Below is my column in USA Today on the continuing controversy over President Trump’s attack on judges who have ruled against his executive orders. I have been critical of Trump’s attacks on the media and the courts, which undermine not just those critical institutions but the White House itself. As discussed below, presidents have learned that attacking the courts tend to diminish their own credibility over time. Having said that, Trump is not as much as a departure from other presidents as some have made out. Indeed, public discord between the executive and judicial branches has a long history in our country. Of course that is no license to continue a bad practice and most modern presidents have avoided direct personal attacks on judges and justices. Most importantly, the criticism of the judges in the Ninth Circuit in my view are unwarranted and unhelpful. The executive order on immigration was, as I have previously stated, poorly drafted, poorly executed and poorly defended. The law favored the President and still does. Yet, through remarkably causal drafting, the Administration gave judges a target rich environment in the first executive order. While I disagree with fundamental parts of these opinions, the result had more to do with the sloppy drafting of the order than any bias of the judges.
Here is the column.
Continue reading “Trump and The Courts: Presidential Attacks On The Courts Have A Long History”
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Today the Supreme Court will hear Hernandez v. Mesa, a case with potentially significant impact on the current immigration debate. The case involves the shooting and killing of Sergio A. Hernandez Guereca, 15, at the border on June 7, 2010. The family argues that Hernandez was simply playing a game with his friends in running to touch the U.S. border fence when Border Patrol agent Jesus Mesa, Jr. shot and killed him. The agents insist that Hernandez was a known illegal alien smuggler with two prior arrests and was throwing rocks at the agents. Since the government prevailed below before the United States Court of Appeals for the Fifth Circuit, the Court will only consider the facts asserted by the family in determining if dismissal was appropriate. At issue will be the right of a foreign national to assert constitutional rights — an issue that could have bearing on the ongoing debate over the Trump immigration executive order.
