Friday, 10 February 2017

Judiciary Issues A Powerful Lesson To Trump

A federal appeals court in the United States just brought down to earth and demonstrated powerfully for all to see the value of such seemingly abstract terms as rule of law or separation of powers. In the process the court also demonstrated why such concepts are the absolute bedrock of any self-respecting democracy, and are feared by all current and wanna-be autocrats.

The particular issue in this case was the noxious and shambolic temporary travel ban that the Trump administration imposed to bar entry into the United States for refugees and citizens of selected countries. Technically, a three-member panel of the 9th Circuit Court of Appeals refused unanimously the Trump administration’s attempt to overturn a lower court’s order temporarily blocking enforcement of the ban.
9th Ciruit Court of Appeals
The three-judge panel, including judges appointed by both major political parties, could have issued its ruling in a brief paragraph or two. Instead, it gave the new administration a sharply-worded 29-page lesson in constitutional law and separation of powers.

The opinion relied heavily on rights granted by due process, and shredded the administration’s main argument that the courts had no business reviewing Trump’s executive order temporarily banning refugees and those from seven majority-Moslem countries. This claim was slapped down hard.

“There is no precedent to support this claimed unreviewability, which runs contrary to thefundamental structure of our constitutional democracy.” In other, less august terms, you could say the court told the administration to ‘sit down and read the Constitution before issuing such foolish executive orders.’

Trump's order prompted massive protests across the country
Turkish courts take note. I wonder if President Tayyip Erdoğan read that particular section. Just imagine his reaction if any Turkish court issued a similar ruling that sharply limited his power. I suspect the reaction would be near-nuclear.

The 9th Circuit Court didn’t stop there. It also strongly rebutted the government’s claim of public interest to avoid irreparable injury.

“The Government has pointed to no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist act in the United States. Rather than present evidence to explain the need for the Executive Order, the Government has taken the position that we must not review its decisions at all. We disagree.” Get the point, Mr. Trump?

While not ruling explicitly on claims of religious discrimination, the Appeals Court gave a strong indication of where its sentiments lie. It forcefully reminded the government of the constitutional protection for all religions, and that the constitution “prohibits the Government from impermissibly discriminating among persons based on religion.”

The court also said evidence submitted by the states challenging Trump’s order included his previous statements about implementing a ‘Muslim ban’ as well as evidence they claim suggested that the Executive Order was intended to be that ban. While not the final judgement, these statements are a thinly veiled warning to the government not to even attempt such a ban.

Of particular interest to Turkey in the issue of the extradition request for Fetullah Gulen  is the court’s insistence on the due process rights of everyone in the United States – Green Card holders, legal immigrants, illegal immigrants – the whole lot. The language couldn’t be more clear.

“The procedural protections provided by the Fifth Amendment’s Due Process Clause are not limited to citizens. Rather, they apply to all persons within the United States, including aliens, regardless of whether their presence here is lawful, unlawful, temporary or permanent.”

In other words, even if the Trump administration agreed to Erdoğan’s demands to extradite Gulen, the reclusive cleric has every right to contest that order in court, and if necessary push his case all the way to the Supreme Court. Obama tried to tell this to Erdoğan, but the message obviously didn’t sink in. Instead of building a sound legal case the Turkish government has relied on Trump-style bombast and not-so-subtle threats. The message of this ruling should be that such behaviour will backfire – just as it has done for Trump. Such tactics also didn’t work in Greece where the Supreme Court ruled against extradition for the eight Turkish soldiers who landed in Greece after the abortive coup attempt last summer. Why does Erdoğan think they will work in the United States?

Gulen's legal rights trump political concerns
The Trump administration has not indicated just what it will do – other than issue more harsh Tweets – about this ruling. It could well appeal all the way to Supreme Court where it would face an uncertain result. Regardless of the action of the Supreme Court this ruling is a strong reminder to the Trump administration that, unlike his family business, there are three, equal branches of government and that he cannot implement his favourite policies at the mere stroke of a pen.