Trump’s Executive Orders have resulted in the legal watchdog on extreme political authority in a democracy being fully awake and alert
US President Donald Trump with an Executive Order he signed last week in the Oval Office. (SAUL LOEB / AFP/GETTY IMAGES)
Neither Justin Trudeau nor Donald Trump are lawyers, but when they meet in Washington tomorrow, unusual legal and judicial issues will be lurking alongside the regular agenda items of jobs, trade and the “unique relationship between Canada and the U.S.”
The timing for this first meeting between the two leaders is awkward given President Trump is clearly smarting from a very strong legal slap in the face. A unanimous judicial decision has for the moment, denied the president’s Executive Order for a 120 day travel ban on immigrants from seven predominantly Muslim countries and an indefinite ban on Syrian refugees.
The attempt to implement the order caused chaos and confusion on both sides of the border. As protests to the ban grew, so did the genuine anger of many Canadian and American lawyers, who rushed to airports to help those who were turned away. Simultaneously, Canada saw a surge in asylum seekers from the U.S. as small border towns struggled with an expanding community.
In spite of warnings in Trump’s campaign rhetoric, the shift in American refugee policy was stunning. The Statue of Liberty’s light, long a beacon of welcome to “huddled masses yearning to breathe free,” seemed to dim, evoking long ago memories of prejudice and bias.
In 1939, the beleaguered German ship the MS St. Louis, primarily full of Jewish passengers, was turned away, first by Cuba, then the United States and Canada. This type of discrimination was never to happen again as cherished legal principles, including the rule of law — the belief that all people are equal before the law — gained prominence over the years. Yet, suddenly, our legal history seemed in peril.
To make matters worse, judicial independence was also at risk after Trump’s astonishing Twitter attack on Judge James Robart, the justice, who issued the initial temporary restraining order on the ban. Even the president’s choice for the crucially important Supreme Court vacancy, Neil Gorsuch, felt compelled to state that although he was not referring to Trump “he finds any criticism of a judge’s integrity and independence disheartening and demoralizing.”
(Canada has not been immune from this kind of attitude toward the judiciary. In 2014, then-PM Stephen Harper attacked Chief Justice Beverley McLachlin, as she tried to quietly warn the government that their choice of Marc Nadon for the Supreme Court was ineligible. She was proven to be right.)
However, there is a silver lining. While the two leaders may have to be politically silent on these thorny issues, others will not be so reticent. The sleeping giant of law, as a watchdog on extreme political authority in a democracy, is now fully awake and alert.
Columbia Law Human Rights Organizations have launched an online tool called the Trump Human Rights Tracker, which records and summarizes the human rights affected or violated by each of the president’s orders. It is already chilling reading.
And just this week, our government announced the reinstatement of the Court Challenges Program, which provides financial assistance to those who wish to launch a Charter challenge. A particular emphasis will be placed on litigation, one of the biggest roadblocks to mounting such a case.
As well, law professor Jennifer Bond, faculty director of the Refugee Hub University of Ottawa and the spark behind the Refugee Sponsorship Support Program, notes the increased activism throughout the legal community, including the amazing support of law students.
“Our students are critical partners in all aspects of this effort — both because we need their valuable contributions today and because we need them to learn the importance of this kind of work so that they are leading it tomorrow.”
A line in Shakespeare’s play, Henry VI, jokes that, “The first thing we do, let’s kill all the lawyers.” Little did Shakespeare know that Donald Trump would emerge later in the world’s history. Instead of killing all the lawyers, he has given them, and the law, new life.
Yes, see you in court, Mr. President.
Penny Collenette is an adjunct professor of law at the University of Ottawa and was a senior director of the Prime Minister’s Office for Jean Chrétien.