The Russian law professors were excited to meet me. The vice-chair plied me with chocolates while pouring healthy glugs of cognac into the two glasses on his desk. “Welcome! We look forward to learning about the American legal system, “ he said, a photograph of Putin looking down on us from the wall.
I’m an immigration lawyer in Tucson but I’m teaching in Russia as a Fulbright Scholar. “Thank you!” I say, raising my glass. “We have a lot to talk about.”
It happened to be the day President Trump signed an executive order barring the entry of thousands of immigrants. Protests broke out at airports across the U.S. as passengers were detained or turned away.
My colleagues in the U.S. convinced courts to block the order, but the president turned around and drafted a new one. And just like that, my meeting with Russian law students was transformed into an urgent dissection of the nature of executive power.
Explaining the situation to these students was easy because, in many ways, the Russian system of government is similar to our own. There are executive, legislative and judicial branches, and each is supposed to serve as a check on the other branches.
Power over immigration is centered in the executive branch. The idea is that, because immigration involves foreign affairs, that power is best exercised by the executive, who is also in charge of foreign relations. But immigration affects individual rights, too. So the judiciary occasionally pops in and says, “You can’t actually do that.” Then, usually, the executive backs off.
A student furrowed his brow. “Which power is the strongest? What happens if the executive doesn’t bend?” he asked. The judiciary has its own police force, I explained, called the U.S. Marshals. And the marshals enforce court orders. But, oddly, the marshals are controlled by the Department of Justice, which is not in the judicial branch at all, but in the executive branch.
I turned around and looked at the diagram I’d drawn on the whiteboard — three lines for the three branches of government — and about 10 arrows all circling the executive branch, with Trump at the top.
“It does look like the executive holds all the cards, “ I said.
A woman in the back piped up: “What about your Supreme Court?”
I turned to the diagram I’d drawn of the court, with its nine seats, one of them conspicuously empty. “Well, he also appoints the Justices to the court,” I mumbled.
I looked over at a portrait on the wall. It was Mikhail Speransky, the father of Russian jurisprudence. He dared propose that autocratic rule by the czar should be abolished. Naturally, he was sacked by the autocratic czar.
A law professor weighed in. “Maybe we should talk about political power instead of legal power,” she said. “Our president in Russia has such robust political power that the court would never oppose him, so an open conflict between the executive and the judiciary would never even exist.”
Another student nodded. “We would never see such large airport protests like this here. Our president is too popular. But your president is not very popular. He didn’t win the majority of votes in the election.” (Two students in the back started whispering. I hear ”electoral college” and “not entirely democratic.”)
The class ended and the law professor turned to me.
“You should look into changing that Constitution of yours,” she said. “It seems to have some real weaknesses.”
I nodded sheepishly.
“Let’s get tea,” she said.
I said, “I think I need something stronger.”