Trump testing structures forged in the American revolution

What happens next will determine whether the US faces a full-blown constitutional crisis

Former  acting attorney general Sally  Yates: her stance was a good example of how actors in the constitutional structure of the US are allowed push back against a president’s executive orders. Photograph: Pete Marovich/Getty

Former acting attorney general Sally Yates: her stance was a good example of how actors in the constitutional structure of the US are allowed push back against a president’s executive orders. Photograph: Pete Marovich/Getty

 

With the election of Donald Trump, the resilience of the constitutional structures governing the US looks set to be put to the test.

The president’s apparently petulant decision to sack acting attorney general Sally Yates because she told justice department lawyers not to implement his executive order banning visitors from certain Muslim-majority countries is a stark example of what may lie ahead.

The constitutional structures of the US are heavily influenced by the fact that they were put in place after the American Revolutionary War (1775-1783) fought by 13 colonies against their colonial master, King George III.

Having removed one king, the colonies, now states , were little inclined to put in place an equivalent of a king bearing another title, or a central government that, they felt, might interfere in their affairs just as the British monarch had sought to.

Ideas such as this explain the structures that emerged from the 1787 Constitutional Convention in Philadelphia, with the war hero George Washington sitting as its president, or chairman.

A sometimes fudged distribution of powers was agreed, with not just an executive, congress and judiciary having separate interacting roles, but also the individual states and the federal government.

This distribution of power has been much in evidence in recent days, with, for instance, attorneys general from 16 states issuing a statement that condemned Trump’s executive order on refugees and migration as “un-American” and “unlawful”.

As chief legal officers representing more than 130 million people, they said they would work together to ensure “the federal government obeys the constitution”.

Immigration controls

The potential for strain between the executive and the judiciary has been illustrated by habeas corpus (justified detention) applications brought after Trump’s executive order on migration, with some judges ordering stays on the implementation of the order, and worrying reports emerging that, in some cases, officials continued to operate the president’s order despite the court rulings.

The American Civil Liberties Union said it knew of “multiple instances” of customs officials wilfully ignoring the ruling of a federal judge in Brooklyn.

Four Democratic members of the House of Representatives at Dulles airport in Virginia said customs and border protection agents were ignoring the orders of federal courts. “We have a constitutional crisis today,” representative Don Beyer said on Twitter.

Executive orders

As associate law professor at Trinity College Dublin Eoin O’Dell points out, a dispute like the one in New York is not a constitutional crisis. A constitutional crisis would be, for instance, if the Federal Bureau of Investigation decided to ignore a ruling of the US supreme court.

Presidents are allowed make executive orders, and other actors in the constitutional structure are allowed “push back”. The stance taken by former acting attorney general Yates is a very good example of this.

The key issue for the operation of constitutional democracies, according to O’Dell, is that those involved respect the rules, the other actors, and the constitutional order.

The Weimar Republic had an excellent constitution (the Irish Constitution is to a great extent modelled on it, as Justice Gerard Hogan of the Court of Appeal recently pointed out). The reason the Weimar Republic collapsed was that not enough people stood up for the constitutional order.

Constant experience

The new system worked well in the US from the outset, though it collapsed (temporarily) in the early 1800s in France. As in the Weimar Republic, the key issue appears to have been the extent to which people were willing to support, or walk away from, the structure.

That, undoubtedly, is a key matter to watch out for now in what up to recently was presumed to be one of the most stable of the world’s democracies.

The stability of democracies is not assured by their structures. They require that those who hold power exercise restraint in the use of that power, and accept the legitimacy of opposition and that, even in a time of crisis (war, a terrorist outrage, widespread rioting), people in responsible positions hold the line.

The key point, therefore, is the extent to which this occurs.

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