Commentary Law and Policy

Trump’s Dangerous Escalation Against the Federal Courts Continues

Jessica Mason Pieklo

Unelected. Unilateral. These are important words in Trump’s attacks because they suggest a tyranny that does not, in fact, exist.

In a statement released Tuesday night, the Trump administration slammed a federal district court ruling that blocks it from enforcing a key provision of its executive order targeting so-called sanctuary cities.

The fact that the administration condemned the ruling is expected. Trump has in the past attacked federal courts that have ruled against him, and he will likely do so again in the future. What is dangerous is the escalation of the administration’s attack on the very legitimacy of our federal court system.

“Today, the rule of law suffered another blow, as an unelected judge unilaterally rewrote immigration policy for our Nation,” the statement read.

Unelected. Unilateral. These are important words in Trump’s attacks on the courts because they suggest a tyranny that does not, in fact, exist.

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Unlike some state court judges, who are elected, the federal courts have independence from the electoral process via appointment. That is a fundamental component of their constitutional structure, in fact. And so far, the judicial branch has been the only institution to stand in the way of the Trump agenda, first with regard to enforcement of the Muslim ban and now with the punishment of sanctuary cities. That, combined with mounting pressure on Congress to investigate the administration’s ties to Russia—which could include subpoenas, hearings, and even indictments for treason—gives the administration a lot of motivation to convey a message to the public that the federal courts are illegitimate.

Consider, for example, Article III of the U.S. Constitution, which outlines the components for federal courts. Section I of Article III deals with the structure of the courts. Section II deals with their power: It notes that among the cases and issues the federal courts are empowered to settle are disputes between the states, citizens, and the federal government.

Section III sets out the rules for prosecuting treason.

Section III states:

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

Seems like an important part of the judiciary’s constitutional structure, doesn’t it?

Republicans control Congress, and the only way a true and transparent investigation into the Trump administration’s Russian ties happens is if Republicans start it. And the only likely way Republicans will start a legitimate investigation is if their constituents demand it. If that happens, it will be up to the federal courts to conduct treason trials against administration officials—apart from Trump and maybe Vice President Mike Pence, who are subject to impeachment as set forth elsewhere in the Constitution—and campaign staffers like Paul Manafort.

So while Trump keeps losing in the federal courts, he has to try and win in the court of public opinion, especially with Russia lurking in the background. The only way he has to do so is by attacking the only branch of government he does not control. It’s an important move. If the public doesn’t believe in the very legitimacy of the only institution that is willing to hold the administration accountable, there will be less pressure on Congress to do anything about potential criminality in that administration.

Tuesday’s district court ruling didn’t answer whether or not the administration’s executive order on sanctuary cities is constitutional. Given the language of the temporary order, it sounds like the court could later find that it is. And the administration has already vowed, just like it has with regard to its Muslim ban, to take the fight all the way up to the U.S. Supreme Court. So the question of what, if any, power Trump has to enact some of his most openly racist policies remains ultimately open.

The immediate effect of the court orders on sanctuary cities and Muslims is, of course, important. But the longer-term strategy of trying to delegitimize the federal courts is dangerous. It not only attacks the very foundation of our democratic system of separation of powers and the role of the courts as a check on presidential and congressional power; it also starts to sound like a preliminary strike against democracy itself.

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