https://quadrant.org.au/news-opinions/america/trump-is-no-dictator/
Let me start this reply to Roger Partridge’s column (Trump’s War on Constitutional Democracy) by laying my cards on the table. I know Roger Partridge. He is one of the best lawyers in New Zealand. He, like me, has grave worries about the sort of judicial activism or judicial usurpation of the role of Parliament that he sees over across the Tasman (and which, in enervated form, is on clear display here in Australia too). Indeed, Roger and I have worked in parallel and at times together to try to rein back the current imperial judiciary in New Zealand, a set of top judges seemingly intent on making significant inroads into parliamentary sovereignty simply by decreeing new supposed realities in big-ticket cases. Indeed, in an excellent recent report, ‘Who Makes the Law? Reining in the Supreme Court’, Roger sets out the problems chapter and verse and then offers proposals to ameliorate this big-ticket problem.
He and I are fully in agreement about what is happening in New Zealand and I support all of his proposals. But for my purposes today I thought it best to begin by noting how much he and I agree about the state of Antipodean judicial and constitutional affairs.
I need to note that because I certainly do not agree with how Roger has characterised the first month or so of the second term of President Trump in Saturday’s Quadrant Online. Readers who haven’t done so should first look at what Roger argued. Here’s a sample:
♦ Roger notes that Trump has made 50 executive orders since taking office a little over a month ago. (Roger does not tell readers that Joe Biden issued 60 such orders in more or less the same amount of time.)
♦ He condemns Trump’s use of emergency powers as regards justifying tariffs on Mexico and Canada and suspending asylum applications.
♦ He claims that Trump is trying to rewrite the 14th Amendment by executive order to stop birthright citizenship.
♦ He praises the lower Federal Court judges who have issued nationwide injunctions to stop the suspension of asylum claims and birthright citizenship applications. Indeed, he cites what some of these judges have said. But Roger never lets readers know that every such injunction-issuing judge was a Democrat appointee.
♦ He notes J.D. Vance’s questioning of whether unelected judges have this authority to override executive power and Vance’s assertion that such actions by judges is constitutionally illegal. For Roger, that sort of scepticism ‘reveals a fundamental attack on constitutional government’.
As an aside, when Roger writes a report detailing how New Zealand judges have gone off the rails – and they have – by legislating from the bench is he not in that context ‘openly questioning judicial authority’? And what’s wrong with such questioning? Moreover, there would be plenty of left-wing Kiwis in the so-called ‘Judge’s Party’ who would word-for-word characterise Roger’s who-makes-the-law? critique as ‘a fundamental attack on constitutional government’.
But back to the US. Is the Vice-President somehow constitutionally prevented from criticising unelected judges? If so, that’s a constitutional norm I have never heard of and certainly would not support. I think what Roger really appears to dislike is the hint Vance makes that the Trump administration might in extremis simply ignore these lower court injunctions – you know, the way President Lincoln did when he flat out ignored the Supreme Court’s writ of habeas corpus as regards arbitrarily detaining citizens and the way that President Jefferson wrote what he would do if democratic executive government were to be hamstrung by activist judges. I will come back to this issue.
