I Beg Your Pardon
Like Paul Manafort, President Trump’s former campaign manager who is angling for a presidential pardon to escape the consequences of crimes to which he has already pled guilty, the President of the United States is also looking for a pardon – from the United States Supreme Court. He’s counting on what he certainly sees as his U.S. Supreme Court to give him their blessing. He believes they owe him.
It is clear from his own words that he knows – but does not care – that he will lose on the law. The District Courts and the Circuit Courts that hear appeals will find that using this authority to undo an act of Congress (immediately after Congress acted) by declaring a “National Emergency” is not permitted by the Constitution.
So why doesn’t he care? Because, well, let him tell you in his own words. Picture him dancing, like one of the Hippos in “Fantasia” – or, as I think of him, as Brunhilde, the “Fat Lady” valkyrie in Wagner’s 4-opera cycle, “The Ring of the Nibelung,” while he sings:
"We will have a national emergency, and we will then be sued, and they will sue us in the 9th Circuit, even though it shouldn't be there, and we will possibly get a bad ruling, and then we will get another bad ruling, and then we will end up in the Supreme Court, and hopefully we’ll get a fair shake and we’ll win in the Supreme Court.” (Lyrics and music by Donald Trump, announcing a National Emergency, 2/15/19.)
The District Court will weigh the facts and the laws (and the Constitution), and reach a detailed and comprehensive legal conclusion. Trump acknowledges he will lose at that level of legal analysis. Circuit Courts of Appeal will examine the District Court rulings from which an appeal has been filed, looking for errors of law, if any. Trump acknowledges he will also lose at that appellate level of legal analysis. (Why he thinks an appeal in the 9th Circuit “shouldn’t be there” is one of those Trumpian elocutions that have no relationship to reality: the 9th Circuit handles appeals from both California and Arizona District Courts, two states which share a border with Mexico, so will be directly affected by the president’s manufactured National Emergency.)
And then Donald the Diva ends the aria triumphantly, in full-throated joy, predicting a win in the Supreme Court. Or, to translate, “I know this is unconstitutional in a legal sense, but I am counting on my Supreme Court in a political sense.” In other words, he’s counting on the conservative High Court – made even more conservative with his two appointments – to override the Constitution because, politically, they “owe him.”
This is a test of my faith in the value of an independent judiciary, my strong belief in the importance of the core constitutional concept of Separation of Powers (something I learned about in the 8th grade). Only an independent judiciary, as envisioned by Alexander Hamilton in Federalist Paper #78, stands between us and an out-of-control government, stands between us and a true police state.
Although my trust in this Court is shaky, I have urged my liberal friends not to give up hope, not even for his conservative appointees. Other presidents have been disappointed in how their nominees voted once they were freed from political constraints, once they were elevated to lifetime appointments on the High Court. Eisenhower rued putting Earl Warren, a conservative governor of California, on the Court after Chief Justice Warren ushered in a new era of civil liberties and civil rights, leading to billboards across the country from right-wing organizations calling for his impeachment. Justice Hugo Black, formerly a member of the Ku Klux Klan as a politician from Alabama, went on to champion the separation of church and state as well as to vote, with a unanimous Court, to overturn precedent and declare, in Brown vs. Board of Education, that separating public school students on the basis of race is unconstitutional, that separate public facilities for Blacks and Whites are inherently unequal.
I’m convinced the President has not read the U.S. Constitution, or, at least, has concluded that it doesn’t apply to him. But if the President has read “his” Supreme Court accurately (which I both believe and pray he has not), then I can easily foresee a future national emergency resulting from Court decisions the President disagrees with. Indeed, if the independent judiciary does its job in the cases that will soon come before it challenging the legitimacy of his just-declared National Emergency, and rules it to be unconstitutional, the out-of-control President will see that decision itself as a national emergency, and will look for ways to get around it.
That is the real national emergency “We the people” are faced with.