The Day America Taught the World the Meaning of the Rule of Law
By Prof. Al Mariam
February 13, 2017

Fundamental to the work of this court is a vigilant recognition that is it but one of three equal branches of our federal government. The work of the court is not to create policy or judge the wisdom of any particular policy promoted by the other two branches. That is the work of the legislative and executive branches and the citizens of this country who ultimately exercise democratic control over those branches. The work of the Judiciary, and this court, is limited to ensuring that the actions taken by the other two branches comport with the country’s laws, more importantly, our Constitution.” James L. Robart, U.S. District Court Judge in State of Washington, et al., v. Donald J. Trump, et al. (Emphasis added.)

In February 2017, Americans taught the world the meaning of the rule of law. I mean that in the most literal sense. The American federal judiciary acted unhesitatingly to ensure the executive order of the President of the United States “comports with the country’s laws, more importantly, our Constitution.” President Trump also received a practical lesson on the meaning of the phrase, “the supreme law of the land.”

This commentary on the theme of “civic education” follows up on my commentary  last week focusing on President  Donald Trump’s January 27, 2017  Executive Order  [Executive Order] “Protecting the Nation From Foreign Terrorist Entry Into the United States”.  As I lamented in my last commentary, there is great confusion, amazement, speculation and misunderstanding about the Executive Order, the States’ challenges to that Order, the District Court’s temporary restraining order and the Ninth Circuit Court’s denial of the Federal Government’s request for an emergency stay of the temporary restraining order.

I am compelled to deliver this “civics lesson” because I believe that lawyers, particularly those whose expertise is in constitutional law, have a civic obligation to educate and inform the public not only on important and controversial constitutional and legal issues but also in general matters of constitutional law.  For the average citizen, the law is a mysterious world managed and operated by lawyers who speak their own language, “lawyerese” or “legalese”. They talk and write in jargon, legal babble, acronyms, double negatives and other such things. Even Shakespeare was so disgusted by the legal talk and capers of lawyers that he issued his famous edict against them: “The first thing we do, let’s kill all the lawyers”. I should like to believe the great bard was joking though the words spoken by “Dick The Butcher” character are undoubtedly unsettling.

I venture to say that most lawyers generally avoid direct involvement in contentious political issues. They prefer to engage the issues in the courtroom. But in the “cyberage” where information is exchanged at light speed and the general public is easily duped by fake news, it is important for lawyers to step forward and defend the rule of law and the independence of the judiciary. Beyond that, there is a great need for lawyers to demystify and unshroud the law for the public. All American lawyers, in one form or another, are required by law to affirm their “support for the Constitution and laws of the United States” and “maintain the respect due to the courts of justice and judicial officers”. I see no better way of supporting the U.S. Constitution and the laws of the United States in the public interest and good than providing civic education to the public on them.

There is no question many Americans and others are perplexed about and do not quite know what to make of Washington v. Trump.

I have talked to many citizens and others who are simply astonished by the “power” of a U.S. District Court to stop the President’s Executive Order “cold”.  They ask in total bafflement, “How could a ‘simple’ judge stop the mighty President of the United States?”

I have seen and heard others jubilantly declaring they have “won” and Trump has “lost”. Still, others have told me that the “courts’ interference opens the door” for terrorists to come into the U.S. and wreak havoc. Those who oppose the Executive Order claim it is a thinly-veiled “Muslim ban” and deeply offensive and un-American. I have heard fellow academics criticize the “liberal” courts for exacting a political vendetta on Trump. They say the courts are “power hungry judicial activists” hell bent on advancing their own political and ideological agenda. Others place full faith in the courts’ ability to “finally stop” Trump.

The fact of the matter is that none of these issues is relevant to the court proceedings in Washington v. Trump.

At the current stage of litigation in the case, there are only two straightforward issues before the District and Appeals Courts: 1) Should the States of Washington and Minnesota be granted a temporary restraining order until they have their day in the trial court in their lawsuit against the Government? 2) Should the Ninth Circuit grant the Government’s request for an emergency stay by simply accepting  the Government’s Executive Order and verbal assurances, without any evidence whatsoever, as “gospel truth”?

In the trial court, the states of Washington and Minnesota [“States”] sought a “temporary restraining order” (TRO) until the case can be heard and decided after evidence is presented on the merits. The States argued that they are entitled to have their day in court because the Executive Order does “irreparable harm” to their citizens, residents and institutions.

The Government asserts it is entitled to an emergency stay of the District Court’s Order because legal controversies involving immigration and national security do not belong in the courts and that the courts have no power to scrutinize the President in these issues even if he violates the U.S. Constitution. That is what all the legal brouhaha is about.

The District Court granted the States’ request for a temporary stay in the implementation of the Executive Order until they have had a chance to be heard in court with their evidence.

The federal and state courts grant TROs routinely every day. Such proceedings are such a common part of the humdrum of the judicial process that few ever take notice.

The States’ case challenging the Executive Order is in its preliminary stage; indeed the request for a temporary restraining order is the very first step in the litigation. Nothing the District and Appeals court have done ends the case or hands a victory or defeat to the either side. Ultimately, the validity of the Executive order will be decided in the answer to the following question: Does the Executive Order violate the U.S. Constitution and/or Acts of Congress?

I aim to make this commentary a “civics lesson” for my readers and others who may not be familiar with the American constitutional and legal process by examining and explaining the issues surrounding the  Executive Order in the hope that they can better appreciate the principle of the rule of law in action in America. It may be easier to talk about the rule of law in the abstract as a philosophical issue or jurisprudential concept. My aim here is to demonstrate how the Executive Order directly and necessarily implicates the rule of the supreme law of the land, the rules of law in the Acts of Congress and the rules of law in the decisions of the Supreme Court of the land.

In delivering this “civics lesson”, I have tried to strip, as much as possible, the legal “mumbo jumbo” which often confuses and turns off those who are not practicing lawyers or academics studying the law.  There is always the risk of oversimplification, omission of important details and understatement when one seeks to deconstruct complex legal issues. I provide links to original sources for those who want to delve in specific issues more deeply. Having said that, I have tried to make the discussion is easily digestible and understandable to the lay reader.

To read the full commentary, click here


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