Analysis: Newsflash From Israel to America: Judges Won’t Save You From Trump

Analysis:  Newsflash From Israel to America: Judges Won’t Save You From Trump 

The president continues to savage the judge who suspended his immigration ban, but Republicans won’t do a thing about it. For now.

Opinion - commentary -analysisChemi Shalev | Haaretz

In March 1801, a few hours before his term was over, America’s second president, John Adams, tried to pack the country’s courts by appointing scores of new judges who would be favourable to his Federalist Party. His rival and successor Thomas Jefferson, was enraged. He ordered his new Secretary of State, John Madison, not to deliver the letters of appointment to those judges who hadn’t received them yet. One of them was William Marbury of Maryland, who petitioned the Supreme Court to force Madison’s hand.  

His petition was denied, but not before Chief Justice John Marshall crafted one of the most daring and influential verdicts in modern history, in which he laid the groundwork for judicial review of executive actions and congressional legislation. Ever since, conservatives and right-wingers in the United States of America – and in Israel – have been fighting Marshall’s enduring edict.

Given that Donald Trump has only a vague idea, if at all, of the importance of Australia or the significance, dead or alive, of Frederick Douglass, it’s highly doubtful that he’s ever heard of Marbury vs. Madison, the landmark case that is taught in the first year of constitutional law in law schools throughout the land. 

Trump probably hasn’t heard of Montesquieu and the separation of powers, either. Judging by his harsh initial reaction to the temporary restraining order given by Federal Judge James Robart in Seattle on Friday [03 Feb 2017] against his executive order on immigration, Trump was probably taken aback by the very idea that a judge can overturn a decision of the commander in chief.

He was doubly dumbfounded on Sunday, when the Ninth Circuit Court of Appeals refused a Department of Justice petition to overturn Robart’s decision. You can just imagine him turning to his aides in the White House demanding to know if this has ever happened before or whether they think it’s personal.

Trump reacted with characteristic bluster, blaming the “terrible” and “ridiculous” decision, rendered by a “so-called judge” that will endanger America and let “bad and dangerous people” into the country.

On Sunday afternoon he went further, saying that Robarts had placed America “in peril” and that “if something bad happens, blame him and the court system.” Though widely condemned by horrified Democrats and Republicans, in this case, at least, Trump can cite an illustrious precedent:

Jefferson himself was unhappy with Marshall’s decision to designate his court as the supreme arbitrator and protector of the Constitution. In a strongly worded protest that sounds as if it was taken directly from the ongoing campaign of Jewish settlers and right-wingers to curtail the authority of the Israeli Supreme Court, Jefferson said that after Marbury, America would be beholden to “despotism of the oligarchy.”

Thus, the developing confrontation between Trump and the judiciary can be viewed through three parallel prisms. First, as one more round in the centuries-old jostling for power between the three branches of government; second, as another worrying manifestation, apparent in Benjamin Netanyahu’s Israel for the past several years, of an authoritarian, anti-democratic right-wing power grab that is aimed at weakening liberal pockets of resistance; and third, as another arena in which Trump’s undisciplined and impulsive personality could very well set the tone.

After all, if things don’t work out in his favour, Trump is capable of turning a confrontation into open conflict, disagreement into a complete breakdown and an argument over substance into a bitter personal war. As someone who can’t tolerate even the slightest of slights, the judges’ insistence on standing for their independent authority could bring out the worst and most repulsive in the new president.

The battle is far from over, of course. The temporary restraining order could very well be overturned when the Ninth Circuit Court convenes on Monday night or Tuesday morning, or in separate petitions to the Supreme Court that might be filed before or after. Nonetheless, Robart’s decision was like a shot in the arm for beleaguered Democrats, liberals and the so-called “Resistance,” which continues to demonstrate in the streets of American cities. It created the impression – or the illusion – that they are not alone in their opposition to Trump. It sparked hopes that the bedlam unleashed by Trump since his inauguration could still be reversed, or at least restrained.

Israel’s experience in recent years should sound a note of caution. By yielding to the courts, the political and public opposition sheds its resolve and empties its own batteries. In Israel, the only criteria by which politicians are judged today are whether or not their misdeeds are indictable. Everything else is deemed to be smelly, but kosher.

All of Netanyahu’s affairs that are currently under investigation – taking lavish gifts from a rich Hollywood producer, conniving behind the scenes with a powerful publisher, interfering suspiciously in a lucrative submarine deal – stink to high heaven and in many countries would lead to a public outcry that would imperil his seat. The same is true of Israeli occupation and settlement activities in the West Bank – as long as the courts do not interfere, the settlers can do as their heart desires.

