Tuesday, January 31, 2017 4:30pm
This article by Tony Rossi was published on the Law Society of South Australia website and in Points Of Law in the Adelaide Advertiser on the 31st January, 2017
US President Donald Trump is quickly learning that the Constitution, which provides him wide powers including the power to make executive orders, is also the source of the limit of those powers.
He, like everyone else, is and should be, subject to the rule of law.
The States of Washington and Minnesota recently filed with the United States District Court an emergency motion for a temporary restraining order against the President’s executive order. The executive order made on January 27 and entitled “Protecting the Nation from Foreign Terrorist Entry into the United States”, sought to exclude citizens from seven nominated countries from entering America. No evidence was provided to suggest that any of the nominated countries have been associated with a terrorist attack on US soil. Moreover, none of the countries suggested to have been implicated in the 9/11 attack were the subject of the executive order.
President Trump’s executive order hit a roadblock when Judge James L Robart of the District Federal Court imposed a temporary restraining order on February 3.
In making the order the Judge was satisfied that at a full hearing the court would find the executive order contravened provisions of the Constitution and was thereby invalid, that irreparable harm would be suffered by Trump’s executive order, that the balance of equity tipped in favour of the making of the restraining order and that the restraining order was generally in the public interest.
Judge Robart applied the law to the facts, as presented, before him.
The US President was typically swift and unsubtle in response. Before calling the decision “ridiculous” he attacked the Judge himself by calling him a “so-called Judge”. Further, the President, who is supposed to be independent of the judicial process, asserted Judge Robart’s order “will be overturned” on appeal and accused the courts of being political. But 9th Circuit Court of Appeal upheld Judge Robart’s decision late last week, paving the way for a possible hearing in the Supreme Court.
There are lessons to be learned here in Australia.
Firstly, our Constitution (both Commonwealth and State) provide the respective governments with wide powers but they also set out the limit of those powers.
Secondly, it is for the courts and not the government of the day to determine where the limit of a power exists.
Thirdly, it is vital for good government and order in society for respect to be afforded to both the government and the judiciary when decisions are made. President Trump attacking the Judge personally does not help in a discussion as to whether the restraining order should have been made.
Fourthly, neither the government of the day nor the courts should make statements which could be construed as an attempt by one to bully the other.
Fifthly, whilst a citizen of any country should be entitled to comment on decisions which have an impact upon the community generally, such comment, including criticism, should always be on the basis of a proper understanding of the relevant circumstances and the merit of the argument. In football terms, play the ball and not the man or, given the success of the women’s AFL, the woman.
Tony Rossi PRESIDENT