16 February 2017
Legally Binding
Mr Trump and the Law
by J.R.Thomas
Mr Trump is a man accustomed to employing the services of lawyers. Few businesspersons working in the world of real estate get far before they need to recruit the services of mi’ learned friends, and the Donald must be finding this to be equally true of presiding over the most powerful nation on earth. Having found his ban on travellers from seven countries with weak security screening foiled by an obscure federal judge in Seattle, (the problem was identified by the Obama administration rather than the Trump one, but the solution seems to be purely Trumpian) Mr Trump criticised the “so-called” judge. Whatever the President thought to Judge James Robart, appointed by President George W Bush in 2004, his ruling is not in doubt – the Homeland Security Service immediately lifted its ban on entry, preferring the judge’s law to the president’s executive order.
To UK readers this may seem strange, but it is not unreasonable. The judge’s law-making may be good or bad, but it is the interpretation of the law that counts, not decrees coming from the White House. The judge’s ruling can now be challenged, up to the Supreme Court, and whatever that Court says is what will then subsist. At least, it will unless the President asks Congress to pass legislation which puts his travel ban into law. Whether that will actually happen seems doubtful – the travel ban was only for three months in the first place, whilst screening was improved; and the Supreme Court as presently constituted leans more liberal than conservative, and would be unlikely to support this presidential order – at least, until Mr Trump gets his new nominee seated.
Which brings us to more legal doings, but not quite yet. This business of attacking judges is causing horror and outrage in the press; the thought of political or media attacks on the guardians of the constitution and the upholders of law is of course outrageous. No President has done this since…, well, since President Obama. He, to be fair, did not do it by tweet, nor did he attack a single judge – in his 2010 State of the Union address in front of not only Congress but also all the members of the Supreme Court, he attacked them for their decision in the so-called “Citizens United” case. And Presidents Nixon, Johnson (LB), and Roosevelt (FD) all let loose at the Court – Roosevelt calling them “nine old men” and “aged and infirm” because of their opposition to elements of the New Deal Programme. Even the UK press does not seem entirely to regard judges as above criticism – “Enemies of the People” said the Daily Mail of the UK Supreme Court in the Section 50 Case which they considered recently. And actually, in a democracy it would seem right that there is relatively free speech about the doings of the law, as much as anything else. If Donald wants to discuss this further he could ask his sister, Maryanne Trump Barry, a retired federal judge – appointed by Bill Clinton.
So how does Trump move on from this? Of course, one theory is that it is all deliberate, that Trump is pointing up that his opponents are soft on terrorism and not prepared to properly police the US’s borders, and that sooner or later some event will demonstrate this. Maybe so, but even to many Trump supporters the saga so far looks like too much rushing and bad drafting.
One of our US readers has been kindly guiding us through some of the extraordinarily complex and convoluted shoals of how the federal legal system works. The system is of course as combative as one might expect in a country as prone to litigation as the US can be. But it was designed to be. It is especially useful to those who wish to frustrate change, or action, or command. The US constitution was drafted by men of remarkable foresight who were the products of a great struggle for freedom; they were out to ensure that so far as a nation could be safeguarded against misuse of power and autocracy, the newly free American people should be. And without getting into any detail, that is why a relatively minor judge in a rainy city almost as far away from Washington as one can get, can countermand the President’s wish, even one newly elected who can argue that the popular will is on his side. The President’s next step was quite properly through the legal system, to three appellate judges; who heard the case, and decided that this was a matter of sufficient constitutional importance that the matter should go to the Supreme Court. That is not because they do not agree with Mr Trump, (though they may not) but because that judge in Seattle has perhaps intruded into a matter which may or may not be a concern of constitutional law; the extent to which the President has the right to exercise authority over foreign matters; or if arriving in the USA is in fact a domestic matter.
The constitution is not of course the Ten Commandments. Much has changed since it was written by those bewigged gentlemen, fresh from winning a war of independence. Slavery has gone, a civil war and two world wars have been fought; the population of the county is more than a hundred times greater than it was in 1776; indeed the country itself is much greater than it was then known to be. Cars and nuclear weapons and wireless technology have come along, cash is disappearing, and the President Tweets. Inevitably the constitution has also moved along, adapting itself to modern times – as it has done for over 200 years. But how should it adapt? By referencing the original and doing the very minimum in the spirit of what the Founding Fathers had in mind? Or by being proactive and looking at the spirit of our age? The latter approach is what the balance of the present court probably favours, a “liberal” interpretation of what the law should say – “liberal” as used as an epithet by Mr Trump and many Republicans. In this current matter it may thus seek to safeguard the rights of minorities, even from outside the US, even if this should allow the arrival of persons who might be a threat to the security and peaceful existence of Americans. The Trump camp would say that dealing with foreign matters is in the purlieu of the President, unless he needs to go to Congress for significant amounts of money. It is his responsibility to protect the country. (A true traditionalist might conceivably take a different view, saying that America should always welcome all, but nobody seems to be saying that at the moment, and in practice it was never quite that simple.)
But we are unlikely to hear the court on this. Mr Trump does not seem to want a fight. He may have made his point to the country already. He also has a more important battle coming up very shortly – the appointment of Neil Gorsuch as his nominee to the Supreme Court. Mr Gorsuch is aged 49, young for such an appointment, and a conservative, but not one generally regarded with too much disfavour by the Democrats. There is a danger though, that quite apart from a fight simply because he is a Trump nomination, the Democrats may seek to take revenge on the Republicans who blocked President Obama’s attempts to appoint a liberal to the vacant seat.
If Mr Trump expects a number of legal battles ahead, he will want Mr Gorsuch on the bench, and quickly (Though given the age profile of the present justices he may have another opportunity or two before long.) Mr Gorsuch has himself smoothed his own path, perhaps, by saying that Mr Trump’s attacks on the judiciary are “demoralizing and disheartening” – that may make him almost a bit of a shoo-in by the Democrats – if he is not shooed out by Mr Trump. But there is a big game going on here, and who knows who is dealing what; the Donald may yet turn out to be playing a longer and more subtle hand than his opponents give him credit for.
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