A controversial Executive Order signed by United States President Donald Trump is proving to be a very difficult challenge for the legal teams assembled by the White House and the Department of Justice. According to news reports coming from Supreme Court chambers, White House attorneys filed an impassioned, 84-page brief defending the so-called “Muslim ban” in the name of national security.
The Justice Department is playing all available cards as it prepares for Supreme Court hearings that will take place in a couple of months. The Supreme Court allowed the Executive Order to be enacted before heading into recess and returning to hear the case; some legal analysts considered this temporary authorization a Solomonic decision by the highest court in the U.S. since it bolstered the spirits of an embattled President while promising to take time to consider legal options.
By the time the Supreme Court reconvenes, the travel ban will have been in effect long enough to appease Trump. The first attempt at implementing the travel ban ended up in a nationwide kerfuffle at international airports and legal challenges that effectively halted the ban based upon rulings issued by federal and appellate courts.
One of the most significant problems faced by the U.S. Justice Department is that President Trump ran a political campaign that focused on discrimination of immigrants and foreigners; the federal and appellate judges who have thus far sided with plaintiffs truly believe that the first and second versions of the travel ban are in fact “Muslim bans,” and thus can be easily considered to be unconstitutional.
Checks and Balances
Lawyers representing the U.S. government have quite the herculean effort ahead of them if they hope to convince the Supreme Court that President Trump is not the same person he was as a presidential candidate; nonetheless, that is precisely what the brief filed ahead of the hearings aims to convey.
Some legal analysts have already spotted weaknesses in the brief, which claims that appellate courts should not question decisions made by a sitting President with regard to national security. The problem with this specific claim is that this is precisely the way that American democracy is supposed to work insofar as separation of powers and checks and balances. In other words, the Executive, Legislative and Judicial branches should look after each other and make sure that they uphold the Constitution, particularly when the American people bring matters to court as plaintiffs.