by Brett C. Waite and Juan E. Dávalos
The nine philosopher-kings enthroned on the Supreme Court were finally gracious enough to let President Trump proceed with his plans to build a wall at the southern border, at least for now. In a 5-4 ruling, the court last month overturned an appellate court’s decision, allowing the Trump Administration to tap into military funds and continue construction while litigation is pending.
But why are the courts involved in a political fight in the first place?
The courts should stay out of it. America’s Founders knew that the two political branches would often be at odds and encouraged each branch to stand firm in its independence. Ultimately, the people will judge which side is right at the ballot box.
In Federalist 71, Publius explains that there will be times of great necessity when a firm executive must oppose Congress. Sometimes the will of the Congress stands in opposition to the will of the people, therefore, “it is certainly desirable, that the executive should be in a situation to dare to act his own opinion with vigor and decision.”
Publius goes on to make a crucial distinction: “subordination to the laws” does not necessarily imply “dependence on the legislative body.” Each branch must obey the laws of the land – but it does not follow that every branch must obey the will of the legislative branch when it has not been enacted as law.
If the other two branches must always submit to the will of the legislature, then the separation of powers is “merely nominal, and incapable of producing the ends for which it was established. It is one thing to be subordinate to the laws, another to be dependent on the legislative body. The first comports with, the last violates, the fundamental principles of good government.”
In declaring a national emergency to address the border crisis, President Trump acted in obedience to the law of the land – specifically, sections 201 and 301 of the National Emergencies Act. But he did not act in a way that made him “dependent on the legislative body.” In other words, he is acting precisely the way Publius envisioned a good executive should: in the true interests of the people.
If it is tyrannical to protect the lives, liberty, and property of American citizens by ensuring that our southern border is secure, then we’ve fallen through the looking glass.
The president is drawing a line and forcing American citizens to choose. Do we want our southern border to be secure or do we not? By refusing to be complicit in yet another dereliction of duty by the oligarchs in D.C., by being willing to play hardball politics against the Congress on the issue of border security, and by boldly putting his own reelection bid on the line in doing so, President Trump is doing what conservatives wish Republicans would’ve done in the previous Congress: work to secure the natural rights of all American citizens, rather than satisfy the wants of K Street lobbyists.
The president understands that politics can be an ugly mess, and the Founders knew that, too. This is a point that Democrats understand well, and embrace enthusiastically.
Unfortunately, it is a point that many Republicans, by contrast, seem unable to comprehend – which is why they accuse Trump of setting a dangerous precedent when he refuses to lie down beside them as they play possum. The Founders knew there would be (and should be) zealous antagonism both within and between the branches. And to that we say, may the best statesman – aided by his rhetoric, prudence, patriotism, devotion to unqualified justice, and guts! – win the affection of the American people.
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Brett C. Waite and Juan E. Dávalos are Ph.D. students at Hillsdale College’s Van Andel Graduate School of Statesmanship.