332 V O L . 7 5 P A R T 3 M A Y 2 0 1 7 THE ADVOCATE citizens took to the streets, lawyers immediately jumped into action (often pro bono) providing urgent advice at airports where possible and launching constitutional challenges to the brand-new order within a single day— between January 28 and January 31 almost 50 cases were filed in federal courts. A civil action filed on January 30 by the State of Washington challenged the lawfulness and constitutionality of the order. By February 3 the challenge had resulted in a temporary order restraining the federal government from enforcing certain provisions of the executive order. Part of the challenge was based on the premise that the order violated the Fifth Amendment guarantee of equal protection under the law on the basis that it was intended to harm and discriminate against state residents based upon their national origin or religion. It was similarly argued that the order violated the First Amendment by preferring one religion over the other. #45 immediately took to Twitter vomiting his assessment: “The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!” Far from it. Over a month later, #45 had issued a second, “watered-down” (his words) version of the order that expressly revoked and replaced the earlier one. That too was met with immediate court challenges. The beautiful thing about this situation is that constitutional challenges are exactly what ought to happen in the United States in the face of unbridled and unprincipled exercises of power. The irony is that the first executive order provided: “The United States cannot, and should not, admit those who do not support the Constitution …” In the U.S. it is, of course, the Constitution to which individuals can turn via the judiciary to keep the executive and legislative branches in check. It is the Constitution against which the executive powers of the president will be measured by an independent and impartial judiciary. When more or less the same thing happened to the second order—this time the restraining order came from Hawaii—#45 once again attacked the judiciary, declaring the ruling “an unprecedented example of judicial overreach”. Vowing to appeal the decision, he stated that “people are screaming, ‘break up the Ninth Circuit’” and implored supporters to “take a look at how many times they the Ninth Circuit have been overturned with their terrible decisions”. While this level of tension between the executive and the judiciary is nearly unprecedented, the fact that the United States has an independent judiciary that can hear and rule on these challenges is one thing that we admire and respect about the United States. The apparent chaos emerging under the current administration is reinforced by a 24-hour news cycle that demands fresh scandal by the hour.
May Advocate 2017
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