For almost 100 days I have been hearing lots and lots of people say we are in a “Constitutional Crisis” and I have resisted agreeing. I can no longer do that. The problem I face is that there is no one cause of the crisis, there are many. An that is going to be a big problem.
Just to name a few of the biggest we have:
- the deportation of people without “do process”
- the administration ignoring court orders
- the “Birthright Citizenship” question(s)
There are quite a few more but these will do to start. The single biggest problem is that a lot of the issues are both related and tied together in a god offal ‘Gordian Not”. Let’s just look at the first two.
The courts have gotten involved with the failure of ICE/DHS to give the people they are deporting under the “Enemy Aliens Act” of 1798 (this law is over 225 years old). The only way that the current administration can use this act is to show that the USA is suffering a “Predatory Incursion” the major issue I see is that SCOTUS will sidestep the issue with the “Political Question Doctrine”. If they don’t then they have to come up with a legal definition of “Predatory Incursion”, not a easy thing to do under any circumstances.
Next, even if the Court finds that there is a “Predatory Incursion” and therefore the administration can deport these “Enemy Aliens” does the act allow DHS/ICE do so without any “Do Process”? If so, why? How do we limit the loss of “Due Process” only to “Enemy Aliens”? For that mater who gets to say who is an “enemy” of the United States? Can this definition be challenged? An if it can be challenged, where? If it can’t be challenged, how do we limit the damage done when the inevitable mistakes happen? (I ask you all, can you ‘Prove’ you are a U.S. Citizen and do you carry that proof around all the time?)
Finally let’s look at the “Birthright” Citizenship issue. First is that the President is issuing a new interpretation of the 14th Amendment that goes counter to what SCOTUS has ruled in the past. Since Marburg v. Madison it has been the rule that SCOTUS gets the final say on what the Constitution says and is. Anyone and everyone can say what they think/believe the Constitution says but the Supreme Court of the United States has the las, definitive word. So the Executive Order is just the Presidents ‘opinion’. But let us look at the Executive Order in a different light. The President isn’t interpreting the 14th amendment, he is ‘amending’ it. Now we run into the question of his ignoring the expressed wording in the Constitution on how the Constitution is to be Amended. The role that the Executive Branch plays in this process is, at best minor and mostly procedural and the President has no direct role. It is the Congress and the States who say when and how the Constitution is changed.
So now let us get to the really big issue we are facing, the attitude that the American People have towards the Constitution of the United States. To put it simply, it is OUR Constitution and We The People get to say when, where, and how it is interpreted and changed. We demand and insist that who ever wants to change it ask us first. This has not been done by the Trump Administration has yet to do this. It is now up to us, the people of the United States to stand up and say “Do it the right way or face our wrath.