Gordon Campbell on the English call and the travel ban case

So this is the Alice in Wonderland world in which we now live. One where PM Bill English wins praise for not provoking the Orange Queen into one of his “Off with their heads!” Twitter tirades. It's nice that English had a pleasant phone conversation yesterday with US President Donald Trump, who reportedly knows a lot about New Zealand – he’s heard of Bob Charles, because he likes golf. Maybe Peter Thiel also put in a good word for us. (“Very few regulations. Not many refugees. Good guys, Mr President.”)

Reportedly, English told Trump he disagreed with the Muslim travel ban. What’s interesting about this is that English has never explained to the New Zealand public - let alone to Trump – just why he disagrees with it. Is it because the ban is Islamophobic? Or discriminatory on racial lines? Is it because the travel ban contravenes the values to which we subscribe, at home and in UN conventions that we’ve signed? Is it because the ban could undermine Iraqi support for the military effort in which our troops are currently engaged within that country? Who knows? English isn’t saying.

Trump gets that. Its politics. He can smell the timidity and the deference. He likes that in a subordinate. That’s why he could “note” our disagreement yesterday and move on. What New Zealand shouldn't do is assume that this means a relationship has been built. Things will remain positive only if the Orange Queen is not provoked by any subsequent assertion of New Zealand’s own interests. Here’s how its meant to go:

How do you like the Queen?' said the Cat in a low voice.

`Not at all,' said Alice: `she's so extremely -' Just then she noticed that the Queen was close behind her, listening: so she went on, ` - likely to win, that it's hardly worth while finishing the game.'

The Queen smiled and passed on.

Trump likes golf. The Red Queen liked her game of croquet. She always wins.

The states of the travel ban

From afar, it has been enlightening for all of us to see that a district court judge in Washington state could (temporarily at least) block a Presidential executive order on immigration – even when the order in question was issued (supposedly) to protect national security. That’s been the only upside of the Trump travel ban. It has made everyone – the media included – brush up on their shaky grasp of the US system of government.

What is the power dynamic between the three separate but equal arms of the US government – the President, Congress and the courts – and what happens when they get on a collision course? Sweeping powers are vested in the President/Commander in Chief, including a veto power over laws passed by Congress. In practice, the threat of a presidential veto can serve to moderate the content of laws, but the presidential veto can itself be overridden by a two thirds majority in Congress. Unfortunately, as we shall see below, the President enjoys almost unlimited powers under the Immigration and Nationality Act that Trump has invoked within the executive order that triggered the travel ban.

One more thing: law-making powers - and ultimately, the war-making powers - are vested in Congress. The courts cannot make laws, but they can strike them down. The role of the courts is to ensure that (a) laws passed by the states and by Congress and (b) the executive orders issued by the President are consistent with the US Constitution, as illuminated by legal precedent.

What the ruling by District Court Judge James Robart in Seattle did was temporarily put a stop to the enactment of President Trump’s January 27 executive order entitled “Protecting the Nation from Foreign Terrorist Entry Into the United States.” Without providing much in the way of back-up reasoning, Judge Robart found that the states (Washington and Minnesota) who were seeking a temporary halt to the travel ban had met the four established conditions for relief: namely, (a) that they were likely to succeed on the merits of their case (b) that in the interim, they and the citizens affected would suffer irreparable harm (c) that on balance, more harm was likely to ensue to the plaintiffs and to the people affected by the ban than to the government and (d) that an injunction would be in the public interest.

To be constitutional, the judge reasoned, the travel bans had to be “based on fact, not fiction”. Since 9/11, he noted, there had been no US domestic terrorism attacks by citizens of the seven countries subject to the travel ban. Since immigration rules need to be uniform, the ban was overturned, nationwide.

As mentioned, Robart did not go into much detail; his stay of proceedings was only temporary, pending more detailed legal arguments in higher courts. As this column is being written, the Ninth Court of Appeals is still considering the full case. It would be very surprising if it found against the President, and ruled to extend Robart’s stay on the travel ban. After all, Boston judge Nathaniel Gorton heard a similar challenge (launched by Oxfam and others) in Massachusetts to the travel ban, and he has ruled in favour of the President – disagreeing with Robart on all of the four criteria cited above, in fairly convincing detail. The full text of Gorton’s 21 page ruling can be found here.

The reality, as Gorton has pointed out, is that the President enjoys sweeping powers under the Immigration and Nationality Act, which includes this:

‘Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.’

Without going into the fine detail, the INA also contains wording that defines“entry” or “admission” in ways that mean the valid visas held by “aliens” who are not permanent residents (eg by foreign students) do not constitute any substantive form of property right – so their status is always provisional, whatever the suffering that may be caused by uncertainty, or by an abrupt reversal. And so on.

