Archive for the ‘U.S. President’ category

Trump’s “Muslim Ban,” Obamacare and Sally Yates

May 12, 2017

Trump’s “Muslim Ban,” Obamacare and Sally Yates, Dan Miller’s Blog, Dan Miller, May 12, 2017

(The views expressed in this article are mine and do not necessarily reflect those of Warsclerotic or its other editors. — DM)

President Trump’s initial executive order imposed a temporary ban on refugees from seven countries where terrorism is endemic and information on potential refugees is scant, pending development of a workable vetting procedure. He later vacated the initial order and replaced it with one affecting only six countries and making other changes not relevant to the points addressed in this article. 

The initial executive order was rejected as unconstitutional, apparently because in violation of the First Amendment (freedom of religion), by several district court judges and the replacement order has had the same fate. The rulings were based, not on the text of the orders, but on Candidate Trump’s campaign references to a “Muslim ban.” Both orders applied equally to non-Muslims and Muslims from the subject countries. Neither mentioned, nor banned, nor applied to anyone from, any other Muslim majority country. According to the Pew Research Center, in 2010 there were “49 countries in which Muslims comprise more than 50% of the population.”

On May 11th, law Professor Jonathan Turley wrote an article titled Sally in Wonderland: The “Curiouser and Curiouser” Position of The Former Acting Attorney General. It deals with the testimony of now-former (fired) acting Attorney General Sally Yates concerning her refusal to allow the Department of Justice to support President Trump’s initial executive order. Ms. Yates was a hold-over from the Obama administration.

Professor Turley opined on Ms. Yates’ decision in the context of this graphic:

Sometimes congressional hearings bring clarity to controversies. Many times they do not. Controversies can become “curiouser and curiouser,” as they did for Alice in Wonderland. That was the case with the testimony of fired acting Attorney General Sally Yates before the Senate Judiciary Committee this week discussing her unprecedented decision to order the entire Justice Department not to assist President Trump in defending the first immigration order. Yates was lionized by Democratic senators as a “hero” and has been celebrated in the media for her “courageous stand.” However, for those concerned about constitutional law and legal ethics, there is little to celebrate in Yates’ stand. Indeed, her explanation before the Senate only made things more confusing. It was a curious moment for the new Alice of the Beltway Wonderland: “Curiouser and curiouser!” cried Alice (she was so much surprised, that for the moment she quite forgot how to speak good English).”

There has been considerable speculation on why Yates would engineer such a confrontation, but what is more important is her justification for ordering an entire federal department to stand down and not to assist a sitting president. Yates’ prior explanation fell considerably short of the expected basis for such a radical step. She dismissed the review of the Office of Legal Counsel (OLC) by insisting that those career lawyers only look at the face of the order and did not consider Trump’s campaign statements and his real motivations. Of course, many question the use of campaign rhetoric as a basis for reviewing an order written months later by an administration. Most notably, Yates did not conclude that the order was unconstitutional (in contradiction with her own OLC). Rather, she said that she was not convinced that the order was “wise or just” or was “lawful.” She does not explain the latter reference but then added that she was acting on her duty to “always seek justice and stand for what is right.” That is a rather ambiguous standard to support this type of obstruction of a sitting president. [Emphasis added.]

. . . .

Sen. John Kennedy, R-La., asked, “Did you believe, then, that there were reasonable arguments that could be made in its defense?” In an astonishing response, Yates said no because she decided on her view of Trump’s real intent and not the language of the order. However, many judges disagree with implied motive as the appropriate standard for review, as evidenced by the oral argument this week before the Fourth Circuit. More importantly, at the time of her decision, many experts (including some of us who opposed the order) were detailing how past cases and the statutory language favored the administration. It is ridiculous to suggest that there were no reasonable arguments supporting the order. [Emphasis added.]

I agree with Professor Turley’s analysis and posted the following comment arguing that there is Supreme Court precedent for ignoring politically oriented campaign rhetoric such as Candidate Trump’s reference to a “Muslim ban.”

Ms. Yates testified that substantially the same standards of review apply to executive orders as to acts of Congress.

