Congress MUST Act To Halt Constitutional Crisis Caused By Bannon, Trump Ignoring Judicial Branch
Trump Presided Over A Breakdown In Checks And Balances. The Other Branches Of Government Must Respond
There is a Constitutional crisis playing out at America’s airports. On Friday, President* Donald Trump issued an executive order banning people from 7 predominantly Muslim countries from entering the United States. This ban included refugees who had already been vetted in America’s highly effective immigration system. Astoundingly, it cruelly included people who were already in the air, and even permanent residents. Chaos was the story of Saturday as people living legally in the United States were detained coming off of airplanes, and incensed protesters filled airports. As air travelers fell into legal limbo across the country, the ACLU filed suit, and a federal judge issued a stay on implementation of the ban, saying that the suit had a “strong likelihood of success” of demonstrating that the ban “violates … Due Process and Equal Protection.”
At that point, it became legally mandatory for law enforcement officers to comply with the court order. As executive, the president of the United States is the nation’s highest ranking law enforcement officer, and the boss of all law enforcement officers. But courts can overrule the president. That’s how our Constitution works. That’s how checks and balances works. That’s one of the key things that prevents anyone in our country from ever accumulating authoritarian power.
After the court order was issued, reports began emerging that people were still being detained. Attorneys who arrived at the airport were barred from entering detainment cells, and even members of Congress who arrived to support the lawyers and enforce the court order were also barred by agents of US Customs and Border Patrol. Under apparent instruction from above, law enforcement agents were ignoring a court order, members of Congress and the right to an attorney.
We have a constitutional crisis today. Four Members of Congress asked CBP officials to enforce a federal court order and were turned away.
— Rep. Don Beyer (@RepDonBeyer) January 29, 2017
Attys at Dulles with a fed court order entitling them to see detainees told by CBP "it's not going to happen" Attys seeking contempt order
— Damon Silvers (@DamonSilvers) January 29, 2017
The most generous possible interpretation of this is that widespread incompetence and the failure to efficiently staff key positions led to a breakdown in communications. That’s not an excuse. Even that would be grounds for a sweeping investigation. But generosity is hard to find when Steve Bannon, known far right radical, propagandist and agitator who has publicly stated that he wishes to destroy the state and the political establishment, has risen rapidly to the solar position of Trump’s world of power. As the chaos unfolded, it was reported that a new executive order had placed Bannon onto the Principals Committee of the National Security Council, and sidelined the Director of National Intelligence and the Chairman of the Joint Chiefs of Staff, drawing widespread criticism from across the political spectrum and the national security establishment.
The deeply disturbing question arises: is the administration–operating under a dark cloud of questions of legitimacy, competency and allegiance–probing for cracks in the Constitutional order of checks and balances that has ruled America since 1787; testing which law enforcement agencies are capable of operating independently and ignoring the other branches of government?
Whether incompetence, malice, or something else, there is no possible good explanation. After only a week in office, Donald Trump, who has no previous public service experience, presided over a breakdown in checks and balances. That is unacceptable. That is intolerable. There are several things that could happen now.
The officers responsible should be held in contempt of court. Courts and judges should make it abundantly clear to the legal fingertips of this radical new administration that the will of the court will not be defied, that there will be real consequences for failure to comply. Courts should serve contempt charges as high up the administrative food chain as possible, targeting supervisors on scene or even department managers.
Both parties in both houses of Congress should begin wielding all of their investigative powers and begin subpoenaing the heck out of the officials and department leaders who failed to comply with court orders. They should also begin investigating the administration at the highest levels. Why was such a shoddy executive order, seemingly designed to sow chaos in the immigration process, issued with no input from Congress and professionals in various administrative departments? Why does the extremely tight inner circle of the new administration think it can govern by fiat, and why does it think axe-grinding with real human consequences is a substitute for policy? If an investigation into these and other questions lead to a conclusion that the White House is unable or unwilling to faithfully defend the Constitution, Congress should be fully prepared to hold an impeachment trial.
The Framers of the Constitution wrote a document with three separate and co-equal branches of government for a reason. They fought a Revolution against a despotic king across a sea whose courts and agents forced arbitrary, capricious and brutal punishment as a mockery of “justice.” The division of power in Washington is the bedrock value upon which our Republic stands. Nothing else that Congress and the courts plan to do in the foreseeable future is remotely as important as setting aside partisan differences and asserting the rule of law and the primacy of checks and balances. If a new and highly questionable administration is going to look for extralegal avenues of power or incompetently undermine the rule of law, the other two branches of government should use all the just power at their disposal to assert the division of power without hesitation.
Photo by Justin Sullivan/Getty Images
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