On his syndicated radio show, conservative talk icon Rush Limbaugh warned of looming Constitutional crisis with the federal judiciary overruling basic constitutional executive duties. Limbaugh cautioned “it’s not a legal dispute. This is, as I said yesterday, is a silent coup that is taking place that I’m sure has been strategized since before Trump was inaugurated,” according to Breitbart.
Limbaugh is concerned the federal judiciary’s restraining orders on President Trump’s travel ban is simply an opening salvo in a broader attempt to limit the President’s constitutional powers.
The radio host logically extended what he believes the federal courts are doing. According to Breitbart, Limbaugh explained, “let’s say that Donald Trump decides at any time in the near future that he needs to deploy troops, and so he does, and so a leftist activist goes to a court, shops and finds a judge, like the guy in Hawaii, and claims that Trump said during the campaign that he was gonna do X Y, or Z, whatever, and the deployment of troops is not really for the stated purpose, and the judge could shut it down!”
Our country’s constitutional construct relies on three equal branches of government. Rush Limbaugh believes the judiciary branch may be trying to shut down the executive branch’s ability to act. If every action of the president is bogged down indefinitely in federal courts issuing restraining orders, the presidency is effectively impotent.
Never in history has a federal court used the rhetoric of a presidential candidate to strike down an Executive Order. Liberal Constitutional scholar Alan Dershowitz seems to agree with Rush Limbaugh that the federal courts have gone too far using the words of a private citizen campaigning to restrain an Executive Order.
Alan Dershowitz told The Hill, “the lower courts gave considerable, indeed dispositive, weight to these anti-Muslim statements in deciding that the travel ban was, in reality, a Muslim ban that would violate the constitutional prohibition against discrimination on the basis of religion. Under that reasoning, had the identical executive order been issued by President Obama, it would have been constitutional. But because it was issued by President Trump, it is unconstitutional. Indeed any executive order issued by President Trump dealing with travel from Muslim countries would be constitutionally suspect because of what candidate Trump said. In my view, that is a bridge too far. It turns constitutional analysis into psychoanalysis, requiring that the motives of the president be probed.”
The judgment of the President in areas of national security and immigration have always been paramount. That is part of the authority granted the executive branch in the Constitution.
The federal courts should give deference to an Executive Order in the area of national security or immigration as long as nothing in the order itself violates the Constitution. In this case, there is no reason for the court to take the leap to examining candidate Trump’s words or trying to divine his motives.
The restrictions in Trump’s travel ban are temporary and based on countries identified by the Obama administration as areas where there are problems with vetting. If what is written on the face of the Executive Order is Constitutional, there is no need for a federal judge to write a 43-page opinion psychoanalyzing President Trump.
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