When Obamacare was under discussion prior to enactment and when it was enacted, its basis was claimed to be the Commerce Clause of the Constitution. Those who wrote Obamacare and those who voted for it rejected the notion that it was a tax because to accept that classification would have been political suicide. President Obama did not suggest to the public that Obamacare was a tax. He claimed that it was appropriate under the Commerce Clause. As I recall, counsel for the Government rejected classification as a tax during oral argument, relying instead on the commerce clause.

The majority opinion written by Chief justice Roberts held that although violative of the Commerce clause, Obamacare was permissible instead under the powers granted by the Constitution to impose taxes and was, therefore, compliant with the Constitution. Even after the decision was released, President Obama continued to claim that it was not a tax.

Chief Justice Roberts cited the Congressional power to tax the non-purchase of gasoline — something the Congress had never done as to gasoline or any other commodity or service. He did not suggest how it could be done: tax everybody who fails to purchase gasoline, only the owners of automobiles, only the owners of gasoline reliant automobiles, only those owning such automobiles but failing to purchase specified quantities, and so on. As I recall, Prof. Turley wrote an article questioning the majority opinion’s reliance on the taxing powers of Congress. [Professor Turley wrote about the decision in an article title Et tu, Roberts? Federalism Falls By The Hand Of A Friend.– DM]

The evident basis of the Obamacare decision was the notion that acts of Congress are to be upheld if there is any Constitutional basis for doing so — despite politically motivated statements by members of Congress who had voted for it and despite assertions by the President and others that it was not a tax. Under the standard applied by Ms. Yates to President Trump’s executive order, such statements would have rendered Obamacare unconstitutional and obligated her, as Acting Attorney General, to refuse to support it in court. [Emphasis added.]

Ms. Yates was asked neither about the standard applied by the Supreme Court in upholding Obamacare nor her application of an apparently different standard to President Trump’s executive order.

The judges who have thus far rejected President Trump’s initial and second executive order adopted the same rationale as Ms. Yates. The judges who upheld the orders obviously did not.

It is probable that the Supreme Court will eventually decide on the constitutionality of President Trump’s revised executive order, particularly if (as seems likely) there is a split in the circuits. Justice Gorsuch will likely be among the justices who decide the case and the executive order will very likely be held constitutional. There will probably be more than five votes for its affirmation.

In the meantime, America will continue to receive substantial numbers of unvetted and potentially dangerous refugees whose admission the executive orders were intended to prevent. Oh well. What’s a few more American deaths by jihadists? What difference at this point does it make?

Iran Openly Declares That It Intends To Violate UNSCR 2231 That Endorses The JCPOA

September 23, 2015

Iran Openly Declares That It Intends To Violate UNSCR 2231 That Endorses The JCPOA, Middle East Media Research Institute, September 22, 2015

(Please see also, Iran wants to renegotiate parts of the nuke “deal.” That may be good. Iran’s declaration that it intends to violate UNSCR 2231, dealing with missile development and related sanctions, should further prompt the U.S. Congress to repudiate the “deal.”– DM)

When the Americans moved the sanctions on the missile program to UNSCR 2231, Iran did not object, as, according to their statements above, they can violate Security Council resolutions, as they have done in the past, and this will not be regarded as a violation of the JCPOA.

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In statements, three Iranian leaders – President Hassan Rohani, Foreign Minister Zarif, and Deputy Foreign Minister and senior negotiator Abbas Araghchi – emphasized that Iran has no intention of abiding by UNSRC 2231, which includes the JCPOA and another element; rather, that they will abide only by the original JCPOA.

The Iran nuclear deal consists of the following:

A.   A set of understandings between Iran and the P5+1 powers (as well as the remaining disagreements) all in a single package called the JCPOA. It is not a contract between Iran and the P5+1 countries as a group or any single one of them, and hence no document was signed.

B.   This set of mutual understandings (as well as disagreements) packaged in the JCPOA was transferred, following the conclusion of negotiations in Vienna on July 14, 2015, to the UN Security Council, for endorsement as a UN Security Council resolution. The resolution, UNSCR 2231, was passed on July 25, 2015 and it includes, in addition to the JCPOA, another element (Annex B) with further stipulations regarding Iran. For example, it addresses the sanctions on Iran’s missile development project.

