Trump and the Judges

Every time a federal judge makes a ruling that denies the Trump administration permission to do something or tells them to postpone taking some action, the “legitimate” news outlets, talk shows, bloggers, opinion leaders, Facebook friends and others gush on two topics. 1) Respect for the judicial branch of government is historical and important, and 2) Do people think that Trump will respect and enforce judicial rulings?

First, to quickly answer all the pundits, there are many problems with the judicial system. These include its use to oppress the poor and people of color with tougher sentences and longer jail time. Trump has already benefited from this corruption. The business practices he was convicted of have not put him in jail. In the long run, respect for the judicial system will be greater when the judicial system is more just.

Second, it is very unlikely that Trump will feel compelled to do what he doesn’t want to do. It is impossible to predict what Trump will do. Part of his strategy is to keep us talking about what he might do so we avoid discussing more important issues for Americans to find consensus on.

But there are important issues that the pundits need to discuss. One is what do the current events expose about the weaknesses in the structure of government, specifically, regarding the judicial branch?

Have we ever before had this problem of the judicial branch not having the ability to enforce its rulings?

While presidents have generally followed the rulings of federal judges and the Supreme Court, there are two cases where presidents claimed that they had the constitutional authority to determine what the Constitution says. Both cases have eerie parallels with Trump’s situation.

The clearest parallel to today happened when Andrew Jackson was president. In that case, the Supreme Court sided with the rights of the Cherokee people. Samuel Austin Worcester, one of several missionaries living with the Cherokees in Georgia, refused to take an oath to swear loyalty to the state of Georgia. This raised the constitutional issue of whether the Cherokee Nation’s Constitution had the status of a foreign nation and, therefore, those living under that Constitution were not subject to the laws of Georgia. Chief Justice John Marshall wrote the “Worcester v Georgia” (1832) decision. The Supreme Court sided with the Cherokees. The governor of Georgia, George Rockingham Gilmer, refused to follow the court’s ruling. President Andrew Jackson refused to use federal troops to enforce the Supreme Court’s decision. The result was that President Jackson’s interpretation of the Constitution won the day.

The case had ramifications far beyond whether a white man living in the Cherokee Nation had to sign a loyalty oath. Jackson’s view that the Cherokees were not an independent people was the basis for sending troops to remove them from their land. This led to the infamous Trail of Tears where native people were expelled from the southeastern states and sent to Oklahoma.

A second case deserves discussion now because of the danger that it could turn out to parallel Trump’s approach to the Constitution. This time Abraham Lincoln was president. He had a problem in 1861. Lincoln wanted to send federal troops south on the train from Philadelphia to Washington. However, the track passed through Maryland where there were farmers and others sympathetic to the southern cause. In April 1861, Lincoln instructed General Winfield Scott to suspend habeas corpus to keep transport and supply lines clear in Maryland.

Habeas corpus is “a court order that requires a person, usually a prisoner, to be brought before a judge to decide whether he is being held legally, or should be released” according to LegalDictionary.net. The U.S. Constitution guarantees that habeas corpus “shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it” (Article I, Section 9, Clause 2).

One month later, John Merryman, a state legislator from Maryland, was arrested for attempting to hinder Union troop movements in Maryland and was held at Fort McHenry. His attorney immediately sought a writ of habeas corpus (“a petition filed with the court when a prisoner wishes to contest the legality of his imprisonment” ~LegalDictionary.net). Since Lincoln had suspended habeas corpus, General George Cadwalader, in command of Fort McHenry, disregarded the petition and refused to turn Merryman over to the authorities.

Roger Taney, chief justice of the U.S. Supreme Court at the time, issued a ruling that Lincoln did not have the authority to suspend habeas corpus and that authority belonged solely to Congress. Lincoln insisted he needed to suspend the rules in order to put down the rebellion in the South. Lincoln and Cadwalader refused to cooperate with the Supreme Court Chief Justice.

Trump’s characterization of the presence of immigrants from Latin America as “an invasion” is cause for thought. In Lincoln’s case, he ignored the court and waited until the southern states left Congress, so he had a supermajority. Then he had Congress pass a law that permitted him to suspend habeas corpus whenever he wanted.

