Wednesday, 1 February 2017

Donald Trump: Executive Power and Legal Restraint

"Then the king said that he thought the law was founded upon reason, and that he and others had reason as well as the judges. To which it was answered by me that true it was that God had endowed His Majesty with excellent science and great endowments of nature; but His Majesty was not learned in the laws of his realm of England, and causes which concern the life or inheritance or goods or fortunes of his subjects are not to be decided by natural reason, but by the artificial reason and judgment of law — which law is an act which requires long study and experience, before that a man can attain to the cognizance of it …" (Edward Coke)

In “The Politician and the Judge”, Geoffrey Robertson QC looks at the development of the independence of the English judiciary from the power of the King.

In a fascinating programme, he shows how the first judges were directly appointed by the King and expected to uphold the King's laws throughout the land. They were, he said, often lickspittles, lapdogs, expected to dance to their master’s tune.

But from the 17th century onwards there was a growing tendency of judges to act independently, upholding the law rather than slavishly following the wishes of the King.

That judicial independence has now developed to the point where some political commentators see the judiciary as challenging the supremacy of Parliament. When the Daily Mail described High Court judges as 'Enemies of the People' it was a sure sign that a polite, esoteric debate was now a live and vital political issue.

But in fact, the decision taken in the battle against the Stuarts was that even Kings could not be above the law, and Parliament was dominant over the executive power of the King. It was the judges who fought for that independence, against monarchs like James I and Charles I, who saw themselves as able to make or break laws at whim. The judges are not deciding on Brexit, they are deciding on the which body should have sovereign power - Executive or Democratic Parliament.

The recent case decided in favour of Parliament as the sovereign decision making body is simply a reinstatement of those hard won rights. Of course, instead of a monarch as executive, we now have a Prime Minister, but the principle is the same.

Trends in America, however, are much more disquieting. There is far less independence of judiciary from the executive, as has been seen in Donald Trump’s decision to sack the Attorney-General because they were disobeying an executive order. Instead, he has a pliant lackey appointed, much as James I dismissed Edward Coke.

…when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such an Act to be void."(Edward Coke)

Coke came into collision with James over the king’s right to grant permission to hold several ecclesiastical benefices at the same time. After Coke and the other judges ignored a royal injunction that they should take no action on a case involving this right until the king’s pleasure was known, they were called before the king and council and ordered to obey the injunction. Although the other judges submitted, Coke merely said that he would do what an honest and just judge ought to do.

Coke also opposed James' idea that the king could personally act as a judge. Coke's frequent opposition and general audacity exasperated James, who believed that the King's Chief Justices should share the King's interests, and in 1616 he dismissed Coke from the judiciary.

Former Acting Attorney General Sally Yates just took a stand against her very powerful boss, Donald Trump. Yates questioned the legality of President Donald Trump's immigration ban barring travellers from seven Muslim-majority countries — and the move got her fired.

One cannot help but see echoes of the conflict between the absolutism of the Stuart monarchs and their desire to control the law, and Donald Trump’s desire to do the same.

Yates said this: “I believe that the Attorney General or the Deputy Attorney General has an obligation to follow the law and the Constitution, and to give their independent legal advice to the president.”

“My responsibility is to ensure that the position of the Department of Justice is not only legally defensible, but is informed by our best view of what the law is after consideration of all the facts. In addition, I am responsible for ensuring that the positions we take in court remain consistent with this institution’s solemn obligation to always seek justice and stand for what is right. At present, I am not convinced that the defence of the Executive Order is consistent with these responsibilities nor am I convinced that the Executive Order is lawful.”

And now the Attorney General of Washington state said he is filing a lawsuit against President Donald Trump over his immigration executive order. Bob Ferguson announced Monday that he is filing a federal lawsuit against President Donald Trump, some high-ranking administration officials and the Department of Homeland Security. The attorney general’s office says the complaint asks U.S. District Court to declare unconstitutional key provisions of Trump’s executive order on immigration.

“No one is above the law — not even the President,” Ferguson said. “And in the courtroom, it is not the loudest voice that prevails. It’s the Constitution.”

Indeed, like both legislative statutes and regulations promulgated by government agencies, executive orders are subject to judicial review and may be struck down if deemed by the courts to be unsupported by statute or the Constitution.

What we are starting to see is a replay of the conflict in England during the early reigns of the Stuart dynasty, where instead of a divine right of Kings, we have a divine mandate of Presidents. Instead of Kings ruling by fiat, we have Trump governing by executive order.

In 1607 Dr John Cowell, the Professor of Civil Law in the University of Cambridge, published The Interpreter in which he wrote an articles about Royal power.

Under the headings 'King,' 'Parliament,' 'Prerogative,' 'Recoveries,' and 'Subsidies,' he advanced the opinion that the English monarchy was an absolute monarchy, and that the King only consulted parliament by his 'goodness in waiving his absolute power to make laws without their consent'

In his book he said that: “ ‘He is above the law by his absolute power” and asserted James view that he had an “absolute prerogative” by which he could be enabled to override Parliament, with powers “outside the law”, and Cowell stated that to bind the King by laws made in Parliament “were repugnant to the nature and constitution of an absolute monarchy”.

And James supporter Sir John Hayward said: “The possession of the Crown purges all defects, and makes good the acts of him that is in authority, although he wants in both capacity and right."

Isn't this rather what we are being told by the Trump administration? The possession of the office of President purges all defects, and makes good the acts of him that is in authority?

James himself, addressing Parliament, said that:

Kings exercising a manner or resemblance of Divine power upon earth may, like God make and unmake their subjects: they have power of raising, and casting down: of life, and of death .... They have power to exalt low things, and abase high things, and make of their subjects like men at the Chess: a pawn to take a Bishop or a Knight, and to cry up, or down any of their subjects, as they do their money. . . . 

For to Emperors, or Kings that are Monarchs, their Subjects bodies and goods are due for their defence and maintenance. . . . Now a Father may dispose of his Inheritance to his children, at his pleasure: yea, even disinherit the eldest upon just occasions, and prefer the youngest, according to his liking; make them beggars, or rich at his pleasure; restrain, or banish out of his presence, as he finds them give cause of offence, or restore them in favour again with the penitent sinner: So may the King deal with his Subjects.

Such a theory as this leaves no place for the law of the land or the authority of the estates of the Realm when they conflict with the king's will, just as Donald Trump’s executive orders seem to overrule the laws of the land and the constitution.

We can see here, once again, the real beginning of a contest between law and absolute power, and who knows how it will play out. In 17th century England, the contest ended in favour of the law, that even the King was subject to the law, and the judiciary should be independent of the executive. But let us not forget it was a fierce and bloody battle before freedom from executive tyranny was eventually won.

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