America at its best

There is an excellent opinion piece in the Globe and Mail by American legal scholar and author and activist Alan Dershowitz that shows how the American constitution works at its best.

(For the record, I think our, Westminster style parliamentary, responsible government, the foundations of which rest upon a wholly unwritten constitution, is superior to the more formal, representative US system, but that, as is so often the case with me, is just an opinion.)

President Donald Trump avoided a constitutional crisis by appealing, rather than defying, an overbroad injunction against his visa executive order issued by a federal judge in Washington State,” Mr Dershowitz explains, when “A panel of the 9th Circuit Court of Appeals refused to rescind the injunction on an emergency basis, thus keeping the nationwide injunction in effect, at least until the court considers briefs from both sides. Another federal judge in Massachusetts rendered a decision refusing to renew a similar injunction, and thus allowing the visa restrictions to be implemented … [and] … In light of these conflicting rulings, the President could have said that he was going to follow the one he and his lawyers believed was correct. Had he done so, the judge in Washington might well have held the President in contempt of court, thus creating a constitutional crisis between co-equal branches of our government.

(Although far, far too few Canadians actually know (or care) about our system, we also have three co-qual branches of government, two represented by the Queen and one appointed by her:

  1. The Queen in Council;
  2. The Queen in Parliament; and
  3. The various courts of law.

The Queen in Council and the Queen in Parliament is often referred to as the “fusion of powers” rather than the US style “separation of powers” but that is too simplistic. The “responsible,” in fact revolutionary nature of the Westminster system means that the executive ~ the Queen’s Privy Council, the cabinet ~ must resign (or be dismissed) when it cannot command the confidence of the Queen’s parliament. The Queen’s courts are there, and empowered, to enforce that constitutional convention, which, despite being just a convention, has at least as much, usually more weight in law than many provisions of our formal, written Constitution which can be overturned by e.g. using the “notwithstanding” clause.)

Alan Dershowitz explains that “Justice Robart’s order is neither ridiculous nor outrageous, as evidenced by the refusal of these appellate judges to immediately overrule it. And the judge himself, who was appointed by former U.S. president George W. Bush, is not “so-called” – he is a respected jurist who rendered what he honestly believed was a proper decision under the law … [but] … Having said that, the injunction is too broad in scope and lacks nuance. It may well be modified on full appeal. It applies equally to individuals with different constitutional status. For example, a family from Yemen, with no connection to the U.S., has no cognizable right to receive a visa. Whereas, a visa holder already in this country might have such a right. But if the injunction is upheld, the President will have to comply with it, regardless of his personal views, or his lawyers’ professional judgments. As the Washington State Attorney General correctly put it, “No one is above the law, not even the President” … [and] … Whatever one thinks about the merits or demerits of Justice Robart’s injunction – or of the Massachusetts Federal Judge’s refusal to renew the injunction – we are observing in action the American system of checks and balances, and separation of powers … [because] … Although the executive and legislative branches are solidly in Republican hands, a single district court judge, representing the lowest level of the judicial branch, can bring a presidential order to a screeching halt – at least until and unless it is reversed or modified on appeal. And there is nothing the President can do about it, other than tweet his outrage and order an appeal to be taken to the Court of Appeals and eventually to the Supreme Court.

How America’s “system” is working is quite neatly stated in a recent editorial cartoon by Sousa & Machado:


It is a fine and finely balanced system, a good system that works well when there are enough good people pulling and pushing on the levers of separate powers. It is not our system but we, Canadians, can have confidence in the fact that our American friends and neighbours respect the rule of law.

One thought on “America at its best”

  1. I’ve seen the third part of our government termed “Queen-on-the-Bench”, which helps convey the principle that, like the US, we share three separate branches (Cabinet, Parliament, and the Courts), but their power is derived from the Crown and not the Constitution.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s