Less convincingly, the Gorton ruling went on to exempt the presidential executive order from being discriminatory on the grounds of religion. In Gorton’s view, the alleged ‘astonishing evidence of intent’ displayed by President Trump (ie to practice discrimination on grounds of religious/nationality and to disguise that intent with security excuses) could not be validly considered by the court. Why not? Well, that’s because such “improper animus” can only be considered under “equal protection” safeguards that involve actions taken by US states, or by federal government actions towards the states. By contrast, since the President’s Executive Order involves federal government categorizations with respect to non-resident aliens, a far less stringent test called “rational basis review” must therefore be applied, Gorton argued.

Under that umbrella, almost anything goes. Gorton again:

[Rational basis review is “not a license for courts to judge the wisdom, fairness, or logic of legislative choices.”…. Under rational basis review, a classification is permissible “if there is any reasonably conceivable state of facts that could provide a rational basis.”[The footnotes for those quotes from legal precedents have been omitted.]

Therefore, anything that might conceivably happen can be invoked by a sitting President to justify actions to “protect” the US - even if these are taken on unwise, unfair or illogically conceived grounds in order to deter imaginary threats posed by “foreign aliens”. Evidently, the vaunted checks and balances under the US political system extend only to citizens and permanent residents. By Gorton’s reasoning, anything goes for everyone else. (It's not hard to see how the torture of foreign aliens could be re-legimitised by the Trump administration, via the same legislative route.) Not surprisingly, the US Justice Department is very, very keen on Gorton’s ruling, and featured it prominently in its Ninth Court documentation. The full Justice Department legal brief is available here.

We should know the Ninth Court of Appeals decision later today. If it rules in favour of the President, the travel bans will be re-imposed, and distressing scenes will recur at American airports. The losing side will immediately appeal to the eight justices that currently comprise the US Supreme Court.

La La Land, and Jazz

While we’re rolling towards the Oscars, can we be spared yet another dissing of La La Land and its treatment of jazz – like say, this tired rehash?

Enough already, of the lazy debunkings of Seb (the character played by Ryan Gosling) for his evangelical commitment to the pre-fusion, pre-electronica period of jazz. Seb is a fictional character. He is not David Attenborough, fronting a documentary about jazz. Nor is La La Land a public service announcement.

More to the point… the criticisms being made of Seb’s jazz fogey-ishness are all actually made within the film itself. John Legend, playing the bandleader Keith, gets to say them point blank to Seb. He calls Seb and his jazz purism a pain in the ass. He says that Seb wants to ‘save jazz’ by playing a form of it liked mainly by old people, and played to them in the kind of clubs where young people on the whole, don't go. Seb has no comeback to Keith’s put down, but it infuses his later rationalization to Emma Stone’s Mia about why – like an adult, finally – he’s going to stick with Keith’s group, and use that success to finance his own jazz club.

And yes, Seb does exactly that. He plays his old school jazz in that club, and manages to eke out a living doing it. He’s set in his ways. That’s why (a) he keeps the faith with the era of jazz he worships and why (b) he still holds a torch for Mia. He’s like one of those animals who mate for life – in art, and in romance. IMO, this makes him a humanly relatable and almost tragic figure. She’s moved on (somewhat) but he hasn’t. She may still love him, but she has other people in her life. He’s alone, with just the music.

Footnote : Ditto for the equally lazy critique about Seb being ‘racist’ because he’s a white guy out to ‘save’ jazz. To repeat: Seb is a fictional character, in a film. You’re invited to look sideways at the hubris that Seb exhibits, and at his zealotry for bop-era jazz. The film certainly does, and not just via the John Legend character. Mia, for instance, points out that for many people, jazz nowadays is Kenny G and that a lot of people treat it as background music and routinely talk over it. In reply, Seb heatedly defends the music, while talking over it.

But still… Seb would probably be the first to say that blacks have been its greatest practitioners, from Louis Armstrong to Duke Ellington, Charlie Parker, Billie Holiday, Ella Fitzgerald, Ornette Coleman, Sonny Rollins and John Coltrane, to Miles Davis etc. That’s not in dispute. Yet in reality, only two words are enough to rebut the political hipster’s true jazz-can-only-ever-be-black line of argument: Art Pepper. His music, and the autobiography Straight Life he co-wrote with his wife Laurie, disprove any notion that jazz and the hardships that inspire it are the sole preserve of any one race. There are others. (Seb sure likes Hoagy Carmichael a lot.)

Yes, Seb is evangelical about the unfashionable music he loves. So are a lot of people in their 20s. Monomania about music can be a bore, but the fire and passion and eloquence driven by an obsession can also be pretty attractive. What isn’t attractive: riding the slipstream of a film that’s popular for good reason, in order to try and seem superior to it.

Finally, here’s a scene from Dominic Chazelle’s previous film Whiplash, which show just how serious Chazelle is about depicting the monstrous level of commitment required to play jazz well – or, arguably, that’s necessary for anyone to excel at any form of art.

Oh, and despite what Spinoff says, there is a qualitative difference between what John Coltrane did and Seb playing a Flock of Seagulls cover version at a pool party. Or between Charlie Parker and a Phil Collins record. Only assholes would try to claim otherwise. otherwise.

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