This Monday we as a nation celebrate George Washington’s birthday. The local Santa Monica / Malibu Unified School District will be on holiday to honor the man who is widely recognized for his duty, honor and patriotism. Washington is often referred to as the “father of our country” for his vision and effort in defeating the British and securing independence for the colonies.
In the intervening 200 plus years we have had great presidents and not so great presidents. We have weathered enormous political, civil and financial storms, partly because we have clung to the vision of America that was put forth by men like Washington, Hamilton, Madison, Jefferson and Adams. It came at a high price for many thousands of people who fought, and still fight, for the ideals of our country.
Today we have a new president, a new administration and there are still many who are fighting for a greater, more just, more equal, more welcoming country. The great truth of government is that the government body moves at its own pace in most cases, and that is a very good thing. For example, just last week the 9th circuit acted as a check on the power of the Presidency. Mr. Trump issued an Executive Order (EO), what is colloquially called the “travel ban” that effected seven mostly Muslim countries.
The EO was almost immediately contested by the state of Washington and Minnesota as unconstitutional due to its sweeping effect upon not just foreign nationals, but Resident Aliens (“Green Card Holders”) who were prevented from returning to the state. The 9th Circuit upheld an injunction which prevents the EO from being enforced.
President Trump and his surrogates went on the attack against the Judiciary as they see this as an infringement upon the Constitutional power of the President to protect the country and secure the borders. While the President clearly has the right and the duty to secure the borders and set policy, the question is: has he overreached with this particular order? In the balancing of powers between the legislative, executive and judicial branches there is always a complex calculus of rights, obligations and equity.
The principle of judicial review was clearly articulated in Marbury v. Madison, a case that stands for the principle that it is the Court which determines what is and is not Constitutional. Our government, nay our way of life, depends not on the Legislative branch, most of who are beholden to corporate interests, and not to the Executive branch; rather the final bulwark against corruption, overreach by tyrants, and foreign intervention is and always will be the Judicial.
So long as we are a nation of laws we will require a system that decides what are the valid from the invalid, the fair and the equitable from the malignant and wrong. I admit I may be partial, being a lawyer. Sitting in court as I fight for fathers who are seeking more time with their children in a system that seems grossly out of whack, it is easy to forget that there is a balance of powers. That there is a logic behind the three legged stool of our government.
I read the Federalist Papers in college, all those many years ago. I took Constitutional Law in law school and I have had to explain how the system works to many people who feel trapped and abused. It’s not a perfect system, there are loopholes that allow some to abuse the protections that are built in. Trial courts make bad rulings, that’s why we have appellate courts, who in turn can make bad rulings, which is why we have a Supreme Court. In theory they are the court of last resort and are supposed to “get it right.” Whatever that means.
Mr. Trump’s Executive Order may find its way to the Supreme Court or it may not. Future orders and actions by him may be reviewed by the top judges in the country to determine if he is acting in a Constitutionally proper manner or not.
Mr. Trump may continue to tweet out his frustrations at the courts and the rulings they make, that’s his Constitutional right. Just as Mr. Trump may continue to be rebuked by the courts for his overreaches, that would be the duty of the judiciary, and their Constitutional obligation.
David Pisarra is a Los Angeles Divorce and Child Custody Lawyer specializing in Father’s and Men’s Rights with the Santa Monica firm of Pisarra & Grist. He welcomes your questions and comments. He can be reached at firstname.lastname@example.org or 310/664-9969.You can follow him on Twitter @davidpisarra