The Constitutional Crisis We Didn’t Have

In the last 48 hours, a judge blocked President Trump’s “Muslim travel ban”, Trump insulted the judge, the Justice Department appealed the judge’s ruling, and a Federal Appeals court denied the appeal. So, for now, the travel ban is in check. Until the next move. And, for now, our Constitution is in good shape. Everything worked as it should. But I am left feeling somehow more fragile, not less. So much of the commentary I read, especially on the left, is alarmist. Perhaps that’s as it should be, given these exceptional times. But it’s tiring. Two weeks in, and I’m as exhausted by the dire analyses as I am by the dire administration. While I risk parroting a White House talking point, I interpret pretty much everything the President has done, so far, as the fulfilment of promises he made while campaigning. That, in itself, is admirable – the following through, the doing what you said you would do. In many contexts, that would count as integrity. The specifics of what he’s doing are, of course, a different matter. The actions are execrable, odious, and small-minded. But, so far, however deeply I disagree with his policies, however incompetent and fatally conflicted I find many cabinet nominees, however hypocritical and myopically partisan I find the leaders of the House and Senate, however dismaying I find the dumbing-down of the discourse, and however bewildering – even dangerous – the staffing and governance of the Executive Branch, I am not yet convinced that this is anything more than a hard right government getting on with its business. And from the perspective of democracy, there’s nothing intrinsically wrong with that. We’ve had dickheads, incompetents and ideologues in power, before. It’s never good, and protest we should, but it isn’t a crisis for the foundations of our country, even when it is a crisis for decency, fairness, and immediate justice. What the Muslim quasi-ban brought into the light, however, is how quickly it could all turn. For many years, both the right and the left have excoriated judges who haven’t agreed with them. I think Republicans have been guiltier of fostering anti-judicial sentiment than Democrats, but it’s been a two-party game. (Citizens United, anyone?) When a case goes against you, the judges are “unelected activists” who deserve nothing but your contempt. This watering down of respect for the Judicial Branch has consequences. It attempts to delegitimize one of only three branches of government that keep our country in delicate balance: the legislative branch, the executive branch, and the judiciary. Declare the judiciary to be illegitimate, and they are, by implication, ignorable. Labelling judges “unelected” and calling their rulings “assaults on democracy” is a rhetorical tactic to cast them as opponents to our democratic values, the enemies of “real” democracy. This is ridiculous, of course. The Constitution created one of the three branches specifically to rule on what the other two branches could and couldn’t do. And it made sure that branch wouldn’t be subject to the whimsical mob in electoral popularity contests. This body of “unelected activists” isn’t supposed to be responsive to the electorate, or to the House or Senate or President. It is specifically supposed to be independent from them. It has both eyes on the constitution, not one eye on the next election. It’s nothing new to say that restricting freedoms is necessary for the security of the country – as Trump has marketed his ban. It’s also nothing new to deride judges who rule against you. Saturday, Trump called Justice James Robart a “so-called judge” and his opinion “ridiculous”. Actually pretty mild stuff, by Trump’s standards. But hardly a respectful dissent. What kept our democracy intact over the weekend was that, while insulting the judge and, by extension, the legitimate role of the judiciary, the Trump administration played by the Constitution’s rules. While Trump engaged in petty pugilism on Twitter, his Department of Homeland Security complied with the ruling, giving appropriate instructions to its field staff (including customs officials at airports), and his Department of Justice followed the procedural rules in filing an appeal. Without wanting to indulge alarmism, I will admit that I imagined, Saturday, just how fragile a moment that was. Our Constitution was held together by a large number of people deciding to follow the rules. There was no constitutional crisis. And that is to be noted and honored. But we saw exactly how one might happen. If, on Saturday, President Trump had gone one step beyond Twitter insults, he might have declared Justice Robart to be genuinely illegitimate. If he felt the country was with him, he might have invited Paul Ryan and Mitch McConnell to join the fray, publicly decrying the obstacle of the judiciary, preventing him from exercising the will of the people. More directly, if President Trump had ordered the Department of Homeland Security to enforce the ban, contravening Justice Robart’s ruling, how many of its staff would have risked career and livelihood by saying “No” to the President? Would some factions of the border force comply with the courts, while other factions complied with their boss? The enforcement of a judge’s ruling can be a very fragile thing. Who gets sent in to tell armed border officials to disregard the President? Federal Marshalls? And, then, what? Two groups of armed guys on the Federal payroll in a stand-off at the airports? Not likely. But that’s the point. It only works if everyone follows the rules. So many have commented that this is a man who has relished changing the rules of politics. We have to hope there is one set of rules he will voluntarily be bound by: the set he pledged to uphold in that oath a couple of weeks ago.