Even the most ardent fans of President Donald Trump should see this week’s appeals court ruling upholding a freeze on his travel ban not so much as a personal setback (as much as the president might take it that way) and surely not as some compromise of national security (an argument unsupported by the facts) but as a triumph of our Constitution’s checks and balances and the rule of law. The Trump administration had argued that the federal courts had no purview in the matter, a claim that is fundamentally at odds with the very foundation of our republic.
Whatever one might think of the protests and marches by aggrieved citizens or the late-night talkathons in the U.S. Senate, all of which have sought to rein in this president during his first several weeks in office over a wide variety of issues, Thursday’s unanimous decision by a three-member panel for the U.S. Court of Appeals for the 9th Circuit has demonstrated that no one is above the law. The courts do not cave to executive power, they do not respond to belittling or bullying, they do not tweet nor do they write laws or enforce them. They are a co-equal branch of government whose purpose is to judge the cases brought before them.
In many respects, the ruling was not definitive. It only maintains the status quo while President Trump’s executive order regarding immigration is litigated. But the decision also signaled more than that. The judges — appointees of presidents from both parties — showed skepticism toward the administration’s posture on most every front, over the national security argument, over the claim that the order did not discriminate based on religion, on the notion that states lacked standing to sue and, most significantly, over Mr. Trump’s claim that the president has unchecked authority to make calls about immigration. Nor did the court even offer an opportunity for the administration to somehow downsize its original order to comply with the law.
In other words, the judicial branch did what any good umpire must do — to invoke Chief Justice John Roberts’ well worn metaphor — they called the balls and strikes as they saw them. Isn’t that exactly what political conservatives have long sought from the judiciary? When the U.S. Supreme Court ruled against the last administration, President Barack Obama may have disagreed, but he did not label them "so-called judges" or accuse them of being "so political." When Justice Samuel Alito was famously caught mouthing the words "not true" on camera during an Obama address to Congress seven years ago, it was because the president had described the Citizens United ruling striking down campaign finance reforms as having "reversed a century of law to open the floodgates of special interests" (an observation proven true, incidentally), not because Mr. Obama was trying to delegitimize the judiciary.
Americans needed this reassurance that a president with so little concern for laws, who sees nothing wrong with profiting from his office, keeping his personal finances a secret and promoting his family businesses, who makes up his own reality and who cozies up to a dictator while brushing off important allies, can be held accountable by someone at some point, thank the founders. As James Madison observed centuries ago, the truth is that "all men having power ought to be mistrusted." Perhaps no president has better illustrated Madison’s point so thoroughly — and within a mere three weeks in office.
If President Trump’s travel ban reaches the Supreme Court, some predict that justices may look for a middle-ground ruling rather than an all-or-nothing decision.
Such a move could allow the high court – currently split, 4 to 4, between Republican and Democratic appointees – to avoid a tie and put…
If President Trump’s travel ban reaches the Supreme Court, some predict that justices may look for a middle-ground ruling rather than an all-or-nothing decision.
Such a move could allow the high court – currently split, 4 to 4, between Republican and Democratic appointees – to avoid a tie and put…
Let the 9th Circuit’s ruling be the first of many such actions in the months and years to come. The courts are the last line of defense against authoritarian rule, and Mr. Trump, who built a business empire by suing and threatening to sue on thousands of occasions, must recognize their important role in governance and not just profit-making.
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