GateHouse: Trump administration dealt a setback: 'See you in court'

Matthew T. Mangino 

GateHouse Media

February 10, 2017

President Donald Trump signed an executive order on Jan. 27 barring refugees, from seven Muslim-majority countries, from entering the United States.

Protests spontaneously erupted across the country as custom officials in U.S. airports detained and denied entry to individuals affected Trump's executive order.

A federal judge in Seattle temporarily blocked the enforcement of the travel ban. Trump tweeted, "The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!"

The next day, Trump posted, "Just cannot believe a judge would put our country in such peril. If something happens blame him and court system. People pouring in. Bad!"

The Trump administration appealed the ruling. Yesterday, a panel of the Ninth Circuit Court of Appeals maintained the freeze on Trump's immigration order.

Were Trump's comments about the court on social media a violation of the United States Constitution?

Articles I, II and III of the Constitution establish the legislative, executive and judicial branches of government.

Separation of powers refers to the division of government responsibilities into the three branches and to limit any one branch from infringing on the functions of another. However, the Constitution contains no provision explicitly declaring that the powers of the three branches of government shall be separated.

The intent of the Doctrine of Separation of Powers is to prevent the concentration of power in any single branch, and provide for checks and balances. The traditional responsibilities of each branch of government are:

— The legislative branch — Congress — is responsible for enacting laws and appropriating the money necessary to operate the government;
— The executive branch — President — is responsible for implementing and administering the public policy enacted and funded by the legislative branch;
— The judicial branch — Courts — are responsible for interpreting the constitution and laws and applying their interpretations to causes and controversies brought before it.

According to the Cornell University Law School, Legal Information Institute, James Madison wrote, in the Federalist Papers, that the Doctrine of Separation of Powers did not demand rigid separation. Those writing the Constitution, Madison explained, "did not mean that these departments ought to have no partial agency in, or control over, the acts of each other," but rather liberty was endangered "where the whole power of one department is exercised by the same hands which possess the whole power of another department."

Madison, who himself would become president, believed that one branch of government merely challenging the function of another branch was not an infringement on separation of powers. The security against concentration of powers "consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others."

Madison made it clear that the courageous men (and women) of each branch of government would fight to protect their domain. Senators would stand up to a president who overreached. Courts would overrule the Congress if laws violated the Constitution and the president would restrain a Congress that sought to negotiate with foreign countries.

In fact, Madison put it in plain language — he wrote "ambition must be made to counteract ambition."

When Trump lost before the Ninth Circuit he tweeted, "SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!" His tweet may be in poor taste and without the decorum we have grown accustomed to after 8 years of Barack Obama, but Trump's conduct is not infringing on the separation of powers.

The building tension between the president and the courts did reveal some of what Madison was talking about more than two centuries ago. Trump's Supreme Court nominee Neil Gorsuch told a Democratic senator that he found the president's attacks on the judiciary ''disheartening'' and ''demoralizing.''

Senator Richard Blumenthal of Connecticut disclosed the comments from Gorsuch after recently meeting with him, and Gorsuch's confirmation team confirmed that Gorsuch was referring to Trump's comments about the judge who halted the travel ban.

Ambition confronts ambition.

— Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book "The Executioner's Toll, 2010" was released by McFarland Publishing. You can reach him atwww.mattmangino.com and follow him on Twitter @MatthewTMangino.

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