Is the president (or Arkansas legislature) above the law? | Arkansas Blog

Friday, February 10, 2017

Is the president (or Arkansas legislature) above the law?

Posted By on Fri, Feb 10, 2017 at 8:35 AM

Vox writes a good explainer of the Ninth U.S. Circuit Court of Appeals' ruling against President Trump's attempt to ban immigration from seven countries.

This passage in the ruling is the crux of what seems likely to be an ongoing issue in the Trump era:

[T]he Government has taken the position that the President’s decisions about immigration policy, particularly when motivated by national security concerns, are unreviewable, even if those actions potentially contravene constitutional rights and protections. The Government indeed asserts that it violates separation of powers for the judiciary to entertain a constitutional challenge to executive actions such as this one.

There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy. See Boumediene v. Bush, 553 U.S. 723, 765 (2008) (rejecting the idea that, even by congressional statute, Congress and the Executive could eliminate federal court habeas jurisdiction over enemy combatants, because the “political branches” lack “the power to switch the Constitution on or off at will”). Within our system, it is the role of the judiciary to interpret the law, a duty that will sometimes require the “[r]esolution of litigation challenging the constitutional authority of one of the three branches.” Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189, 196 (2012) (quoting INS v. Chadha, 462 U.S. 919, 943 (1983)). We are called upon to perform that duty in this case.
The executive does have some power over immigration decisions, Vox notes.

That’s why the forcefulness of the ruling is surprising. In an otherwise relatively cautious and technical ruling, the three judges on the Ninth Circuit panel reserved their strongest language for defending the role of the courts against what they saw as executive overreach.

Trump’s tweets have raised serious concerns about his attitude toward the independence of the judiciary; his own Supreme Court nominee has issued (mild) criticism of the president’s attacks. But the thing about undermining the independent judiciary is that you can only do it by intimidating the judges. And the judges who wrote the Ninth Circuit order have made it abundantly clear that, even in the name of national security, they will not cede their power as a co-equal branch.
Trump — and the Arkansas legislature, it should be noted — have disdain for the courts unless they rule in their favor. Trump's disdain goes far beyond immigration matters, but include profound disrespect for past standards of mixing private business with government work.

The Arkansas legislature has already all-but-neutered the executive branch with sweeping review authority over executive actions. It aims to broaden its power with constitutional amendments that will place all judicial rule-making under legislative control. It also rejects court precedent on equal rights for women and minorities and medical autonomy.

Arkansas — and the U.S. — are moving to one-branch government. It would be the legislature in Arkansas; The Donald for the U.S.  In Arkansas, members of the Arkansas Supreme Court have signaled their willingness to accept legislative control in return for holding onto their elected seats. These are dark times for fans of the checks and balances of three-branch governing.

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