Friday, March 24, 2017

Does the Trump Administration Believe in the Rule of Law?

By guest contributor Johanna Kalb, Associate Professor of Law, Loyola University New Orleans College of Law and Fellow, Brennan Center for Justice at NYU School of Law

 On Tuesday, the Inter-American Commission on Human Rights (IACHR) met in Washington D.C. to conduct hearings on human rights issues in North and South America.  Created in 1959 to further respect for human rights in the Americas, the IACHR provides human rights education and technical assistance, investigates human rights violations, and hears cases brought by individuals and groups.  This week, the United States was among a number of countries, including Mexico, Chile, Honduras, and Nicaragua, with business before the IACHR.  But in a possibly unprecedented move, the U.S. government simply didn’t show up.

 One of the IACHR hearings focused on the Trump administration’s recent travel ban on citizens from six majority Muslim countries.  As news of its absence spread, the State Department justified its decision saying that it wouldn’t be appropriate to discuss matters subject to pending litigation in U.S. courts.  This explanation rang hollow, however, because other hearings involved issues that aren’t currently being litigated (like the case of the Japanese-Peruvian man who was forcibly removed from his family in Peru and interned by the U.S. government during World War II).  In addition, pending litigation didn’t stop either the George W. Bush or Obama Administrations from participating in hearings on Guantanamo, prison conditions, and immigration detention. Indeed, the State Department conceded that the U.S. wouldn’t accept this excuse from another country.

Given that earlier in the week the U.S. also declined to appear for a meeting with the U.N. Human Rights Council, many observers are worried that the U.S. is turning its back on its human rights commitments.  But there’s an even more troubling possibility – that the Trump Administration is turning its back on the rule of law.

Here at home, President Trump has repeatedly attacked the legitimacy of U.S. judges and courts that have ruled in ways he dislikes.  During the campaign, he made headlines by arguing that a federal judge of Mexican descent was biased against him.  Then he took to Twitter to attack the “so-called judge” in Washington state who enjoined the first version of the travel ban.  When a revised version of the travel ban was blocked again—this time by a federal district judge in Hawai’i— Trump mused to supporters in Tennessee about breaking up the Ninth Circuit (which includes both Hawai’i and Washington).    Even a public scolding from his Supreme Court nominee didn’t help.  Hours after Judge Gorsuch declared himself “disheartened” by Trump’s attacks on the judiciary, the president doubled-down at a fundraising dinner saying, “Somebody said I should not criticize judges. O.K., I’ll criticize judges.”

 It’s starting to look like a pattern.  When challenged to defend the legality of its policies, the Trump Administration instead tries to undermine the legitimacy of the court, either by attacking it or, as with the IACHR, by ignoring it. Domestically, this puts our democracy at risk by eroding public confidence in the fairness of our judiciary.  Internationally, the empty seats at the IACHR send the message that the U.S. isn’t that interested in human rights enforcement.   This is a terrible mistake.

One of this country’s founding principles, expressed succinctly in 1780 by John Adams, is that we are “a government of laws, and not of men.”  This is one of the pillars of the democratic model that the United States has, for decades, worked to promote around the world, recognizing that our country benefits from a global allegiance to the rule of the law.  Participation in the IACHR helps to underscore this commitment; so does the expression of respect for lawful (even if unfavorable) court orders.  By behaving in ways that undermine the rule of law domestically and internationally, the Trump administration is compromising our integrity and security.  We have to hope that the Trump Administration figures out quickly that protecting our core values is far more important than losing a case.

 [Editors' Note:  This blog is part of our symposium series on the Administration's failure to participate in the IACHR hearing on March 21.  The other postings, by Deborah Weissman, Sarah Paoletti, JoAnn Kamuf Ward, and Margaret Drew & Lauren Carasik, respectively, are here, here, here and here.  Tara Melish comments here, and Rick Wilson's comments are here]

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