Checks and Balances

The legal battle over the Trump administration’s immigration ban has reminded me of how much I love the law. Even though I’ve been practicing for 42 years, I still find it remarkable that a thoughtful resolution is achieved, however painful it may be to one side, through a process of fact-finding, arguments and deliberations.

I’m not alone in my affection for the court system. The founding fathers were so enamored of our judiciary that they made the courts one of the cornerstones of the republic, a key element in our system of checks and balances.

Although judges are often appointed against a backdrop of political maneuverings, it is hoped that once on the bench, they will decide cases on the merits, free from outside influences. To advance that cause, they are bound by strict ethical standards and are prohibited from engaging in politics, with the exception of judges who are seeking re-election (and then, only for a very limited period of time). It is also expected that the legislative and executive branches of government demonstrate restraint in expressing any consternation toward their rulings of the third branch of government, lest they undermine the critically important public credibility and authority of the judiciary. Restraint, however, is not part of the Trump administration’s playbook.

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As a candidate, Trump attacked a federal judge presiding over a class action lawsuit against Trump University. On June 2, 2016, Trump told The Wall Street Journal that Judge Gonzalo P. Curiel had “an absolute conflict” in presiding over the litigation given that he is “of Mexican heritage” and a member of a Latino lawyers’ association. The fact that Judge Curiel was born in Indiana did not deter the future president from making his bigoted attack.

Throughout our history, we’ve learned to expect occasionally outrageous behavior from our candidates but we’ve always held our presidents to a higher standard. Once elected, we hope the president governs in a manner befitting the title that was once shared by the likes of Washington, Jefferson, Lincoln, Roosevelt and Kennedy. During President Trump’s brief time thus far in office, that expectation, along with civility and truth-telling, have been disturbingly absent. He continues his pattern of asserting “facts” that are easily disproven as well as verbally abusing anyone who he believes stands in his way:

1) A few years ago, Acting Attorney General Sally Yates was asked during her confirmation hearing  by then-Sen. Jeff Sessions of Alabama whether she would put the Constitution ahead of her loyalty to the president. She answered yes. True to her word, she recently refused to defend Trump’s immigration ban because she was “not convinced that its defense was consistent with these responsibilities.” Having defied President Trump, it was clear she was going to be fired. It is true that the president has removal power over the attorney general, but there must exist a reasonable legal ground. Trump, however, fired her because she was “weak on borders and very weak on illegal immigration.” Such a personal attack is not only inappropriate, it is yet another illustration of his misconception of his legal powers.

2) The president, disappointed with Judge Robart’s stay of his ban, called him a “so-called judge.” It didn’t make any difference that the federal judge was a Bush appointee who had a solid reputation. What mattered was only that he had ruled against the administration. Even worse, President Trump is setting up an inevitable showdown between the two branches of government by suggesting that the Judge and the entire court system will be responsible for any future terrorist attack, should one occur. Turning to social media, he intimated, “If the U.S. does not win this case as it so obviously should, we can never have the security and safety to which we are entitled. Politics!”

Last Tuesday, when the federal appeals court heard the case about lifting the Trump immigration ban, I was reminded yet again why I love our justice system so much. No insults were hurled; no angry outbursts were childishly displayed. Instead, arguments were advanced and challenged, reasonably, with passionate restraint. We could only hope that the president would comport himself in the same respectful manner.

Overwhelmed by the court proceedings and the sheer chaos that resulted from the ban’s (deliberately?) poor implementation, it is not surprising that we might lose sight of the very human consequences of what advisor Giuliani referred to as a “Muslim ban.” Actress Angelina Jolie put it best when she recently wrote: “Refugees are men, women and children caught in the fury of war, or the crosshairs of persecution. Far from being terrorists, they are often the victims of terrorism themselves.”

Echoing the sentiment that is enshrined on our glorious Statue of Liberty, Ms. Jolie continued, “I’m proud of our country’s history of giving shelter to the most vulnerable people. Americans have shed blood to defend the idea that human rights transcend culture, geography, ethnicity and religion.”

Ultimately, the courts will decide the constitutional limits on the executive power regarding this issue. We must demand that our president respect the importance of an independent and politically free judiciary, as it is a founding pillar of our democracy.

The opinions expressed herein are the writer's alone, and do not reflect the opinions of or anyone who works for is not responsible for the accuracy of any of the information supplied by the writer.

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