The decision, last night, by the three judge appeals court panel in the Ninth Circuit to uphold the lower court’s stay of Trump’s travel ban reminds us all that, under the Constitution, we have three separate but equal branches of government.
The lower court’s ruling was probably wrong, given the opinion and the background to it. A President Trump has the power to impose such travel bans just as any president would have and the courts are not in a constitutionally authorized position to second guess presidents, any presidents, on this score. In a reasonable world the lower court ruling could be expected to be overturned on appeal, if not at the appellate level (given the Ninth Circuit’s unfortunate track record), then at the Supreme Court. But in a world where a real estate/reality TV mogul is the American president, things no longer look reasonable. We are very badly divided just now and Donald Trump (both in his persona and his actions) has contributed to that.
Our Trump-fueled division has now led to a firestorm across the country and a powerful wave of resistance in reaction to what appears to be the president’s arbitrary and draconian ban on travel from certain countries to the United States. Given the equal split at the Supreme Court, President Trump cannot even be sure his order will be upheld at that level at this point.
Had he shown a little more patience and judgment, had he waited a little longer to effect his executive order, he might have produced a better one which would have created far less blowback — and he might have had a Supreme Court with his nominee, Judge Neil Gorsuch, on the bench giving him a real chance of getting an outcome at the highest court consistent with the preservation of the Constitution’s separation of powers provision — one that preserves a president’s prerogatives to act in this arena.
But Trump, being Trump, couldn’t wait. He had to bull ahead in a heedless rush to force his will on the nation and the result has been a massive backlash which he has only made worse by his foolish tweeting, exposing his personal pique with the courts. He has insulted the judges involved and interposed himself in the legal wrangling in unseemly ways.
By all rights, Trump, as president, should be able to issue this sort of executive order. It’s within the purview of the presidency. But Trump has shaken the country to its foundations (and we’re only three weeks into his young presidency). It’s reflected in the judiciary as much as it is in the streets and airports and our broadcast media. Donald Trump has undermined the prestige and prerogatives of the office he won. It could have long term implications for his successors.
Meanwhile Trump’s court setback must serve as a welcome reminder to us all that we are a nation of laws and constitutional standards. To succeed any president, even Trump, needs to win broad national support (something that seems to hold little interest for him) and follow the rules — both written and unwritten. If he doesn’t, the institutions of this nation are structured to constrain him and, should it regrettably come to it, even remove him from office. Threats, bluster and bullying aren’t enough to make the country work. President Donald J. Trump is about to discover that America isn’t a subsidiary of Trump, Inc.