To understand why UNSCR 2231 is structured in this way, we can look at statements by top Iranian negotiators about the process that led up to it:

In a July 20, 2015 interview on Iranian Channel 2, Iranian Deputy Foreign Minister and senior negotiator Abbas Araghchi said that there had been tough bargaining between the Iranian and American delegations over the issue of the arms embargo on Iran and the sanctions related to Iran’s missile development project. “The Americans sought their inclusion in the JCPOA, claiming that otherwise they could not face criticism from Arab countries in the region. When they said that they could not lift the sanctions altogether, we told them explicitly that in that case there is no agreement. We told them that the national security issues are non-negotiable and that we will not accept an agreement which continues the embargo on weapons and the sanctions on missile development. In the end, the Americans said, We will put the issue of the embargo and the missiles in the UN Security Council Resolution separate from the agreement.”

In the same interview, Araghchi was asked whether Iran could refrain from carrying out UNSCR 2231; he replied: “Yes we can; just as we refrained from complying with UN Security Council resolutions, we can do so with regards to 2231.”

Araghchi also referred to the Iranian Foreign Ministry statement issued following the passage of UNSCR 2231: “The Iranian Foreign Ministry statement explicitly noted that Iran does not attach legitimacy to any restriction and any threat. If UNSCR 2231 will be violated by Iran, it will be a violation of the Security Council resolution and not of the JCPOA, similar to what happened 10 years ago when we violated Security Council resolutions and nothing happened. The text of the JCPOA notes the fact that the content of the JCPOA and of the UN Security Council resolution are two separate things.”[1]

Foreign Minister Zarif, in an August 9, 2015 media interview, reiterated the Iranian position regarding the difference between the JCPOA and UNSCR 2231, with a focus on the consequences of possible violation of the two by Iran. He said: “There is a difference between the JCPOA and UNSCR 2231. Violating the JCPOA has consequences, while violating UNSCR 2231 has no consequences.”[2]

Indeed, the restrictions regarding missiles are mentioned only in UNSCR 2231, and not in the JCPOA.

On August 29, 2015, Iranian President Hassan Rohani said: “There is nothing about the topic of missiles, defense, and weapons in the JCPOA.  Whatever we have about it is in Resolution [UNSCR] 2231… Moreover, we have formally announced that we are not committed to all the sections that appear in the resolution [2231], and we specified in the JCPOA that violation of the resolution [2231] does not mean violation of the JCPOA…[3]

The meaning of all this is that in everything related to the issue of missile development, Iran will disregard UNSCR 2231. Already during the negotiations, it insisted on no imposition of sanctions on Iran regarding its missile development (and no sanctions at all). When the Americans moved the sanctions on the missile program to UNSCR 2231, Iran did not object, as, according to their statements above, they can violate Security Council resolutions, as they have done in the past, and this will not be regarded as a violation of the JCPOA.

Endnotes:

[1] ISNA.ir/fa/news/94042915462/%D9%85%D9%85%D9%86%D9%88%D8%B9%DB%8C%D8%AA-%D9%87%D8%A7%DB%8C-%D8%AA%D8%B3%D9%84%DB%8C%D8%AD%D8%A7%D8%AA%DB%8C-%D9%88-%D9%85%D9%88%D8%B4%DA%A9%DB%8C-%D8%A8%D9%87- .

[2] Foreign Minister Javad Zarif said this at an August 9, 2015 conference sponsored by the Iranian daily Ittil’atwith other senior negotiators in attendance. See text in Farsi here.

[3] President.ir/fa/89047, August 30, 2015.

Ben Carson in CAIR’s crosshairs

September 21, 2015

Ben Carson in CAIR’s crosshairs, Front Page MagazineRobert Spencer, September 21, 2015

(Isn’t it shameful that Dr. Carson is a politically incorrect “Islamophobe?” What is that, anyway?

