Donald Trump decided the White House, which has had enough bling for every President since John Adams, needed more glitz. So he gilded the oval office. He had gold tchotchkes glued to the walls. “Stay classy, Queens.”
And there he sits, filling trial balloons with the governmental equivalent of sarin gas and floating them out over what he views as his Empire: our country. A proliferator of bad ideas, he has deported citizens, manipulated markets, crushed pension funds, and just generally scared the hell out of everyone who’s paying attention.
Much of this, he accomplishes through executive orders. Executive orders are nothing new. That’s how Roosevelt interned the entire Japanese population of the Western U.S. in 1942.
Roosevelt’s Executive Order 9066 resulted in 120,000 people who had done nothing wrong being uprooted, thrown out of their homes, and imprisoned for years. Done with a flick of the pen.
Terrible idea. Horrible idea. One of the worst atrocities in our nation’s history. Accomplished by the simple expedient of signing the president’s name.
Trump’s orders have been similarly destructive of the American ideal of democracy. One of his earliest executive orders required lawyers who had offended him to pay for access to the federal courts.
It made him the sole arbiter of who would be allowed in the federal courts and who wouldn’t. You either bent a knee before the throne of the Donald and coughed up millions of dollars’ worth of free work or you didn’t get to practice law. It was that simple.
Sadly, a number of law firms capitulated. They chose the long- discredited route of appeasement over defense of constitutional rights.
But some, to their everlasting credit, fought back. And our courts have risen to the occasion. They have stopped this anti-Constitutional overreach, and others all over the nation.
They have enforced what we Americans proudly call “the rule of law,” the idea that the nation will be governed not by whims floated for the benefit of a few, but by laws passed for all of us, and they have done their constitutional duty. As Chief Justice Roberts, a staunch Trump loyalist clearly shocked by what this presidency has turned into, put it recently, the courts have taken up their duty to “check the excesses of Congress and the executive.
They’ve paused or completely struck down Trump’s excesses as fast as they can get to them. But they can’t get to them fast enough.
Because unlike Trump, they understand and care about the Constitution. And the Constitution requires a process. The Constitution requires thought, analysis, input on both sides, and careful consideration before decisions are made.
It requires more than just, “I think today, I’ll wipe out the Sixth Amendment right to counsel by barring lawyers from the courthouse. Do I have time to do that before the Dodgers get here to celebrate their world championship?”
The response from the Trumpist forces to this exercise of the checks and balances set up by the Framers has been predictable: outrage that anyone would dare get in the way of their world view. One Republican congressman introduced legislation to impeach a federal judge for the “high crime and misdemeanor” of ruling against the government. “Off with their heads,” cried the Red Queen.
Since it’s become obvious impeachment hasn’t gotten any traction, another trial balloon has come floating out of the west wing: a threat to suspend the right of habeas corpus.
The president tells us this has been done before, so it must be a good idea. Lord help us all if he decides there’s a way to gain power from reinvading Vietnam or Afghanistan and applies this kind of logic to that.
This threat is meant to intimidate the courts. We’re told it might have to be done if they don’t straighten up and fly right. We’re also told the writ of habeas corpus only protects criminals so it’s okay to do away with it.
This is not only wrong, it’s the opposite of right. The writ provides no protection to criminals. It protects innocent people.
The words “habeas corpus” are Latin. They were the first two words of the ancient writ and remain today. Translated, they say, “you have the body.”
The ancient writ said essentially, “You have the body of John Doe in your jail; bring that body to court and show us why he should continue to be incarcerated. If you don’t have a good reason, set him free.”
It thus provides no protection to a criminal, except the due process requirement of a fair evaluation of the evidence. If John Doe is a criminal, the government brings him to the courtroom, shows the court the evidence, and the court orders him returned to jail (to await trial, not to be packed off to a prison camp in El Salvador).
If, on the other hand, John Doe is innocent, there won’t be enough evidence against him to show the judge, and he’ll be released. That’s who gets protected by habeas corpus: people erroneously accused.
It’s such a good idea that it’s been built into every American justice system. It largely takes the form now of preliminary hearings and indictments, requirements that the government show some good reason before proceeding with a criminal prosecution. This is what we call probable cause, and it is required before any criminal prosecution can proceed.
Until he puts it into an executive order, suspension of the right of habeas corpus is just more petulant oval office sabre-rattling. But the often-overlooked point of sabre-rattling is that it reminds us that this man has sabres.
We the people don’t have many sabres, but we have shields. They’re our courts.
And if we want to make sure that all the president does is rattle his sabres, rather than continue slashing with them, we have to support and protect those courts.
The Constitution is our armor. The courts will employ that armor until the last dog dies. And we, the American people, must be their army.
Service in that army requires very little of us. It requires that we show up. That’s our job. To make ourselves seen and heard as the Army of the Constitution. To make our collective voice heard.
William W. Bedsworth was an associate justice of the California Court of Appeal from 1997-2024. Prior to that, he served as an Orange County Superior Court judge from 1987–1997.
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