The Trump administration’s attacks on the judiciary continue. First there were the tweets of the president himself when the ban was initially suspended, accusing one “so-called judge” and the rest of the legal system of putting the nation’s security at risk. Then, after the government’s appeal to reinstate the ban was rejected by the Ninth Circuit Federal Appeals Court, there was Trump’s absurd threat (given he was addressing judges) to see them “in court”. Now his policy advisor Stephen Miller has joined in, appearing in a interview on NBC News to accuse the Ninth Circuit Court of “overreaching” and to school the legal experts who had ruled against Trump on the extent of executive power.
The arguments against Trump’s travel ban are getting enough of an airing on every mainstream news site other than Fox News, but given the relentless assault on the American legal system, here are a few quick points that go beyond disputing the ethics of the executive order itself.
1) It is the number one job of the judicial system to evaluate the legality of government actions in terms of existing laws and the constitution. Judges swear an oath to do this impartially, without being swayed by political allegiance. In fact, two of the judges Trump has denigrated (one personally) were appointed by the Republican president George W. Bush. The system of dividing powers between the executive, legislative and judicial branches of government was written at a time when despotic kings were very much in the minds of the Founding Fathers. Their intention was to limit executive power and construct a system that could keep a dictatorial leader in check. So when people like Trump and Miller vilify the courts and intimate that the judges have no right to block the will of the White House, they are displaying either a profound ignorance or a blatant disregard for how the US system of government works.
2) On that point, the Trump administration does not seem to have an awareness of the complexities of governance. Lawyers opposing the travel ban were able to succeed in court three separate times because of the lazy and frankly sloppy way the executive order was drafted. In particular, the lack of clarity on whether it applied to permanent residents (green-card holders) who are protected under US law was an open goal for opponents seeking to tear it apart. Everything about the way the order was enacted, from the rush to announce it just a week after the inauguration, to the complete secrecy surrounding its inception (to the point where the relevant government agencies were not informed) points to a White House that was not interested in getting the details right. That might work for a shock announcement, but laws are complex, and if you want to change them, you need to put in the hard work of making sure the change is legally sound and properly thought through. The Trump administration, whether through laziness, inexperience or arrogance, refused to do this. The result is a suspended travel ban.
3) Executive orders will only get you so far anyway. When dealing with over-arching principles of US law, they tend to be the last resort used by presidents who cannot get the changes they want through Congress. When President Obama faced an obstructionist Congress that refused to work with him, with Republican majorities in both chambers, he turned to executive orders to push through initiatives on a range of thorny issues, from temporary amnesty for undocumented immigrants, to easing Cuban sanctions, to tackling climate change. In doing so, he ran the risk of his orders being repealed by the next president. In contrast, Trump has the House and the Senate at his disposal. So why is he not working with congressional Republicans to pass the laws that he wants? The answer seems to be a combination of basic impatience and an aversion to the grinding reality of getting bills passed through the US legislative system. Getting a bill through Congress takes stamina, compromise and hard work – Obama had both chambers supporting him at the start of his first term, and it was still a herculean task for him to pass the Affordable Care Act. It is logistically more straightforward to revert to executive orders, but it’s a shortcut that can easily backfire, especially if the orders aren’t properly thought through, which this one wasn’t.
4) Trump doesn’t care about any of this. His tirades against the judges who have ruled against him are part of a sustained attack on the US institutions designed to keep the presidential administration in check. (See also: calling the media “the opposition party”, instructing his team to lie from the podium of the White House press briefing room, personally berating any Senators and Congressmen who disagree with him.) He does not seem interested in actually keeping America safe so much as appearing to keep his unworkable campaign promises (e.g. banning Muslims) and setting up a false impression that he is fighting an establishment that is unfairly conspiring against him. It is all showmanship, a diversion tactic to distract attention from the chaos and conflicts with which his administration is ridden.
So was Trump’s ban on travellers from blacklisted Muslim countries a good idea? There are a hundred reasons to fight it, but even if you support the principle that the US should be more careful about who it lets into the country, the order itself is an example of shockingly bad governance. And the administration’s response is evidence that it’s only going to get worse.
