Non-Deferential Judicial Checks and Balances and Presidential Policies
Abstract: Politiche presidenziali e non-deferenza degli orientamenti giurisprudenziali nel quadro dei checks and balances – The one-term-only Donald J. Trumps’s presidency has raised a good many questions involving their consistency with mainstream constitutionalism in substantive areas of rights and freedoms affected by his radical ideological attitudes. Immigration policies and civil rights ranked high in expressing such attitudes through various programmes and regulations that were repeatedly supported by Congress, whenever needed, according to partisan lines. Presidential nominations to the federal judiciary and, in particular, to the Supreme Court showed to what extent Trumpism managed to keep under strict unprincipled control a Republican Congress and, indirectly the Supreme Court, where conservative Justices (three of them appointed by Trump himself and his Senate) established a 6-3 strict majority while liberal Justices promptly reacted through strong dissenting opinions. Presidential policies have met a wide non-deferential judicial activism by lower federal courts that was not coupled by a similar attitude by the Supreme Court. The chapter argues that when mainstream constitutionalism is under political attack by a radical President blindly supported by his majority in Congress, the very system of checks and balances requires the judiciary to adopt a non-deferential attitude as an expression of a constitutional militant priority; and that, during Trump’s term, while lower federal courts have shown to be ready to defend the Constitution, the conservative majority of Justices in the Supreme Court has continued supporting presidential aggressive policies rather than the Constitution.
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