How America’s courts can keep the government in check

By S.M. | NEW YORK

OVER the weekend, Stephen Miller, a White House adviser, lashed out at the federal judges who have put the brakes on Donald Trump’s travel and immigration bans. On ABC’s “This Week”, Mr Miller told George Stephanopoulos that “the judiciary is not supreme”. On “Fox News Sunday”, he called the recent decisions by district and circuit court judges “a judicial usurpation of power”. Mr Trump’s authority to limit immigration, he said, is “beyond question”. This sweeping view of executive power is quite at odds with the judges’ view. In its ruling upholding the district court’s freeze on the executive order, the three-judge panel at the Ninth Circuit Court of Appeals depicted Mr Trump’s lawyer’s claims as out of bounds: “[T]he Supreme Court has repeatedly and explicitly rejected the notion that the political branches have unreviewable authority over immigration or are not subject to the Constitution when policymaking in that context”. It is “beyond question that the federal judiciary retains the authority to adjudicate constitutional challenges to executive action”.

Each branch of government telling the other that its position is “beyond question” presents an impasse. Surprisingly, a glance at America’s constitution does not suggest a way out: while Article VI declares that the constitution “shall be the supreme law of the land” and every “thing in the constitution or laws of any state to the contrary” must bow before it, there is no provision granting the final word to any particular institution. What, then, is the basis for the judiciary’s power to serve as a check on a president’s executive actions?