Of Presidents and Judges: The Executive Order and the Slithy Toves

The judicial injunctions staying President Trump’s second executive order on immigration from certain named countries raises some disturbing questions. The first set of injunctions, against the first executive order, had much that is worthy to be commended. The order was sloppy, arbitrary, poorly written, badly articulated, and trampled on the rights of all kinds of people, with serious ill effects. But, just because many people object to a policy enunciated by a president, does not mean that policy is ipso facto offensive to the constitution.

What has been quoted in the daily press of the latest court injunction is questionable. It appears a federal district judge has not limited himself to examining the content of the order, but examined Trump’s campaign speeches to construe evil intent. The late Justice Antonin Scalia wrote eloquently on the inherent difficulties of ascertaining what was on someone’s mind when they voted for, or drafted, a law, beyond what is evident from the words of the law itself.

There are two legitimate controversies about any executive order, from any president:

1) Is it a sound exercise of discretion by the President? Does it establish a sound public policy that is effective, beneficial, and worthy of respect?

This is not within the jurisdiction of the courts. It is a legitimate matter for public debate, for legislative review, and for consideration by the voters in future elections.

2) Does the order exceed the powers granted to the President by the Constitution of the United States of America, or exercise powers denied to the executive branch of government by that same constitution? Secondary to that, there would be a subordinate question, did the president violate the statutory terms upon which congress delegated power to the executive to act on certain matters?

This is within the jurisdiction of the courts, for reasons outlined by both James Madison and Alexander Hamilton in The Federalist Papers.

Americans have all too often, over the past fifty years, bought into the notion that ‘If I believe in something fervently enough, if it is sufficiently righteous in my eyes, then I have a constitutional right to the outcome I believe is just.” That is simply not true. The constitution is not a laundry list of right and wrong. It is not a series of articles enumerating the Good and the Bad. It is not an infinitely malleable document, empowering judges to do what is right in their own eyes.

Rather, the constitution is a jurisdictional document. It assigns certain powers to congress, to the president, and to the judiciary. It prohibits the federal government from exercising certain powers. It restrains the states from exercising certain powers. It reserves powers to the states, and to the people. (Those are two very different things, contrary to the heated rhetoric of “states rights” afficionados).

It is entirely possible for President Trump to issue a poorly conceived, badly considered, destructive policy, but be well within his assigned powers as president. Every time the president is wrong, does not mean that a judge is empowered to enjoing his order for being wrong. Presidents do have discretion, and they do make mistakes. Only if they exceed the discretion entrusted to them would the courts have jurisdiction to stop them.

Similarly, it congress should vote to abolish the Environmental Protection Agency, it would not be a constitutional violation. It would be a lawful act exercising the discretion entrusted to congress by the constitution. It is no more unconstitutional to abolish the agency than to authorize it. It would be a willful, destructive, damaging, dangerous act, but the recourse is for people to think more carefully about who they vote for, and why.