There have been numerous media reports about the lawsuit CNN brought against the Trump administration’s suspension of Jim Acosta’ press pass and the temporary restraining order issued by U.S. District Judge Timothy J. Kelly to reinstate it.  While I could not find a copy of the judge’s order, it’s pretty easy to determine the constitutionality of the situation.

Let’s start at the beginning.  On November 7, 2018, during a contentious exchange between the CNN reporter Jim Acosta and President Trump, both sides seem to get rather heated.  After Mr. Acosta’s question was answered and he wished to ask another, President Trump said, “That’s enough”, and asked for a question from another reporter.  Mr. Acosta then blocked the attempts of a White House staffer to retrieve the microphone he was using.  While much has been made in some circles about Mr. Acosta “putting hands” on the staffer, the situation really comes down to who controls a press briefing: The person giving the briefing or the press?  I’ve never seen it questioned that the person giving the briefing determines who they call on and how long any individual can directly engage with the briefer.  This means that Mr. Acosta was not only being rude to the President, but to his fellow members of the press by “hogging the microphone” and denying them the opportunity to ask their question.  In reaction to this bad behavior, the White House suspended Mr. Acosta’s press credentials.  To understand the context for the temporary restraining order we have to answer three questions: 1) Who owns the press credentials, 2) Does Mr. Acosta have a right to participate in White House press briefings, and 3) Does a federal judge have the authority to order the President to comply with his wishes?

Who Owns the Credentials?

Since it is the White House that issues the press pass, it should be obvious that the White House owns the press pass.  Mr. Acosta asked, probably through his employer, for a “hard pass”, a reusable pass to access the White House.  I’m sure the Secret Service did a background check and that the White House has a set of standards for conduct of those carrying such passes.  Since the White House itself is the official residence of the President, it is part of the executive branch of the federal government and therefore under the direction of the President.  If the press pass is the property of the federal government under the control and direction of the White House, then the White House determines when, where, and how it can be used as long as it is within any laws passed by Congress.  The pass does not belong to Mr. Acosta or CNN.

Freedom of the Press and Access to the White House

Congress shall make no law … abridging the freedom of speech, or of the press;

U.S. Constitution, Amendment I

While the cries from the media have been loud, I have heard no one explain how the suspension of one reporter’s regular access to the White House briefing room is “Congress making a law abridging the freedom of the press”.  Mr. Acosta and CNN have not had their reporting censored and they are not prevented from reporting what goes on in the White House; Mr. Acosta has merely lost the convenience of going to the briefing room, asking questions, and hearing the interchange directly.  How is that infringing on the freedom of the press?  Nobody expects that anyone who shows up to the White House for a briefing has a right to attend it or it means their freedom of the press is being denied.  So how is this different, except that it’s a well known person who works for an established media outlet having his hand slapped for behaving badly.

CNN’s lawsuit also claims that Mr. Acosta’s due process rights were violated, which is ludicrous on it’s face since the actual right protected by the 5th Amendment is:

nor be deprived of life, liberty, or property, without due process of law

U.S. Constitution, Amendment V

Mr. Acosta’s life has not been taken nor put in jeopardy.  As we’ve already shown, the press pass is not Mr. Acosta’s property, it is the property of the White House, so he has not been deprived of property.  Neither was Mr. Acosta’s liberty deprived, since he was neither incarcerated nor prevented from going anywhere that any American is allowed to go.  He has lost a privilege, not a right or liberty.  Therefore, there was no loss to Mr. Acosta or CNN which would require legal action.

Separation of Powers

While the actions of Mr. Acosta and CNN are little more than the temper tantrums of spoiled children, the actions of the judge and the response of both the President and Congress strike at the very heart of a free people and the rule of law.

There is no authority anywhere in the Constitution for a member of the judicial branch to issue orders to either the executive or legislative branches of government.  The arrogance of any judge to “order” one of the other branches of government should not only be an embarrassment to the entire judicial branch, but is certainly not good behavior, a requirement for holding the office of a federal judge.

The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour

U.S. Constitution, Article III, Section 1

Congress should pass a resolution warning Judge Kelly that this is a violation of his oath to support the Constitution and further behavior like this will lead to articles of impeachment from the House of Representatives and conviction from the Senate.  Failure to do so is a failure of the oaths congressmen take that also includes their duty to support the Constitution.

Likewise, the President should have recognized that the judge’s order was illegal, since it was in violation of the Constitution.  He should have issued a statement to the effect that he appreciated the judge’s opinion, but he had no authority it “order” the executive branch or that he would determine if and when press passes would be issued.  He might even go so far as to warn him that any attempt to enforce his illegal order would lead to the removal of U.S. Marshall support from his court.  If President Trump decided to restore the pass, it should be done on his timetable rather than in response to an illegal judicial order.

Why All This Matters

No people can be truly free without the rule of law.  In this nation, the Constitution is the supreme law of the land.  If we fail to follow it, then the law no longer rules, we are no longer free, and we are subject to whoever can get away with ignoring it.  In this case, we become subject to the whim of a judge with no accountability.  The issue of the press pass is of little consequence, but the importance of the issue of judicial overreach and the lack of reaction from the other branches cannot be overstated.  Both the President and every silent member of Congress are derelict in their duty to support the Constitution, and every American who is more concerned about Mr. Acosta than the breakdown of the separation of powers should not be surprised when the same judicial branch that ignores the Constitution in this situation ignores it in theirs, too.