Balancing act: Judicial independence safeguarding rule of law

By Yu-long Ling

Following his campaign slogan, “make American great again,” President Trump has exercised his constitutional authority and issued many executive orders to carry out his campaign promises.

Many of his supporters are cheering his actions and believe that everything he wants he will get. However, this has not been the case. On Feb. 9, a federal appeals court rejected the president’s bid to reinstate his ban on travel into United States from seven Muslim countries.

The new administration claimed that the court had no role as a check on the president. Trump’s supporters agreed and demanded that he should be able to do his job his way. As we all should know, this is wrong.

This exciting political play confused and upset many Americans. It has also caused confusion worldwide and raised questions regarding our wisdom on government.

When the Founding Fathers of this great country drafted the Constitution, they established the principle of separation of powers as the foundation of our government. The legislature (Congress) makes the law, the executive branch (the president) executes the law and the judicial branch (the Supreme Court) interprets the law.

By using checks and balances, no one branch of the government can be more powerful than the other. As a result, we enjoy the liberties guaranteed by the Constitution. To make a more perfect union is not to make American great, but to establish a country to ensure the liberty of the people is guaranteed.

When the union was first established, the legislative and executive branches were so powerful while the judicial branch was the weak link. Without judicial independence an individual’s liberty will not be assured. In order to perfect this system, in the case of Marbury v. Madison, 5 U.S.137 (1803), Chief Justice John Marshall established the principle of “judicial review.”

This principle allows the judicial branch to review the actions of the two other branches and declare whether such actions are permitted under the Constitution. Judicial review establishes constitutional supremacy and gives the judicial branch the authority to say what the law is.

If a law is constitutional, it will be carried out by the executive branch. If it is unconstitutional, the law will be void and unenforceable. This is the backbone of our constitutional government. All Americans are subject to a law if it is constitutional.

Herein lays the controversy. The Trump’s administration argued that the court did not have authority to review the president’s executive order. Please note that because executive orders have the same validity as laws passed by the Congress, they are subjected to judicial review.

The Trump’s administration further argued that the ban deals with national security which the president should have the unreviewable authority to suspend the admission of any class of alien. Based on classified information received from the intelligence establishment, the president knows what is best for the country.

The court also rejected this argument and ruled that the administration has failed to provide supporting evidence. After the ruling, President Trump tweeted, “See you in court, the security of our nation is at stake.” Interestingly enough, this issue was already in court and decided by a court. Nevertheless, President Trump did not appeal the federal court’s decision.

We all need to understand that judicial independence is the cornerstone of American constitutionalism. The Constitution grants power of the government but also limits the authority of the government. No authority of any of the three branches of government is absolute.

As such, judicial independence helps to safeguard the rule of law and prevent the rule of man. Remember, under a monarchy (or dictatorship), the king can do no wrong. Fortunately, under our system of government (constitutionalism), no one is above the law.

One more thing that we as Americans need to understand is that President Trump was elected by the majority (as least with respect to the Electoral College). No one can and should question this fact. Majority rule is the only reasonable and workable way in making decisions in a democracy.

However, we must also remember that the majority is not always right. The establishment of judicial review helps to prevent the tyranny of the majority. While democracy accepts the principle of majority rule, it also ensures that the rights of the minority are protected (in this case by our Constitution).

This is also supported by Alexis de Tocqueville, the distinguished French philosopher who states in the “Tyranny of the Majority” that another basic protection of the minority is the principle of separation of powers and checks and balances which makes it difficult for majorities to achieve absolute power.

As a professor of American constitutional law (now retired), I will say that the ruling issued by the 9th Circuit Court of Appeals against President Trump’s travel ban has had a huge impact on our constitutional democracy. While the decision may not have been popular with some, they have done their job well.

Professor Yu-long Ling, a Franklin resident, is an expert in foreign policy. Send comments to letters@dailyjournal.net