As Donald Trump shamelessly stretches the boundaries of the law to expand his power and influence, America’s federal judges remaining true to their oaths will be critical to preserving the constitutional order of our democracy.
“It has become ever more apparent that, to our president, the rule of law is but an impediment to his policy goals. The rule of law is, according to him, something to navigate around or simply ignore, whether that be for political or personal gain. Nevertheless, in this courtroom, and under my watch, the rule of law is a bright beacon which I intend to follow.”
So said a Seattle federal judge named John C. Coughenour on Thursday. If a Democratic president happened to have appointed Coughenour, Trump would right now be issuing ANGRY AND INCOHERENT ALL-CAPS SCREEDS attacking him as a Clinton judge or an Obama judge or a Biden judge. If Coughenour happened to have Mexican ancestors, he’d be pilloried as a “Mexican judge.”
Inconveniently for the president, Coughenour is a white man of Irish descent. He was put on the bench by conservative hero Ronald Reagan. He considers himself a staunch defender of the U.S. Constitution. So we’re spared the ridiculous presidential logorrhea.
The judge’s clarion call to uphold the rule of law came as he issued a national injunction against Trump’s odious and anti-American order to shred a right to birthright citizenship that rings as clear as a bell in the Constitution itself. “The Constitution is not something with which the government may play policy games,” Coughenour said. “If the government wants to change the exceptional American grant of birthright citizenship, it needs to amend the Constitution itself.”
This is but one of dozens, nay hundreds of tests that Trump administration actions are facing and will soon face in U.S. courts. There have been many drills in defending the U.S. constitutional order. This is not one of them.
Trump and his unelected wingman Elon Musk, who wields far more power than any Cabinet member but hasn’t come before a single congressional committee, are bulldozing the federal bureaucracy without bothering to care about the nation’s founding legal document or the laws passed by Congress and signed by presidents or the courts charged with upholding them.
That this is all happening in an administration and in the name of a party with the gall to call themselves conservative is tragically hilarious, if not hilariously tragic. Conservatism is supposed to be rooted in respect for history, traditions, systems and principles — not blowing everything up and then seeing which shards and rubble surviving the explosion might be fit to put back together.
Of course the Republicans who control Congress, who had their backbones removed in taxpayer-funded surgery eight years ago, are compliant. Many state and local officials, seeing the supposed federalism Republicans always claimed to care about now cynically abandoned, are apoplectic. But the only way they can prevail is by appealing to those those in the third branch of the federal government — the judges, in the courts.
The federal judiciary, including district courts, courts of appeals and the Supreme Court, is currently comprised of some 235 judges appointed by Joe Biden, 329 by Barack Obama, 234 by Trump, 327 by George W. Bush and handfuls by previous presidents. Regardless of the partisan affiliation of the individual or of the executive who put them on the bench, all jurists swore the same oath to the Constitution.
The most important Supreme Court precedent of all, Marbury vs. Madison in 1803, states that the judiciary has the power to review congressional laws and actions by the executive. As Chief Justice John Marshall wrote, “The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.”
Do the words mean anything today?
As judges hear challenges to Trump actions, they must hew to their oath and the precedent that undergirds our fragile constitutional order. And when they hand down rulings, whether for or against this president and his administration, the president and the administration must comply. If either of those things fails to happen, the American system we treasure will officially be lying on the Pennsylvania Ave. pavement, bleeding out.