President Donald Trump may desire to make new rules and enforce them, but American judges are the ones who determine the rules’ legitimacy. As part of his ongoing war with undocumented immigrants and the caravan “invasion” Trump issued a hefty proclamation on Nov. 9 denying asylum for migrants who enter the United States illegally, mainly through the southern border. Unfortunately for Trump, the proclamation was suspended almost as fast as when he paid Stormy Daniels off. Judge Jon S. Tigar of the U.S. District Court for the Northern District of California issued a temporary restraining order against it, asserting that the United States must consider all asylum claims, regardless of citizenship status.
As always, when he doesn’t get his way, Trump vented his frustrations by writing entries on his public diary, Twitter, accusing judiciaries of undermining national security, and labeling Tigar as “an Obama judge,” also blaming the 9th U.S. Circuit Court of Appeals’ rulings for the outcome.
This was a district court ruling that did not even reach the 9th Circuit yet. It seems that Trump still harbors petty resentment toward that court, which had previously declared several of his policies unconstitutional, most notably the Trump travel ban on majority-Muslim countries and the Keystone XL pipeline.
Chief Justice John Roberts, when asked by the Associated Press about the remarks, affirmed that there are no “Obama judges or Trump judges,” just independent ones “we should all be thankful for.” Though Trump is only thankful for himself, the justice is right.
Normally, judiciaries refrain from commenting politically on issues, especially since their opinions are mirrored in their rulings. Perhaps he grew tired of the harrowing insults. Or maybe, Trump has a point. The judicial branch has always been impartial to the Constitution by exercising judicial review and equating itself with the other branches. The judicial branch is fostered by lifetime appointments, Federalist No. 78 and the Marbury v. Madison U.S. Supreme Court ruling.
Yet, the judiciary is not immune to partisan politics, a parasite that infects even the purest of institutions. Why else are there Senate confirmation votes for Supreme Court nominees, such as Justice Neil Gorsuch, split down party lines? Why are court decisions 5–4? Perhaps to protect political ideologies. Other infections may include outside pressures from the Federalist Society, American Bar Association and public opinion, factors that appear through no fault of the judicial branch itself. Judiciaries may not be completely independent as Roberts assures; they still retain high impartiality, far from the “disgrace” Trump says they are.
The rulings of all judiciaries should be respected, not berated like Trump foolishly did with Tigar. All administrations face frustrations while attempting to enact their policies, which is understandable. Even former President Barack Obama probably felt disappointed when the courts questioned the legality of Obamacare in Halbig v. Burwell. But Obama never intentionally undermined the judiciary or issued disparaging comments regarding the courts’ legitimacy.
The judicial branch is a non-policy-making body whose only role is to interpret the law. Trump is right when he tweets that “Judges must not Legislate Security.” Spoiler alert — neither can he, since presidential discretion is limited. Only Congress can.
Unless Trump wants to impeach and reappoint more conservative judges to the courts, prevent plaintiffs from bringing their cases to the 9th Circuit, or bring his proclamations and executive orders through Congress — all unsuitable alternatives for him — he must trust that the well-qualified judiciaries are undeterred in issuing appropriate rulings. Tigar did not halt the proclamation as part of a vendetta against Trump’s “side” because there are no sides, not even “winning” ones.
He halted it because it ignored congressional law. So, when Trump blames judiciaries for his ineffective proclamation and for just doing their jobs, it shows misunderstanding of basic American politics.
If Trump really cared about minimizing the influx of illegal immigrants, he should have taken the military money spent on tear gas and barbed wire on the southern border and sent it overseas to promote stability, freedom from gang violence, poverty and other push factors that encourage emigration. Whatever he plans to do next depends on judiciary approval, for only the courts faithfully serve the interests of an entire nation, not just parties.
Political Science ‘21
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