Column - Donald Trump’s way

TO ensure no individual or institution gains too much power, the US Constitution mandates the separation of power among three arms of government – the White House, Congress and the Supreme Court. Less than three weeks after Donald Trump's inauguration, this much vaunted system of checks and balances is under threat.

Institutionally, the balance of power now favours the Republican Party. Despite some losses, the Republicans retained a majority in the Senate and the House of Representatives, and in winning the White House installed a President who is combative, combustible and capricious.

Additionally, Trump has nominated 49-year-old Neil Gorsuch to fill the year-long vacancy in the US Supreme Court, now evenly split between four liberal and four conservative judges.

A study by the New York Times ranked Gorsuch as slightly more conservative than Justice Scalia – whose death on Feb 13 last year created the vacancy – but not as conservative as Justice Clarence Thomas. Given Gorsuch's age plus Supreme Court judges' life-long tenure, the apex court could tilt towards conservatism for three decades or more.

For developing countries like Malaysia, which is facing a possible general election this year, the fractious power play in Washington highlights one indisputable fact: in a country where the executive is either institutionally or personally dominant or both, democratic governance is only as strong as the individuals willing to defend this concept.

One egregious example is Trump's executive order on immigrants. For 90 days, those from seven countries – Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen – will be denied entry; refugees from any country will be barred for 120 days while the admission of Syrian refugees will be suspended indefinitely although Christians and other religious minorities will be exempted.

The first casualty was acting attorney general Sally Yates – sacked by the White House after directing Justice Department lawyers not to defend Trump's immigration ban. Yates was concerned that giving Christian refugees preferential treatment could indicate discriminatory intent, rendering the executive order unlawful.

That the White House labelled Yates as "weak on borders and very weak on illegal immigration" suggests the executive's lack of tolerance for dissenting views by professionals.

Unique among Cabinet members, the attorney-general's independence "is designed to insulate questions of law from inappropriate political pressure …" Matthew Miller wrote in the Washington Post.

Amid mounting chaos and criticism, several judges have temporarily blocked parts of the executive order on immigration.

Of all judicial decisions, that by Judge James L. Robart, an appointee of Republican president George W Bush, was the most far-reaching. Responding to an application by two states, Washington and Minnesota, requesting the court to determine whether the executive order was constitutional, last Friday Robart ordered Trump's travel ban to be temporarily halted nationwide and immediately.

Reacting to news about the suspension of the travel ban and showing scant respect for the concept of judicial independence and the judiciary, Trump attacked the judge.

"The opinion of this so-called judge, which essentially takes law enforcement away from our country, is ridiculous and will be overturned!" Trump said on Saturday.

Undeterred by criticism from both Democrats and Republicans, Trump resorted to Twitter to pre-emptively blame the judiciary for future terrorist attacks: "Just cannot believe a judge would put our country in such peril. If something happens blame him and court system."

Writing in the New York Times, Peter Baker noted the White House offered no evidence for Trump's suggestion that potential terrorists would now pour over the border because of the judge's order.

"Since Sept 11, 2001, no American has been killed in a terrorist attack on American soil by anyone who immigrated from any of the seven countries named in Mr Trump's order," Baker pointed out.

At 3pm PST on Tuesday, a US Federal Appeals Court will hear oral arguments on whether Trump's travel ban should be overturned. A larger constitutional issue is the extent of executive power over immigration issues.

In an unprecedented move, opponents of the ban – including 17 state attorneys-general, 10 former high-ranking diplomatic and national security officials, nearly 100 Silicon Valley tech companies (Apple, Google and Microsoft are three examples), more than 280 law professors and a dozen labour and civil rights groups – have filed friends-of-the-court briefs.

In another gargantuan attempt to stop the inflow of illegal immigrants, Trump has proposed building a 3,100km wall between the US and Mexico at a cost of US$12 billion (RM53 billion) – US$15 billion (RM67 billion). How this wall will be funded is causing disagreements even among the Republicans.

Now residing in 1600 Pennsylvania Avenue in Washington, Qin Shi Huang's American wannabe should note one salient fact about the builder of China's Great Wall. The dynasty founded by Qin Shi Huang, a tyrannical despot who was equally contemptuous of scholars, lasted 15 years – the shortest imperial rule in China.

Opinions expressed in this article are the personal views of the writer and should not be attributed to any organisation she is connected with. She can be contacted at siokchoo@thesundaily.com