Some have hailed President Trump’s executive order restricting immigration from seven majority-Muslim countries as needed for national security, while others have called it discrimination against Muslims. But recent events transcend immigration policy.

Many reports suggest that the executive branch may have defied temporary restraining orders to freeze a complete rollout of the program pending the final outcome of court proceedings. In legal and political circles, this has raised the question of whether there is a “constitutional crisis” — a situation where one branch of government overreaches or usurps the role of the other branches and is unresponsive to checks on that use of authority.

For example, Customs and Border Patrol agents may have initially refused to change procedures to allow visa holders from the restricted countries to enter the United States, even after the courts stayed portions of the program. The administration also revoked thousands of visas, possibly to circumvent those courts’ orders that applied only to visa holders. And the government may be withholding the names of individuals who were detained under the executive order, even after disclosure was ordered.

Ordinarily, a response like this would be considered risky, because it undermines the usual reason for a temporary restraining order — preservation of the status quo – and could provide a basis to hold the individuals who made these decisions in contempt of court. No court has held members of the executive branch in contempt yet. But a federal court in New York has been asked to enforce a prior order — a step short of finding contempt of court — based on allegations that the executive branch disobeyed the prior order.

Whether this rises to a “constitutional crisis” must be considered in light of the tone the president has set. Following an unfavorable ruling, his tweets criticized the “opinion of this so-called judge” before blaming the entire judicial branch: “Just cannot believe a judge would put our country in such peril. If something happens blame him and court system. People pouring in. Bad!”

While it is tempting to dismiss these tweets, some conservative critics have done the opposite. David Frum, a former speechwriter for President George W. Bush, called it “lawless talk.” National security expert Eliot Cohen characterized the president as “attacking the Constitution.” In other words, the tweets are significant not only for their disrespect toward judges — who must prepare for personal attacks if they rule against the president — but also for the suggestion that national security trumps rule of law (judicial review).

The president made a similar argument in court. His lawyers argued that as long as there is a “facially legitimate and bona fide reason” for the immigration limits, the courts shouldn’t consider whether “it was prompted by religious animus toward Islam.” Moreover, they argued that “judicial second-guessing of the president’s national security determination in itself imposes substantial harm on the federal government and the nation at large.”

The parties challenging the immigration restrictions disagree. They argue that “courts routinely review executive decisions with far greater security implications than this order.” In support, they rely on a case in which a U.S. citizen being detained by the military as an enemy combatant for fighting alongside the Taliban was able to challenge his detention in a civilian court. In that case, the Supreme Court said: “Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake.”

The court’s reasoning echoes an important theme that has reverberated throughout U.S. history. As Benjamin Franklin said: “They that can give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.”

So is this a constitutional crisis? Time will tell. While the executive branch has been slow to respond to various court orders and may have taken steps to undermine them, the courts have not found members of the executive branch in contempt. Still, the president’s dust-up with the courts is not over. One federal court been asked to enforce a prior order based on allegations that the executive branch is disobeying it, and no one knows what the president will do if a federal appeals court keeps a nationwide freeze of the immigration restrictions in place.

Either way, the president appears to be girding for battle with the courts and, practically speaking, there is little they can do to force compliance. Meanwhile, Congress remains on the sidelines. This makes it critical to remember that our system of three separate but co-equal branches of government depends upon the agreement of all branches to play by the rules. Any failure to do so transcends politics.

Andrew Helman is an attorney in Portland.

filed under:

Augusta and Waterville news

Get news and events from your towns in your inbox every Friday.

  • This field is for validation purposes and should be left unchanged.