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Erick Erickson / May 13, 2017

The Real Constitutional Crisis

Forget the FBI ordeal. The real constitutional crisis is happening in our judiciary.

President Trump firing James Comey as director of the FBI is not a constitutional crisis. The president has the power to do so, and any new director must be confirmed by the Senate.

The interim director of the FBI, Andrew McCabe, is highly regarded by both sides of the aisle as a competent professional. His wife was a Democrat candidate for the Virginia legislator backed by the Clinton family’s friends. If President Trump intended to stop the FBI’s counterintelligence investigation into Russia, he made a terrible mistake.

Beyond that, enough Senate Republicans refuse to serve as yes men for the president that they will not want a yes man at the FBI. The major Senate figures who will be involved in a confirmation fight are gearing up to grill any nominee. Democrats should not fret this.

President Clinton, who, unlike President Trump, was being investigated by the FBI, fired his director of the FBI. The people screaming now were OK then. Much of the hysteria right now is partisan hysteria stemming from a strong distrust of President Trump.

To be fair, President Trump makes that distrust easy. The man will contradict himself within two clauses of a single sentence and then lie about it. His infidelity to truth and temperament breeds distrust. But none of this has created a constitutional crisis.

The real constitutional crisis is happening in our judiciary. Dawn Johnsen, a law professor who worked for both Presidents Clinton and Obama, spoke at the Seventh Circuit Judicial Conference and urged the federal judges to stop giving judicial deference to the president. “Has Trump in effect forfeited some measure of judicial deference across contexts and cases, through his disrespect for the courts and the rule of law and his displays of prejudice and arbitrary decision making? And if he has not yet reached that point, what more would it take?” she asked.

Johnsen explains, “[W]hen courts review congressional and executive action, they often use standards and doctrines of deference. One way to think about it … is that courts defer to political actors, except when there is good reason not to defer. Clear examples of when deference is not appropriate occur when, in the Court’s words, ‘a statutory classification … proceeds along suspect lines’ or ‘infringes fundamental constitutional rights.’ At the other extreme, deference may be especially appropriate where the Constitution confers special authority to the president or to Congress … which traditionally has included matters of national security, war powers and foreign affairs.”

She then boldly suggests President Trump is owed no judicial deference because he acts in an arbitrary manner and not necessarily in good faith. As Trump Derangement Syndrome has infected the political elite and Russia-ism has replaced Birtherism as the fever swamp fantasy, more and more lawyers and judges are headed in this direction.

Federal judges have blocked President Trump’s inarguably constitutional travel restrictions merely because of statements candidate Trump made before becoming President Trump. Holding a president to campaign stump speeches has never been done before. In fact, President Obama campaigned for his health care plan declaring it not a tax, but the Supreme Court upheld the Affordable Care Act under the Constitution’s taxing powers. Had they used the president’s campaign statements, the legislation would have been ruled unconstitutional.

In Virginia, a lawyer for the American Civil Liberties Union argued before the Fourth Circuit Court of Appeals that President Trump is the reason a travel ban is unconstitutional. Judge Niemeyer of the Fourth Circuit, a federal judge not willing to join the fever swamp, asked the ACLU’s lawyer, “We have a candidate who won the presidency, some candidate other than President Trump won the presidency and then chose to issue this particular order, with whatever counsel he took…. Do I understand that just in that circumstance, the executive order should be honored?”

The ACLU’s lawyer responded, “Yes, your honor, I think in that case, it could be constitutional.” When the federal judiciary will not give the president of the United States due deference merely because they do not like that particular president, we do have a constitutional crisis. Unfortunately for the republic, this is a constitutional crisis the Democrats and media support and are enabling.


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