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‘He Hasn’t Been Keeping Up With the News’

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Former President George W. Bush indicated he considers President Trump’s recent executive order a “Muslim ban” and opposes efforts to infringe upon anyone’s freedom to worship, an analysis that one immigration experts suggests is evidence Bush doesn’t know what is in the policy and is continuing with his narrative that anyone killing in the name of Islam cannot be a Muslim.

Bush appeared on NBC’s ‘Today’ show to promote his new book, “Portraits of Courage,” but soon found himself immersed in a conversation about the president, the press  and Trump’s temporary pause on immigration from seven nations suffering from the scourge of radical Islamic terrorism.

‘Today’ host Matt Lauer began the discussion of the executive order by quoting Bush’s positive portrayal of Islam following the 9/11 attacks in 2001.

“That’s very different talk than what we’re hearing today about a Muslim ban,” said Lauer.  “Do you think the president’s position on this has been well thought out?”

“It’s important for all of us to recognize one of our great strengths is for people to worship the way they want to or not worship at all.  A bedrock of our freedom is the right to worship freely,” Bush responded.

Bush later said he supported an “immigration policy that is welcoming and upholds the law.”

Center for Immigration Reform Executive Director Mark Krikorian says Bush’s focus on the freedom to worship suggests he’s not all that familiar with Trump’s executive order.

“He still misunderstands what the struggle is and specifically about the travel ban he didn’t push back against Lauer’s comment that this was a Muslim ban.  How can it be a Muslim ban if it only covers 10 or 12 percent of the world’s Muslims.  He hasn’t been keeping up with the news and he really shouldn’t be commenting on it if he hasn’t,” said Krikorian.

But Bush wasn’t done.

“I understood right off the bat, Matt, that this was an ideological conflict and people who murder the innocent are not religious people.  They want to advance an ideology,” said Bush.

Krikorian says Bush sees the threat in much the same way former President Barack Obama does.

“Even President Obama made these points about how if you’re a terrorist killing innocent people, you’re not religious.  Well, that’s completely misunderstanding what it means.  Who are we to say that a terrorist acting in the name of Islam doesn’t understand what Islam is?” asked Krikorian.

“Former President Bush would have been correct in saying that sort of violent perspective on Islam is not the only way to see it, that there are many Muslims who reject it.  But he steps over the line, and Obama did this too, when he said that other perspectives of Islam that see it legitimately as killing infidels are not really Islam,” said Krikorian.

Krikorian is also keeping a close eye out for Trump’s revised executive order banning travel from the seven nations with significant terrorism problems.  He expects the new order to carve out exceptions for anyone holding green cards.

He says the massive fight over the order is largely a distraction from the real fight over which branch of government gets to establish immigration policy.

“It’s only 90 days for seven countries.  What this is really about is whether the elected representatives of the people or the judges get to decide who moves to the United States,” said Krikorian, who says the statutory power clearly gives authority to Congress, which allows the president to ban any alien or class of alien he wants.

He says the left wants that power to be in the hands of judges.

“This is something that the anti-borders people, whether on the right or on the left, have been pushing for for years, where every single visa decision – everything – would be decided by judges ultimately.  That’s not what the law says,” said Krikorian.

“The courts suspending that old executive order were acting lawlessly.  It was literally an illegal act by those judges,” said Krikorian.

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‘The Law Is Very Clear’

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A former top immigration official says federal law is very clear in giving the President of the United States broad power over who is allowed into the country and points out that possession of a visa does not give permission  to enter the United States.

The issue is still at a boiling point after Federal Judge James Robart placed a temporary restraining order on President Trump’s executive order pausing immigration to the United States from seven nations roiled by radical Islamic terrorism.

In his ruling, Robart said he was granting the injunction because the plaintiffs were likely to win in the merits and individuals and the states could suffer irreparable harm before the case is fully resolved.

Jan C. Ting served as Assistant Director of the Immigration and Naturalization Service at the Justice Department during in the George H.W. Bush administration.  He now teaches at the Temple University School of Law.  He says the law is clearly on Trump’s side.

“The law is very clear that Congress has authorized the president to decide.  If the president finds the entry of any aliens or any class of aliens would be detrimental to the interests of the United States, he is authorized to suspend the entry of all aliens or any class of aliens or to impose on the entry of aliens any restrictions he may deem to be appropriate,” said Ting.