Israelis have long given up on public pressure or political scrutiny to rein in their leaders. If the judges don’t do the job, most Israelis tell themselves, then nobody will. It is a responsibility too Herculean even for the most resilient of jurists, but even their small accomplishments enrage the ruling right wing and invite measures to curtail their authority further.

Trump’s clash with the judges might make life a bit more difficult for his Supreme Court nominee, Neil Gorsuch, who will be caught between a rock and a hard place when asked to comment on Trump’s remark about a “so-called” judge.” It will make Democrats fight harder to block the nomination. Together with Trump’s outrageous comparison between the U.S.A. and Russia – both are “killers,” he told Fox News – life is also getting more difficult for moderate Republicans from red states and districts, whose voters are getting edgy about the erratic and often offensive behaviour of their president. It goes without saying, of course, that if Obama had said anything similar the sky would have fallen etc.

But whatever modest gains and small victories are achieved, Trump is still president, with the enormous powers and substantial authorities vested in his office. Congressional Republicans may be unhappy with his statements and behaviour, but that won’t deter them, as long as Trump fulfills their greater ideological goals in areas such as immigration, taxation, abortions, fighting radical Islam, confronting nuclear Iran and hugging Israel and Netanyahu.

In the end, judges won’t save America from itself, nor will they prevent Trump from implementing his ban on immigration from certain Muslim countries.

With a little change here and a tiny amendment there, a persevering administration can wear out the judges and find the formula that will eventually pass their test. That has been the Israeli experience throughout its steady descent down a slippery, anti-democratic slope.

His right-wing Israeli friends can teach Trump the appropriate thing to say when confronted with the high hopes, inevitably dashed, of his left-wing opponents: The dogs bark, but the caravan moves on.

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Comments

  • michael hawkins  On February 7, 2017 at 10:40 am

    It seems that people are quick to judge. The trouble you like your leaders to lie to you and fill your head with crap. Trump was right when he said that the USA was no different to Russia, and in most cases they are worse they started in Central and South America and are just as bad as Russia. He calls a spade a spade.

    guyaneseonline posted: “Analysis: Newsflash From Israel to America: Judges Won’t Save You From Trump The president continues to savage the judge who suspended his immigration ban, but Republicans won’t do a thing about it. For now. Chemi Shalev | Haaretz In March 1801”

  • Ron Saywack  On February 7, 2017 at 4:34 pm

    ‘Together with Trump’s outrageous comparison between the U.S.A. and Russia – both are “killers…” ‘.

    Mr Chemi Shalev, the 2003 illegal US invasion of Iraq resulted in an estimated one million (mainly civilian) deaths. In case you were living under a rock or on a time travel to the Milkey Way, the reason for “Shock and Awe” was to rid Iraq of all those phantom WMDs and to exact revenge for the attacks of 9/11.

    Furthermore, in case you weren’t aware, Mr Shalev, 15 of the 19 hijackers on that fateful morning were Saudi nationals, 2 were from the UAE, 1 from Lebanon and 1 from Egypt. There was not a single Iraqi attacker onboard those planes.

    When Trump asserted on Fox News on Sunday morning that the US are killers, too, he was being brutally honest. And you, sir, as a newspaper editor, are expected to tell it like it is.

  • Clyde Duncan  On February 8, 2017 at 11:09 am

    Analysis: How Iran and Israel Are Testing Trump

    The missile test and the American response come at a very bad time for Iranian President Hassan Rohani.

    Zvi Bar’el | Haaretz

    Why did Iran decide to measure U.S. President Donald Trump’s administration last month by testing a ballistic missile? A similar question could be asked, of course, about Prime Minister Benjamin Netanyahu, who decided to similarly try out Trump by announcing plans to build 5,000 new homes in the territories, including a new settlement.

    In both cases the answer could be identical and pretty simple: Both regimes, in Iran and Israel, are establishing facts on the ground to force Trump to make clear what boundaries are acceptable to him, to test how flexible he is, and to understand what could be derived from his responses.

    Trump’s answers to both countries were not identical but they were similar. To Israel he made it clear that new construction in the territories was liable to harm the peace process, while he imposed a few perfunctory sanctions on Iran that aren’t terribly burdensome.

    But there’s also a more complex reason for the entrance exam that Israel and Iran gave the new president. Both countries are immersed in a boiling cauldron of political struggles that are spewing in the direction of the United States of America as well.

