safety, and in turn they face an electorate that they fear would punish them if they did otherwise.

.. politicians warn that people smugglers are watching and waiting for a moment of weakness by Australia

..  Last month, Home Affairs Minister Peter Dutton warned that “the hard-won success of the last few years could be undone overnight by a single act of compassion.”

.. If American public opinion turns toward accepting cruel deterrent measures, it will be political rhetoric that leads the way. Warnings by the Trump administration that criminals use children to exploit legal loopholes would sound familiar to Australians, whose government once claimed that asylum seekers threw children into the sea to force the navy to take them to Australia.

..  fictional dystopias to account for our asylum policies we often reach for Ursula Le Guin. Her short story “The Ones Who Walk Away From Omelas” describes a peaceful and idyllic city-state whose happiness depends on the cruel imprisonment of a child in a basement. Everyone knows the child is there.

.. “Le Guin intended her story as a cautionary tale. How did we end up with two political parties using it as an instruction manual?”

Kennedy Retires — It’s On!

Whoever accepts President Trump’s call for the nomination will be one of the bravest men or women in public life, because he or she is going to be attacked with unrelenting fury from the Left.

.. For a lot of white evangelicals, this moment was worth every migrant child forever traumatized, every refugee family denied safety, every sexual assault victim betrayed, every white nationalist emboldened, every lie told. These are the ends that justified the means.

.. Bears repeating: Had Clinton won, she’d likely have replaced Scalia, Kennedy, and eventually Ginsburg (85) and Breyer (79). -That’d make six relatively young liberal justices and a lasting majority. -Now, it’ll be five conservatives, all 70 and under.

.. (Chuck Schumer quite understandably called on McConnell to follow the same policy he did to deny Merrick Garland a hearing in an election year. McConnell, a hardballer if ever there was one, quite understandably didn’t take this seriously.)

.. If Trump is re-elected in 2020, and he still has a Republican Senate, there is a decent chance that he could leave office with a 7-2 conservative majority.

.. First, the hearings could well be a catalyst for real violence

..  Let’s revisit this January piece from National Review’s Michael Brendan Dougherty:

I’ve started to think that Supreme Court Justice Anthony Kennedy may be the one man preventing the United States from political breakdown.

.. both sides have reason to pity themselves as the losers of the [political] system. Partisan Democrats, with some justification, feel that the constitutional system favors dirt (geography), so it rewards Republicans with too many senators and even electoral votes than they would otherwise win. Many partisan Republicans also feel that their votes go for naught, and that elites in the media, donor class, and social scene of Washington, D.C., constantly make Republicans under-deliver on their promises.

.. Kennedy deals out victories and defeats to each side — giving slightly more defeats to social conservatives. In effect, he constrains what each side can do to the other. His mercurial jurisprudence replicates and even gives the savor of legitimacy to a closely divided country.

.. So I’ve started to worry that if the Court soon consolidates to the left or the right, partisans on the losing end of that bargain will swiftly lose faith in democracy itself. A non-swinging Supreme Court would give the impression of super-charging the ability of one party to act, and restraining its competitor. A consolidated Supreme Court could open up whole new fields of legislation for one side to act against the other. At that point, what would happen?

.. Overturning Roe would only mean that regulating abortion returns to the states. If you live in a socially liberal state now, you don’t have anything to worry about. That’s not going to make you happy, but it’s not Armageddon. And there is no realistic chance that Obergefell will be overturned. But even if it were, again, that only means that the gay marriage question devolves to the states. Gay marriage is overwhelmingly popular. There might be a handful of Southern states (plus Utah) that might vote against it, in a popular referendum. But even they would fall eventually. Same-sex marriage isn’t an issue for younger voters, who support it by a wide margin.

.. Kennedy retiring is where the Roy Moore own goal really, really hurts. We now only have 51 votes, but two of those are Murkowski and Susan Collins, who will likely be reluctant to support a 5th pro-life justice. Mitch will have to put the screws on to get to 50.

.. However, had Hillary Clinton won, conservatives would be in the same miserable position today as liberals are.

It is not at all healthy for the republic that the Supreme Court matters so much. But we are where we are.

How, Exactly, Does This Travel Ban Keep Us Safe, Mr. President?

The ostensible purpose of your ban is to keep Americans safe from terrorists by barring visitors, refugees and immigrants from Iran, Libya, North Korea, Somalia, Syria, Venezuela and Yemen. So let’s consider, nonhysterically, what such a ban might have accomplished had it come into force in recent years.

It would not have barred Ramzi Yousef, the Kuwait-born Pakistani who helped mastermind the 1993 World Trade Center bombing.

It would have been irrelevant in the case of Terry Nichols and Timothy McVeigh, the American perpetrators of the 1995 Oklahoma City bombing in which 168 people were murdered.

It would have been irrelevant in the case of Eric Rudolph, the Christian terrorist who killed one person at the 1996 Atlanta Olympics and later bombed abortion clinics and a gay bar.

It would not have barred Mohamed Atta, ringleader of the 9/11 hijackers. Atta was an Egyptian citizen who arrived in the U.S. on a visa issued by the American Embassy in Berlin in May 2000.

It would not have barred Atta’s accomplices, all in the United States on legal visas. Fifteen of them were from Saudi Arabia, two from the United Arab Emirates and another from Lebanon.

It would have been irrelevant in the case of the 2001 anthrax attacks, in which five people were killed. The attacks are widely believed (without conclusive proof) to have been the work of the late Bruce Ivins, an American microbiologist.

It would not have barred Richard Reid, who tried to blow up a Miami-bound airliner in 2001 with explosives hidden in his shoes. Reid was a London-born Briton who converted to Islam as an adult.

We’re Helping Deport Kids to Die

If other countries were forcibly returning people to their deaths, we would protest. But because we Americans worry about refugees swarming across our borders, we help pay for Mexico to intercept them along its southern border and send them — even children like Elena — back home, where they may well be raped or killed.

.. Obama spoke with the Mexican president to discuss how to address the flow, and Mexico obligingly imposed a crackdown to stop these refugees long before they could reach the United States. Mexico deports a great majority of them to their home countries, and the United States is thus complicit when they are terrorized, raped and murdered.

.. Immigration is among the knottiest of challenges, and there is a real risk that welcoming some children creates an incentive that results in other children endangering their lives by undertaking a perilous journey north.

.. historically, Central Americans had a refuge in southern Mexico, and it is unnecessary and cruel now for the U.S. to take the initiative and work so diligently to cut off that safe haven.

.. It’s not that Honduras or El Salvador are tyrannical regimes; rather, the problem is that criminal gangs are out of control. The homicide rate in El Salvador last year, more than 100 killings per 100,000 people, represents a mortality rate of roughly the same magnitude as during the country’s brutal civil war in the 1980s

.. These are not primarily economic migrants. These are refugees, deserving protection. Instead, the United States and Mexico are colluding to send people like them back to the gangs that want to kill them.

.. gang members barged into his home, held his family at gunpoint and said they would kill his two small children unless he paid protection money. So now Emilio is hiding in Mexico with his wife and two children, and getting death threats.

.. Mexico doesn’t seriously screen most people for refugee status before sending them back. In the U.S. in 2014, only 3 percent of minors detained were deported; in Mexico it was 77 percent

.. Indeed, by some accounts, the gangs keep an eye on the buses arriving in San Salvador and unloading deportees, who become sitting ducks.

.. Secretary of State John Kerry rightfully criticized Kenya’s plans to close its Daadab refugee camp and return refugees to Somalia, but the U.S. does something parallel when it works with Mexico to deport refugees to Honduras and El Salvador.