“It’s codified as Immigration and Nationality Act, Section 212 (f).  It’s also codified as 8 USC Section 1182 (f).  It gives broad power to the president to exclude, basically, any aliens or non-citizens he chooses on the grounds that it would be detrimental to the interests of the United States,” said Ting.

He says this should be an open and shut case for the courts in the Trump administration’s favor.

“I think the courts, if they follow the precedents, have to come up with that result, and I hope they will,” said Ting.

Robart did not cite any constitutional provision or U.S. statute.  The only court cases he cited dealt with his power to issue an injunction.  Ting says the ruling was unconvincing.

“I didn’t find the temporary restraining order terribly persuasive.  I thought the judge relied on generalities about the law and the Constitution and our customs and practices,” said Ting.

Prof. Ting is also taking aim at some of the legal arguments against the executive order, starting with the contention that anyone in possession of a U.S. visa has a right to enter the country.

“People need to understand what a visa is.  All a visa is is permission to get on an airplane coming to the United States,” said Ting.

“If you don’t have a visa, you can’t get on the airplane, but the visa does not itself authorize anyone to come into the United States.  They have to present themselves for inspection and the inspectors are authorized to turn people around, even if they have visas,” said Ting.

And that is why Ting says citing a 1965 law barring discrimination against aliens from a particular country doesn’t matter in this case.  He says that law also focuses only on visas and not actual entry into the United States.  He says Section 202 (a) of the Immigration and Nationality Act makes that clear.

“I think it’s clear that the 1965 language in 202 (a) does not apply to the inadmissability language in 212 (f),” said Ting.

Nonetheless, if the courts continue to rule against the Trump administration, Ting says it’s up to Congress to clarify statutory language even more to make sure the lew is being followed as the original lawmakers intended.

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Three Martini Lunch 2/6/17

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Jim Geraghty of National Review and Greg Corombos of Radio America have all bad news, starting with a federal judge putting a hold on Pres. Trump’s immigration order without citing any law or constitutional provision and Trump’s subsequent tweets attacking the judicial system.  We also blast Trump for his moral equivalence in dismissing Vladimir Putin as a killer by saying America’s done a lot of bad things too.  And we discuss and debate whether the slower GOP strategy on Obamacare and tax reform is responsible leadership or letting a golden opportunity slip away.

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Trump Continues ‘Absurd’ Obama LGBT Policy

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Social conservatives are thrilled with President Trump for his pro-life actions and his choice for the Supreme Court, but he is taking heat from the right for extending an Obama-era executive order which places LGBT agenda mandates on federal contractors.

Liberty Counsel Chairman Mathew Staver says it all started under the Obama administration three years ago.

“In 2014, President Obama, contrary to any federal law, issued an executive order saying any contractor who does business with the federal government has to have this so-called LGBT and even Q (for) questioning, which is part of that alphabet soup, and they had to put this into their employment systems,” said Staver.

“They were imposing on employers the LGBTQ agenda when they didn’t have any federal law as authority,” said Staver.

Staver says Trump made a big mistake in continuing the policy.

“We were hoping that would be one of those executive orders that would go by the wayside, but when President Trump came into office, sadly he continued that executive order in 2017,” said Staver.

“That is going way beyond the federal law.  Federal law does not have sexual orientation or gender identity in the employment context or in any other context with regard to employment or public accommodation,” said Staver.

He says Congress has repeatedly stiff-armed the LGBT agenda on this front, which is why Obama resorted to an executive order.

“Congress has been asked several times to include sexual orientation and gender identity into the federal employment law and they have rejected that urging.  Consequently, not only does the law not have it but we see from Congress they don’t want it in there.  So why would the president go over and above them and impose this on employers anyway?” said Staver.

“It’s understandable for Obama, but it’s just not acceptable for President Trump,” he said.

The order requires any firm bidding for a federal contract to adopt policies protecting employees who wish to identify as a different gender than their biological sex would indicate.  It also requires businesses to accommodate such personnel by allowing them to using restrooms and other intimate facilities according to their gender identity.

And those companies refusing to comply will be left out in the cold on federal contracts.

“Any company that doesn’t want to have this absurd policy in place or a policy that violates their sincerely-held religious beliefs, they’re going to have to sit on the sideline.  They won’t be able to do business with the federal government,” said Staver.

