In spite of multiple court rulings demanding a halt to Trump’s Executive Order banning already-vetted muslim refugees from entering our country, the order is still in place and is still being enforced around the country, albeit unevenly. The Trump Administration, along with the Department of Homeland Security, has chosen to ignore the courts.
This provides an opportunity to reacquaint ourselves with the Constitution and the way its authors set up a balance of power between the three branches of our government: Executive, Legislative and Judicial.
This has happened before. A similar situation arose during the Presidency of Andrew Jackson (1829 to 1837), the only other time in our history that we had a nationalist populist President like Donald Trump. Jackson wanted to remove the Cherokee Nation from their ancestral home in Georgia to a remote and less desirable piece of land in Oklahoma, an action that would violate the treat the United States government had made with them. Through a series of political maneuvers, each seemingly minor by itself, Jackson created a way to do so. John Marshall was the Chief Justice of the Supreme Court at the time. Under him, the Supreme Court ruled unconstitutional several of the laws Jackson pushed through. Jackson’s response was to simply ignore the Court, saying,
“John Marshall has made his decision; now let him enforce it.”
The now infamous Trail of Tears followed as the US Army forcibly evicted the entire Cherokee Nation from Georgia and moved them to Oklahoma. It was a long walk. More than 4000 Cherokees died on the long journey, mostly women and children. It was not one of the brighter moments in our history.
This story is illustrative of a problem that still exists today. The Judicial Branch can order Trump’s Executive Order overturned, but has no way to enforce it. In the case of President Trump’s decision to simply ignore the Judiciary, the only remedy is for the Legislative Branch to step in and pass a law explicitly overturning (or at least modifying) the illegal Executive Order. Were they to do so (which I find unlikely) and were President Trump to decide to ignore them as well (which is entirely likely), then the only remaining remedy is for the Legislative Branch to impeach President Trump (which I find unlikely in the extreme).
There is, however, another alternative, one which is provided by the First Amendment. That alternative is for the people themselves to rise up in opposition to Trump’s illegal actions. We have already seen how mass protests involving tens of thousands in cities across the country has forced the Trump administration to backtrack on the original Executive Order, “clarifying” it in ways that somewhat (but not entirely) mitigate the damage it does. But the order still stands, court decisions not withstanding, and President Trump is in violation of the law. What is needed in a case like this is more and larger protests. President Trump is unlikely to respond to that kind of pressure, especially if there are counter protests by his supporters. But Congress is a different story. Congress is very sensitive to popular opinion.
Several Republican-controlled states are considering legislation to limit the ability of their citizens to engage in peaceful protest. This should be alarming to anyone who believes in the First Amendment and freedom of speech. Eventually these laws will be declared unconstitutional, but that will take years. In the meantime, this conflict between the Executive and the Judiciary threatens our most fundamental freedom as Americans.
Don’t let anyone tell you this is all a tempest in a teapot. The President’s now illegal Executive Order is no longer the main issue, as offensive as it is. The main issue is the President’s decision to ignore multiple court orders to cease and desist. The main issue is the President’s decision to act like an autocrat. Whatever you think about the intent of the Executive Order itself, all patriotic Americans should agree that this cannot stand.
If you believe President Trump has overstepped the bounds of his office by ignoring the courts, there are two small but significant things you can do.
1. First, participate in protests in or near your home. You may live in a state in which this will require civil disobedience. It will test our resolve as Americans.
2. Second, make a phone call to your two Senators and your one Representative. You can easily find their phone numbers on the internet. They are expecting your call because they are already being inundated with angry calls from their constituents. Just say, “I want to register my concern about the President’s decision to ignore court orders regarding his Executive Order to ban muslim refugees from entering our country. In particular, I want my Senator (or Congressperson) to act immediately restore the rule of law. Please connect me with whoever should take this call.” They will have someone specifically assigned to take these calls.
We live in interesting times. An historic conflict between the three branches of our government is unfolding before us. it may well change forever the way the three branches interact. I have not seen anything quite like it in my lifetime.