woody zimmermann 120A new political role that could be called “Presidential Inspectors” has emerged in recent years and has now reached maturity. The PIs are something like an inspector general in a government agency, but with more clout. I refer here, of course, to federal judges at various levels who have taken on the role of “inspecting” decisions made by the president and deciding if they are (or are not) productive, correct, good, nice, discriminatory, racist, anti-religious, or (worst of all) “not who we are” as Americans.

Formerly, judges ruled on whether a president acted within bounds defined for his office by the Constitution. A president cannot, for instance, overrule a law just because he doesn’t like it. Nor can he abrogate any part of the Constitution. He can’t, for instance, “dissolve” the Congress, re-institute slavery, ban firearms, fire a judge or disband the army. Via executive order he can’t outlaw booze, tobacco, sugared drinks, automobiles, or any other legal commodities – even if he really hates them.

Other than on such (unlikely) issues as these, judges lack authority to rule on constitutionally-permitted presidential actions. A president has wide latitude to act in certain areas, and judges have no authority to second-guess what he does or doesn’t do, except where he is clearly outside the Constitution. Their opinions on the “goodness” (or not) of a president’s actions carry no more weight than the opinion of any other citizen.

In fact, no judges at any level can direct the conduct of either the president or the Congress. The courts can decide whether laws enacted by the Congress (and signed by the president) are Constitutional, or whether rulings made by lower courts are legally correct. But no judge can “order” the president or the Congress to do anything except to stop enforcing a law he finds un-Constitutional. Lower courts can “stay” such a law, and that ruling can be appealed to a higher court. But the Supreme Court is the end of the line. If the Supremes say “no,” that ruling is final.

That limited purview extends to states as well, although some state-courts have become more adventurous in recent years. In 2006 the New Jersey Supreme Court “ordered” the state legislature to pass a law giving same-sex couples the right to “marry.” The court gave the legislature 180 days to comply – or else.

Or else what? The court has no authority to order the legislature to do anything. In this case, the legislature complied, but it didn’t have to. New Jersey legislators could have made rude noises and thumbed their noses at the court because they don’t have to obey court orders. The court is not the “boss” of the legislature or the governor.

In 2015, evidently emboldened by its earlier success, Jersey’s Supreme court “fined” the state $100,000 a day until it authorized “adequate” funding for all public schools. I could find no record of whether the state actually paid the fine – or who got the boodle, if they did. (Perhaps it went into the Supremes’ coffee-fund.)

I suspect that the entire episode was just some New Jersey Kabuki Theater staged for the voters. The dirty secret about such court-orders is that legislators (and governors) secretly like having the courts do the heavy lifting on controversial matters that elected officials prefer not to touch. To voters who like the court-order they can say, “There, we got it done for you.” And to voters who dislike the order they can say, “Sorry, it wasn’t our fault. It was taken out of our hands.” So no messy mud-wrestling match, and no political damage. As we used to say back in the old neighborhood, “What’s not to like?”

It’s a newer thing for federal judges to critique how a president does the work he is clearly authorized to do – on immigration-controls, for instance. Since taking office, Mr. Trump has issued two executive orders restricting who may (and may not) enter the country. His first order named seven Middle-eastern countries from which immigrants would not be admitted into the USA for a period of three months. The countries were, in fact, the same ones named as “terrorism-prone,” two years earlier, by President Barack Obama: i.e., Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen. [1] (Of course, “naming” terrorist-prone countries is one thing. Doing something about them is another.)

Washington State Attorney General Bob Ferguson asked the U.S. District Court in Seattle to stop the order. Mr. Ferguson argued that Mr. Trump’s order was causing “immediate and irreparable injury” to tourism and student-recruitment in his state. Judge James Robart agreed and granted a temporary restraining order “on a nationwide basis.” The latter stipulation prohibited federal employees from enforcing Trump’s order. Thus, besides superseding the president’s authority on immigration matters, Judge Robart also assumed control of the federal workforce. (Not a bad day’s work.)

The basis for that restraining order is remarkably broad, since many lawful actions of the federal government could be said to cause “harm” to some party. Tax laws, for instance, harm some citizens by expropriating their resources and affecting income-levels unevenly. Military orders often cause harm by costing the life and health of some personnel. Indeed, Judge Robart’s own ruling could be cited as potentially causative of future “irreparable injury” to people who might be hurt or killed by terrorists whose entry into the country was enabled by stoppage of Mr. Trump’s immigration-order.

Instead of applying to the U. S. Supreme Court for reversal of Judge Robart’s ruling, Mr. Trump issued a new, “watered down” version of the immigration order which removed Iraq from the list of terrorist-threat countries and eliminated some other provisions contained in the first order. But the judicial outcome was no different. A federal judge in Hawaii immediately blocked the new order on questionable grounds of “religious discrimination.” District Court Judge Derrick K. Watson ruled that statements Mr. Trump made during his campaign showed his bias against Muslims and signaled that his immigration-control order’s true purpose was to bar people of that faith from entering the country. Legal scholars quickly noted that basing a judicial ruling on a candidate’s campaign rhetoric was a first for the country.

You don’t have to be a Juris Doctor in Constitutional law to see that our system of government was not designed to function in this way. And you don’t need a very high IQ to realize that it will collapse entirely if every governmental action someone dislikes can be taken to court and blocked by a judge. Which arm of government would be safe from such judicial incursion? Will military orders eventually come under court-scrutiny? The precedent set by these rulings is far-reaching and exceptionally dangerous – subversive, really. If the move isn’t arrested, it will eventually undo our entire Constitutional system.

Who can stop this judicial usurpation? Lawyers will naturally say that the Supreme Court must do it. Perhaps. But an old element of folk-wisdom declares that a problem cannot be solved by the same parties that caused it. On the question of how far courts can go, the courts themselves will almost always answer, “farther.” Entrusting an issue of this moment to the High Court for a correct resolution is a very risky proposition.

As this writer sees it, the solution lies in the hands of the people and the other two branches of the federal government. Mr. Trump is just getting his footing in his new office. He didn’t just fall off the turnip-truck, but he has no experience dealing with the inside-the-Beltway crowd’s arcane ways. Also, he is being advised by attorneys and others who accept the semi-divine right of the courts to rule on everything, including a president’s orders.

Did Mr. Trump want to avoid a big fight with the courts over this? I don’t know. But I do know that allowing any federal judge in the country to overrule a lawful action which the president has clear authority to take is not just a mistake. It is a fatal error that will cripple his presidency unless he moves quickly to correct it.

That correction must be a clear public statement by Mr. Trump declaring that –

  1. His legal advisors assure him that his immigration-order is entirely sound;
  2. The Constitution gives no judge authority to block it; and
  3. He is therefore overruling the judicial ruling and re-instating his order.

He must also specifically direct the federal workforce to enforce his executive orders or else face disciplinary action. The civil service’s nascent rebellion against the president’s authority must be nipped in the bud. If Republican Congressional leaders are wise, they will back Mr. Trump on this. If they don’t, they’ll regret it.

Every new president gets “tested” early in his term by opponents who want to see what he’s made of and how far they can go. Often those opponents are foreign nations, but sometimes they are domestic. Mr. Trump may eventually face both, but his internal political enemies are first to step up to the plate to see if he can throw one past them. I don’t know if Mr. Trump was ever a ballplayer, but he’s in the political Big Leagues now, and he’d better get warmed up. He’ll need a will of iron and a strong arm if he wants to govern. His opponents play dirty. And they make up their own rules.


[1] See “Obsession” – http://www.ahherald.com/columns-list/at-large/23628-obsession