One of the items that guarantees our freedom is that we are a nation of laws, not men. In other words, the law is blind to your station in life. The law cares not whether you are wealthy and connected, or destitute and despised—justice is the same no matter what.
At least, that’s the theory. There are notable exceptions: Hillary Clinton’s unsecured email server while she was Secretary of State would have gotten 99.9999999% of the population serious jail time had anyone else done it. Similarly, David Gregory was able to get away with a felony on national TV that would’ve gotten his guest, the NRA’s Wayne LaPierre, sent to prison.
President Trump’s “Muslim Ban”
Recent judicial rulings on President Donald Trump’s executive order banning people from six majority-Muslim countries from entering the United States have shown that there are a certain, not insignificant, number of lawyers and judges who are working to create a parallel system of justice just for Trump.
In arguments before the 4th Circuit Court of Appeals yesterday, ACLU lawyer Omar Jadwat, conceded that if alternate-universe President Hillary Clinton had issued the exact same executive order that President Trump did in this universe, that it would be constitutional.
Judge Paul Niemeyer, an appointee of President Ronald Reagan, raised a hypothetical scenario regarding whether a different outcome in the 2016 election would have changed the constitutionality of the same executive order. In response, the ACLU attorney said the courts could have decided the same action taken by a different president was constitutional.
“We have an order on its face,” Niemeyer said, pressing Jadwat about the hypothetical scenario. “We can read this order and we have no antecedent statements by a candidate about this order. We have a candidate who won the presidency, some candidate, president, other than President Trump won the presidency and then chose to issue this particular order with whatever counsel he took. … He issued this executive order. Do I understand that just in that circumstance the executive order should be honored?”
“Yes, your honor, I think in that case it could be constitutional,” Jadwat answered.
*Poof* Gone is the last thin façade that is the letter of the law that matters and not the whims of men.
Jadwat has conceded that the order is constitutional on its face, but claims Trump can’t issue an otherwise lawful order because of statements he made as a candidate.
New Legal Theory
Earlier district and circuit court rulings against Trump’s executive order have prominently featured Trump campaign statements as an important reason for halting the policy change.
Various online commentators have pointed out that if it is now a valid legal theory that statements made in public in order to get a law passed can now be used to declare the law invalid, then there’s much bigger fish to fry.
“If you like your doctor, you can keep your doctor.”
“If you like your plan, you can keep your plan.”
Both of those statements turned out to be laughably false. Therefore, Obamacare should be overturned.
Unfortunately, only the political left gets to make these absurd arguments with a straight face.
This Cannot Stand
The legal community and the judiciary need to reject this idea that there’s a different legal standard during a Trump administration. We need to do everything we can do to maintain that bulwark of democracy that we are indeed a nation of laws, not men.