Editorial: US courts must check this President

Editorial

Of all the disturbing statements Donald Trump has made since taking office, none were more chilling than this: "Our Constitution is written on parchment but it lives in the hearts of the American people. There is no freedom where the people do not believe in it, no law where the people do not follow it, and no peace where the people do not pray for it."

That would be arguably true about New Zealand's constitution or Britain's, or any place where Parliament is supreme, but it is not true of the United States of America. All elected representatives there swear allegiance to its Constitution, as do all judges sworn to uphold it. It is simply not true that, "there is no freedom where people do not believe in it", a supreme Constitution can, and frequently does, uphold rights and freedoms in ways that many people might not believe in when they are applied to criminals or to racial or religious minorities.

Justice is not done by taking a poll, though the new President probably does not think he needs one. When he refers to "the people" he undoubtedly believes he is singly capable of knowing the public will. When he issued that proclamation a few days after the inauguration he might as well have declared, "There is no freedom where I do not believe in it, no law where I do not want to follow it..."

Sooner or later he was going to run hard up against the US Constitution and that collision may have arrived. A brave federal judge in Seattle, James Robart, has issued a temporary restraining order on the Administration's entry ban on citizens of seven Muslim countries. Trump responded with a typical lack of presidential restraint, referring to Robart as a "so-called" judge, while the White House applied to a US federal appeals court in San Francisco for a stay of the restraining order.

The appeals court refused an immediate stay. Trump has vented his frustration in a series of tweets that Americans should blame the courts if anything (like terrorism) happened and said he was instructing the Department of Homeland Security to check people coming into the country "very carefully". Meanwhile, the appeals court is awaiting further submission from states objecting to the ban and from the federal Government, so the courts might yet uphold the ban.

But the saga so far encourages hope that the constitutional checks on power in the US will be capable of restraining a rogue President. The other branches of government are not strong at present. Both houses of Congress are controlled by Republicans who have seen Trump take over their party and they fear for their seats if they antagonise his supporters. The Supreme Court is just marking time until Trump's nominee to fill a vacancy has been accepted by the Senate.

The nominee, Neil Gorsuch, is considered a conservative in judicial terms. But that normally means strictly upholding the words of the Constitution, it is "liberals" who are usually more willing to adapt it to the supposed will of the people. It may take a strong court to prove to this President the Constitution is more than parchment.