As a lawyer who has practiced in courts including the Supreme Court of the United States, and as part of an organization that vindicates our clients’ rights in our courts, it is clear to me that we are in the midst of a constitutional crisis.
The president of the United States is engaged in a campaign to erode public confidence in our federal courts — so he can rule in an unchecked fashion.
The president’s nefarious and dangerous campaign emerged in plain sight this week in an ACLU case involving the Trump administration’s efforts to rewrite our nation’s asylum law. President Donald Trump recently signed an executive order which purported to deny the ability to claim asylum to anyone who did not make the request at a port of entry. Congress has not made this requirement part of immigration law, so the president’s order was clearly in violation of law.
A district court judge, in response to a lawsuit by the ACLU and another human rights organization, temporarily blocked enforcement of the president’s order for a few days while the court considers more detailed arguments on the matter. This is a perfectly normal process — giving the parties time to make their case but blocking enforcement of a measure that could do harm to vulnerable individuals.
The president’s response was predictably over-the-top. He called the decision a “disgrace” and suggested that the judge (and all the judges of the Ninth Circuit even though they were not involved in this decision) was political since he was appointed by former President Barack Obama. He claimed he would be putting in a “major complaint” and suggested that the temporary bar on enforcement risked national security.
Seemingly disgusted by the president’s remarks, the usually taciturn Chief Justice John Roberts issued a measured, but strong rebuke making clear that one of our nation’s great hallmarks is an independent judiciary that carefully and faithfully interprets our laws and the Constitution. Again predictably, the president lambasted the chief justice on Twitter (after having called Roberts a “disaster” during the presidential campaign).
Putting aside the lack of decency and decorum from the Oval Office and the reality that the president gets nearly everything wrong about this situation, this latest attack on the judiciary must be seen in the larger context. President Trump simply does not understand our system of government with its checks and balances. And, his love for dictators and despots across the globe reflects his own desire to operate without limits or accountability.
In the nearly two years that Donald Trump has occupied the White House, we have seen this tendency grow and become less subtle. Trump’s attack on the media as the “enemy of the people” is evidence of his aversion to anyone who questions his policies, his misstatements and the malfeasance of his administration. When someone points out questionable activity by the White House or his cabinet, the president blames others and denies the right of the media or others to question him.
And when the courts seek to enforce the rule of law by holding the president accountable, he lashes out, suggesting to his shrinking base of supporters that the actions of the court, rather than the White House, are motivated by politics and self-interest. It is especially dangerous that this campaign against the courts is ramping up now that the administration will be held accountable by a House of Representatives led by a majority of the opposite party.
Let me be very clear. I do not agree with every decision by every court across our state and federal systems. But it is clear that the men and women who preside in courts across the nation do their best to make decisions on the basis of the law and the facts. It is a difficult job in the best of circumstances. It is made even more difficult when a demagogic president uses decisions he disagrees with to sow disrespect for the rule of law and division in our country.
We need an independent judiciary as a check to protect basic rights. It is exactly the role our founders designed for the courts. It is a threat to that constitutional order — and our very republic — when the president attacks the judiciary in an attempt to justify lawless actions. And, like the chief justice, we must be stirred to action and resolve. Our nation must not bend our principles to the autocratic will of Donald Trump. Instead, we must hold him accountable within that system.
Not doing so presents a fundamental threat to our the constitutional system that is the foundation for our democracy.
Colleen K. Connell, a lawyer, is the executive director of the ACLU of Illinois.
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