Trump is causing America's checks and balances to fail

Trump is causing America's checks and balances to fail
5 min read
27 Feb, 2017
Donald Trump's Executive Orders, especially those on immigration and deportation, are a slippery slope to inevitable abuse of constitutional power, cautions Christina Abraham
Trump's circumvention of constitutional rules paves the way for abuse [Getty]

The federal court decisions on the Muslim Ban taught the Trump administration a valuable lesson: while executive orders are an effective way for the President to circumvent the legislative process, the judiciary can always stop unconstitutional measures – that is, where it has jurisdiction to do so.  

The new orders on detention and removal vastly expand executive authority on whom to detain and how to deport them.  They also have due process implications that have yet to play out, but are on the horizon. 

The new orders expand the authority of the Executive branch by allowing immigration agencies to deputise local law enforcement agencies with the power to question and detain people suspected of being undocumented or out of status.  It also expands the categories of undocumented immigrants who may be subject to detention and expedited removal. 

But flooding the system with more detainees means backlogs and questionable detention standards.  This means that people may be held for indefinite periods of time before they are removed, and unable to appear before an immigration judge, they would presumably not be able to challenge the basis for their detention or removal. 

The American democracy is founded on a delicate balance, i.e. the balance of powers.  No one branch of government has more power than another, and each has its own specific purpose and authority that the others do not. 

Congress legislates the laws. The Executive enforces the laws. The Judiciary interprets them.

If one branch overreaches its authority, historically, one or both of the other branches stops it.  Congress legislates the laws.  The Executive enforces the laws. The Judiciary interprets them. 

When the Trump administration hastily issued out its Executive Order banning people from seven Muslim-majority countries, they were surprised to see the order thwarted by the federal courts.

Federal courts in multiple districts granted temporary restraining orders (TROs) halting implementation of the Executive Order until they could determine the constitutionality of the order.  TROs are not typically granted unless the court finds that the proponent is likely to succeed on the merits, meaning the courts had to find that there was a likelihood that they will find the Executive Order unconstitutional. 

The Trump administration has since then vowed to fight the court decisions, criticising the courts for their interference, while at the same time promising to issue a new version of the ban. Trump administration officials have argued that the federal courts do not have the authority (i.e. jurisdiction) to question presidential executive orders – which, legally speaking, is patently false.  

Courts absolutely have the authority to rule on the constitutionality of an executive order, and they have done so historically throughout different presidential administrations. 

Absolute power, corrupts absolutely

The Trump administration is not worried about the legislature – Republicans hold the majority in Congress.

The Trump administration is not worried about the legislature – Republicans hold the majority in Congress.  Not many of them would dare to go up against the wave of Trump support that has successfully galvanised the Republican base. 

But the Supreme Court is different.  There is one seat open.  The remaining seats are split in terms of conservative and liberal judges, and history has shown that judges do not always vote along “liberal” or “conservative” lines.  In other words, taking these battles to the Judiciary is a crapshoot in which the odds are against Trump’s favour.

Trump’s solution: sidestep the Judiciary altogether by expanding the areas in which it does not havejurisdiction to intervene.  Thus, the Executive Order on the detention and deportation of undocumented immigrants was specifically designed to circumvent interference from the judiciary. 

Federal courts do not have jurisdiction over expedited removals.  Expedited removals were used to remove foreigners arriving at the border who could not present valid entry documents and who could not establish they had a credible fear of returning to their home country. 

Whereas before, expedited removals were mainly used to avoid inundating the immigration court system with cases that could more expeditiously be processed by Immigration and Customs Enforcement (ICE) (i.e. people who had just arrived), the Trump administration’s new Executive Order on detention and deportations means that an ICE officer now wields the power to act as enforcer and arbiter for many undocumented immigrants, even those having lived in the United States for up to two years. 

Where one branch of government has too much authority, abuses do occur

It also authorises the detention of people who have not committed crimes and who are not considered threats to public safety or national security. The orders also add criminalising components to immigration enforcement, where it was previously regarded as administrative and procedural. 

Put simply, the Trump administration’s use of executive orders has placed power exclusively in the hands of the Executive branch to write the laws, enforce the laws, and interpret the laws on immigration for millions more undocumented immigrants than ever before. The judiciary is bypassed, and one branch of government is now acting without interference, and consequently, without oversight.

Immigration advocates will challenge the new orders, but not before there are significant casualties. It is hard to say how many people will have been unfairly deported without due process before a case is ripe enough where a federal court may step in and stop the orders on due process grounds. 

The Trump administration’s executive orders on immigration do not just raise moral or ethical questions with regard to how America deals with immigration issues.  There is a more foundational threat being overlooked for the sake of expeditiously appealing to the anti-immigrant base: the threat to the balance of powers. 

Today, it’s the Muslims and immigrants, but tomorrow, the Executive branch may seek to circumvent the other branches of government for different reasons.  It could be labour, or healthcare, or social security that are implicated.

One thing is certain, and history has proven this: where one branch of government has too much authority, abuses do occur – they are inevitable.  Americans from both sides of the aisle need to be weary and take heed: disrupting the balance of powers can have dire consequences on the future of the American body politic.  

Christina Abraham is an attorney practicing in immigration law and civil rights.

Opinions expressed in this article remain those of the author and do not necessarily represent those of The New Arab, its editorial board or staff.