Don’t we want another a Muslim in the White House? Then Obama could be truly proud of America. What could possibly go wrong? — DM)

ben-carson

Carson was right. But now the media sharks, ever eager to do the bidding of Hamas-linked CAIR and other Islamic supremacists, will be circling – and hungry. If he is forced to drop out for saying things CAIR doesn’t like, it will be just one more nail in the coffin of the free society that CAIR disingenuously professes to love and support, but which it is actually doing all it can to subvert.

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If Ibrahim Hooper of the Hamas-linked Council on American-Islamic Relations (CAIR) has any say in the matter, whoever the next President is, it won’t be Ben Carson. “He is not qualified to be president of the United States,” fumed CAIR’s Ibrahim Hooper, no doubt an unimpeachable authority on who is and is not qualified to be President, on Sunday. “You cannot hold these kinds of views and at the same time say you will represent all Americans, of all faiths and backgrounds.” What views? Carson said: “I would not advocate that we put a Muslim in charge of this nation. I absolutely would not agree with that.” He said that this was because Islam contradicted important Constitutional principles.

CAIR, designated a terror organization by the United Arab Emirates, sent out an email Sunday saying it would hold a news conference demanding that Carson withdraw from the presidential race for daring to say these things. “Mr. Carson clearly does not understand or care about the Constitution, which states that ‘no religious test shall ever be required as a qualification to any office,’” said CAIR top dog Nihad Awad. “We call on our nation’s political leaders – across the political spectrum – to repudiate these unconstitutional and un-American statements and for Mr. Carson to withdraw from the presidential race.”

But the problems with a Muslim being President aren’t religious, they’re political. Islamic law infringes upon the freedom of speech, forbidding criticism of Islam. Islamic law denies equality of rights to women. Islamic law denies equality of rights to non-Muslims. If a Muslim renounced all this, he or she could be an effective Constitutional ruler, but in today’s politically correct climate, no one is even likely to ask for such a renunciation. Instead, no one even acknowledges that these really are elements of Islamic law.

No one, that is, except the Muslim clerics who agree with Carson. Syrian Islamic scholar Abd Al-Karim Bakkar said in March 2009: “Democracy runs counter to Islam on several issues….In democracy, legislation is the prerogative of the people. It is the people who draw up the constitution, and they have the authority to amend it as well. On this issue we differ” — because in Islamic thought, only Allah legislates.

Abd Al-Karim Bakkar was reflecting a common view. Pakistan Muslim leader Sufi Muhammad said in May 2009: “I would not offer prayer behind anyone who would seek to justify democracy.” Mesbah Yazdi, leader of the Shia Taliban in Iran, said in September 2010 that “democracy, freedom, and human rights have no place” — in Islam, that is. Australian Muslim cleric Ibrahim Saddiq Conlan said in June 2011: “Democracy is evil, the parliament is evil and legislation is evil.”

In January 2013, the Saudi Islamic scholar Sheikh Abdul Rahman bin Nassir Al Barrak declared: “Electing a president or another form of leadership or council members is prohibited in Islam as it has been introduced by the enemies of Moslems.” The idea of popular elections, he said, “has been brought by the anti-Islam parties who have occupied Moslem land.”

Some Muslims in the West hold these views as well. In April 2015, Muslims in Wales plastered Cardiff with posters reading: “Democracy is a system whereby man violates the right of Allah and decides what is permissible or impermissible for mankind, based solely on their whims and desires. This leads to a decayed and degraded society where crime and immorality becomes widespread and injustice becomes the norm. Islam is the only real, working solution for the UK. It is a comprehensive system of governance where the laws of Allah are implemented and justice is observed.”

And two Muslim groups in Denmark last June called on Muslims to boycott the elections that were held that month. One explained: “We are committed to being active participants in our society, but it has to be on Islam’s terms, without compromising our own principles and values. Democracy is fundamentally incompatible with Islam, and it is a sinking ship.” The Grimshøj mosque in Aarhus agreed, issuing a statement saying that “people should stay clear of the voting booths. We have concluded that only Allah can pass laws, as he says himself in the Koran that this is so.”

