Independent courts could face threat from president

Jun 12, 2017

By Peter Rubinstein

NNAF News Fellow | Roosevelt University, Chicago

Assalamu Alaikum; peace be upon you. The phrase, a sacred mantra at the core of the Islamic faith, is exchanged daily between guests entering mosques for prayer. To Muhammad Akbar of Chicago’s Council on American Islamic Relations, its meaning carries new weight in the wake of President Donald Trump’s executive orders that target travelers from six Muslim-majority countries.

Those who once sought opportunity and refuge in America—like many who attend Akbar’s mosque—must now grapple with proposed legislation deeming their fellow Muslims worthy of debarment from entering the country’s borders.

Amid the president’s travel bans, which have sparked protests and lawsuits nationwide, the fate of millions of Americans now lies in the hands of the judiciary. The courts stand as the final arbiters on whether the executive orders violate the fundamental freedoms guaranteed by the U.S. Constitution.

The dissenters, among them David Bier of the Cato Institute, David Gans of the Constitutional Accountability Center and others, including Sens. Dick Durbin, D-IL, and Loretta Weinberg, D-NJ, place varying degrees of faith in the judiciary and its allegiance to the document created by the Founding Fathers. What remains unclear is whether the “people” can count on the courts to utilize their independence for their protection.

The fears, hopes and daily impact of the legal impasse that the entire world awaits to be resolved are encapsulated by policymakers, analysts and affected Americans from inside the Beltway to the Midwest. The picture that emerges is one of a nation divided under God, with many hoping for liberty and justice for all.

What will ultimately determine the fate of immigrants seeking to enter the U.S., however, lies in the language of the orders themselves. Players on different sides of the political aisle, including representatives from libertarian and progressive organizations alike, have come together through a mutual interpretation of the bans as documents guided chiefly by religious animus.

Bier, an immigration policy analyst at Cato, described the Trump administration’s vocal concerns of national security threats stemming from the six countries as “entirely made up.” 

“The order has this national security fig leaf covering this blanket discrimination,” he said from a glass-paneled meeting hall inside the Institute’s Penn Quarter location. “Courts are going to look at that and blow the fig leaf away, and realize what’s hiding behind it.”

Gans, director of the Human Rights Program at CAC, echoed the sentiment from his downtown fifth-floor office. The religious animus argument against Trump’s orders is justified according to federal courts from Washington to Hawaii, he said. If the appeal process continues and the case is taken to the Supreme Court, it’s likely to encounter a similar assessment.

Meanwhile, Democratic lawmakers such as Weinberg and Durbin have put their dissent into action. Weinberg proposed legislation to prohibit the bi-state Port Authority from using its resources to enforce Trump’s initial ban, and Durbin wrote a letter to the newly appointed chair of the Immigration Subcommittee, Sen. John Cornyn, R-TX, in which he described the orders as “inconsistent with America’s heritage as a nation of immigrants, and a safe haven for those fleeing persecution.”

“It reinforces the ISIS narrative that the United States is at war with Islam, exactly the opposite of where we should be,” Durbin said during a phone interview between speaking appointments.

The stark volume of opposition to Trump’s orders—legal and otherwise—has spawned a line of dialogue hostile in tone and dangerous in implication between his administration and the entities responsible for maintaining checks and balances. Even beore his first 100 days in office, Trump denounced the “so-called” federal judges responsible for enacting stays on his immigration orders, condemning their Constitutional interpretations and refusals to back down from them.

His derision and threats have manifested into what many view as an overt attack against the judiciary’s independence from the legislative branch, a concept that critics say might have lasting effects on the country’s democratic bulwark.

“If the president can ignore judicial decisions, then there’s no check on his power anymore,” Bier said. “That’s the last holdout in many ways for the Constitution.”

Durbin reiterated the sentiment of Tony Mauro, a veteran Supreme Court reporter for The National Law Journal, that justices should never be punished for their decisions.

“It’s very destructive. And the president’s words really challenge the premise of this democracy with coequal branches of government,” Durbin said.

The talk surrounding the president’s immigration bans has reached a fever pitch on Capitol Hill and within leading media outlets around the globe, spawning highly publicized instances of disagreement and disarray across the political stage. But what many in the Beltway have neglected to discuss is seen by some as the tenor’s most costly effect: the impacts of the bans on real-life Muslims in America. 

Those attempting to safely practice their faith—with their identity and dignity intact—lie at the center of the debate, but as Akbar of CAIR Chicago, a non-profit Muslim civil rights organization, remarked, seldom have their names or faces appeared next to the headlines.

What it comes down to, he said, is a misconception that became mainstream but one that is “by no means new.”

Despite the progress being made toward a more informed and protected community, however, Akbar said that many of the fears held by Muslims about their contested place in American society have begun to resurface.

“There’s a little bit of fear,” he said. “There’s anger. There is suspicion.”

But some of the most difficult moments within the discriminatory fervor, Akbar said, come simply when families sit at home together and watch the debate play out on the news.

“Watching a CNN discussion where someone from the administration is trying to justify some of these things,” he said, “it’s just utter disgust at those moments.”

As Neil Gorsuch’s confirmation to replace the late Justice Anton Scalia’s seat on the U.S. Supreme Court becomes official and as the battle over the immigration bans continues to boil between the president and federal courts, Gans and Bier are determined to push their interpretations in an attempt to uphold the Constitution and defend judicial independence as penned by its framers.