There is plenty here for the pundits and influencers to discuss. For starters, what methods might we use in a restructuring of the judicial system so that a president cannot ignore judicial rulings?

Why did the founders establish a judicial branch the way they did?

Writing the Constitution took three months in 1788. It was an amazing creative accomplishment. John Adams published his “Thoughts on Government” in 1776, the year of the Declaration of Independence. His thoughts were an important influence. In that document, he proposed that an independent judicial branch be included in the structure of governments. The other two branches should be legislative and executive.

The Constitution in many ways is a product of its time. The founders were reacting to their experiences of living under British rule. The British government did not have a document that described how the government worked and how power was distributed. As the Declaration of Independence said, the arbitrary actions of the British government were offensive to them. The tradition of the British was that the legislative body and the King had the final say in what the government did. There was no Supreme Court to decide issues of governmental use of power. So one of the founders’ primary motivations was to limit the power and ability of the federal government to act with absolute power given to either a legislative body or the executive who administered the government.

Alexander Hamilton and James Madison played major roles in negotiating the wording of the Constitution sent to the states for ratification. They cooperated with John Jay in writing a series of essays to explain the document and promote its ratification. The collection of these essays is called the “The Federalist Papers.”

In essay No. 78, they argued that the Supreme Court is essential to ensure that the Constitution is the supreme law of the land. The Court ensures that the legislature cannot make laws that are contrary to the Constitution. They claimed that the Supreme Court is the weakest branch of government because it has control over neither “sword or purse.” For this reason, they believed that Americans should not fear that the court poses a threat to freedom.

However, they did admit to a danger if the Supreme Court joins with one of the other branches to threaten the liberties of the people. To protect against the Court joining with a political party in taking away liberties, they said the members of the Court need to be separated from the political processes that determine what men serve in the legislature and as president. So, the judges are nominated by the president and approved by the Senate. They are not subjected to review by the people, and they serve until they are removed for bad behavior, resign or die.

Today we can see the logic and wisdom of their plan. In fact, they even recognized the potential danger of the court becoming a tool of a political party. Times have changed. Today judges live longer than they did in 1788. And in recent years, the court has become aligned with a particular political party as the founders feared.

President Joe Biden proposed a constitutional reform where Supreme Court judges serve for a maximum of twelve years. His argument was that every 4 years there would be at least two vacancies. It is an interesting idea and would be a good starting point for the pundits to engage in serious discussion about why we have a Supreme Court and how it can be modified so, to use the language of the founders, it preserves the liberties of the American people.

Are there ways that governments around the world are structured to manage constitutional interpretations and judicial enforcement?

Many countries have special courts that only deal with ensuring that laws comply with the constitution. In France, there is a Constitutional Court that reviews all laws to ensure that they comply with the constitution. This differs from the American Supreme Court that only rules on constitutionality when a case comes to them because a group or individual believes that they have been harmed by a law or other government action, and the Constitution protects them from that harm.

Some countries, like Portugal, have a constitutional court that examines proposed laws to ensure they are consistent with the constitution. This has the advantage that laws are not passed where there are conflicts with the constitution. However, the court has the authority to later review laws that have been passed to determine if they are consistent with the constitution.

Russia has a Constitutional Court, but it has little power, and rulings are often treated as advisory by the other branches of the government. Today, many countries with authoritative governments have written constitutions, but the constitution does not impede government actions.

There is another model that is called “Parliamentary Sovereignty.” In both the United Kingdom and the Netherlands, the constitutionality of a law is determined by the elected parliament. The American constitution founders wanted to balance the power of the legislative branch, but today things have changed. The British parliament in the 18th century was made up of the aristocracy. Even in America with Congress controlled by the wealthy, the legislative branch is designed to be closer to the will of the people. And if America can develop legislative and executive institutions that are truly democratic, then the need for a Supreme Court that is designed to protect the liberties of the American people may not be necessary.

Faced with the possibility that the president may take the authority to interpret the Constitution, or the Supreme Court joins itself to the desires of the president, the pundits and the American people need to discuss how we can restructure the government so that the civil and human rights of all Americans are protected.