Trump displays troubling disdain for the role of judges
Three weeks into Donald Trump’s presidency, the courts are already sending him a message that his power is not absolute. Now the question is whether he will heed that message.
A unanimous three-judge appeals panel refused last Thursday to reinstate his temporary ban on refugees and on travel from seven predominantly Muslim countries, finding that the administration gave the court “no evidence” that applicants from the seven nations presented a terrorist threat to the USA.
The judges also made clear that the president’s claim that his order was unreviewable by the courts “runs contrary to the fundamental structure of our constitutional democracy.”
While judges have long deferred to presidents on matters of immigration and national security, their authority does not disappear. Trump’s reaction, however, did not provide much evidence that he grasps this. He initially called the ruling a “political decision” and issued a combative “SEE YOU IN COURT” declaration via Twitter. On Friday, he termed the decision “disgraceful.”
The battle over the president’s poorly conceived immigration order has the potential to escalate into a dangerous confrontation over the critical role courts play in a democracy. The Founders, who knew all too well the dangers of a monarch with unassailable power, created independent courts as a check on executive and legislative actions that defied the Constitution.
This structure and the grudging respect for it accorded by the executive branch have served the nation well in times of crisis for more than 240 years. Richard Nixon obeyed the Supreme Court’s 8-0 order to turn over the Watergate tapes, knowing that it was likely to end his presidency.
While previous presidents have voiced anger about court rulings — President Obama famously criticized the Citizens Unit
ed decision during a State of the Union address with the justices arrayed in front of him — Trump has displayed a troubling disdain for the courts during his early days in office.
Trump has gone so far as to call a federal judge in Seattle who ruled against him a “so-called judge.” Even his own nominee to the Supreme Court — appellate Judge Neil Gorsuch — told senators during private meetings that he was disheartened by “demoralizing ” attacks on fellow judges. Good for Gorsuch.
As for the executive order at the heart of the court battles, there is no evidence that it kept any bad “dudes” out of the country during the brief, chaotic period it was in effect. But it did stop green card holders, as well as foreign college students, tech workers, college professors and a 4-month-old Iranian baby on the way to Oregon for heart surgery.
This is not to say that vetting of refugees and visitors from Syria and other nations in chaos could not be improved. But if this is really about preventing terrorism, as Trump asserts, he could quickly revise his order in ways that might better enable it to pass constitutional muster. The administration appears headed in this direction, while leaving open its legal options.
As any court challenges proceed, Trump would do well to make it clear that he’ll abide by the ultimate outcome, rather than try to undermine the judiciary right out of the gate.