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Actions Speak Louder, But Words Still Matter

empty interior of the U.S. Supreme Court
The U.S. Supreme Court bench. Photo by John L. Marino.

I have long said that it often makes sense to ignore what a politician says, and pay attention to what he or she does, especially when it comes to our current president.

The U.S. Supreme Court justices are apparently among those who could stand to catch up.

In this week’s 5-4 ruling on Trump v. Hawaii, the majority properly focused on what the administration actually did in enacting the 2017 executive order often referred to as “the travel ban” and the legal support for its power to take that action. But even Chief Justice John Roberts, who wrote the majority opinion, did not bother to hide his distaste for Trump’s comments on the topic, especially remarks made during his campaign. Justice Anthony Kennedy was even less circumspect in his concurring opinion. He wrote: “There are numerous instances in which the statements and actions of government officials are not subject to judicial scrutiny or intervention. That does not mean those officials are free to disregard the Constitution and the rights it proclaims and protects.”

The position that Trump’s comments about the executive order rendered that order unconstitutional, even if the order itself was not otherwise, is a dangerous and somewhat hypocritical one.

The constitutional arguments in Trump v. Hawaii centered on the First Amendment’s establishment clause, which states that the government cannot establish a religion or prohibit a religion’s free exercise. Yet the Supreme Court opens each of its public sessions with the following invocation: “All persons having business before the Honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the Court is now sitting. God save the United States and this Honorable Court.”

Why is it constitutional to ask a singular deity to “save” the nation and its highest court when many Americans are not monotheists or don’t believe in god at all? Like all Americans, atheists have First Amendment rights. On the assumption that the Supreme Court would not purposely begin its sessions in an unconstitutional way, we can infer that the court believes this statement alone does not infringe on anybody’s rights. What matters is how the court acts, not what it says in an essentially meaningless ritual – or, for that matter, what nominees to the court might say in a confirmation hearing.

So why should the remarks or tweets of a presidential candidate be any different?

Trump v. Hawaii also illuminated another issue, one that should worry the justices (and us). While Justice Clarence Thomas raised the subject in his concurrence, the majority chose not to address the nationwide scope of the injunction that was initially issued and later upheld by the 9th U.S. Circuit Court of Appeals, since the justices found the lower court injunction invalid on its face. Thomas, on his own, questioned the authority of federal district judges to issue such far-reaching orders.

Federal district judges have, with increasing frequency, attempted to make national policy from their own courtrooms, especially by issuing “global” injunctions that apply nationwide. The trend did not start with the Trump administration; federal district courts blocked a number of Obama-era policies nationally as well, in decisions that conservatives cheered at the time. But in the 17 months since Trump took office, a number of district courts – mainly in Democratic-leaning states – have become centers of national resistance, if not de facto legislatures unto themselves. Thomas predicted that the Supreme Court will have to soon face the issue of federal courts’ reach.

It did not take long for the lower courts to demonstrate why he is right. Just hours after the high court handed down the Trump v. Hawaii ruling, another federal judge in the 9th Circuit (this time in San Diego) issued a nationally binding preliminary injunction mandating specific procedures and timelines for reunifying migrant families. This applied both to people who properly appear at a border crossing seeking asylum and to those apprehended after crossing illegally; it applied both to pre-conviction separation for those charged with illegal entry and to post-conviction detention pending removal.

The injunction declares, without benefit of a trial, that there is a Fifth Amendment due process right to “family integrity” as applied to noncitizens, including those who crossed the border without permission. What about the many U.S. citizens who are arrested and held, sometimes for years, pending trial because they cannot post bail or bail isn’t granted? If a right to “family integrity” exists, don’t they and their families also have it? Can a single federal judge demand that all the nation’s jails be emptied of parents who have minor children, in the interests of “family integrity?”

Thomas did not question the district court’s power to grant injunctive relief to the parties who appear before it. But he did question, and presciently so, the power to make sweeping national policy determinations in an isolated courtroom somewhere in the United States without benefit of statutory authority or higher court precedent, let alone so much as a trial to provide an evidentiary basis for the judge’s decision.

Thomas is right. The Supreme Court will need to act soon on the question of how far beyond a district judge’s courtroom that judge’s constitutional powers can reach. In the end, Trump v. Hawaii reached the right conclusion, but it needlessly digressed into a president’s inconsequential ruminations while not venturing far enough into the underlying question of the limits of judicial writ. There is still room for the court to course-correct the next time it gets the chance.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us” and Chapter 4, “The Family Business."

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