Yes, Virginia, We Still Have Three Branches of Government

Editor's note: “Reprinted with permission from ASA News & Notes, February 2017 issue.”

We have entered the fourth week of the new administration.  It would be a relief to report that the White House staff had become more organized and that the most problematic cabinet and staff appointments had resigned, but that will have to wait, I suspect, until even more mistakes have been made.  The least stressful way to understand events since January 20th would be watch back episodes of “Saturday Night Live.”

We knew while he was campaigning that the president did understand that the Congress is made up of elected representatives.  He was quick to tie those up for re-election to his own fate.  Though he promised over and over to “drain the swam” and to “fix Washington” in his campaign, he has instead brought in a significant number of billionaires to his cabinet, and worked hard to keep Congressional Republicans in line to confirm cabinet nominees; and to support his seemingly unending executive orders. This has been accomplished in the most chaotic manner ever seen in the White House, which displays a complete lack of regard for the system of checks and balances from which the federal government works.

We now have a better picture of his view of the judicial branch.  Trump may be outraged that two federal courts can stay his immigration ban, causing him to retaliate with tweets that engage in the worst kind of disrespect and name-calling. After such a botched rollout of the immigration ban, he has learned in theory that any executive order should be extremely vetted with the departments they fall to and with members of Congress as well.  Staff at the Department of Homeland Security, faced with immediate and unplanned implementation of the ban, found itself relieved days later when the ban was stayed.  The Acting Attorney General, a career diplomat, was fired by the president for telling members of the Justice Department that she felt the ban was unenforceable.

The Justice Department (with its new Attorney General confirmed only after these two federal court appeals had been heard) was charged with defending the immigration ban in those courts.  Part of the argument they made is that presidential executive orders are “unreviewable” by the courts. The 9th District Court of Appeals, in concurring with the Washington State Solicitor General who argued the plaintiff’s case, said of the matter:

“Instead, the Government has taken the position that the President’s decisions about immigration policy, particularly when motivated by national security concerns, are unreviewable, even if those actions potentially contravene constitutional rights and protections. The Government indeed asserts that it violates separation of powers for the judiciary to entertain a constitutional challenge to executive actions such as this one. There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy. See Boumediene v. Bush, 553 U.S. 723, 765 (2008) (rejecting the idea that, even by congressional statute, Congress a the Executive could eliminate federal court habeas jurisdiction over enemy combatants, because the “political branches” lack “the power to switch the Constitution on or off at will” [r]esolution ). Within our system, it is the role of the judiciary to interpret the law, a duty that will sometimes require the “of litigation challenging the constitutional authority of one of the three branches.” Zivotofsky ex rel.Zivotofsky v. Clinton.566 U.S. 189, 196 (2012) (quoting INS v. Chadha, 462 U.S. 919, 943 (1983)). We are called upon to perform that duty in this case.Although our jurisprudence has long counseled deference to the political branches on matters of immigration and national security, neither the Supreme Court nor our court has ever held that courts lack the authority to review executive action in those arenas for compliance with the Constitution.”

One of the president’s options now is to draft a new executive order.  Another is to appeal the existing 9th court decision to the Supreme Court, given that the appeals court laid down sufficient information in its findings for the Supreme Court to decide if it wishes or needs to hear an appeal. If the president is well-advised at all, it will come as no surprise if the Supreme Court declines to hear the case and let the appeals court finding stay in place.  There is no need for him to ask all 29 judges on the 9th District Court of Appeals to determine whether the three judges who made the ruling were correct; the three judges have already offered to have their ruling reviewed by the full district appeals court if the other 26 deem it important.

I started in one place and wish to end in another.  There is no doubt that, for many of us, our productivity has been severely compromised by the new administration.  No matter what we are in the middle of, we check our mobile devices to see if other troubling programs have been announced, or if there are new executive orders on any given day.  I am heartened by the overwhelming number of lawyers who drove to airports to help ensure that rights were respected on those first days before the ban was stayed.  I am impressed with politics at the local level, not just here in Seattle but in other major cities as well, where large demonstrations to protest such actions have taken place.  That is just the tip of the spear.  There is a relatively new attempt to understand how politics work, to figure out how to let your Congressional representative know your views on a wide range of appointments and bills they will be voting on.  Finally, more conversations are taking place face to face, not just on social media.

I was overwhelmed by Adam Gopnik’s column in the latest issue of The New Yorker, which ends thus: "Democratic civilization has turned out to be even more fragile than we imagined; the resources of civil society have turned out to be even deeper than we knew. The battle between these two shaping forces--between the axman assaulting the new growth and the still firm soil and deep roots that support the tree of liberty--will now shape the future of us all."

Next month, I’ll plan to take a look at the dismantling of the Dodd-Frank Act.

“Reprinted with permission from ASA News & Notes, February 2017 issue.”

Annie Searle is Principal of Annie Searle & Associates LLC – also known as ASA Risk Consultants – an independent consulting and research firm, serving businesses and organizations that are part of the nation’s critical infrastructure.

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Annie Searle

Annie Searle is Principal of Annie Searle & Associates LLC – also known as ASA Risk Consultants – an independent consulting and research firm, serving businesses and organizations that are part of the nation’s critical infrastructure. ASA creates roadmaps and research reports to manage risk arising from complex issues. Offering a neutral and confidential assessment of existing plans and programs, ASA identifies gaps and offers a customized road map to increase resiliency. ASA’s Institute for Risk and Innovation helps drive policy change in areas ranging from financial regulation to crisis management best practices, and readiness against threats like pandemic flu. 


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