Trump war with the Court System

Dangerous game, and look like a strategy from the Trump admin.

An Islamic attack will happen and if the timing is right, Trump could raise up his anti-Judge army, creating a constitutional crisis.



Trump Just Declared the ‘Court System’ a Threat to National Security

Federal judges get things wrong. If everyone in American politics can agree on anything, it’s that. Sure, Bernie Sanders resents judges for finding that corporations are people, while Louie Gohmert resents them for inviting God to rain hell on our modern-day Gomorrah — but both agree that judicial wisdom is not infallible.

Nonetheless, when Barack Obama revealed that he held this all-but-universal opinion, by criticizing the Citizens United decision in his 2010 State of the Union, conservatives were scandalized. And not entirely without reason: The quickest path to a constitutional crisis is a rift between the Executive branch and the Judicial, so we generally expect our president and Supreme Court justices to play nice.

Obama acknowledged this norm in his carefully worded rebuke.

“With all due deference to separation of powers, last week the Supreme Court reversed a century of law that, I believe, will open the floodgates for special interests, including foreign corporations, to spend without limit in our elections,” the president said. “And I urge Democrats and Republicans to pass a bill that helps correct some of these problems.”

Obama prefaced his remarks with a nod to the legitimacy of the court’s power, and then called on legislators to pass reforms that might mitigate the substantive harms of the Citizens United ruling.

In his first run-in with the law, our new president has taken a different approach.

Donald Trump spent much of his presidential campaign promising to use executive power to discriminate against Muslims. Upon election, he promptly banned immigration from several Muslim-majority nations, via an executive order that was Breitbart-tested but not cabinet-agency-approved.

This led to chaos at airports, on-the-fly revisions to the government’s interpretation of its own order, and a bevy of legal rebukes.

Last week, judges in New York, Massachusetts, Virginia, and California stayed the order — or aspects of it — on a variety of legal grounds. Then, on Friday night, U.S. District Judge James Robart delivered the body blow.

Unlike other plaintiffs, the state of Washington did not challenge discrete provisions of the executive order, or merely the process by which it was implemented. Rather, the state argued that the order was in fundamental tensions with both federal law and the Constitution. Robart ruled that Washington’s argument was likely to succeed on the merits — and ordered a halt to nationwide enforcement of the travel ban.

In his response to the ruling, the president did not preface his displeasure with a hat-tip to the separation of powers.


✔@realDonaldTrump
The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!
7:12 AM - 4 Feb 2017

It was more than a little disconcerting to see the president frame judicial independence as a threat to law and order, while questioning the legitimacy of a dissenting judge’s claim to legal authority. But, at least, Trump’s outrage was focused on a single judge and judicial opinion. Further, the president suggested that he would seek vindication through proper legal channels.

But hours later, Trump upped the ante — framing the existence of judicial review as a sign of national decline.

✔@realDonaldTrump
What is our country coming to when a judge can halt a Homeland Security travel ban and anyone, even with bad intentions, can come into U.S.?
2:44 PM - 4 Feb 2017

Still, superficially, Trump’s complaint was with an individual judge, not the Judicial branch, itself. But then the Ninth Circuit Court of Appeals rejected the White House’s request for an emergency stay of Robart’s decision — and the president made his contempt for the courts explicit.

✔@realDonaldTrump
Just cannot believe a judge would put our country in such peril. If something happens blame him and court system. People pouring in. Bad!
2:39 PM - 5 Feb 2017

Six years ago, the president expressing dismay over the consequences of a Supreme Court decision — while stipulating his respect for the ruling’s legitimacy — was treated as cause for concern.

Imagine if Obama had instructed the American people to blame the next financial crisis on “the court system” — since it had allowed bad campaign donations to come “pouring in.” There is no doubt that such a statement would have made for front-page news and talk of impeachment.

But we have already become so desensitized to our new president’s 140-character authoritarianism, the fact that Trump characterized the “court system” as a national-security threat did not qualify as headline news Monday morning.

We should not gloss over this. This was not merely an intemperate tweet. It was the president instructing the American people to view the next terrorist attack on U.S. soil as an indictment of the judiciary. And it isn’t just Trump himself who’s pushing this line. In its legal challenge to Robart’s ruling, the White House argues that the federal judge was in no position to rule on the propriety of the executive order, because he lacks access to classified intelligence.

✔@FoxNews
.@SebGorka: "[Judge James Robart] doesn't have the daily presidential intelligence brief. He has no idea what the threats to America are."
9:37 AM - 5 Feb 2017

This is an argument for allowing our fear of terrorism to overwhelm our commitment to the rule of law — a line of reasoning that poses a far greater threat to the American form of government and way of life than any closeted-jihadist refugee ever could.

 

Also a good read -

WHAT WOULD A CONSTITUTIONAL CRISIS LOOK LIKE?

Keith Whittington usefully identifies two types of constitutional crisis:

Operational crises arise when important political disputes cannot be resolved within the existing constitutional framework. (p. 2101)

Crises of constitutional fidelity arise when important political actors threaten to become no longer willing to abide by existing constitutional arrangements or systematically contradict constitutional proscriptions. (pp. 2109-10)

In the context of Trump, an operational crisis would occur if Trump directed border agents to disobey a judicial order blocking his temporary immigration ban. The agents would then need to choose whether to obey the president or the judge, with perhaps no clear sense of the proper thing to do. Trump has not issued such an order. But the sense that we may be on the brink of crisis arises because he has personally attacked Judge Robart, who issued a nationwide TRO, and has laid the groundwork for a more vigorous attack on the independence of the judiciary if a terrorist attack takes place in the future. If Trump successful cows the judiciary or the judiciary stands up to Trump, then a crisis might be averted. Whether the outcome is good or bad depends on your view of presidential power.

A crisis of constitutional fidelity could play out as follows. Suppose it turns out that Trump really seeks to pursue the alt-right agenda of purifying America of foreign influences, starting with Muslims. The executive order, which was limited to only seven countries, was just the first step in a broader plan. If so, Trump repudiates a norm that is currently regarded as constitutional by the legal and political establishment: a norm of nondiscrimination on the basis of religion. (I think there is in fact some question whether such a constitutional norm exists with respect to foreigners not on American territory, but put that aside.) A constitutional crisis will exist if Trump has such a plan and seeks to carry it out, especially if he tries to extend it beyond the limited confines of the executive orders.

How might a constitutional crisis play out? It depends on how public officials and ordinary people react to the allegation that Trump (or other officials) have acted unconstitutionally. There are many possible scenarios (public demonstrations, government paralysis, etc.), but it seems premature to imagine them.

It is possible to think that constitutional crises are not bad but good. The crisis that led to the Civil War ended with the abolition of slavery. The crisis initiated by Franklin Roosevelt’s court-packing plan eventually placed the administrative state on a firmer constitutional footing. What is distinctive today, putting the earlier crises in sharp relief, is that the challenge to the status quo has been brought by the forces of reaction, with liberals on the defense.

 

If it's that clear cut, it would not have been halted nationwide. Since it was, you should think twice about 100%. It is not. You missed the part that discrimination is not allowed. And probably other grounds... but I'm no constitutional lawyers to make any 100% claim.

No, running a stupid mouth isn't criminal exactly. But this isn't about criminal in that manner exactly - this is about a constitutional crisis when the executive branch is stepping over the judicial branch through public rage. It's the same playbook Trump and Bannon has used forever. Let's not be so blind to it.

 

I'm with you - it probably wouldn't work - I still believe in the American public. But it would damn be messy and dangerous. If it does play out, and let's hope not, I don't think it's a pretty picture.