    One can assume that if Netanyahu was not trapped in Naftali Bennett’s chokehold, he would not have hastened to announce new construction in the settlements. It also seems that Iran’s Revolutionary Guards, which are very busy with tense preparations for May’s presidential election, wouldn’t necessarily have chosen to carry out the ballistic missile test now.

    The missile test and the American response come at a very bad time for Iranian President Hassan Rohani. The waves of criticism of him aren’t coming just from the ultra-conservative side of the political map; many liberals and reformers are also disappointed in his record during his first term.

    The economic benefits that he’d promised would follow the signing of the nuclear agreement have yet to trickle down to the populace, despite the improved macroeconomic statistics, including 7.4 percent growth, during the first half of Iran’s fiscal year (which begins in March).

    Unemployment is still high, more than 12 percent, and 26 percent among young people. The human rights situation hasn’t improved and in some areas has even worsened. And now the Rohani regime’s historic achievement, the nuclear agreement, is probably going to be re-examined by the American administration – or worse, might turn into a power struggle between the United States of America and Iran.

    Rohani still hasn’t announced that he’s running for a second term (which would be his last under the Iranian constitution), apparently fearing that declaring too early would fire up his rivals, who would begin working in earnest to invalidate his candidacy and pave the way for a more aggressive and radical candidate.

    Still, it’s interesting that Iran’s Supreme Leader Ali Khamenei has not publicly addressed the missile test, leaving the Revolutionary Guards and radical preachers to deliver the warnings and threats to the United States.

    Meanwhile, the official, cautious Iranian position, as presented by Foreign Minister Jawad Zarif, is that Iran has the right to conduct missile tests as part of its conventional defense plan, and that the test did not violate the nuclear agreement.

    But that’s only partially correct. Although the nuclear agreement does not deal with ballistic missiles, the UN resolution that ratified the agreement includes a clause that forbids Iran to test missiles that could carry nuclear warheads, which the missile tested is capable of doing. This gap between the agreement and the UN resolution actually leaves it to the United Nations, not the Trump administration, to decide whether or not the test constitutes a violation.

    There would need to be a Security Council resolution, which the Russians could be expected to veto, to formally punish Iran or even to issue an accusatory statement that might pave the way for re-imposing sanctions.

    Trump, of course, could add new American sanctions, and he could even withdraw from the nuclear pact, but then he would be putting the United States on a collision course with the European Union, three of whose members – France, Britain and Germany – are signed on the agreement, and with Russia and China, both of which oppose canceling the deal.

    These countries are already deeply invested in the Iranian economy. Britain has renewed its diplomatic relations with Iran, the EU has signed a deal worth billions to supply civilian aircraft, France has oil-drilling contracts, and presumably Boeing, an American company, wouldn’t be pleased to lose a $16.5 billion-dollar deal to supply Iran with 80 airplanes. Boeing, incidentally, has rushed its first plane to Iran to turn the deal into a fait accompli.

    The question now is whether Trump, on his own, and against the position of America’s allies, could turn Iran into a “non-partner” by taking positions that strengthen that country’s tempestuous radicals.

  • Clyde Duncan  On February 8, 2017 at 11:16 am

    Theresa May defies Israeli leader Benjamin Netanyahu with Vow of Support for Iran Nuclear Deal

    In a visit to Downing Street just days after Iran test-fired a ballistic missile Mr Netanyahu said ‘responsible’ nations should follow President Donald Trump’s lead to head off Iranian aggression

    Ashley Cowburn Political Correspondent | Independent UK

    Theresa May has stood firm in her commitment to the Iranian Nuclear Deal despite pressure from the Israeli Prime Minister Benjamin Netanyahu for fresh sanctions on Tehran.

    In a visit to Downing Street just days after Iran test-fired a ballistic missile Mr Netanyahu said “responsible” nations should follow Donald Trump’s lead to head off Iranian aggression.

    The President has recently described the deal – brokered by his predecessor Barack Obama – as the “worst deal ever negotiated”.

    But speaking in the Commons shortly after the two leaders met at Number 10 for their first bilateral meeting, Ms May made no mention of further sanctions against Tehran. “We continue to believe the Iran nuclear deal was an important step forward and important contribution to stability in the region and we continue to support it,” she said.

    In a briefing of the meeting a Downing Street spokesperson added: “On Iran, the Prime Minister was clear that the nuclear deal is vital and must be properly enforced and policed, while recognising concerns about Iran’s pattern of destabilising activity in the region.”

