The Police Must Never Be Allowed To Choose a Side

Apparently, US Marshals are refusing to serve a restraining order on Customs / Border Patrol officers at LAX, until they receive orders from the US Attorney’s Office. If this report bears out, then they are another federal police agency that is choosing the executive branch over the judicial branch. (Update 4:45 PM, EST, 1/31/17)

Something happened over the past few days that is in danger of being lost amidst the noise of this very complex, multi-front battle we are waging against the Trump Administration’s Executive Order on immigration and the status of refugees. We, as citizens, need to make sure that does not happen. I’m going to highlight the next sentence, because it is crucial for us to see the most looming of dangers in the current state of play. While we were protesting across the country, in Washington, DC:

THE POLICE CHOSE A SIDE.

At Dulles International Airport, uniformed federal police officers of the United States Customs and Border Patrol were ordered by a federal court to uphold an injunction and stop enforcement of the President’s executive order. They, en masse, refused to do so. In flagrant disregard for the rule of law, they chose a side. That must not stand. The precedent it would set presents an existential danger to the republic.

Somewhere in the chain of command between the officers on duty and the President of the United States, one individual ordered the police to ignore an injunction, and that order was followed, apparently without dissent or question. It is now up to us, and our elected leaders in Congress, to demand that name. Whoever gave that order must be relieved of their duty, if not charged with contempt, tried and tossed into a very deep, very dark hole.

There is no ambiguity here.

THE POLICE MUST NEVER BE ALLOWED TO CHOOSE A SIDE.

Often, when speaking of nations such as Russia or Iran, diplomats take care to separate the concepts of “national interest” and “state interest.” In Russia, for example, it is absolutely in their national interest to end governmental corruption, but it is not at all in the state interest to do so. The state is kleptocratic, to the great lament of the nation, their interest is to steal as much money and seize as much power as they are able. We, however, have a different view of the role of the state.

In the United States, our entire democratic experiment is based on the belief that we, through a mandate of the people under a Constitutional order, can unite both national and state interests. That is the promise of democracy. Our entire society is predicated on the belief that the state can serve the nation, not just itself. That, however, only happens if the state is kept under control by its fundamental law.

To ensure that, our founders drafted a Constitution that divided power into three branches of government: legislative, executive and judicial. The legislature exists to make the laws. The executive, to enforce the laws. The judiciary, to weigh those laws against our first principles, as enshrined in the Constitution. To further strengthen the stability of the state, while restraining its ability to destroy liberty, the founders established a system of checks and balances, allowing each branch to clip the authority of the other branches. As such, our nation has survived more than two centuries, sometimes hobbled in action, sometimes overweening in authority, but never tyrannical. These twin principles of the separation of powers and checks and balances must, absolutely must, remain inviolable if we are to survive as a democracy any further into the twenty-first century. All of that breaks down if the police choose a side.

One crucial check that the judicial branch has on the executive branch is an order of injunction. An order of injunction is like a pause button on the enforcement powers of the executive. An injunction says, in essence, “There is concern that this rule is in violation of the Constitution, therefore, you, the executive branch and law enforcement officers, must stop doing what you are doing until we, the judiciary, can determine legitimacy.”

Every legal tradition, every legal scholar and nearly every police officer in the history of the nation would agree on this one point: The police MUST adhere to the orders of the court. The judiciary MUST maintain its power to check the executive and when the police – the enforcement arm of the executive branch – refuse, literally by force of arms, to adhere to our collective laws and fundamental principles, then we have moved demonstrably closer to midnight.

Recently, some fuss has been made over President Donald Trump’s admiration for President Andrew Jackson, a truly barbaric man who, as a cavalry commander, ordered bridle reins be made for his officers from the tanned flesh of defeated Native American warriors. Jackson was, incidentally, also the first president to personally precipitate a national economic catastrophe, the Panic of 1837, through his mishandling of the federal treasury and the banking system. You have to wonder what, exactly, Donald Trump sees in the man. Chillingly, given the events of this past weekend, one might suspect it is Jackson’s reprehensible and dangerous attitude toward the Constitution and the separation of powers doctrine upon which it is based.

Attentive students will recall that in the wake of a Supreme Court ruling with which Jackson disagreed (Wooster v. Georgia, 1832), the President replied, “John Marshall has made his decision; now let him enforce it.”

That quote still sends a cold spike of pain up the spine of many historians. For a time it appeared that the Court, and by extension the entire judicial branch of the United States government, had been permanently hobbled. Fortunately, subsequent presidents were more respectful of the Constitution and order returned until the Civil War. The young nation survived the presidency of Andrew Jackson, though we were deeply changed as a result and profound injustices followed in its wake.

We might not be so fortunate a second time around.

Within a week of his inauguration, President Trump, with an assist from federal police officers at Dulles International Airport, has brought our nation to the brink of a Constitutional crisis. As actions set precedents, if we do not demand redress for these Constitutional insults immediately, the security of this nation is, without hyperbole, at risk.

One small cadre of officers in one airport, on one weekend, acting in violation of one court order might not seem like an overwhelming concern when we are fighting on so many fronts at once, but consider the ramifications of this precedent should a precipitating event, like, say, a terrorist attack or the discovery of a radiological weapon, occur in the coming weeks or months. If this administration knows it can get away with ordering police to act on its commands alone, regardless of Constitutional restrictions or judicial review, how long do you think we’ll have before my freedom to write this letter is quashed?

The only way to get ahead this potentially disastrous chain of events is to deliver justice to those who threaten our futures by their actions today. We, the people, must demand the name of the officer who ordered our police to defy the injunction. That individual must be, no matter his or her rank or position, summarily dismissed from the service of our nation, and the officers who followed that order must be reprimanded or relieved of their duties until a full investigation can be conducted into this most dangerous violation of both law and principle.

The police must never, ever, be allowed to choose a side. If we are to remain free, that truth must remain self-evident.

You are very much encouraged to share this post on social media or to cut-and-paste it as a letter to the editor of your local paper. Send it to your Representatives and Senators. Send it to your crazy uncle. Rewrite it in Esperanto. Sign it however you want. Whatever. Just do it.