Tuesday, June 7, 2016

From the Economist: How a Trump presidency could undermine the rule of law

We're looking at constitutions and the gradual development of the rule of law over British and American history. A British magazine looks across the Atlantic and wonders whether Donald Trump's statements suggest he has little interesting following established rules. It focuses primarily on Trump's efforts to remove a federal judge from presiding over a lawsuit he is part of.

The principle of an independent judiciary is central tot eh separated powers doctrine written into the Constitution.

- Click here for the article.

DONALD TRUMP says outrageous things almost every day, but few of his incendiary comments and tweets refer to concrete changes a Trump administration would be likely to introduce. Many of Mr Trump’s proposals, including a ban on Muslims entering America, would falter in the hands of a less hot-headed Congress. But the Republican nominee’s attitude toward the judiciary may be more ominous. Mr Trump's new tirade against a federal judge overseeing two class-action fraud lawsuits involving the now-defunct Trump University suggests that Mr Trump is ready and willing to undercut a founding ideal of the American republic—all by himself.
In Federalist #78, Alexander Hamiltonwrote that keeping the judiciary independent of the other branches of government is “the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws”. But since “the judiciary is beyond comparison the weakest of the three departments of power”, it is uniquely vulnerable. “[A]ll possible care is requisite”, Hamilton admonished, “to enable it to defend itself against...attacks” from the other two branches. The judiciary “may truly be said to have neither force nor will, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments”.
The principle of judicial independence means that presidents and presidential candidates respect the rule of law and the judgments of judges. It means, for example, that Barack Obama and his team of lawyers defend the legality of his immigration orders protecting 5m people from deportation on the merits rather than by engaging in a name-calling campaign to discredit and delegitimise the federal judge in Brownsville, Texas who unilaterally stopped the programme before it could be implemented. But Mr Trump’s furious tirade against Judge Gonzalo Curiel defies all norms of presidential decorum and decency, and the sentiment fuelling it threatens to undermine the delicate balance of power between the executive and judicial branches.

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