Don­ald Trump vs. the courts

Supreme Court judges should never be taken for granted

Cape Breton Post - - EDITORIAL - David John­son Dr. David John­son, Ph.D., teaches po­lit­i­cal sci­ence at Cape Bre­ton Univer­sity. He can be reached at david_john­son@cbu.ca

We all learned an im­por­tant les­son last week. While any pres­i­dent of the United States has a wide ar­ray of pow­ers con­ferred upon him or her by the Amer­i­can con­sti­tu­tion, no pres­i­dent, not even a Pres­i­dent Don­ald Trump, has ab­so­lute power and no pres­i­dent is above the law.

Last week, the 9th United States Cir­cuit Court of Ap­peals, lo­cated in San Fran­cisco, ruled that Trump’s Ex­ec­u­tive Or­der ban­ning en­try into the United States for a pe­riod of three months for per­sons com­ing from seven pre­dom­i­nantly Mus­lim coun­tries, while also in­def­i­nitely pro­hibit­ing en­try for any­one from Syria, was un­con­sti­tu­tional and thus of no force or ef­fect.

In now pre­dictable fash­ion, Pres­i­dent Trump ex­pressed out­rage over this de­ci­sion, stress­ing that the three judges on the Court of Ap­peal were putting Amer­i­can na­tional se­cu­rity in jeop­ardy. In their unan­i­mous judg­ment, the judges found that the fed­eral At­tor­ney Gen­eral had failed to show any evidence that all peo­ple from th­ese seven coun­tries posed a threat to Amer­ica.

The Trump White House now has the op­tion of ap­peal­ing this judg­ment to the United States Supreme Court for a fi­nal res­o­lu­tion, or draft­ing a new Ex­ec­u­tive Or­der on im­mi­gra­tion that would com­ply with the Amer­i­can con­sti­tu­tion.

If Pres­i­dent Trump au­tho­rizes an ap­peal to the Supreme Court in Wash­ing­ton, D.C., the fed­eral gov­ern­ment will be bring­ing an ap­peal to a court with only eight sit­ting judges. Last year, Mr. Jus­tice An­tonin Scalia, a repub­li­can ap­pointee with pro­nounced con­ser­va­tive in­stincts passed away, leav­ing the U.S Supreme Court di­vided be­tween four noted con­ser­va­tive judges fac­ing off against four noted lib­eral judges.

Pres­i­dent Obama sought to tip the scales of jus­tice to the lib­eral side with the nom­i­na­tion of Judge Mer­rick Gar­land, but Repub­li­cans in the Se­nate re­fused to even con­sider his ap­point­ment. Un­der the Amer­i­can con­sti­tu­tion Se­nate con­fir­ma­tion of a pres­i­dent’s nom­i­nee is re­quired in or­der for that per­son to be ap­pointed to the Supreme Court.

Now, this open seat on the court is sub­ject to Pres­i­dent Trump’s ini­tia­tive and he, not sur­pris­ingly, has se­lected a noted con­ser­va­tive judge, Neil Gor­such to re­place Mr. Jus­tice Scalia.

This nom­i­na­tion is now in the hands of the Se­nate and also, not sur­pris­ingly, Se­nate Democrats are balk­ing at Judge Gor­such’s ap­point­ment. While it’s prob­a­ble that the Se­nate will even­tu­ally con­firm Gor­such in that he tends to be seen as a mod­er­ate con­ser­va­tive, don’t ex­pect such Se­nate con­fir­ma­tion to come any time soon.

This means that if Trump ap­peals his Ex­ec­u­tive Ap­point­ment travel ban to the Supreme Court, the eight judges on this court may come to a 4/4 split de­ci­sion. In such a case, the rules of the Supreme Court stip­u­late that a ma­jor­ity of the court has not over­turned the lower court de­ci­sion, mean­ing that the lower court de­ci­sion is up­held as valid law.

Once again we may see a vivid ex­am­ple of the con­sti­tu­tional lim­i­ta­tions on Pres­i­dent Trump’s power. It’s also in­trigu­ing to spec­u­late on how the Supreme Court might deal with this mat­ter even if Judge Gor­such was on the court. While court-watch­ers have long noted a ten­dency for the mem­bers of the court to di­vide be­tween lib­eral and con­ser­va­tive approaches to law, jus­tice and the con­sti­tu­tion, th­ese di­vi­sions are never set in stone.

In the 1970s and 80s, Mr. Jus­tice War­ren Burger, a repub­li­can-nom­i­nee, came to be a swing-vote on no­table cases deal­ing with equal rights, the abo­li­tion of the death penalty, and the abor­tion de­ci­sion of Roe v. Wade. Like­wise, Mr. Jus­tice John Roberts, the cur­rent Chief Jus­tice and also a re­pub­li­can­nom­i­nee, cast the de­cid­ing vote to up­hold the con­sti­tu­tion­al­ity of Oba­macare in 2012.

Supreme Court judges should never be taken for granted. And their ul­ti­mate loy­alty is not to the pres­i­dent who nom­i­nated them but to the con­sti­tu­tion they are sworn to pro­tect.

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