Opinion

The judiciary's savage slap-down of President Trump's travel ban

Surprise, surprise: Donald Trump isn't a political mastermind, after all

Since the election of Donald Trump, many liberals have been at the edge of hysterics. President Trump's political hyper-aggressiveness, as he sits cloistered in the White House with a handful of advisers, lends itself to quasi-conspiratorial narratives about Stephen Bannon being an omnipotent puppet master, or perhaps Trump himself being an agent of Vladimir Putin.

Such narratives are strengthened by the near-unprecedented political dominance of the Republican Party, which has been taking consistent steps to turn America into a one-party state. But as demonstrated by the 9th Circuit Court of Appeals, which on Thursday handed down a crushing defeat to Trump's travel ban, the president is not a political mastermind. On legal and policy matters, he is quite incompetent — and like the rest of his party, seriously pushing his political luck.

Republicans are more dominant at every level of government than at any time since 1928. But there is a crucial difference between now and then: Herbert Hoover and his party were broadly popular. Hoover was elected by a huge margin, and espoused a political ideology that was both widely accepted and, at the time, delivering an acceptable economic performance. (That all came crashing down during the Great Depression, of course, but that was later.)

Trump, by contrast, is historically unpopular, and so is his party. They came to political dominance through a combination of fervent organizing, political happenstance (their rural voters are given outsize weight thanks to the janky American Constitution, and Democrats have come to rely on young people who often do not turn out to vote in midterms), and above all, cheating. Gerrymandering has given the GOP a seven-point handicap in the House of Representatives, and racist disenfranchisement probably handed them a state or two in the presidential election.

The 2016 election results obscure the fact that most Americans don't actually want the Republican agenda. Republicans want to slash Medicare and Medicaid to the bone, privatize Social Security, and bend over backwards to help Wall Street pillage the rest of the country; these are fringe ideas outside the ultra-rich. Indeed, Trump just won the election promising not to do the things that most Republican lawmakers actually want to do.

Something's got to give.

Now, every political faction is prone to believing convenient nonsense. But no other political party in the developed world has a case of it half as bad as the Republican Party. Most any inconvenient fact, from global warming to Trump's own terrible polling, is simply denied or ignored. The result is a hemorrhaging of expertise and galloping incompetence as they plow ahead on an agenda that few Americans actually want.

Which brings me back to Thursday's big court decision on Trump's ban on people from seven Muslim-majority countries. A lower court stayed Trump's executive order, and the circuit court was weighing whether to reverse the stay and allow the government to enforce the order while litigation proceeded. In a 3-0 decision (two judges appointed by Democrats and one by a Republican), the court obliterated the government's case. In particular, they dismissed the wildly extreme argument that the judiciary should not be allowed to rule on the executive order at all, which "runs contrary to the fundamental structure of our constitutional democracy."

The court did not rule on the constitutionality of the Muslim ban, but the judges did note that it is incredibly easy to find evidence of discriminatory intent, which would be needed to rule that the order is a violation of the First Amendment. All you have to do is remember one of the dozens of times that Trump advocated banning Muslim immigration. He's been promising to discriminate against Muslims for two straight years.

Now, it could be that the Supreme Court will uphold the executive order. But Trump has been hard at work foolishly and catastrophically undermining his own case. He very obviously does not know the first thing about constitutional jurisprudence. With a more facially neutral approach, a less racist mouth, and fewer attacks on the legitimacy of the judiciary, he might have left enough wiggle room for his order to stand. But instead he's created a furious backlash.

Republicans have gotten to where they are by pushing the envelope as far as possible. It's worked well for them so far. But there is such a thing as overreach. And this ham-fisted, incompetent president is giving us all a frightening lesson in how it works.

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