The Federalist Fight Against Fascism

The Federalist Fight Against Fascism

Progressive states and attorneys are charting their own course, using the courts to rein in an out-of-control president.


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The Signal: While the Federal CARES Act was tilted toward handouts for big corporations and tax breaks for the wealthy, California is going ahead with New Deal–type policies to employ the unemployed. Witness Governor Gavin Newsom’s ambitious plan, announced late last week, to hire unemployed restaurant workers to cook for the elderly, many of whom will now qualify for three hot meals a day, paid for by the state. The money will be partly provided by the Federal Emergency Management Agency, partly by the State of California, and partly by city and county agencies.

And, while the White House continues to lock down immigration and blame immigrants for the pandemic and the economic collapse that has now followed, progressive states are charting their own course, seeking to use the courts to rein in an out-of-control president.

Last week, Trump’s in-house white supremacist, Stephen Miller, told supporters during a conference call that Trump’s “temporary” immigration ban was in fact part of a long-term project to lock out virtually all immigrants. And the government continues to stonewall on releasing from ICE detention thousands of children who have sponsors waiting for them, even though Judge Dolly Gee, who presides over the Flores settlement litigation, ordered them to do so nearly a month ago.

Meanwhile, as I reported in a recent column, New York Attorney General Tish James, along with AGs from other East Coast states, petitioned the Supreme Court to reverse its position allowing the odious “public charge” rules to go into effect while the legal arguments play out. Last Friday the court refused to do that, but it did agree that the petitioners could seek relief in district courts, giving those lower courts the opportunity to suspend the rules—an opportunity they are likely to seize in the coming weeks.

Also on the litigation front, this past Saturday the Portland-based Innovation Law Lab, which is coordinating some of the country’s most interesting immigrant-rights legal work, asked Oregon district court Judge Michael Simon to issue a temporary restraining order blocking implementation of the part of Trump’s recently unveiled “immigration ban” that affects minors who are about to turn 18.

This past autumn, Simon issued a temporary restraining order against Trump’s “proclamation” that all incoming immigrants would have to show financial ability to purchase private health insurance. In that case, he certified a class of plaintiffs who could sue to block the new rules. The Innovation Law Lab is now using the class certified in the earlier case to argue against portions of Trump’s immigration ban—specifically, the portion relating to minors who, if they turn 18 during this ban, will find their youth visas voided and thus might have to wait years to get new visas to join their families. “They could lose their place in line in the visa queue, which could result in decades-long delays in visa processing,” says ILL senior staff attorney Nadia Dahab.

The judge is holding a hearing this Wednesday, and the Law Lab attorneys think it’s likely he’ll issue a temporary restraining order. And while that would only affect minors, immigrant rights groups are working on finding plaintiffs for more general class actions against the entirety of Trump’s unconstitutional immigration ban.

If recent history is any guide, they will win these cases in the lower courts, but the Justice Department will then speedily appeal to the Supreme Court, a majority of which has given Trump vast power to impose one ban after the next on whole categories of immigrants.

Trump is going to fight this election on the most nativist platform in US presidential history. Immigration attorneys I speak with say they are bracing for more restrictions in the next six months: bans on foreign students, bans on foreign workers, perhaps even Trump’s long-promised effort to eliminate birthright citizenship. “It’s horrifying,” Dahab says, “and it flies in the face of a comprehensive statutory scheme that Congress created.”

That’s the Signal. We are in the fight of our lives, not just against a deadly virus, but against a government now bypassing Congress and openly advocating, and by diktat implementing, policies straight out of the fascist playbook.

And the Noise? The almost unbearable sound, painful in its scandalous stupidity, of Trump using the presidential podium to suggest to frightened people that they ingest household cleaners to protect themselves from Covid-19. And the other sound? Lady Liberty, still standing tall in New York Harbor, weeping at the grotesque xenophobic passion play now unfolding in the halls of power in Washington.

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