We have come to one of those moments in our history when people are learning to appreciate the important role courts and lawyers play in our government. If you’re a supporter of President Trump’s blockage of travel from seven Muslim-majority countries, you probably find it frustrating that the courts have stepped in and at least temporarily prevented this ban from remaining in effect. And if you’re an opponent of this executive action, you probably cheered the district judge in Seattle who issued the injunction. But if everyone can put aside political preferences for a minute, the thing we really should be cheering is the role the courts play in keeping the other two branches of government in check. The power of judicial review, established in this country in the case of Marbury v. Madison (our first example of the courts’ invalidating an executive action), was an exceptional feature of our government, still not adopted or adopted only to a limited extent, in many countries.
Even in the realm of immigration, where the Executive Branch has extensive discretionary power, both President Obama and President Trump were told by federal courts that their executive orders exceeded their authority. In Obama’s case, the injunction prevented him from shielding childhood arrivals from deportation; while Trump has been at least temporarily enjoined from carrying out a temporary ban on immigration from seven predominantly Muslim countries, by an order being tested in the Ninth Circuit Court of Appeals as we speak. Whatever people think about the political merits of the original executive actions, or the legal merits of the court orders halting those actions, the important thing in both cases, and the thing that should make us proud of our Constitutional republic, is that notwithstanding strong disagreements and strong feelings, in both cases the Executive Branch has respected the court’s orders.
Whether President Obama scared you while he was in power, or whether President Trump scares you now, you should derive some comfort from the courts’ ability to keep the president’s power within the bounds of the law as the courts interpret it. Judges are human, and of course influenced by their own philosophies and political preferences, but their decisions are still primarily legal, not political. They are constrained by law, and they in turn act to constrain the entire government by law. And as long as we continue to respect the role that courts play in our system, our political preferences will continue to be checked by our strong legal tradition. That is essential to preserving our Constitution, and our form of government.