You know what? People should stop suing President Trump. After all, he was duly elected and represents the will of the people. It doesn’t matter if you think his proposals might run afoul of the Constitution; the people have spoken.
Since tone doesn’t translate well into text, I’ll let you in on a secret: I’m being flip.
That first paragraph is foolish. Our system of government is informed by, but not a slave to, the will of the majority. The framers had the foresight to understand the passions of the people could, from time to time, require temperance. They provided checks and balances to protect the Constitution from sudden swings in public opinion.
Recourse to the courts is one of those bedrock pieces of “checks and balances.” We jettisoned a far-off king, splitting his power into three separate branches. Each role — executive, legislative, and judicial — came with its own sword and shield. If one grew too strong, the other two had the means to stop it, pushing the offender back into the confines of the Constitution.
But the freedom to sue the president is not the same as the right to prevail. Indeed, in many of the cases brought thus far, the suits will likely fail. Trump’s immigration order will probably be upheld, at least as it applies to those without visas or green cards. The powers of the executive and legislative branches when it comes to border control are near plenary; the protections of the Constitution are not global.
Meanwhile, those suing on the “emoluments clause” with the concern that foreigners may stay at Trump-owned hotels to curry favor with the president? They’re trying to head down a slippery slope on which courts are unlikely to engage. After all, our own Chellie Pingree owns a hotel. Does she need to divest?
Yet just because the plaintiffs may ultimately lose their cases, it is the right of Americans to pursue these claims in our courts. And when the court makes a final decision, we accept it.
That acceptance may be unhappily offered, and it may even be preceded by some huffing and puffing, like Trump’s tweets. However, while the twitterati act as if those 140-character quips are some unprecedented breach, the fact is Trump is simply the latest in our long presidential line to find fault with a judicial branch thwarting policy. Twitter is just the newest platform.
For example, President Obama famously ridiculed the Supreme Court at his State of the Union. President Truman lambasted justices after they denied him the power to take over steel mills. President Roosevelt tried to stack the court to get decisions permitting his constitutionally-questionable actions. And President Jackson was rumored to have quipped that the court “had made [its] decision, now let [them] enforce it!”
Each is a different tack responding to the inherent, intentional tension between the branches of government. And if you go through most administrations, you’ll likely see this strife play out in different ways. But when the court rules, we accept it.
That holds true on the state level as well. However, at least in some cases, there have been attempts to stop questions from going to court. You saw it this past week when it came to ranked choice voting.
Janet Mills — Democrat extraordinaire and attorney general — has expressed several constitutional concerns with the law enacted as Question 5 in November. So have other credible voices, like former Chief Justice Dan Wathen. Or yours truly.
With these questions open, Senate President Mike Thibodeau brought forward a proposal to go to the Maine Supreme Court and get clarity. Astoundingly, it was opposed in no uncertain terms. The former head of the Maine ACLU thought it inappropriate to ask the court since, basically, the people had spoken.
Going to court isn’t always pleasant and may not be efficient. But our system provides courts with the ability to make final decisions on constitutionality. If we don’t like their answer, there are checks and balances to change the judiciary or amend a constitution. But when a court rules, we accept it. That’s true for presidents, governors, legislators, and the people.
It is the system the framers provided. It remains, in a word, brilliant.