Day 25 A mere 1,437 days to go
A few days ago the White House let it be known that they would issue a new, presumably narrower, executive order on immigration. The disastrously bad order of two weeks ago having been stopped in the Courts, Trump and co. initially claimed they would of course take it to the Supreme Court where they were sure they would win. They haven’t done that, and they won’t, since losing in the Supreme Court right off the bat, while it would let Trump vent more about how the Courts are all biased and liberal and should stay out of his way, would not really serve the new administration. So they will write a new executive order, maybe even have lawyers look it over first, and while I probably won’t like it and it seems unlikely to actually do anything to reduce the threat of terrorism here – their grasp of the causes of terrorism is minimal – perhaps it will be constitutional.
The main lesson for this for the public should be how little regard the Trump White House has for the court system. They have maintained that the Courts don’t get to determine whether what Trump orders is Constitutional, that on national security he can do whatever he wants. But we are a country governed by law, as embodied in the Constitution, that is above the individuals who are elected or appointed to office. Of course, someone has to determine what is Constitutional. If you look in the Constitution itself, it doesn’t say who does this. But a few decades into the young nation’s history this was settled, it is the Supreme Court’s job to interpret the Constitution, meaning in practice whether laws or things like executive orders are acceptable under the Constitution. Anyone can disagree with a Court ruling – some people hate Roe, I hate Citizens United – but the Court is and has to be the last word on this if we want to remain a nation of laws. If Congress and the public disagree strongly enough with the Court, they can amend the Constitution, a deliberately difficult process. Or hope that down the road a different Court will change the earlier ruling, as Brown in 1954 overturned Plessy from 1896.
Imagine if President Trump could actually do whatever he wants on national security and it could not be checked by another part of government. He could define anything as a matter of “national security” and, if the White House had its way, there would be nowhere people could turn to stop him. He could ban people from coming to the US if their nation of origin allows gay marriage. He could declare that people can only vote if they have a receipt showing they have stayed at a Trump hotel or golfed at a Trump resort. Silly examples? I certainly hope so. But without the courts as guardians of the Constitution, he could pass an executive order on anything, label it national security, and it would have the force of law.