Yet again, it's that pesky Constitution and those federal judges who take so seriously their obligation to uphold it, even when the king — excuse me, the president — is on the other side.
Being president, as Donald Trump is discovering, is nothing like being the boss of a reality television show, where you can go around telling people who disagree with you, "You're fired." (Remember when he wanted to trademark the phrase as his own? Oh, those were the days.)
Presidents can't fire federal judges. The Constitution gives them life tenure, subject only to impeachment by Congress, a rare occurrence and a punishment that can't be handed out just because a president may disagree with them.
"It's the 9th Circuit going bananas," Reince Priebus, Trump's chief of staff, said Tuesday night. "We're taking action to appeal this," he continued. "You'll find out soon enough."
Actually, Priebus is the one going bananas, along with his boss. You see, the decision at issue — holding that the president cannot condition the receipt of federal funds on his brand of cooperation with immigration enforcement — wasn't issued by the 9th Circuit. It was issued by a federal district judge in San Francisco. And if the Trump administration seeks to appeal — as it surely will, if the judge stands by his ruling — then the appeal will go to the 9th Circuit.
The president doesn't have the power of the purse. That's the Constitution again: Congress holds the purse strings. Imagine telling a CEO that. But Donald Trump is not the CEO of America Inc., even though he and his cabinet might well be more comfortable in that role.
And his power, under the Constitution, doesn't rest on whether you like or dislike his policies.
As Judge William Orrick explained, this particular case was on all fours with another decision, one Trump probably would have supported, that said the Obama administration could not condition Medicaid funding on states' compliance with Obamacare. That was a 2012 decision of the conservative Supreme Court. Sorry, Mr. Priebus: What's good for the goose is good for the gander.
Meanwhile, the Trump's lawyers, up against the wall in oral argument, said the president's order was really just symbolic, just an expression of his point of view. Judge Orrick didn't buy it. And neither did the president, when he said in February that he was ready to defund the state of California. "If we have to, we'll defund. We give tremendous amounts of money to California. California in many ways is out of control, as you know."
Someone is out of control, and it's not California. It's a president who clearly thinks he is above the supreme law of the land: the Constitution. It's a White House that thinks federal judges who seek to enforce the Constitution are fair game for attack by the commander in chief (something with which its own appointee to the Supreme Court, Justice Neil Gorsuch, wouldn't agree).
Make no mistake. What is at stake here is not San Francisco's relationship with undocumented members of its community. San Francisco is not willing to destroy the ties that local officials have built with immigrant communities. These ties allow undocumented people to feel safe reporting crimes, such as domestic violence, and cooperating with police investigations.
No, what is really at stake is nothing less than the rule of law.
The courts interpret the Constitution, and all of us, from the president on down, are expected to follow their decisions — whether we agree with them or not. The rule of law isn't just about what the Founding Fathers wrote on a piece of parchment. It depends on a commitment from all of us. Some of the most lawless countries in the world have perfectly good laws on their books; they just aren't enforced or followed. No American president in recent history has made the habit Donald Trump has of attacking the rule of law. Thank God the rest of us don't follow suit. Thank God the courts are independent. Sorry, but the one going bananas is not the 9th Circuit, and it's not the state of California. It's the White House. Never have checks and balances been so important.
(Susan Estrich is a professor of Law and Political Science at the University of Southern California Law Center. A best-selling author, lawyer and politician, as well as a teacher, she first gained national prominence as national campaign manager for Dukakis for President in 1988.)
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