[this is a slight elaboration on a comment I made elsewhere]
I don’t think I’ve said “constitutional crisis” enough. Emphasis mine:
After a weekend spent trying to get the Customs and Border Patrol (CBP) to comply with the New York and Massachusetts Orders staying the Presidential Executive Order banning immigration from seven countries, a group of attorneys Darius Amiri, Laura Riley, Madiha Zuberi, Nina Bonyak, in coordination with other volunteer attorneys working out of LAX, have been at the U.S. Marshal’s office at the Central District of California since 8:00 a.m. this morning.
These attorneys are demanding that the U.S. Marshal’s office comply with its statutory obligation under 28 U.S.C. 566(c) to serve civil federal orders on the CBP Port Director at Los Angeles International Airport. The Marshal’s office has so far failed to serve process and instead represents that it has been instructed by its Office of the General Counsel to await instruction from the U.S. Attorney’s office. Over the weekend, California Central District Court (CACD) Judge Dolly Gee granted a Temporary Restraining Order (TRO) (which was amended and corrected this morning) and this is another of the documents that has yet to be served on the CBP.
Two hundred years of precedent have established that the courts are the final arbitrator of what’s constitutional and what is not. But as I’ve said, the Judicial branch relies on the Executive to enforce its judgments; those court injunctions against Trump’s EO don’t go into effect until they get into the hands of the people enforcing that EO, and by telling the U.S. Marshals to stand down the Executive has effectively blocked those court orders from taking effect.
The Judicial branch is no longer checking or balancing Executive power. You just lost one of your three branches, Americans.
I have been saying that #TheRegime’s big overarching play right now is de-fanging the judiciary, sidelining it, making it subservient.
Now, if objecting to this gets any traction, #TheRegime’s talking point will be that the Marshals have always been part of DOJ, under exec.
Which is *true enough* but beside the point. They are the enforcement arm of the judiciary, grouped under executive because enforcement.
The impartiality of the law enforcement bodies under DOJ (FBI, Marshal Service) is supposed to be–must be–sacrosanct. Sacred. Untouchable.
Making the judiciary’s enforcement wing under the direct command of a handpicked crony AG accomplishes makes the entire judicial branch moot
With the Marshals marching to the president’s orders, court decisions only matter when #TheRegime agrees with them.
To make matters worse, the Executive branch is starting to override the Legislative. Remember how the border patrol refused to meet with Congressional representatives? Emphasis again mine:
“Since my background is a Ph.D. in public administration, I have a good working knowledge of U.S. institutions and policymaking processes,” [Donald] Moynihan told Salon. “Members of Congress are fond of reminding executive branch officials that [the latter] are beholden to them, not just to the president.” It is Congress that supplies every federal agency with its budget, and along with that “specific directives as to [its] role.”
“It’s remarkable to me that when an actual member of Congress would turn up at your doorstep, a manager in that agency would not try to be responsive to their concerns,” Moynihan continued. “It suggests they view obeying the guidance of the president as superior to any other direction. This is troubling precisely because the founders designed a separation of powers so that no single actor (in this case the president) had sole control of administration.”
Trump is also going behind the backs of Congress, borrowing their staffers while swearing them to secrecy. This is a big deal.
This is quite simply unheard of.
To be clear, the executive works with Congress all the time to craft legislation. That’s the President working with members of Congress, though much of the actual work is delegated to staff. All normal. It’s congressional staff working for the executive without telling the members of Congress they work for which is the big deal. […]
I’m not sure this rises to the level of a formal separation of powers issue. But the idea of the White House coopting congressional staff behind the backs of members of Congress certainly runs roughshod over the overarching concept of two coequal and separate branches of government.
Until Congress steps up, or Trump backtracks and agrees to respect judicial rulings, he has [no] checks on his power. He’s become a dictator without firing a single shot.
[HJH 2017-01-31] I just spotted a relevant update from Popehat.
OKAY. Awaiting an official statement, but about that story about the USMS not serving the LA federal court order: /1
/2 Counsel has now appeared for the federal defendants: US Department of Justice, Office of Immigration Litigation – Civil Division
/3 In fact, a stipulation by the parties to move the briefing schedule now appears on the docket (but is sealed)
/4 The significance is this: by appearing, the federal defendants can’t claim lack of service of the order. This should moot service issues.
/5 In fact it should bind the federal defendants to any order the court issues or has issued now that its counsel has appeared, as I read it
/6 That doesn’t answer issue of whether CPD has refused to comply so far or will continue to refuse.
/7 Also doesn’t exclude possibility that USMS dorked around for some period of time until their counsel made an appearance.
/8 But the fact that the ACLU filed a stipulation reached with the feds suggests some level of acknowledgement and cooperation.
In some ways, this is good news. The courts will not be stopped by a technicality like a lack of service, and as of now federal attorneys are respecting the Judicial branch. But if service has been granted, that means that the delays by US Marshals had the effect of deporting potential plaintiffs before they could plead their case before the courts. Any border guard that deported or refused entry to someone as per the immigration Executive Order, as of eight hours ago, is ignoring a court order. And some digging brings up this case.
Mohammad Abu Khadra, who lives in Katy[, Texas] with his brother Rami, traveled to Jordan last week to renew his visa. When he flew into Bush IAH airport Saturday, officials with U.S. Customs and Border Protection detained him at the airport for about 48 hours. He was transferred to an Office of Refugee Resettlement shelter in Chicago Monday, where he remained as of Tuesday afternoon. The teen has no access to his cell phone or to a computer, his brother said.Mohammad is among dozens of visa holders and immigrants to be detained at U.S. airports since Trump signed an executive order Friday indefinitely barring all Syrian refugees from entering the United States and suspending all refugee admissions for 120 days. It also prohibits citizens from seven Muslim-majority countries from entering the United States for 90 days, whether they are refugees or not. Those countries include Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen.
Mohammad’s native Jordan is not on the list, and Mohammad is not a refugee.
The Judicial branch is still out of commission.