Three months after President Donald Trump began trying to implement a travel ban targeting about half a dozen Muslim-majority countries, the action is still up in the air and tied up in the courts.
While supporters and opponents of the ban have made their positions known, some scholars point out that clashes between the president and the court system are not new.
However, what is unique, some observers say, and what likely will be remembered as much as the ban itself, is the virulence of Trump attacks on the courts after his edicts were cast aside.
“There have been disagreements in the past between presidents and the courts as judicial action has been taken. That’s not new,” said Jim Costa, D-16th District.
“But the visceral reaction that our president demonstrated here in the last month is, I don’t think, respectful of the judiciary or our court system.”
Costa said that the federal judges’ blocks on the original travel ban and its revision were certainly within their jurisdiction.
“And I think, at least it came across anyway, from the president’s reaction as a rude awakening on his part that a federal judge could in fact determine whether or not an executive order is constitutional or not,” Costa said.
As for the ban itself, Costa said, “I think it’s flawed, and I don’t think it really reflects American values.”
Tony Mauro, a Supreme Court correspondent for the National Law Journal, had similar thoughts about the president’s reactions to the travel ban blocks, specifically regarding Trump’s tweet of a “so-called judge.”
In early February, Trump took to Twitter to criticize U.S. District Judge James Robart in Seattle who temporarily blocked the initial travel ban.
Trump tweeted that the opinion of the “so-called judge” was ridiculous and “essentially takes law enforcement away from our country.”
“I think Trump overstepped. It’s not right for him to criticize judges,” Mauro said. “There’s a long tradition that you don’t criticize judges because of how their ruling came out.
“You might criticize them if they’re bad judges — they’re not articulate or something — but you don’t punish judges for their opinions, for their decisions.”
Mauro said that the courts have been constitutionally built to be independent from the two other branches of government. “It’s sort of built into their fiber that they feel that they are above the political fray,” he said. “It’s very important to them to show their independence — show that they don’t have to cater to the public’s whims.”
Nor do they have to submit to the pressures put on by the president or Congress. “Because they have life tenure, the president can say whatever he wants about them and it won’t — of course, I mean it affects them personally, they’re human being s —but I don’t think it affects how they’re going to rule in the next case,” Mauro said.
David Gans, director of the Human Rights, Civil Rights and Citizenship Program at the Constitutional Accountability Center, said that the Supreme Court plays a key role in deciding or having the final word on the meaning of the Constitution.
“Trump’s comments about the judiciary certainly evince a measure of disrespect and failure to respect that the judiciary has a fundamental role in our system, which includes telling the president, ‘This is the line, and you can’t cross it,’” Gans said.
“And it seemed like we had example over example of ‘so-called judge’ and making these extravagant claims — like the court just doesn’t have any responsibility or role to review what’s being done,” Gans said of Trump’s attacks on the federal court system.
Trevor Burrus, a research fellow for the Cato Institute’s Center for Constitutional Studies, said that he finds the ban to be unconscionable. “I am open borders — I want Ellis Island immigration,” he said.
Burrus also said that despite what he believes about the ban, it is constitutional because the executive branch historically has had deference on national security and immigration issues.
He also added that the courts’ blocks of the travel ban had almost no legal reasoning. “It basically seemed like the judges who issued them didn’t like the policy and therefore enjoined it, but that’s not the standard,” Burrus said.
“I mean, yes, a bunch of 4-year-olds got together and wrote these executive orders and as a lawyer, I mean, reading them is unbelievable — like [Trump’s chief strategist] Steve Bannon needs to go back to rudimentary classes on basic sentence structure,” Burrus said. “But, nevertheless, the courts’ orders that were enjoining them were also, really, really bad from a legal standpoint.”
Regardless of the issue, attacks on the judiciary by a president are unsettling.
“Clearly, you can disagree with a judge or a court decision — a Supreme Court decision — and that’s perfectly appropriate,” Costa said. “I mean, Franklin Roosevelt during the New Deal programs in the 1930s has significant disagreements with the Supreme Court, but you need to always understand that we are a country that follows the rule of law.
“And that is a very important distinction in which makes America the great country that it is because of the rule of law and the court system that protects it.”
Mariya Zheleva is a media, communications and journalism major at Fresno State who went to Washington in March to report on important issues like the travel ban. Through a program sponsored by the National Newspaper Association Foundation, the 19-year-old student journalist spent three days in the nation’s capital meeting with scholars and congressional members to discuss the court system and political impact on it.