Jim Acosta's suit against President Trump alleges that his decision to bar the reporter from White House press conferences violates the First Amendment's provision that "Congress shall make no law … abridging the freedom of speech or of the press." Mr. Acosta may or may not know how to report the news. But apparently, he and his lawyers don't know how to read. The constitutional language just cited refers to Congress, not the president. It, therefore, constrains the lawmaking power of the legislative, not the Executive, branch. It would make no sense to assert that an occupant of the White House who bans someone from his dinner table for using foul language has made a law abridging the freedom of speech, or of the press."
Among the constitutional duties of the president, I find language that says, "He shall from time to time give to the Congress information of the state of the union. …" I also find language that says that "he shall receive ambassadors and other public ministers." (Article II.3) I find no provision requiring that he provide information to the media, or receive self-important members of the media for dinner, press conferences or any other events. He is not even required to receive members of Congress.
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According to the Constitution, Congress is the only branch of government constitutionally vested with the power to call the president of the United States to account for his actions. By placing this power in the hands of the national legislature, the framers showed due regard for the just imperative that the chief executive of the United States is not above the law. But they also cast doubt on the notion the judicial power of the United States government, vested ultimately in the Supreme Court, may sit in judgment of the personal conduct of the chief executive.
For, it has for long ages been the common sense of humankind that, where there is no power to enforce, there is, in effect, no law. At the highest level, this is what made it necessary for the first generation of American patriots to appeal to God, and "the laws of nature and of Nature's God" to judge the rightness of their rebellion against the British sovereign. When it comes to challenging the chief executive power of the U.S. government, it also makes it doubtful that the Supreme Court of the United States has the power simply to impose its opinions about the laws, including the Constitution, upon the chief executive.
When in disagreement with the president, the federal judiciary must rely upon the people to call the chief executive to account. They can do so, through their congressional representatives, provided their political will is strong enough – i.e., whenever it produces the constitutionally required majorities, in both Houses respectively, to impeach and then remove a sitting president from office. In that event, the chief justice of the Supreme Court may, by refusing to preside when the President is tried, slow the implementation of the people's judgment; but only for so long as it takes to impeach and remove the chief justice.
Thus the Congress has the power to enforce constraints upon the president, but only when strong feeling prevails against some executive action or policy. The judiciary has no enforcement power at all. So Alexander Hamilton observed in Federalist 78, when he wrote:
"The Judiciary … has no influence over either the sword or the purse. No direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments."
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Does the judiciary's power to render judgment in this or that individual case trump the president's responsibility to use, or refrain from using, U.S. government's executive power to secure the safety, welfare, and tranquility of the nation? That question is precisely what, in any given circumstance, the Constitution requires the people's representatives in Congress to decide. Though it is these days carelessly asserted the SCOTUS "strikes down" this or that law, or becomes "the law of the land," neither expression is accurate. They assume that the SCOTUS wields some force of law, when in fact, under the Constitution of the United States, federal law enforcement is the province of the Executive Branch, supervised by the judgment of the people's representatives in Congress.
However, even though Hamilton's observation holds true, along with the reasoning premised upon it, neither implies that the president is simply above the law. They simply imply that, when the president concludes that conscientious respect for the constitutional duties of the office warrants it, the chief executive may forbear to implement the judiciary's opinion. This is, for example, what President Andrew Jackson did in the case of Worcester v. Georgia 31 U.S. 515 (1832). By contrast, the famous Brown v. Board of Education did come into effect when President Eisenhower ordered federal troops to Little Rock, Arkansas. The president's decision to act or refrain from acting is the prudential judgment that decides whether SCOTUS decisions that require further action by the U.S. government have the force of law. Of course, prudence requires that the chief executive take into account the Congress's power to move against the president's tenure of office if and when enough members of Congress conclude that action or inaction represents dereliction, not duty.
In Mr. Acosta's case against President Trump, is there reasonable grounds to conclude that the president is guilty of some high crime or misdemeanor for maintaining order and decorum during press conferences over which he personally presides? Just as judge's have the prerogative to maintain order in their courtrooms, so the president must maintain order in the White House. If federal judges forget their duty to honor the prerogative they themselves require, president's may remind them that the disorder they inflict implies disorder they will have to endure.
Indeed, it would be best to remember that demanding respect for officials who represent the U.S. government's authority in all three branches is the prerogative of the people whom they are supposed to represent and serve. Disrespecting any such officials brings the sovereign self-government of the people into contempt. Those who demand the right to show such disrespect are not exercising their freedom. They are demanding license to degrade and overthrow our liberty.