A Fragile Democracy
by Michael Haskins
A test of power
On January 29th, Yonatan Zunger posted “Trial Balloon for a Coup?” to his Medium page. The next day, Jake Fuentes posted “The Immigration Ban is a Headfake, and We’re Falling For It,” also to Medium.
Both authors are amateur writers posting to personal blogs, better known for their work in Silicon Valley than for their political punditry. Nonetheless, both posts struck a chord, picking up thousands of views and shares. Both articles also received attention from national media outlets.
The two authors make the same argument: that the immigration executive order was intentionally designed to test the limits of the separation of powers.
Separation of powers is considered a hallmark of American democracy. When functioning properly, separation of powers ensures a system of checks and balances so that no branch of the federal government can concentrate power in its own hands. At the center of the separation of powers is an independent judiciary that evaluates the legality of actions taken by the executive and legislative branches.
In the case of the immigration executive order, judges around the country issued emergency stays to halt implementation and enforcement of the executive order, and a federal judge issued a nationwide halt on the executive order on February 3rd. As a result of the halt, the State Department and the Department of Homeland Security, which includes U.S. Customs and Border Protection, announced returns to standard procedures.
While this sequence of events seems to indicate that the separation of powers functioned as intended — a judicial check on executive overreach — the chaos and disarray that emerged from this process seem to indicate a worrisome undermining of the judiciary.
In fact, the first federal judge to issue an emergency stay of the executive order did so as early as Saturday, January 28th, less than twenty-four hours after Trump signed the order. In response, the Department of Homeland Security issued a press release that it would both enforce the executive order and comply with all court orders, an impossible feat given that the court order specifically contradicted key aspects of the executive order. Furthermore, multiple news outlets reported that Customs and Border Protection officials continued to uphold the executive order in defiance of the courts as late as Monday, January 30th, two days after the courts barred implementation of the executive order.
If the immigration order was a loyalty test designed to determine whether the Department of Homeland Security would side with the Trump administration or the courts, as our amateur Medium authors speculate, then the results are a mixed bag at best.
Constitutional hardball
Salon posted a thoughtful yet troubling article on Trump’s executive order which argued that Trump may be playing a form of “constitutional hardball” designed to provoke a constitutional crisis.
According to the article, constitutional hardball “refers to political claims and practices that are technically constitutional but that violate existing norms and assumptions.” In the case of the immigration executive order, the Trump administration appears to be playing constitutional hardball with judicial review.
Judicial review of the executive branch was established in 1803 by the Supreme Court’s decision in Marbury v. Madison. Although judicial review existed informally prior to 1803, Marbury v. Madison formally entrusted that power to the court and defined our contemporary understanding of the separation of powers.
Since then, the courts have been defied at the state and local level a number of times, most infamously in response to school desegregation, but the federal government has, for the most part, upheld court orders and enforced the law when states and local municipalities have acted unconstitutionally.
Federal defiance of court orders, on the other hand, is especially worrisome given that federal defiance has the potential to spark constitutional crises. If a sitting President were to order his aides, Cabinet members, or other members of the executive branch to defy court orders, the court could hold anyone carrying out those orders in contempt. The court could then order the United States Marshals Service to obey the court order and stop enforcing the ban.
The US Marshals Service serves as the enforcement arm of the federal courts and are responsible for ensuring that the legislative and executive branches of government obey the judicial branch. However, the Marshals Service is also an agency within the Department of Justice, which is headed by the Attorney General, who is in turn appointed by the President. In other words, although U.S. Marshals ostensibly exist as the enforcement arm of the judicial branch, they are employed by the executive branch. By definition, they serve two masters.
A fragile democracy
As a concept, democracy boasts two major advantages over other forms of government. First, democracy represents the interests of a larger share of the population than prior forms of government. Second, democracy legitimizes the transfer of power from one set of rulers to the next, and that perception of legitimacy makes transfers of power more likely to be peaceful than the ruthless power politics of hereditary succession.
However, for all its benefits, democracy is also very fragile. It operates under the assumption that democratic rulers will respect the rule of law. When democratically elected officials stop obeying the rule of law, the separation of powers is designed to limit the potential damage. As the immigration executive order shows, however, even when the separation of powers works, it only works insofar as our officials place the rule of law above their own self-interests.
Fortunately, the Trump administration has recognized the court order. However, the Trump administration also gave us a very frightening glimpse of what might happen if they ever decided not to comply with the courts.
When acting Attorney General Sally Yates refused to enforce the Trump administration’s executive order on immigration, she was fired by President Trump and replaced by an acting Attorney General who would be more supportive of the policy. Yates’s removal from office did occur under special circumstances given that she was an acting Attorney General, but suffice it to say that both Dana Boente, the new acting Attorney General, and Senator Jeff Sessions, Trump’s nominee for the post, are unlikely to oppose the President in the first place. Even if an Attorney General did defy the president’s agenda, Trump’s actions regarding Sally Yates show that he would likely remove them.
If we play out a scenario in which Trump defies the courts, it is unclear how he could be stopped. The courts could, of course, order the United States Marshals Service to enforce their orders, but there is no guarantee that the Marshals would obey the courts over the Trump-appointed Attorney General, their boss at the the Department of Justice. Even if the Marshals did attempt to fulfill their duty to the courts, the Trump administration could use its power over the Department of Justice to obstruct them or even purge their ranks. This scenario would seem much more implausible had Trump not already fired an Attorney General who disagreed with him and purged another department, in this case the State Department, of its senior leadership.
At the end of the day, the full power and might of the presidency threatens to overwhelm the checks and balances of the other branches. That, right there, is the fragility at the heart of American democracy.