    Speaking in front of TV cameras as they began talks at Number 10, the Israeli PM – who is due to meet Mr Trump in Washington next week – told Mrs May: “Iran seeks to annihilate Israel, it seeks to conquer the Middle East, it threatens Europe, it threatens the West, it threatens the world. And it offers provocation after provocation.

    “That’s why I welcome President Trump’s insistence on new sanctions against Iran. I think other nations should follow suit, certainly responsible nations.

    “And I’d like to talk to you about how we can ensure that Iran’s aggression does not go unanswered.”

    The international nuclear deal, under which sanctions were lifted in return for Tehran giving up its military nuclear ambitions, had “neutralised the possibility of the Iranians acquiring nuclear weapons for more than a decade”, added the PM’s spokeswoman.

    Ms May made it clear that her top priority for the talks was strengthening trade and investment links ahead of Brexit as well as exploring the potential for a deeper commercial relationship after the UK has left the EU.

    She said she believed there was “much more we can do” and it was important to look at how “we can build that relationship”.

    They agreed to set up a new UK-Israel trade working group, with trade minister Lord Price to visit Israel soon to take discussions forward.

    And the PM invited Mr Netanyahu to return to Britain later this year for events to mark the 100th anniversary of Prime Minister Arthur Balfour’s 1917 declaration of UK support for the establishment of a Jewish homeland.

    Last week Iran confirmed it carried out the ballistic test but insisted it did not violate the landmark nuclear deal reached with world powers. Hossein Dehghan, the Iranian defence minister, said at the time:

    “The recent test was in line with our plans and we will not allow foreigners to interfere in our defence affairs.

  • Albert  On February 9, 2017 at 7:58 pm

    As a comparison between US/Russia in terms of killing people we know the “Rule of Law” is entwined in the US political system. One of the first course on Western Civilization teaches that. I have seen and read a bit about Russia and consider it a large undeveloped country with large energy reserve, a large military and a long brutal history …..little of anything else.
    Does anyone know if anything like the Rule of Law is in the Russian constitution (if they have one) and is enforced. I am writing as a student here.

  • Clyde Duncan  On February 9, 2017 at 9:32 pm

    Albert: You are asking a tall order … It is still a work-in-progress – Is this Helpful??

    Opinion: The End of the Rule of Law in Modern Russia?

    May 26, 2015 – Yury Korgunyuk | Russia Direct

    The Law on Undesirable Organizations, signed a few days ago, by Russian President Vladimir Putin, can be seen as a landmark on the journey towards the end of the rule of law in modern-day Russia.

    The first two terms of Putin’s rule were a time of transition from electoral democracy to personal authoritarianism. This personal authoritarianism was touched up slightly during the years of former Russian President Dmitry Medvedev (2008-2012), but Putin’s return to the presidency not only unmasked the true nature of the regime, but aided its evolution towards dictatorship, under which the law is not viewed as a set of rules governing the life of society, but as a tool with which to achieve short-term political goals.

    The 2012 law on foreign agent non-commercial organizations was highly revealing in this respect.

    A prerequisite for its adoption was Putin’s belief that the protest movement in Russia was not homegrown, but inspired by the West.

    The Russian law copied a similar U.S.A. law in force since the 1930s. However, on being transported to a different legal environment, it clashed with the constitutional basis of the country’s political structure.

    The U.S.A. law applies primarily to lobbying organization; in Russia lobbying activity is not regulated at all, so the grounds for applying it look all the more dubious.

    In Russia, the label “foreign agent organization” is assigned to any non-commercial organizations (NCO) engaged in political activity in receipt of overseas financing, including from international foundations.

    The very use of the term “foreign agent” in this context is incorrect. An agent cannot be wholly “foreign,” it must have a principal, i.e. a party whose interests it serves.

    By fingering non-domestic funding as a mark of foreign agent activity, the state has freed itself from the burden of proof.

    Moreover, the law very broadly interprets the concept of political activity as including any role whatsoever in shaping public opinion. If desired, it can pertain to the holding of any public event.

    Nevertheless, the law was barely enforced to begin with, since it proposed a rather arcane procedure of admission of “guilt.”

    By law, an organization itself had to apply to the Russian Ministry of Justice to be included in the list of foreign agents. Failure to do so could result in the Prosecutor General’s Office seeking a court order to charge the organization with non-compliance with the law, and only a court could compel NCOs to make appropriate changes to their mandate.

    For a long period of time, therefore, neither the Ministry of Justice nor the Prosecutor General’s Office knew how to proceed in respect of the law.

