Trump executive orders facing challenges

Samantha Donovan: Markus Wagner is a professor of law at the University of Wollongong and an expert on US constitutional law. I asked for his reaction to President Trump’s executive order, which freezed most of the rioters who stormed the Capitol building on January 6, 2021.

Markus Wagner: So those pardons were expected, or at least some of them. It includes rioters who were nonviolent, but apparently also rioters who were violent. Seems to cover almost all of those who’ve been convicted. Somewhat worryingly, I think it includes people like the founder of the Oath Keepers, whose prison term was 18 years, or the leader of the Proud Boys, whose prison term was 22 years. What that makes clear to me is that what Trump wants to really do is to rewrite the history of January 6, 2021, into a story or a narrative of persecution of individuals without a reason. But your listeners might recall that what we saw just over four years ago at the instigation of the then-President Trump was massive violence led to injuries and death. And so that rewriting is, I think, helpful for Trump to legitimize his own second presidency, if you will.

Samantha Donovan: What do the pardons and commutations mean, do you think, for the rule of law in the United States?

Markus Wagner: I think that it’s highly detrimental because all of those prosecutions have gone through what one would consider to be ordinary criminal justice processes. Now, there might be a lot to criticize about individual processes, but the criminal justice system in the US, by and large, still works. And in this particular instance, does not strike me as having been tainted politically in any way, shape, or form. And so what President Trump really is trying to do is rewrite the narrative of January 6, as well as his own involvement in all of this. Because once these individuals are out of prison, his own actions would then also be seen as perfectly legitimate, if you will.

Samantha Donovan: Can the executive orders be challenged in any way, for example, in the Supreme Court?

Markus Wagner: They could be challenged in ordinary courts and could go all the way up to the Supreme Court. And the executive orders are only valid if they stick to certain procedural requirements. Those are ordinarily not particularly onerous. And within areas in which the president has the power to act or has been given the power to act by Congress. Executive orders are a bit out of the ordinary for an Australian audience, probably. But because in the US, you elect, on the one hand, the president and on the other hand, Congress, the president holds particular powers given by way of the constitution in which he can act. Or Congress passes that power over to him, but he has to remain within the power given to either by the constitution or by Congress.

Samantha Donovan: So as you say, there’s sweeping powers that we don’t see in Australia.

Markus Wagner: They are sweeping and they’re being interpreted even more sweepingly, if you will. So one good example that I might point you to is the emergency declaration that was done with respect to the border with Mexico. And that goes back to a post-Watergate law that gave fairly sweeping powers to the president for real emergencies. Now, if you look at the number of individuals who are crossing the Mexican-US border at the moment, it’s fairly low in comparison to the last years. And so I don’t quite see what the emergency is that would require this action and would require that power to be used. I suspect it’ll be challenged and then it’s in the hands of the court and ultimately a very compliant US Supreme Court compliant to President Trump to make that determination whether he violated and overstepped his bounds.

Samantha Donovan: Who might bring a challenge on the immigration matters?

Markus Wagner: Lobbying groups on behalf of some of the individuals who cross the border. It could be particular groups that can claim an interest in a legal interest, to be specific, a legal interest in these matters. So there’s public interest groups that people will have heard of the ACLU and similar groups that are advocating on behalf of refugees or of immigrants.

Samantha Donovan: Professor Markus Wagner from the University of Wollongong.

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