Trump's new Emergency Inflatable Attorney General™ Matt Whitaker made his first major (and unconstitutional) move, declaring that the Trump regime can deny any and all asylum applications from anyone who has crossed the border illegally (despite international law saying otherwise) and that Dear Leader Trump has the final say in who is eligible to apply.
The Trump administration on Thursday rolled out a fast-track regulation that will restrict the ability of certain migrants to seek asylum at the U.S.-Mexico border — a move that’s almost certain to trigger legal challenges and humanitarian backlash.
The administration issued an interim final rule that will bar certain migrants caught crossing the border between ports of entry. The regulation will be paired with a presidential proclamation that outlines the migrants subject to the asylum bar, administration officials said on a call with reporters. The officials would not detail who could be subject to the ban, but said more information likely would be revealed Friday.
The regulation seeks to “channel inadmissible aliens to ports of entry, where they would be processed in a controlled, orderly, and lawful manner,” according to a notice posted online Thursday afternoon.
In recent weeks, President Donald Trump has fixated on a group of Central American migrants trekking through Mexico en route to the United States. During a speech last week, Trump called the caravan an “invasion” and said asylum seekers would be turned away.
"This isn't an innocent group of people,” he said of the group, which includes many women and children. “It's a large number of people that are tough.”
Republican voters in Tuesday’s midterm elections cited immigration as one of the most important issues facing the country, according to exit polls. The announcement Thursday suggests Trump won’t ease up on his immigration crackdown, which dominated his first two years in office.
A senior administration official on Thursday said asylum seekers who cross between ports of entry are “choosing to break our laws as their first act upon entering the country“ and “depriving legitimate asylum seekers of a chance to have their cases heard.”
The official called the current influx of asylum seekers a “massive … almost historically unparalleled abuse of our immigration system.”
The plan is simple, round up everyone who crosses the border, deny them asylum, detain them in camps, and deport them. It's cruel and illegal, period. Trump doesn't care, because House Dems won't be in charge for another two months, Republicans in the House and Senate don't care, and the whole point is for this to go fast-track to SCOTUS where five Republican-appointed justices are waiting to sign off on it.
There is one wrinkle, however, and that is Matt Whitaker isn't eligible to be Acting AG in the first place.
Much of the commentary about Mr. Whitaker’s appointment has focused on all sorts of technical points about the Vacancies Reform Act and Justice Department succession statutes. But the flaw in the appointment of Mr. Whitaker, who was Mr. Sessions’s chief of staff at the Justice Department, runs much deeper. It defies one of the explicit checks and balances set out in the Constitution, a provision designed to protect us all against the centralization of government power.
If you don’t believe us, then take it from Supreme Court Justice Clarence Thomas, whom Mr. Trump once called his “favorite” sitting justice. Last year, the Supreme Court examined the question of whether the general counsel of the National Labor Relations Board had been lawfully appointed to his job without Senate confirmation. The Supreme Court held the appointment invalid on a statutory ground.
Justice Thomas agreed with the judgment, but wrote separately to emphasize that even if the statute had allowed the appointment, the Constitution’s Appointments Clause would not have. The officer in question was a principal officer, he concluded. And the public interest protected by the Appointments Clause was a critical one: The Constitution’s drafters, Justice Thomas argued, “recognized the serious risk for abuse and corruption posed by permitting one person to fill every office in the government.” Which is why, he pointed out, the framers provided for advice and consent of the Senate.
What goes for a mere lawyer at the N.L.R.B. goes in spades for the attorney general of the United States, the head of the Justice Department and one of the most important people in the federal government. It is one thing to appoint an acting underling, like an acting solicitor general, a post one of us held. But those officials are always supervised by higher-ups; in the case of the solicitor general, by the attorney general and deputy attorney general, both confirmed by the Senate.
Mr. Whitaker has not been named to some junior post one or two levels below the Justice Department’s top job. He has now been vested with the law enforcement authority of the entire United States government, including the power to supervise Senate-confirmed officials like the deputy attorney general, the solicitor general and all United States attorneys.
As former Attorney General Jeff Sessions's Chief of Staff, Matt Whitaker was never subject to Senate confirmation. Therefore, Matt Whitaker cannot serve as Acting AG. It reall is this simple, but again, Trump doesn't care. This issue too will go before the Supreme Court, but I expect by then Trump will have an AG lined up (Kris Kobach, Trey Gowdy, and Chris Christie are some of the names I've heard) that will pass any confirmation tests with the GOP's even larger majority in January in the Senate with no problem.
The real issue is that Whitaker's job is to serve as the lightning rod to allow the worst of Trump's excesses to come to pass in the lame duck session, including all the moves against Mueller, since he knows Whitaker actually would have issues getting confirmed. What becomes of the acts Whitaker authorized the DoJ to take, well, that will conveniently become moot when the new AG arrives. All of it neatly becomes standard practice, Trump's picks to the Supreme Court will see to that.
And the whole mess will lurch forward.