With Congressional Republicans unable to muster up the integrity to stand against actions they once called “unconstitutional and un-American” (looking at you, Vice President Pence and Speaker Ryan), there goes one check many sincerely hoped - but also doubted - would be enough to temper Donald Trump once he entered the Oval Office.
However with the ACLU’s success this past weekend blocking Trump’s unconstitutional ban, it appears the judiciary might be the most promising - although still limited - institutional check on a Trump presidency for these next four years.
This weekend, a federal judge in Brooklyn blocked the deportation of lawful visa holders who arrived in the United States in a state of legal and administrative limbo, detained in airports across the country hours after Trump signed an executive order temporarily suspending the entry of all refugees, of Syrian refugees indefinitely, and citizens from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen for 90 days. Responding to a complaint from the ACLU, Judge Ann Donnelly found there was a “strong likelihood of success” that such petitioners would be able to prove such deportations would “violate their rights to Due Process and Equal Protection guaranteed by the United States Constitution” and so ordered that officers were “enjoined and restrained” from deporting such individuals as doing so would cause “substantial and irreparable injury” (<https://www.nytimes.com/interactive/2017/01/28/us/politics/trump-darweesh-decision-stay-refugee-ban.html>).
The legal victory is cause for celebration, but also cautious optimism. It is unclear how the judge’s order would apply to those affected by Trump’s executive order who have not traveled to the United States. However there are many benefits to this type of strategy - and the events of this past week indicate it may be all we have.
One of the main criticisms of the courts as a venue for social change may be a strength in the Trumpian era: it can be incredibly slow. Brown v. Board of Education, the case declaring school segregation unconstitutional for example, was ruled on in 1954, three years after the suit was initially filed. The Supreme Court’s initial decision offered no real remedy to segregation, and it wasn’t until 1955 that the it declared schools must desegregate “with all deliberate speed” - an order that was still considered somewhat ambiguous, and allowed Southern states to delay the process for years as the court has no true enforcement powers.
However with Trump signing executive orders of questionable constitutionality and morality left and right, slow can be a good thing. The success of the ACLU is the sign of more to come - and that the Trump administration is going to find itself caught up in a series of legal battles. And with the expectation of the “irreparable harm” that such actions can cause, it is very likely that many will end in injunctions that will stop actions until further review - as seen this weekend, and perhaps in some instances those defying court orders will be held in contempt of court, in which sanctions and fines will be placed.
The protection of minority rights was built into the judiciary by design. In Federalist 78, Alexander Hamilton defends lifetime appointments and the concept of a politically independent judiciary: “‘the independence of the judges may be an essential safeguard against the effects of occasional ill humors in the society,’ and, ‘independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors.”’
It goes without saying, however, that the court has not always lived up to its purpose in this regard, whether ruling women do not have the right to vote (Minor v. Happersett, 1875), ordaining “separate but equal” segregation (Plessy v. Ferguson 1896), or upholding the internment of Japanese-Americans during World War II (Korematsu v. United States) - a case with eerie similarities to today. Throughout history, we see that the court is inherently a political institution - and Trump will likely appoint quite a few to the highest court in the land before is four years are done. What’s more: while a federal judge in New York may be more likely to grant immigrants stay, one in Texas may be less likely to do the same - creating a state of legal limbo for some of our country’s most vulnerable.
Without strong enforcement powers, courts depend on a reservoir of legitimacy and a respect for the rule of law. The truth is, Trump has shown little respect for, or understanding of, this concept and how our constitutional system of government works. Throughout the ACLU’s history, as well as in other legal advocacy organizations, there has been much well reasoned debate over whether legislation, or Supreme Court decisions, are the best long term solutions. For the resistance today, there doesn’t seem to be much of a choice.
Non-legal methods such as the mass amount of protests, of course, are also effective - however this president is so fixated on popularity and approval ratings, he seems more inclined to lie about them instead of changing course. While the president may belittle and ignore them, your representatives across the country seeking re-election certainly won’t.
If you’ve ever been in a history class learning about the civil rights movement and wondered where you’d stand had you been alive during that time: these four years may have your answer. We’ve seen the law is not always just, but can also be a powerful means to the end of justice - both throughout history, and this weekend.