Judicial politics

Dear Donald –

You’re a power and control guy, and I get that. You probably even decided to run for office, in part, just because of the power it affords, thinking that, with that much power, no one would question your value anymore.  People with power get to do things and people without power can’t tell them “no,” right? After all, what is power if not the ability to impose your will? It’s been a standard trope of your campaign and your Administration so far – you alone have the power to do things and everyone should bend to your will. It’s why the Women’s March irked you so much – uppity women folk not falling in line. 

I’ll give you this – you’ve got a lot of power now. At your word, people will put their lives on the line to fulfill your orders (and have already died doing so). You can control a lot of things, but in our system of government, no one has absolute power. Everyone gets checked by everyone else. It’s how we avoid tyranny. Now, I’ve already made it clear that I think your Executive Order on immigration is illegal if not unconstitutional. At a minimum, it was so poorly crafted and executed that it practically constitutes malpractice. Nonetheless, we saw the power of your office brought to bear on the world stage as DHS began to implement it. And we saw the awesome power of an unassuming Federal judge in Washington who brought it to a screeching halt. 

You see, that’s the fun thing about power in a constitutional democracy. Your fancy house and your “Hail to the Chief” is no more powerful than a black robe and a gavel. 

You complained that the “courts are so political” and that a “bad high school student” would rule in your favor. And you’re probably right. A bad high school student might rule in your favor. That’s why bad high school students aren’t Federal judges. Judges are expected to understand the Constitution, legal theory, and judicial precedent. They’re expected to take all of this into account, regardless of who is standing in front of them. They shouldn’t be swayed by the righteous indignation of a bloviating chief executive. They should be swayed by facts and reason. And, in my mind at least, reason dictates that your order creates an immediate and ongoing harm to people in this country and abroad, one that outweighs any vague insinuations of amorphous international threats. I think they were right to put a temporary stop to it (and probably should kill it altogether). 

What concerns me most about your behavior as of late isn’t necessarily your unhinged tirades on the issue. That’s gotten to be par for the course. What concerns me is your questioning of the very authority of courts and “so called judges” to make these decisions. I had real concerns that, earlier this week, you were going to order DHS agents to continue enforcing the order in defiance of the court ruling. Thankfully, they complied with it, but what happens next time?  What happens if, God forbid, there is an attack and you decide to round up all Muslims in this country and suspend habeas corpus? If a judge tells you to stop, will you? Or will you question their authority to do so? Arguing an ongoing security threat validates your actions, regardless of the Constitution,  is dangerous. But you’ve already laid the groundwork for that. You already said that, if something happens, the courts should be blamed. 

At the end of the day, it may come down to civil servants and bureaucrats to stand in your way. You see, despite all the trappings of office, power is really whether people are willing to do what you say. It’s why the judiciary relies on Congress and the Executive to actually follow through on their orders. If you ignore the order, what power do they have? By the same token, if civil servants ignore your illegal orders, what power do you have? Understand that, at the end of the day, the courts aren’t the only ones who can say “no.”  Federal workers swore to uphold the Constitution and the led of this country; they didn’t swear a loyalty oath to you. I’m willing to bet that, if you make the mistake of crossing a line in the future, they’ll choose the Constitution over you. 

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