Staver also asserts that the protections offered through this executive order are not the equivalent of other anti-discrimination protections enshrined in law.

“Gender identity is completely in a different category than discrimination on the basis of race or religion, which is protected by the first amendment,” said Staver.

He also argues the policy flies in the face of Trump’s top goal of jump-starting the economy.

“If we want to have America first and we want to create jobs?  Don’t put this absurd policy on them when the federal law does not impose it,” said Staver.

While Staver lauds Trump for his pro-life actions and for selecting Judge Neil Gorsuch for the Supreme Court, he says this is an area where Trump has always disappointed traditional marriage advocates.

“He never was on our side it looked like on the so-called LGBT agenda.  Certainly, he’s not on the level of President Obama, who was radical in that respect,” said Staver.  “Unfortunately, in the first two weeks of office, he does this executive order and that’s disturbing.”

Staver says conservatives need to make a compelling case to Trump to change course.

“I think he needs to be educated on this issue and he needs to reverse this policy that Obama ultimately instituted,” said Staver.

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Trump Order Weakens Obamacare

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While the White House press corps pores focuses on how many people showed up on Inauguration Day, President Trump’s first executive order is already weakening Obamacare in preparation for the repeal and replace effort in Congress in the coming weeks.

The order instructs all relevant agencies, primarily the Department of Health and Human Services, to “ease the burden” of Obamacare.  If that sounds vague, that’s exactly how it was intended.

Health care policy expert Dr. Merrill Matthews of the Institute for Policy Innovation says the lack of specifics means a lot of actions can be taken to protect patients.

“Departments and agencies with control over Obamacare under the Affordable Care Act ‘shall exercise all discretion and authority available to them to waive, defer, grant exemptions or delay the implementation of any provision in the act,'” said Matthews.

“They can also relieve the states of cost, fee, tax, penalty or regulatory burdens on individuals, families, health care providers, health insurers, patients, recipients and so forth and so on,” said Matthews.

So what does all that mean?

“It’s a very broad statement, which says those people who are in charge, basically the secretaries – primarily of Health and Human Services but perhaps also the IRS and maybe a few other agencies, have the freedom under this executive order to try to step in and say, ‘We’re going to try to reduce the burden of Obamacare with respect to mandates, penalties and taxes,” said Matthews.

And despite Obamacare being passed by Congress, Matthews says the way it was written allows the Trump administration to take the teeth out of the law even before Congress acts.

“There was nearly 3,000 references to the word secretary in the Affordable Care Act.  Nearly all of those apply to the secretary of Health and Human Services.  The language was, ‘The secretary shall determine,’ ‘the secretary shall decide,’ ‘the secretary shall set penalties’ and so forth.  The law itself gave the secretary of Health and Human Services a lot of discretion to carry this out,” said Matthews.

“I would argue that the ability to provide all that power to the secretary to implement the law also provides a lot of power to the secretary to un-implement the law,” said Matthews.

Matthews says Trump is exercising “transitional authority,” a power that Obama claimed when changing or delaying certain components of the law.  It’s something Matthews says Obama became quite brazen about.

“President Obama had moved the situation to the point where he said in a speech, ‘I’m going to do what I feel like needs to be done out there.  If Republicans don’t like it, sue me,'” said Matthews.

Republicans cried foul at the time, but Matthews says this usage is only undoing what Obama shouldn’t have been able to do in the first place.

“Once they set the precedent, it’s hard to be too critical of it.  Conservatives felt like that was overreaching.  But if [Obama] overreached, I’m not sure it’s bad overreaching to pull it back and say, ‘You never had the authority to do that.’  We’re in essence bringing it back to the status quo ante,” said Matthews.

Matthews also points out that this will take place in a very brief window before Congress acts to repeal and replace the law.

“This is very temporary and it’s meant to begin relaxing these burdens while Congress takes action to actually repeal and replace the legislation,” said Matthews.

In addition to easing the burden of the law before Congress gets to work, the executive order stands as a message to Congress.  Matthews says Trump is asking lawmakers to follow his lead.

“The executive order that Donald Trump released in essence says, ‘Here’s the flag.  I’m showing you where I’m going on this.  You have my permission to begin to scroll this thing back as far as you can within the limits of the law,” said Matthews.

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