The Constitution Annoys Trump; judges act independently

 

Gordon L. Weil

For one bright, shining moment last week, the federal court system seemed to get the better of President Trump.

The U.S. Court of International Trade, a regular part of the federal court system, ruled unanimously that Trump’s use of an emergency law to change tariffs across-the-board was not permitted by that law. 

It did not question his judgment about the existence of an emergency; but rather whether his actions were allowed if there were an emergency.  That’s a critical difference.  The president’s judgment is protected by the separation of powers.  But he does not get “unbounded authority” to say what the law is; that’s the role of the courts under the same separation powers.

The Trump administration response differed.  “It is not for unelected judges to decide how to properly address a national emergency,” a White House spokesperson said.

This statement reflected the view that winning an election gave Trump the authority to act as he sees fit and not subject to judicial review, considered to be “judicial tyranny.”  The fact that the judges are not elected, while the president is selected by voters, makes all the difference.

Disparaging the judiciary, because it is controlled by unelected judges, misses the point.  The Trump administration may see this presidency as an unusual chance for the exercise of supreme power, unimpeded by either a GOP Congress or an unelected court.  Or, just as likely, they may reveal a fundamental lack of understanding of the Constitution.

Federal judges were intentionally given life appointments to remove them from the political wars of the day.  “It is emphatically the duty of the Judicial Department to say what the law is.”  Under “a government of laws, not of men,” all must obey the law.

In the Federalist Papers, Alexander Hamilton argued that “permanent tenure” in office guarantees the independence of justices, allowing them to ensure that the other branches of government do not violate the Constitution.

Hamilton continued: “This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men … sometimes disseminate among the people themselves, and which have a tendency … to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.”

In short, the non-elected status of judges is essential to their independence so they can serve a prime function of the government – protecting the people from their government if it goes beyond the limits of the balanced powers “we, the people” authorized.  That may prove inconvenient or annoying to Trump, but that’s exactly what was intended.

Trump is not the only president to try to exceed his authority.  In a recent example, former President Biden used a twisted interpretation of a law intended for a different purpose to spend hundreds of billions of dollars to forgive student loan debt.  He lacked congressional approval. The unelected Supreme Court appropriately overruled the elected president.

Trump took advantage of a growing conservatism to win his 2016 election.  He turned to the Federalist Society, the leading conservative legal organization, for nominees to the federal bench.  These judges overruled abortion rights. Trump had correctly counted on them to produce a decision consistent with his own position.

In his second term, he has learned in one case after another that his appointees, while conservative, are mostly competent jurists, willing to oppose his initiatives.  They may render conservative interpretations of the laws and Constitution.  Trump has come to realize that they are conservatives, but not necessarily Trumpers.  They will not automatically fall in line behind his policies.

Imbued, for the time being, with a sense of unlimited power drawn from his electoral vindication, Trump now attacks the Federalist Society.  He may forget that six of the nine members of the Supreme Court, on which he will ultimately depend to affirm his policies, are members of the Federalist Society.

Whenever Trump receives an unfavorable federal court decision, he often lashes out at the judges, claiming they are corrupt or partisan.  He seeks to undermine public confidence in the judiciary, possibly hoping the judges will retreat to save their reputations.  Some of his backers say the judges should be impeached for denying the demands of the elected president.

Trump also shows a massive disrespect for the court system by pardoning hundreds of serious criminal offenders who were convicted in jury trials.  He sets himself up as a new court of appeals, rewarding political allies and major contributors.

As I have discussed last week and earlier, the Supreme Court may make or break many Trump policies when it takes a closer look at the extent of his presidential power.  The outcome could go either way, but his attacks don’t help him make his case at court.