Tunisian author Salem Ben Ammar wrote last month: “‘To hell with democracy! Long live Islam!’ One hundred percent of Muslims agree with that. To say anything else is apostasy from Islam. These two competing political systems are antithetical to each other. You can’t be democratic and be a Muslim or a Muslim and be a democrat. A Jew can’t be a Nazi and a Nazi can’t be a Judeophile.”

Question for Hamas-linked CAIR’s Hooper and Awad: are all these Muslims “Islamophobes” for saying that Islam and democracy are incompatible, or is that honor reserved only for Carson (and other infidels)? And are either or both of you cognizant of the irony of pretending to uphold Constitutional values while demanding that a man drop out of the Presidential race for the crime of exercising his freedom of speech? Are either or both of you aware that you have thereby just become poster children for how correct Ben Carson really was?

Carson was right. But now the media sharks, ever eager to do the bidding of Hamas-linked CAIR and other Islamic supremacists, will be circling – and hungry. If he is forced to drop out for saying things CAIR doesn’t like, it will be just one more nail in the coffin of the free society that CAIR disingenuously professes to love and support, but which it is actually doing all it can to subvert.

Ben Carson: Let’s not have a Muslim Prez

September 20, 2015

Ben Carson: Let’s not have a Muslim Prez, Power LineJohn Hinderaker, September 20, 2015

It is hard to imagine the abuse that Carson is going to take for those remarks. He’d better batten down the hatches. But what he said is true: Islam is incompatible with the Constitution because it does not recognize a separation between church and state.

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On Meet the Press this morning, Ben Carson said that Islam is incompatible with our Constitution, and that he would not endorse having a Muslim president. As far as I can see, all news outlets are quoting the same words, and a complete transcript may reveal additional nuance. But this is what is being quoted:

Asked whether his faith or the faith of a president should matter, Carson said, “It depends on what that faith is.”

“If it’s inconsistent with the values and principles of America, then of course it should matter. But if it fits within the realm of America and consistent with the constitution, no problem,” he explained, according to a transcript.

Todd then asked Carson, whose rise in the polls has been powered in large part by Christian conservatives, if he believed that “Islam is consistent with the Constitution.”

“No, I don’t, I do not,” he responded, adding, “I would not advocate that we put a Muslim in charge of this nation. I absolutely would not agree with that.”

Carson added these more positive comments about Islam:

But for Carson, the matter of voting for a Muslim for Congress “is a different story, but it depends on who that Muslim is and what their policies are, just as it depends on what anybody else says, you know.”

“And, you know, if there’s somebody who’s of any faith, but they say things, and their life has been consistent with things that will elevate this nation and make it possible for everybody to succeed, and bring peace and harmony, then I’m with them,” he went on to say.

It is hard to imagine the abuse that Carson is going to take for those remarks. He’d better batten down the hatches. But what he said is true: Islam is incompatible with the Constitution because it does not recognize a separation between church and state.

In this respect Islam is entirely different from Judaism and Christianity. The Jewish prophets were often critics of Israel’s kings, and Jesus built on Judaic tradition when he said, “Render unto Caesar what is Caesar’s and unto God what is God’s.” There is no similar doctrine in Islam. This is one of many instances where the simple-minded belief that all religions are essentially the same–a belief commonly held by the non-religious–is dangerously wrong.

In short, either our Constitution must give way to Islam, or American Muslims must give way to our Constitution. In many cases, no doubt, the latter has happened, and most American Muslims are good citizens. Over time, an American strand of Islam that is more compatible with our laws and political traditions may come to predominate. Maybe it already has.

But world-wide, the trend in Islam is more toward resurgent fundamentalism than toward tolerant moderation. And, as I understand Islam, Carson is correct that a person who holds faithfully to Islamic doctrine has views that are incompatible with our Constitution. Carson will take enormous abuse for saying the unsayable, but he deserves credit for putting an important issue–which bears strongly, to cite just one example, on our immigration policy–on the table. If his understanding of Islam (and mine) is wrong, no doubt correction will follow. But that is a candid discussion that needs to take place.