Trump vs the judges: a constitutional battle

Power struggle: President Trump against Lady Justice, who personifies the law.

Donald Trump has berated judges who overruled his immigration policy. Some of his opponents now warn a struggle for power will test America’s founding principles. Is this hysteria or reality?

Three weeks; three defeats.

That is Donald Trump’s record in court so far as US president. Three times judges have considered the legality of his temporary ban on travel to the US from seven Muslim-majority countries. Each time they have decided against him.

Last week an appeals court upheld a ban on the policy. Trump responded with an angry tweet: ‘SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!’

Trump has repeatedly attacked the judiciary and promised to overturn unfavourable rulings. Now some warn that this could have dire consequences.

Last week a senator said the USA was ‘careening toward a constitutional crisis’. This would be a struggle for power even the country’s most cherished document, which divides power between the government’s three branches, could not resolve. On January 29th one congressman said such a situation already existed.

The country has faced constitutional crises before — most notably during the civil war of 1861–5. But on many occasions the term’s use has been disputed. So is it hyperbolic to use it now?

On Thursday Julia Azari and Seth Masket outlined four types of constitutional crisis for political blog FiveThirtyEight. None, they said, are yet accurate descriptions of the current stand-off. The courts’ orders have a clear meaning, and they have largely been enforced. The constitution has done its job.

But the conditions for paralysis have been brewing in recent years. There has been growing brinkmanship over America’s finances. In June Democrats staged a sit-in protest in the House of Representatives, sparking chaos. Republicans delayed the appointment of a Supreme Court judge until President Obama left office; Democrats may now respond in kind.

And Azari and Masket suggest several ways Trump’s presidency could instigate a crisis. In an emergency he could claim extra power. He could refuse to abide by court orders. His opponents could try to remove him — with questionable legitimacy.

A tough constitution

Hysteria, cry some. We use grandiose terms to make ourselves think we are living through a defining moment in history. This is why many cry, for example, that Trump is a fascist. The constitution is working. The president disagrees with the judges, but is restrained by them. If he wants to overreach his power, America’s institutions will rein him in.

Foolish reassurance, others respond. As the scholar of American democracy Alexis de Tocqueville once wrote, political structures rot when political cultures are corrupted. Trump has made clear that he does not recognise judges’ right to make rulings. He has no intention of upholding the constitution. He or his opponents just need a pretext to instigate a crisis.

You Decide

  1. Which is more dangerous: hysteria or complacency?
  2. Does the USA face a constitutional crisis?

Activities

  1. In pairs, list five questions you would like to ask an expert on American politics about this story.
  2. Investigate a previous time when people said the USA faced a constitutional crisis (use this article, and the Word Watch below, for ideas). Produce a two-page fact file explaining what happened, and why people called it a crisis. Were they right?

Some People Say...

“Events are never as important as they seem at the time.”

What do you think?

Q & A

Isn’t this just a stuffy dispute over a very old document?
It is much more than that. It is about who has power and can make decisions in the USA, and the checks and balances on that power. You may think the president should have enough power to carry out his promises since he won the election. But the US constitution holds presidents to account. If presidential power were above the constitution and Trump as president could do whatever he wanted, ordinary people could not judge the legality of his actions.
But I’m not American.
America is often seen as the greatest democracy in the world, and a shining example to others. If American democracy is not strong enough to withstand the actions of one president — or his opponents — the same could be true in any other country. That includes yours.

Word Watch

Document
The constitution, signed in 1787, outlined the United States’ founding principles, dividing power between the president, Congress and the judiciary.
Existed
Don Beyer, a Democrat, said this amid reports that customs officials were not upholding one of the judges’ rulings.
Civil war
The constitution said nothing about slavery at the time and its meaning on states’ rights was disputed, major causes of the war.
Disputed
Some cite for example the seizure of Native American lands in 1832, school desegregation in 1957 and election results in 1876 and 2000.
Four
The constitution not saying what to do; its meaning in question; following the constitution politically unfeasible; or US institutions failing.
Finances
These have led to temporary government shutdowns and threats to drag the country over a ‘fiscal cliff’, where it would default on its debts.
Emergency
For example, war or terrorist attack. In the civil war President Lincoln suspended habeas corpus — the right not to be detained without trial. In the Korean war in 1952 President Truman tried to take over the US steel mills.

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