When Applying the Constitution is an Outrage: A President Discovers That He Can’t Force Everybody To “Get With The Program.”
The President’s tweets reached new levels of ignorance and corrosiveness for our democratic institutions today.
The President tweeted “The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned.” Earlier, the Office of the Press Secretary promised to appeal “this outrageous order.” (You won’t find that quote easily now, as the word “outrageous” has now been edited out in Orwellian fashion.)
First, the ignorance.
A sitting Federal District Court Judge in Seattle does his job by overlaying a law (or perhaps, in the case of the Immigration Ban Executive Order, more a “guideline” that would make Captain Barbosa proud) atop the Constitution of the United States and finds to no one’s real surprise, that it is unconstitutional.
He. Did. His. Job.
He could be right, or he could be wrong. There will be an appeal, and then perhaps another one. And another.
A federal district court judge — a trial judge with a lifetime appointment — exists, under our system of checks and balances and separation of powers to do THIS. To check the power of the President at a line level. To serve as a tripwire against incursions against our democratic values. We often think that the check on the executive branch occurs only at the Supreme Court, but a federal judge seated far from the power center of Washington, D.C., is the line-level grunt-marine of justice, “the point of the spear” when it comes to stopping executive branch or congressional abuse.
He. Did. His. Job.
(I like using the periods here in homage to Mr. Spicer’s shout of “period!” to lend enhanced credence to his word tumbles.)
In the same way an elite military unit trains for years for a single moment where everything — life and liberty — are placed “on the line” in a mission that may last only minutes, or seconds, we appoint our federal district court judges for a lifetime because of moments precisely like these. Moments where they must not be intimidated by an autocrat’s “you’re fired” mentality, and where a bully’s threat “to get with the program” means nothing more than the raised volume of cowardice.
He. Did. His. Job.
The President’s indignant responses — via twitter and the Press Office — reveal substantial ignorance of this process and its importance. Instead of agreeing to disagree with the Order in strong terms, instead of mapping out the strategy for appeal and respecting “the rule of law” as it now stands and celebrating that this Order comes straight from the Constitution, this President throws a twitter fit without any hint of self-awareness in relation to the possible Constitutional abuse that is central to his Executive Order.
Consider. First, Judge James L. Robart found the hearing itself was fair. That the government had notice and opportunity to appear and argue, and to try and “defend their position.” Judge Robart then applied two tests to be sure that the Temporary Restraining Order must issue. In doing so, Judge Robart found facts (not alternative facts) including that Washington State had shown “it was likely to succeed on the merits;” that “the injunction was in the public interest;” and that there was a “likelihood of irreparable injury.” Specifically, from the evidence, Judge Robart found the Executive Order harmed Washington residents in areas of employment, education, business, family relations, and freedom to travel. He found that the Executive Order damaged Washington’s public universities. That it harmed Washington State operations. Judge Robart held that the Executive Order is unconstitutional and unenforceable because, among other things, it “prioritizes” — read; targets — refugee claims of certain religious minorities.
But here is the best part. For all of us. Judge Robart explained why he was required to act. A free civics lesson. “The work of the Judiciary, and this court, is limited to ensuring that the actions taken by the other two branches comport with our country’s laws, and more importantly, our Constitution.” Robart finished “the court concludes that the circumstances brought before it today are such that it must intervene to fulfill its constitutional role in our tripart government.”
He. Did. His. Job. Suggesting otherwise comes only from a place of ignorance.
Now, the corrosiveness. The President apparently didn’t care for the civics lesson.
While the Press Office edited out its reference to the Court Order as “outrageous,” that limited olive branch for civility was shortly thereafter torched by the President’s tweet “The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned.”
The President’s complexed and nuanced twitter assessment of course reads like a 5th grader railing against an “F” on a math test, complaining that his “so-called” teacher, having awarded a failing grade, is “ridiculous and should be overturned.” Sure. Right.
As is the President’s custom, the President led with a personal insult — suggesting that either the Judge is not legitimate or competent — without any factual basis. The President then asserts something provably false — that the Judge has taken law-enforcement away from our country. (Causation is always a challenge for this President — as explained in the Court Order, the problem with the Executive Order is that it violates the Constitution and cannot be enforced — this is in fact the basis for the impact on law enforcement.) The President finished with an insult to the content of the Court Order itself, a Court Order stemming from the Constitution itself — “ridiculous.”
Undermining our institutions seems increasingly important to this President. Seeking to coerce his followers to join him in this effort to discredit these institutions, which frame the very core of the Constitution (a document that the President professes, when it suits, to love), is destructive and ultimately, potentially, far more dangerous to our democracy than the ebb and flow of any single question moving its way through our courts. This is non-Presidential behavior at its most corrosive.
If I’m wrong — and delegitimizing attacks on our institutions, as opposed to debating the substance of ideas and principals fairly in dispute, are appropriate, then it would seem required to put the matter in words the President might understand: “The opinion of this so-called President, which essentially removes the rule of law from our country, is ridiculous and will not be accepted.”