Sunday, December 31, 2017

A Lawless President Meets the Rule of Law

      President Trump's job approval rating stood at 43 percent in early March when his Supreme Court nominee, Judge Neil Gorsuch, congratulated him in a personal letter for getting off to "a good start." In fact, Trump's year in office has been rocky from the very start, with job approval ratings at historic lows for a new president, no significant victory in Congress until the deeply unpopular tax bill just signed into law, and a continuing succession of defeats in the courts.
      Gorsuch sent Trump his sycophantic note, dated March 2 but unearthed by reporters for the Washington Post only this month [Dec. 19], with the president already off to a poor start in federal courts. Two federal district court judges in separate cases had issued rulings weeks earlier in February to block as unconstitutional the president's much touted executive order aimed at barring travelers from six majority-Muslim countries from entering the United States.
      Those rulings came from veteran federal judges appointed by presidents of different parties: James Robart, named to the federal court in Seattle by President George W. Bush, and Leonie Brinkema, appointed to the federal court in Alexandria, Va., by President Bill Clinton. Federal appeals courts similarly blocked the ban, even after a revision.The Supreme Court gave the administration a partial victory with a 6-3 decision in Trump v. International Refugee Assistance Project that allowed the order to take effect, but somewhat narrowed; Gorsuch was among three dissenters in the June 26 decision who voted to uphold the order as written.
      Federal judges have been the unsung heroes of the resistance to Trump, not because of political disagreements but because of their commitment to the rule of law — in contrast to the often lawless president. As candidate and as president, Trump has shown himself to be largely ignorant of the legal process and deeply contemptuous of constitutional rights and legal rules.
      As candidate, Trump ostentatiously promised "a total and complete shutdown of Muslims entering the country." Federal judges in the later travel ban cases — Theodore Chuang in Maryland and Derrick Watson in Hawaii, both appointed by President Barack Obama — noted Trump's campaign statements in finding impermissible religious discrimination behind the eventual executive order. Trump criticized both decisions.
      During the campaign, Trump also demonstrated his own racial prejudice by imputing bias to the Mexican-American judge presiding over the civil lawsuit against his so-called Trump University. Judge Gonzalo Curiel was born in Indiana to Mexican immigrant parents, but Trump called the judge a "Mexican" and a "hater" who was biased against him because of his support for building a wall at the U.S.-Mexico border.
      As candidate and as president, Trump repeatedly promised to roll back federal regulations, especially those promulgated under environmental protection laws. But the administration has been stymied in several cases as federal courts have faulted Trump agencies for failing to comply with well established administrative procedures.
      In one example, the federal appeals court for the District of Columbia on July 3 blocked the Environmental Protection Agency (EPA) from suspending enforcement of a year-old rule regulating emissions from oil and gas wells in an effort to limit greenhouse gases into the atmosphere. The D.C. Circuit's 2-1 decision in Clean Air Council v. Pruitt, with Democratic appointees in the majority and a Republican appointee in dissent, held that the EPA had no inherent authority to suspend a rule, absent special circumstances, during proceedings to reconsider it.
      Three months later, a federal magistrate judge in San Francisco similarly blocked the Interior Department from delaying compliance with a regulation to prohibit the "flaring" by oil and gas companies to burn off waste methane. A New York Times story said the decision by Judge Elizabeth LaPorte marked the third time that the EPA or the Interior Department had been found to have acted illegally in seeking to roll back environmental regulations. Reporter Eric Lipton said the administration had also retreated in three previous instances when proposed rollbacks were challenged in court.
      Earlier, the administration had suffered a rebuff on one of its own policies: an executive order issued by Trump in his first weeks in office to cut off federal funds for so-called "sanctuary cities" that limit cooperation with immigration authorities in apprehending undocumented aliens. In an April 25 ruling, U.S. District Court Judge William Orrick in San Francisco called the total cutoff of funds "unconstitutionally coercive." Trump called the ruling "ridiculous," but Orrick broadened it on Nov. 21 into a permanent nationwide injunction against the policy.
      The string of judicial reversals continued with a sharp rebuke of Trump's peremptory ban on transgender individuals in the military. In an Oct. 30 ruling, U.S. District Court Judge Colleen Kollar-Kotelly blocked enforcement of Trump's Aug. 25 memorandum. The president issued the memorandum, the judge said, "without any of the formality or deliberative processes that generally accompany the development and announcement of major policy changes . . . ." The week before Christmas, the D.C. Circuit rejected the administration's plea to stay the lower court order.
      Trump has built his presidency on a continuing campaign against institutions that slow or block his autocratic impulses: the courts, the bureaucracy, the news media. Speaking as president, he has encouraged police to rough up suspects and threatened to challenge television networks' broadcast licenses. "His idea of the presidency," Corey Brettschneider, a political scientist at Brown University, remarked to The New York Times, "is, he was elected and he can do whatever he wants."
      The United States is a country of laws, not of men. One year into a Trump presidency, the rule of law has held, but Trump's unmanageable ego ensures that more challenges lie ahead.

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