One of the first things that Donald Trump did after being inaugurated as US President was sign an Executive Order banning the migration of people from seven Muslim-majority countries, namely Syria, Iran, Iraq, Yemen, Sudan, Somalia, and Libya. As well as revealing a massive conflict of interest between Trump’s business interests and US foreign policy, the ban violated the US Constitution. However, it’s not just me who is saying it. A federal judge in Seattle has issued a nation-wide halt on the ban, deeming the measure unconstitutional, and this move will provide temporary relief for people across the world. The political optics of this situation are important to recognise and celebrate so people can successfully resist Trump’s agenda.
Federal court Judge James Robart has granted a temporary restraining order on Trump’s executive order restricting Muslims from the above countries from entering the United States. Trump responded in his usual childishness, saying on Twitter: “the opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned”. Even if we ignore that Trump believes that people disagreeing with him is the same as removing the concept of law-enforcement from the US, he was unsuccessful.
The day after Trump’s Muslim ban was halted, the administration’s attempt to overturn the restraining order was rejected. The restraining order will be reviewed by the Attorney General of Washington State. If upheld, the administration would have try again in the Ninth Circuit Court, and eventually the case may make its way to the Supreme Court.
The decision by Judge Robart is important for three reasons. Firstly, the decision illustrates the power of checks and balances. The US Constitution was expressly designed to prevent one person from having too much power, and because of these checks Trump’s worst impulses should be prevented from dominating US policy. The ability of Congress to block Trump’s policies and the power of the judiciary to strike down unconstitutional actions by federal agencies will ensure that fully-fledged fascism won’t take hold in the US. Even though I still believe Trump is a fascist, I also believe that the structural barriers designed to limit Trump will hold.
The second aspect is that the more these checks and balances are used publicly to limit Trump, the more others are made aware of their existence. There exists mechanisms to prevent Trump from acting unilaterally or in a way that violently breaks US law. If lawyers boldly stand up to Trump, those who oppose him will be emboldened and will stand with them. Further, other lawyers will scrutinise everything that the Trump administration does and this politicised aspect of civil society will, in my view, prevent Trump from becoming a full-on dictator.
The third dimension is more about strategy. The Senate has the power to block Supreme Court nominations. Senate Democrats must now filibuster Trump’s nominee for the Supreme Court. The Democrats are incredibly pathetic when it comes to anything that isn’t selling out to monied interests, but they should unite against Neil Gorsuch. As many have pointed out, Gorsuch used to be an actual fascist and so any Democrat who votes to confirm Gorsuch as a Supreme Court Justice should be seen as an accessory to the instantiation of fascism in America. There is nothing that could be said to justify confirming someone who, with full knowledge of what fascism culminates in, supported that hateful ideology.
The Senate can keep conservatives from having a majority on the court until further notice by filibustering. The Senate has the constitutional responsibility to hold hearings on any Supreme Court pick the President makes. They should hold hearings and cross examine him, and then they should mandate that every nomination Trump makes requires 60 votes. There is no constitutional duty for the Senate to approve whoever the President picks. If it were, the Senate’s responsibility wouldn’t be a check on Executive power, it would be a archaic formality designed to waste everybody’s time.
The Muslim ban is the clearest example of unconstitutional overreach by the President that I have ever seen, and so the ban being struck down is obviously a good step forward. The power of checks and balances mustn’t be underestimated and civil society has an obligation to resist the federal government when they are clearly acting in contravention of the law. People who oppose Trump from across the political spectrum need to come together to force Senate Democrats to filibuster Gorsuch and to stand firm in the face of abuse from Trump supporters.
The Supreme Court cannot be allowed to fall into the hands of fascists or their lackeys because the whole governmental system relies upon the judiciary having the right to strike down illegal actions from the Legislative and Executive branches. State power must be resisted and restricted at ever turn, and this involves weaponising existing institutions against Trump as well as direct action and protest.