Trump’s executive order barring entrance to the United States for citizens of seven predominantly Muslim countries has caused quite the uproar. The resulting conflict between the courts and the president has many people concerned about an approaching constitutional crisis of potentially massive proportions.
Politico ran a piece titled “Scenes from a Constitutional Crisis,” and a prominent Medium blogger even went so far as to question whether this order was a “Trial Balloon for a Coup?” Many other commenters see us on the precipice of something either very dangerous or very ugly.
Perhaps it’s the eternal optimist in me (I didn’t foresee Trump getting elected, so there’s that), but I see much to be heartened by. The American people have rallied in a way I have not seen in years, taking to the streets, sending oodles of money to the ACLU, and showing up to do pro bono work to protect the rights of the detained at airports across the country.
The ACLU filed suit. States joined in, including New York, Massachusetts, and Washington. The latter challenged the full breadth of the order rather than particular parts, which ended up being the winning strategy. A federal judge (a mainstream Republican for what it’s worth) issued a temporary restraining order against implementation of the ban until further notice, and the Ninth Circuit Court of Appeals has now, in a unanimous decision, refused to reinstate the travel restrictions.
As a student and professor of American government and the founding, I can say that this result is precisely what our Constitution was set up to do. I can just see James Madison rubbing his hands with glee.
States Can Restrain the Federal Government
While the ACLU and others deserve credit as well, it was the state responses that had me cheering, largely because of the similarity of their response to another constitutional “crisis” of a long-gone age. In the Virginia and Kentucky Resolutions of 1790, Madison and Jefferson pushed back against strikingly similar laws that violated the rights of citizens and the freedom of the press.
The Alien and Sedition Acts, signed into law by President Adams, made it easier to deport foreigners and also placed limits on the ability of the press to criticize government officials. Madison and Jefferson wrote the Virginia and Kentucky Resolutions as a response to what they believed to be an unconstitutional act on the part of the legislature (rather than the executive acting alone, as is the case today). In particular, Madison argued that “interposition” is a major role of state legislatures. He argued of the states:
It is their duty to watch over and oppose every infraction of those principles which constitute the only basis of that Union, because a faithful observance of them, can alone secure its existence and the public happiness.”]
When unconstitutional measures are proposed or passed, the states “have the right, and are in duty bound, to interpose for arresting the progress of the evil.” This “interposition” is the process by which the state places itself between its citizen and the federal government who threatens him. The state provides a protective barrier against federal abuse.
So what’s going on today? Interposition in its very finest form, highlighting all the glories of federalism — and checks and balances too. The states sought relief in the courts, an independent branch of the federal government. The courts ruled against the executive, the executive raved and ranted and tweeted, and the process will move its way up the court system until it hits the Supreme Court.
So far, there’s no “crisis” here. Instead we have the system of checks and balances working side by side with federalism to challenge the authority claimed by a single branch of government to make sweeping changes to U.S. policy without the consent of the people’s representatives. While Congress has given the president ample power over immigration and national security (probably to our detriment), that power is rarely subjected to judicial scrutiny. Now it will be.
The best lesson here is that what the executive says and what the Congress allows the executive to do are not in fact capital “L” Law, at least not in the truest sense of the term.
All laws (and executive orders) in the United States must be compatible with the Constitution. They can be and should be challenged by citizens and permanent residents suing for relief, by states either refusing to cooperate with federal officials or filing their own lawsuits on behalf of their citizens, or by representatives in Congress who are looking down the barrel of midterm elections in 2018. Steve Bannon may not have much to lose if Trump explodes into a fireball of authoritarianism, but nervous House members and senators do and they know it.
And it is all these competing interests, “ambition counteracting ambition,” that the Federalists argued would be the truest and safest protectors of liberty. We don’t expect our representatives to protect our rights out of benevolence or moral duty. Sometimes they do, of course, but you can’t depend on it.
We don’t expect our representatives to protect our rights out of benevolence or moral duty.”]
We expect our representatives to protect our rights out of fear, fear of not being reelected, fear of losing control to the competing party, fear of being steamrolled by a dangerous executive, fear of state legislatures and governors rebelling, fear of a humiliating defeat in the courts, fear of citizen protests spreading across the land. It’s that fear of losing the power they desperately crave that keeps these people in line.
So buck up, folks! Right now at least, we’re not in crisis. In fact, we’re seeing the Constitution raise its craggy head and shake itself awake after having been essentially shoved in a corner to nap for the last few decades. Perhaps these kinds of blatant power grabs are what we need to finally get around to reading that short but incredible document that provides the structure of our government, the guarantees of our freedoms, and the modes and methods by which power will check power.
But here’s the crucial thing, the big, huge, important thing that will keep our Constitution awake. It’s us. The people. The people out there making noise and marching and sending letters to our representatives and supporting refugee families at airports and volunteering our time to help vulnerable people work their way through a complex system.
The Republican-controlled legislature is between a rock and a hard place because those representatives know the midterms are coming and they know people are angry. What would be a real crisis is if the executive order gets up to the Supreme Court, the court rules against it, and the executive, legislature, and states look around, see nothing but complacency or apathy, and just ignore the Court’s decision. That would be a crisis. And that’s the real danger of authoritarianism.
But people like Trump are neutered by unpopularity. They can’t do much if the people don’t give them power. Give them power and they will take it and run with it and no matter how wonderful our Constitution is, it can’t stop it. But right now we have strong institutions and, crucially, a people who, even if they don’t know exactly what the Constitution says, overwhelmingly support it.
Let’s keep the pressure on, the Constitution awake, and the resistance ready to go.”]
We’re inherently suspicious of people who violate court orders and run roughshod over longstanding institutions. Trump is wildly unpopular and getting more so. Let’s keep the pressure on, the Constitution awake, and the resistance ready to go. It’s ultimately we the people who defend the Constitution — and it’s only through our defense of it that it can in turn defend us when we most need it.