By Gregory T. Miller
When President Trump signed an executive order barring admission of all people with non-immigrant or immigrant visas from seven Muslim-majority nations for 90 days, all refugees from anywhere in the world for 120 days and Syrian refugees indefinitely, he set into motion the very machinery of the Constitution itself.
Not only does the president’s authority to sign this order spring from the Constitution, so too does a state’s right to bring a challenge to that order to protect its citizens’ individual liberties.
Of equal importance is the right of the judiciary to determine whether or not the president’s action in signing that order was subject to judicial review – and if so, whether the order itself violated the rights guaranteed us by the Constitution.
The creation of an independent judiciary – that is, one that is free from political influence – paved the way for the implementation of judicial review of governmental action. In the early years, Alexander Hamilton proved instrumental in turning concept into reality, despite strong opposition from his contemporaries, including Thomas Jefferson.
In Federalist No. 78, Hamilton argued that since the Constitution was the embodiment of the “Will of the People,” and since the president and Congress’ powers were derived from the authority given to them by the people, then there must be a mechanism set into place whereby their actions could be challenged. Since the power to sign and enforce an executive order arises from the people, the Constitution must be the measuring stick against which that action is analyzed.
Of necessity then, it is the judges who must measure those actions according to their judgment as to what the Constitution requires. The court, as an independent branch of government, does not and cannot replace its will for that of the president. In making this determination, the court’s only master is the Constitution: it is the only filter through which any act, statute or order is distilled.
It is specifically because the judiciary is divorced from politics that it alone has the authority to rule on legislation or executive actions that, by definition, are subservient to the Constitution. The fact that it is well recognized by the court that it must give deference to the executive and legislative branches in its evaluations of cases serves only to prove the point that an independent judiciary is the ultimate protector against those who would assail its role in our government.
As observed by Supreme Court nominee Neil Gorsuch, the president’s questioning of the competency of the judge who presided over the original hearing and his later statement impugning the integrity of the judiciary in its entirety are “disheartening and demoralizing.”
If there is disagreement with the result, so be it. However, that disagreement must not be accompanied by actions that undermine our trust in the very institution that serves as the foundation of our constitutional democracy.
Gregory T. Miller is president of the Bar Association of Erie County.