Gordon Weil

Gordon Weil

President Trump’s moves to control immigration from certain countries have been temporarily blocked by U.S. District Courts in the states of Washington and Hawaii.

The Trump administration reaction to these decisions has revealed a lack of understanding of the role of the courts.

Attorney General Jeff Sessions criticized the Hawaii court, saying, “I really am amazed that a judge sitting on an island in the Pacific can issue an order that stops the president of the United States from what appears to be clearly his statutory and constitutional power.”

A Justice Department staffer added: “…There is a problem when a flawed opinion by a single judge can block the president’s lawful exercise of authority to keep the entire country safe.”

Let’s look more closely at their words.

“An island in the Pacific.” Hawaii is a state, the only one wholly located on islands.

Federal law declares that new states enter the Union on an “equal footing” with the other states. That means Hawaii, no matter how far from Washington, D.C., enjoys the exact same standing as Texas. So do federal courts there.

“A single judge can block the president’s … authority.” The Attorney General is “amazed” that a single federal district court judge can issue an order affecting the “entire country.”

It has long been federal judicial practice that when the constitutionality of a law or executive action is questioned to the point that a federal district court judge considers the matter serious enough to require a trial, the judge may suspend the action until there is a judicial determination.

Because a measure cannot be applied as if it were constitutional in one part of the country but is suspended in another, the single district court judge has the authority to block its application throughout the country.

Though the federal judiciary has over 700 judges, a single federal court judge, sitting alone in a single judicial district, may make a ruling of national scope. That is what the judges in Hawaii and Washington did.

That leads to “forum shopping.” Those bringing the complaint, several Democratic state attorneys general including Maine’s Janet Mills in the Washington case, can look for a judge who is likely to be sympathetic to their viewpoint in the hope he or she will suspend the government action.

It happens. When opponents of President Obama’s immigration policy actions, GOP state officials including Maine Gov. Paul LePage, wanted to block them, they went to a district court to find a judge who would agree with them.

The case was brought for the group by the Texas attorney general, whose office in Austin is about a mile away from a federal district court. But he went 350 miles to a court in Brownsville, where he could get Obama’s action blocked. It worked.

Sessions knew that had happened, so it’s surprising he was “amazed” when his opponents went to Hawaii to do the same thing. LePage was obviously furious that Mills had done in Washington what he had previously done in Texas. He sued her for not representing his views in Hawaii, raising again the question of the independence of Maine’s attorney general.

“Block the president’s lawful exercise of authority.” True, but only temporarily. The criticism made it sound like a single judge had killed the Trump action. In fact, there would be a trial to see if the action would be a “lawful exercise of authority.” Then the matter could be appealed through the courts up to the Supreme Court.

The court only put a hold on the Trump action until there could be a full-scale hearing with evidence and argument submitted by all parties. If the president thought the matter was urgent, he would need to press for swift action by the court. Apparently, this has not happened, at least not successfully.

“I thought it would be easier,” said Trump about the presidency. His winning the election, however gratifying that may be, does not guaranty the other two independent and equal branches of the federal government, Congress and the courts, will simply fall in line behind him.

Having found that governing is more difficult than he thought, Trump can benefit from his current, practical civics lessons and recognizing that campaigning and governing are not the same.

John Adams, a leader of the America Revolutionary and the second American president, promised “a government of laws, not of men.” We still have it.

Under “checks and balances,” whether Trump’s actions are “his statutory and constitutional power” must be decided by an independent branch of government, the courts.

Gordon Weil is a former public official. He lives in Harpswell.

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