Saturday, February 18, 2017

What If…

Liberals are counting on it. Republicans are biting their tongues. Constitutional scholars are projecting what could or would happen. Populist voters don’t care. The international community fears the resulting instability. But it has happened before. Even recently.
Barack Obama ignored a 2012 state court subpoena to appear from a Georgia judge, in a case challenging whether the President was a constitutionally-qualified candidate for the state ballot (a “birther case”). He skipped the hearing, and nothing seemed to have happened as a result. He remained on the ballot. Not a particularly high-level court and one without federal jurisdiction.
Presidents also tend to interpret even bona fide orders against them very narrowly. In the last year of his presidency, a federal court in Texas enjoined Obama’s executive order stopping the deportation of certain categories of undocumentesd aliens. The Obama administration instructed Border Patrol agents that to continue border operations as business as usual, but otherwise followed the court order.
On the other end of the spectrum, President Andrew Jackson ignored a Supreme Court decision (Worcester v. Georgia in 1832) that denied Georgia’s right to seize Native American lands. Jackson simply refused to support those who were dispossessed. The southeast U.S. tribes of Chickasaw, Choctaw, Creek, Seminole, and Cherokee were then force-marched across the United States – the infamous Trail of Tears (reflected in the above painting) in which a quarter died – to be resettled. But that order was not against Jackson directly, although he was instrumental in getting congress to pass the enablingIndian Removal Act of 1830.
More on point, during exceptionally troubled times, President Abraham Lincoln directly ignored U.S. Supreme Court Chief Justice Roger B. Taney’s order finding unconstitutional Lincoln’s suspension of habeas corpus rights in 1861, early in the Civil War. But otherwise finding circumstances where the President or executive agencies ignore federal court orders, especially as those orders are reinforced in the federal appellate courts, is otherwise very rare. Most folks who cite Franklin Roosevelt’s purported ignoring the federal judiciary will find that such allegations just aren’t true.
Ever since the 1803 Marbury vs. Madison Supreme Court decision, it has been rather clearly established that only our federal judiciary, under a clear intent from our Founding Fathers as expressed in the Constitution, can interpret that Constitution, its amendments as well as the statutes and regulations issued under it. Likewise the federal courts can consider and control state actions, judicial and otherwise, that conflict with the U.S. Constitution.
We know that every senior federal governmental official, from rank and file military personnel to the president himself and members of congress, takes an oath to uphold the Constitution. School children pledge allegiance and new citizens swear to follow the Constitution as well. Since the federal courts have exclusive jurisdiction to interpret the Constitution, likewise anyone who swears to uphold the Constitution has effectively taken an oath to adhere to those judicial interpretations.
We are watching a populist president, with plenty of support from his loyal constituency (with new GOP adherents feeling that they need populist support to survive as a party), issue a litany of executive orders, promulgate potential legislation to be considered by congress, that skirt the edges of constitutional limitations. The kinds of personal vituperatives the president has used to address political opponents (or just about anyone who might disagree with him on anything), even against a federal judge hearing a lawsuit against Trump assets, do not seem to have stopped with his ascension to the presidency on January 20th.
Indeed, he recently lambasted the federal judge in Washington State who halted his hastily-drafted travel ban that was rather obviously directed at Muslims, mostly from Islamic nations where Trump does not have business interests but, remarkably, countries that have not unleashed any of their nationals to engage in any terrorist activities in the United States. Even Islamic allies like Iraq. Putting down the judiciary, he cavalierly stated that “even a bad high school student” would rule in support of his executive order. That a three judge federal panel from the 9th Circuit, including a George W. Bush appointee, unanimously ruled against reinstating that travel ban only served to enrage Mr. Trump further.
Although Trump has claimed Neil Gorsuch, a 10th Circuit Federal Judge who is his Supreme Court nominee, was misquoted: “President Trump’s escalating attacks on the federal judiciary drew denunciation Wednesday [2/8] from his Supreme Court nominee, Neil Gorsuch, who told a senator [Sen. Richard Blumenthal (D-Conn.)] that the [Trump] criticism [of the judges considering his travel ban order] was ‘disheartening’ and ‘demoralizing’ to independent federal courts.” Washington Post, February 9th. It does appear that, sooner or later, we just may see Donald Trump ordering his executive officers to ignore a lawful federal court order. A “constitutional crisis”?
The February 7th Journal of the American Bar Association presented the responses of several prominent law professors (citing both and The Washington Post): “A judge who believes federal officials are not obeying a court order could ask the government to show cause why it shouldn’t be held in contempt of court, constitutional experts told the Post and Slate.
“In the contempt hearing, the judge would try to determine who is responsible for noncompliance, according to Chicago-Kent College of Law professor Carolyn Shapiro. The government officials before the court ‘would likely have to produce records of who up the chain of command is directing them to act,’ Shapiro told Slate. ‘And those higher-level people could be held in contempt.’
“But would a judge actually hold the officials in contempt? University of Virginia law professor Doug Laycock doubted it would come to that. ‘Judges are much more likely to threaten sanctions than to actually impose them,’ he told Slate. Typically a judge ‘tries to keep ramping up the pressure, but tries to avoid reaching the point where he has no choice but to send someone to jail.’
“If Trump himself were held in contempt, there would be appeals. And a final decision would rest with the U.S. House of Representatives, said Georgia State University law professor Daniel Franklin. He tells the Post that, in his opinion, contempt of court is a ‘high crime or misdemeanor’ that would be subject to impeachment. ‘Whether or not the House of Representatives would see it that way is another question,’ he said.”
The short answer: we would be in uncharted territory in a modern context. However, if the separation of powers – among the executive, legislative and judicial branches that is the system of checks and balances that supports our constitutional democracy – falls apart, that could precipitate that much-feared constitutional crisis that could unravel the federal government. Could it result in a civil war? We’ve been there before. Secession of various states? Exactly how would that take place peacefully? We could just ignore the result and trundle along, with some folks simply losing their rights and livelihoods. A modern “Trail of Tears.” Or perhaps Mr. Trump will follow those judicial determinations. This constant challenge against judges and their rulings just cannot be good for the United States of America.
I’m Peter Dekom, and the “ends-means” policies we see before us may just come at a very expensive price.

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