    Verification of “suspect” organizations began only after Putin issued a direct order in April 2013. Little progress was made, however, and in the subsequent year, the only organization fined for failure to comply with the law was the movement of election observers Voice, which opted to forgo state registration, but did not recognize itself as a foreign agent.

    The process accelerated when, at the Kremlin’s behest, the procedure for adding NCOs to the register of foreign agents was modified. As of 2014, the right to do so was assigned to the Ministry of Justice itself, whereupon a non-commercial organization could only challenge the decision of the latter in court.

    As a result, starting June 2014, 64 organizations were included in the register of foreign agents (previously it contained only the non-commercial partnership Supporting Competition in the CIS Countries), none of which managed to remove itself from the list through court action.

    The only way an organization could do that was through self-annihilation.
    [Remember: “.. only a court could compel NCOs to make appropriate changes to their mandate.”]

    The Kremlin took the law on foreign agent NGOs as the basis to remove “undesirables” from the legal framework.

    It learned through experience that instead of relying on the law and the courts, it was simpler to hand the initiative over to the Ministry of Justice and the Prosecutor General’s Office (under the Russian Constitution the latter is de jure independent of executive power, but de facto subordinate to the president and his administration).

    This procedure further reduced the already atrophied rule of law in Russian society, putting legal regulation in the hands of officials appointed by the President.

    The same scheme was used to amend the law on combating extremist activity.

    Whereas in 2012-2013 Roskomnadzor [the Federal Service for Supervision in the Sphere of Telecoms, Information Technologies and Mass Communications] had to seek a court injunction on “extremist” websites, as of February 2014, it had only to apply to a public prosecutor’s office, which blocked such resources without delay, whereupon the owners of the site had to seek a court order to bring it back online.

    As soon as the relevant amendments came into force, Roskomnadzor immediately blocked the Kremlin’s least favorite opposition resources — Kasparov.ru, Grani.ru and Ej.ru (Daily Journal).

    NONE was able to get unblocked or even receive an intelligible explanation as to why it had been blacklisted.

    The law on undesirable non-governmental organizations brought the whole process to its logical (i.e. absurd) conclusion.

    Start with the fact that in Russian law there is no concept of “non-governmental organization” (non-commercial, yes, but NOT non-governmental), which means that the law can be applied to any non-governmental organizations, including commercial ones.

    Nor is there any concept of “undesirable organization” in Russian law; in other words, it is not a legal, but a political category.

    Hence, there can be no legal procedure by which organizations are classified as “undesirable,” as evidenced by the transfer of the relevant powers not to the courts, but to the Prosecutor General’s Office.

    In contrast to the law on foreign agent NCOs, the law on undesirable NGOs concerns only foreign organizations, but it covers any Russian NCO too, since the Prosecutor General’s Office need only declare that its foreign partner organization is “undesirable.”

    The adoption of the law on undesirable organizations automatically removes Russia from the list of countries that claim to follow the rule of law and places it in the category of so-called police states, where guilt and innocence are established by law enforcement agencies — regardless of what the law actually states, guided by subjective and biased “political instinct.”

    At the same time, the new law is set to turn Russia into a besieged fortress.

    Severing Russian citizens’ and organizations’ ties with the outside world will require no extra effort — simply adding their foreign counterparts to the list of “undesirables” will suffice.

    Perhaps the envelope has been pushed too far, and the law will prove unworkable. But judging by how the laws on foreign agent NCOs and on combating extremism operate, such a scenario is unlikely.

    According to Chekhov’s law, if a rifle is seen hanging on the wall in the first scene, it must be fired in the second or third. All’s well that ends well if the curtain falls shortly after.

    Regrettably, politics and theater abide by different rules.

    The opinion of the author may not necessarily reflect the position of Russia Direct or its staff.

  • Clyde Duncan  On February 9, 2017 at 9:39 pm

    TODAY, 09 Feb 2017: –

    Donald Trump Signs Executive Order Giving Police Greater Authority

    The President has signed three orders to tackle ‘public safety’ moments after he swore in Jeff Sessions as Attorney General

    Rachael Revesz – New York | Independent UK

    Donald Trump has signed three executive orders to deal with “public safety”, including handing more authority to the police.

    At the formal ceremony to appoint Jeff Sessions as Attorney General, the President outlined the new mandate that Mr Sessions would have, including tackling crime, drug cartels and terrorism.

    He insisted that the USA faced the “threat of rising crime” and that “things will get better very soon”.

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