Sunday 11 April 2021
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President Donald J Trump and Constitutionalism

United States of America President Donald Trump has presented us with a wonderful opportunity to bring together much of what I have discussed in previous articles as being of fundamental/sacred importance to a constitutional democracy. Both Namibia and the USA are constitutional democracies. So let us jump right in.
Trump issued an executive order blocking all humans from seven (7) countries from entering America, including those who were in possession of visas issued by the USA. The issue is now before an Appeal Court. So far only one Judge has upheld Trump’s order with 5 against, including three Attorney Generals being against. Here is my understanding of the overriding jurisprudence that the Courts will employ as guardians of the Constitution.
1.  The executive order must be sanctioned by law.
There is no problem for Trump here. There is indeed a law that very specifically states that he has full authority to ban humans from entering the country if, in his “determination”, this is necessary for protection/security of the country. The Trump camp have been trumpeting this law and fact as complete justification for his executive order. Alas, for them, it is not that simple.
2.  Principle of Certainty.
A law, or an order having the effect of law, must have certainty and predictability that ensures that human beings are not confused as to their rights and obligations.  As regards this executive order there is a huge consensus, including among fanatical Trump supporters, that there were/ are enormous problems on just about every aspect of the order. Whilst defending the order, senior Tump supporters have repeatedly described the whole exercise as grossly “incompetent” because of the general chaos and human trauma that resulted at airports across the world. Who was in or out became a moving target. For instance, it was “clarified” that British subjects were exempt from the ban without clarification as regards subjects from other countries.
A law, or an order having the effect of law, cannot be a lotto.
This is a significant hurdle for the President.
3.  Principle of Rationality
As much as indeed the President has the power to make his “determination”, his power is not open ended or unlimited. He cannot just make a determination because he is in a bad mood, or does not like Muslims, or imagines a problem that does not in fact exist. He cannot act in an “arbitrary” manner. To just allow Presidents do “as they like” is to invite them to become despotic abusive dictators.
So the basic rule that the Courts employ, in enforcing the Constitution is to say – “I/we will not set aside your decision just because we disagree with it, but it must be the decision of a reasonable man in your position. It cannot be so irrational that a reasonable man in your position would not have done the same”.
On this critical issue ask yourself these questions just for a start: –
a)  Are ALL the people in a country to be treated like vermin and blocked out of your country because SOME of the people in their country are bad?
b)  Are ALL the people in that country to be treated in this way even though not one member of their country has ever harmed your country or people?
c)  If you are saying that such persons are “potentially dangerous” why are you not blocking people from countries that has people that DID your country and people great harm? Six (6) of the 9/11 killers were from Saudi Arabia, but Trump has not blocked those people???
d)  In addition to the above, why do you consider these people as dangerous even though YOU have issued them with visas, after the most exhaustive screening on this planet, that lasts up to three (3) years???
e)  Why are you blocking humans that, in terms of this screening by you AND the United Nations, have been classified as “refugees” fleeing the very danger(s) that you fear?
Try as I might I can see no easy answers on the part of Trump as regards these questions that test the rationality of his executive order.
The thing stinks, with only the pungency of the smell needing determination.
4.  Right to equality and dignity.
As previously explained, the last World War gave us the Universal Declaration of Human Rights. In terms thereof there are certain rights that are jurisprudentially classified as being so fundamental as to be “unalienable”. Unalienable means that no government can take them away.
It is not rocket science to see that this “blanket” ban on these humans, just because they are from certain countries, is arbitrarily discriminatory. They are being treated with contempt and this was more than confirmed by the scenes of awful human trauma that the visual media broadcast to the whole world.
Regrettably there are USA decisions that support the notion that foreigners don’t have the same rights to equality and dignity as Americans.
Still I foresee serious problems for the Trump camp on this one.

To put it simply, the more one scrutinizes the Trump executive order, the more jurisprudentially offensive unanswered questions arise.
For the superior Courts of America to uphold Trump they will have to veer off very well worn paths of settled jurisprudence.
If I were on the Court I would also include very severe admonishment of Trump for breaching the Constitution by insulting Judges.

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