In Worcester v. Georgia, 31 U.S. 515 (1832), the Supreme Court overturned a Georgia law that made non-Native Americans’ presence on Native lands without a license criminal. The impact of the case, however, was not its ruling, but rather its reasoning, and the response of the Executive branch to it. Chief Justice John Marshall’s opinion was based on the idea that the individual states had no authority over Native American affairs, and formed the basis of the doctrine of tribal supremacy that developed.
In what is likely an apocryphal response, President Andrew Jackson was contemptuous: “John Marshall has made his decision. Now let him enforce it!” This reply gets to the fundamental heart of the relationship between the branches of government. The judicial branch has, in the final analysis, no method of enforcing its decisions. It relies on the legislature, and particularly the executive, to do so. The judiciary is the non-democratic branch of government; federal judges are appointed, not elected. Indeed, its central role since Marbury v. Madison, 5 U.S. 137 (1803) runs counter to the notion of democracy. It sits in judgment on the laws and actions of the democratically elected branches, and determines if they are constitutional. If not, they may not come into effect, regardless of the level of public support for them.
As an unelected branch, determining the ability of the elected legislature and President to fulfil the will of the people, the judiciary’s position is precarious. If the elected branches simply refuse to accept a judicial ruling, there is little the judiciary can do. There is no military force under the command of Chief Justice Roberts which can surround the White House or point cannons at Capitol Hill; the power of U.S. Marshals pales in insignificance compared to the forces which can be called out by the elected branches. In 1861, President Lincoln refused to comply with a writ of habeas corpus issued by Chief Justice Taney, and the army refused to release John Merryman.
The Supreme Court, then, has often trodden carefully in areas where it feels there will be no popular support for its decisions, and where the democratically elected branches will not provide it with support. For example, in 1937, the Supreme Court performed the “switch in time,” and stopped invalidating Franklin Roosevelt’s New Deal programs under a threat from the President that he would expand the Court to 15 members and pack it with justices who would vote the way he wanted. Later, the court system found on behalf of the government in the case of Korematsu v. United States, 323 U.S. 214 (1944), ruling the interning of Japanese American citizens constitutional. It is widely thought that the Court realized there was little chance of the executive branch terminating the internment program regardless of a court decision, and acted accordingly.
President Trump is a fan of President Andrew Jackson, hanging a portrait of Old Hickory in the Oval Office. He has also this weekend been involved in a battle with the judicial system over his Executive Orders regarding immigration. The ACLU challenged the exclusion from the United States of two Iraqi men under Trump’s orders, and federal judges in New York and Alexandria, Virginia temporarily blocked the imposition of the new policies. Federal courts in Boston, Seattle, and Los Angeles have also imposed blocks. The administration’s response was to dig in. Border Patrol Officers at Dulles Airport have reportedly been defying the court order and denying detainees access to attorneys, and the Department of Homeland Security issued a statement handwaving away the judicial challenges, referring to “inconvenience” (detention, exclusion, and deportation) of “less than one percent of … international air travelers.” The Department announced that it would “continue to enforce all of President Trump’s Executive Orders.”
Trump’s treatment of immigrants, and in particular those who are already permanent residents (Green Card holders), was certain to be challenged in the courts. The exclusion and detention of those already vetted and granted residency was patently unconstitutional, and those in the administration who proposed such a policy must have known this. Why, then, did the order include those people? The only answer I can come to is that the conflict with the judiciary is a deliberate one. Much as Trump and his administration have been deliberately provoking the press with “alternative facts,” it has deliberately sought a battle with the judiciary on an area where it believes that it will receive public (and legislative) support regardless of the courts’ decisions. If this is the case, the aim is not solely these Executive Orders, or immigration in general. Instead, the goal is the cowing of a potential block to the Trump administration’s future plans – the Federal judiciary. By undermining public support for the rulings of the courts, the Trump administration can either bully the judiciary into silence, or set the stage for outright refusal to accept judicial decisions.
If the Trump regime can override the federal courts on this issue, this early in the Presidency, then the ability of the courts to oppose executive unconstitutional actions is effectively hamstrung. The new administration is sending a message, and it is speaking not to the courts, but to the public, or at least to the section of the public that elected it. It is announcing loudly and clearly that it is Trump and his appointees who are seeking to defend the American public, and the courts are trying to prevent that. Just as Sean Spicer, Trump’s Press Secretary, and others have sought to delegitimize the Fourth Estate, and paint the press as the enemy, so the current deliberate battle with the courts is seeking to undermine public support for the judicial branch. If the administration wins, and the courts are either cowed into submission, or, worse, the executive successfully ignores their rulings, then the path is clear for the rollback of rights of many groups of vulnerable Americans. Even if they lose, and a change in policy is forced by the courts, the battle against the courts will continue. The Trump regime will continue to paint the judiciary as an enemy, waiting for the next issue where it will seek to ignore constitutional restrictions. The next terrorist attack on the United States, regardless of its source, will be presented as the direct result of the judiciary refusing to allow President Trump to protect the American people. And if the press dares to challenge this view, Breitbart, Sean Spicer, and Trump’s Twitter account will merely repeat the accusations of treason against them.
Trump’s Executive Orders on immigration are, as CFI has stated, cruel, unconstitutional, and contrary to humanist values. But this battle goes beyond that. It goes to the very ability of the federal judiciary to act as a protector of the rights of Americans. An independent, active judiciary lies at the very heart of our democratic republic, and we must fight to preserve it.