This weekend, the 9th Circuit Court of Appeals (one step below the Supreme Court) refused to lift the stay, issued by a judge in Seattle, of Donald Trump’s Executive Order banning citizens of seven Muslim countries from entering the US. If the Trump Administration does not accept the 9th Circuit’s decision, we could be in real trouble. The problem is, since the first federal court order came down on January 28th, the Trump Administration has not always obeyed, and Trump himself tweeted “the opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!” This indicates the President does not respect court authority, and that is very concerning.
You may be asking yourself why Trump ignoring federal courts is such a problem. Here’s why: like voodoo, the federal courts only have power if we think they do. Sounds funny, right? Courts have the right (and duty) to say what the law is if someone brings a case in front of them. However, federal courts have no ability to force the other branches of government to follow their ruling. They can knock down an act of congress or a Presidential Executive Order, but their decision is only as powerful as the President or the States’ willingness to follow it.
Barring one temper tantrum by Andrew Jackson and a dispute by Abraham Lincoln in the middle of the Civil War, the Presidents have been pretty faithful about following court rulings, so we can’t look there to get an idea what might happen if federal courts get Trumped. However, to understand how big a deal this would be, we can look back a little over 60 years to see what kind of havoc ensued when the Supreme Court struck down racial segregation throughout the US and the segregated states refused to implement its decision. (As an aside, it is not my intention to trash the South. I love the South. It’s just really hard to write about constitutional crises and pretend y’all haven’t created some whoppers.)
Here’s what should have happened if each branch of government had done its job: the Court issued a ruling, so each state legislature would have taken every segregation or “Jim Crow” law off the books, integrated the schools and other public institutions, and gone on with its normal business.
Here’s what actually happened: the South rebelled against the ruling. President Eisenhower had to send in 101st Airborne to let 9 kids go to school; President Kennedy had to federalize the Alabama National Guard to let two kids register for classes at the University of Alabama; and the federal courts, including the Supreme Court, issued order after specific order telling the States how to desegregate. This was a real constitutional crisis that threw the balance of power among government institutions completely out of whack.
Kind of like an injured brain, when one part of government stops working, the other parts adjust to compensate. In the case of desegregation, the Court was in an impossible bind: the fact that the South was refusing to end segregation was a constitutional crisis in and of itself. Remember, federal court authority is like voodoo, and if the Court did nothing, no part of government would follow future decisions. So the federal courts did the only thing they could do- they started issuing specific desegregation orders to cities and towns and school districts, forcing school districts to use busing, for instance. Figuring out how to desegregate wasn’t really the courts’ job, but no one else was doing it. So to sum up, by ignoring the Court’s authority, the relevant States caused the federal government to send in the military to get kids to go to school, caused massive social upheaval, threw off the entire balance of power in government, and weakened States’ rights, which they have, of course, been complaining about ever since.
That was what happened when a few States ignored the Supreme Court. In that scenario, the President, the Congress, and the federal courts were all working together to force the States to cave. If Donald Trump ignores the Supreme Court, I’m not sure the American Republic can recover, because no one will stop him fast enough to prevent permanent damage to the balance of power. The scary thing about the President of the United States is that the power of his office has expanded to reach almost every part of American life. Unlike the States, if the President ignores the Court, we can’t send in the 101st Airborne. We have only one last line of defense: Congress. Yup, we are relying on Paul “Von Papen” Ryan to put country over party and impeach Trump. Anyone wanna take bets on that happening?