NEW YORK // Amid the legal tussle between Donald Trump and the American courts over the presidential travel ban, who really has the law on their side?
The US president has broad powers over who is allowed into the country and who is not.
A 65-year-old provision of the Immigration and Nationality Act states: “Whenever the president finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or non-immigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”
Mr Trump is finding out the hard way that this leaves plenty of room for debate. What is considered detrimental to the interests of the US? Can religion or nationality be used as grounds for exclusion? Most importantly, how do these questions relate to a constitution that bans discrimination on the basis of religion or national origin?
These are some of the issues being hammered out in legal challenges to his travel ban in courts from Seattle to Boston.
When US district court judge James Robart on Friday ordered a temporary halt to the president’s executive order barring arrivals from seven mainly Muslim nations, Mr Trump launched a Twitter tirade against the Washington state judge, describing him as a “so-called judge” and his decision as “ridiculous”.
For lawyers and opponents, it marked a dangerous, unprecedented attack.
As Patrick Leahy, a Democrat senator, put it: “The president’s hostility toward the rule of law is not just embarrassing, it is dangerous. He seems intent on precipitating a constitutional crisis.”
To understand why requires a basic understanding of the US constitution.
America’s system of government was designed to limit the power of its president from the very start. When the founding fathers signed the constitution in 1787, they were creating a new system of democracy that separated the power of government into three distinct branches, each designed to check the power of the others.
They envisaged a legislative branch to make the laws; an executive branch to carry out the laws; and a judicial branch to interpret the laws.
Their inspiration came from what they regarded as the despotism evident on the other side of the Atlantic Ocean. The constitution was in part drawn from observing their former colonial masters, where power was wielded by an individual.
“They saw the abuse that came from the concentration of power in the king of England and they wanted to create a very different government with separation of power among the branches - the checks and balances we have – to achieve it,” said Erwin Chemerinsky, dean of the Irwin School of Law at the University of California and board member of the American Constitution Society.
“It’s the most basic principle of American government that no one, not even the president, is above the law, that the courts can stop the president from violating the constitution.”
But what happens when they clash? If the three branches are meant to balance each other, how are conflicts between branches adjudicated?
That was settled in part by the landmark supreme court case of Marbury v Madison in 1803, a famous compromise that delivered an enduring conclusion.
William Marbury had been appointed a justice of the peace by the outgoing administration of John Adams. Thomas Jefferson’s new administration, in the form of secretary of state James Madison, wanted to appoint their own people.
The problem for the supreme court – at that time the weakest of the branches – was that Marbury was in the right but it was clear that Jefferson was planning to ignore any such finding. A verdict in favour of the government would merely enforce the idea that the courts worked on behalf of the executive.
The chief justice found a way out, arguing that although the facts supported Marbury the case should never have gone to the supreme court as the law giving it jurisdiction was unconstitutional.
In so doing, it established the principle of judicial review: the power of the courts to decide whether a law or executive action was unconstitutional.
The principle holds true today, much to the irritation of presidents through the ages.
When Richard Nixon refused a subpoena to release the so-called White House tapes, citing executive privilege, he was overruled by the supreme court. Their release in 1974 played a crucial part in his downfall.
What troubles observers today is Mr Trump’s bombastic response to the legal challenges, with personal attacks on a judge who dared to defy him.
“I’ve never seen a president respond in this way,” said Prof Chemerinsky. “I don’t know if it’s that he doesn’t understand or that he doesn’t care.”
The framers of the US constitution saw tyranny and took great pains to protect their new country from a power grab.
How quickly their system can maintain its equilibrium will become clear in the days and weeks to come.
foreign.desk@thenational.ae