Wednesday, 8 February 2017

A constitutional for a so-called president [updated]


“So Called President upset by So Called
Judge adhering to So Called Constitution.”

~ Timothy Sandefur

The new US president remains outraged that what he called a “so called judge” in far-offSeattle who had the temerity to block the president’s Executive Order banning travel from seven countries.

That outrage today takes him – or at least his White House lawyers – into court to argue for the Order’s constitutionality. The very idea a president has to actually argue for his decree baffles and enrages him. “When a [president] is no longer able to say who can, and who cannot , come in & out, especially for reasons of safety &.security - big trouble!” That was Trump’s barely coherent Twitter response. His lawyers’ more considered response, at the president’s behest, claims “that the federal courts have no business taking ‘the extraordinary step of second-guessing a formal national-security judgment made by the President himself pursuant to broad grants of statutory authority.’"

“No business.” “Second-guessing.” “Broad grants of statutory authority.” It’s clear the so called president sees his authority as something unlimited by that so called constitution.

But as we say about the various checks and balances like this that inhabit a decent constitutional system, they’re a feature not a bug. Those “broad grants of statutory authority” come with important limits – like veto powers exercised by properly constituted courts.

You see, there’s a difference between an autocracy and a constitutional republic that the new president (and many of his followers) has never ever grasped.

Autocratic rulers rule by decree, and their underlings act as a rubber stamp. In a constitutional republic however, in a decent one, presidents, judges, politicians are all shackled. They’re chained up by the constitution – that little thing to which they swear allegiance at the beginning of their term – chained up to preserve and protect the purposes set out by the constitution which, in the American system, are The People’s individual rights.

Trump’s reaction to his decree being questioned by a judge bearing the constitutional authority to do just that suggests that perhaps the first time the “short-fingered vulgarian” had seen the constitution was when he laid his small hands upon it at that swearing in.

So thank goodness he’s now being given a lesson in how it works. If he had a mind capable of learning.


    Trump’s argument is that the judiciary gives insufficient deference to the president in the area of national
    security, he has jumped the gun. While the Supreme Court has ruled against the Bush administration’s
    counterterrorism policies in a few cases, the practical effect of those rulings was limited; the judiciary as a
    whole largely acquiesced. Judicial doctrines that touch on national security [already] give significant leeway
    to the president.”

This is just the sort of nuanced question and answer on which a Chicago law professor would love to cogitate. I think however that the correct answer is very simple: “there is no Trumpian View,” except to say Cheeto Jesus has been surprised to discover that there are something called “constitutional limits” on what he erroneously thought was the absolute power of the presidency.

  • .Philosopher Greg Salmieri weighs in:

    “’Just cannot believe a judge would put our country in such peril. If something happens blame him and court system.’
        “The man who said that has taken a lot of heat for attacking the judge in question, and the attack is unjust (even if it turns out that the man is right either about the relevant points of law or about our national security needs), but what ought to horrify anyone who cares about America is the last three words. What this man is attacking here is the separation of powers as such. What he is saying is that what we need to keep us out of peril is a system where the courts cannot check presidential power.
        “Whatever his other rhetoric, no one who says that, and no one who supports him, really loves America.
        “At his core [the American] president is opposed to the very essence of this nation. And that is a fact that we all have to acknowledge and deal with.
        “Whichever of the awful options in this last election you decided was the least bad, and even if you think the alternative would have been even worse, the fact remains that this president is anti-American, and you need to decide which as side you're on. Do you want a country in which whoever the public whim of the moment sweeps into the oval office can do whatever he pleases, or do you want a constitutional republic with checks and balances? Do you want Trump or do you want America?
        “No need to answer me in public. But it's something each American will need to answer for himself in the privacy of his own mind.”

And also every non-American loudly waving a Trump flag who claims to value that country’s founding ideals.


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