The Ninth Circuit has ruled that President Trump’s Executive Order could remain subject to a stay issued by the District Court in Seattle. The opinion is here. This is not a ruling on the merits, though the emergency relief standard was applied and the Court concluded that there was not a likelihood that the Government would succeed on the merits of the case. The court’s holding was, in my view, a dubious one, though not an unreasonable one.
Regardless of one’s position on either the wisdom or legality of the Order (and I believe the arguments for its legality are far stronger than the arguments for its wisdom), the entire episode has served as a kind of civic education for the American people. Americans are confronted with serious questions about the scope of presidential power, of constitutional rights, of the place of religion in the scheme of law and policy, and of the role of courts in cases where rights and security intersect. We have had other such moments in our history. But it is difficult to think of a time in recent memory when so many valuable questions of constitutional government arose over a single official act.
Americans, regardless of party or viewpoint on the Order, should take time to carefully consider these matters and what they mean for the Republic. That does not mean that they should all crack open a copy of The Federalist Papers (though we could all do much worse than to spend a few moments with Publius these days), or study The Steel Seizure Case by the fireside with a glass of chianti. It does mean, though, that Americans ought to savor the opportunity to reflect on what it means to live under a rule of law and a venerable Constitution that diffuses government power. They should reflect on what it means to have limited government, to have checks that prevent presidents from simply acting at will and checks that prevent judges from ruling as philosopher-kings.
One hopes, too, that the President will savor the same opportunity. His actions for the past two weeks (nearly two years!) have created serious questions about his commitment to the rule of law and to constitutionalism, questions I raised during the campaign and that have persisted despite my dim hope that his authoritarian tendencies might be tempered by institutions, by an appreciation of history, and by the sheer weight of his office. The one bright spot in this period was his nomination of Judge Gorsuch. But as I said during the campaign, it is not enough that Presidents appoint judges who are constitutionalists. The President himself must demonstrate that same fidelity.
Presidents can be critical of the courts. The judiciary is not immune from criticism, nor should it be. Lincoln, before his presidency, thoughtfully criticized the Dred Scott decision. FDR’s tussles with the Supreme Court were so tense that he proposed packing the Court with Justices who would approve his economic recovery programs. President Bush respectfully criticized the Supreme Court’s war on terror decisions that disfavored his expansive view of presidential power. President Obama criticized the Court’s Citizens United opinion during the State of the Union Address. It is fair, and proper, that political leaders disagree with judges from time to time. But criticism that seeks not merely to disagree with, but rather to de-legitimize, courts and judges does violence to the separation of powers and a politically independent judiciary. This is, unfortunately, President Trump’s modus operandi. He prefers to de-legitimize a critic or opponent, often ad hominem, rather than contest them on the merits. It is the last refuge of a man who is out of his element on substance.
So, rather than make any one of the credible substantive arguments he could have made in defense of the Order, naturally the President chose instead to personally insult Judge James Robart as a “so-called judge” (never mind the judge’s unanimous confirmation by the Senate). And perhaps worst of all, he then asserted that federal judges who opposed the Order would be held responsible for a terrorist attack – it is hard to think of a more insidious presidential assertion about the judiciary.
To worsen things, he also fired Acting Attorney General Sally Yates for her refusal to enforce the Order. This was admittedly a somewhat more complicated matter. Yates’s directive to the Justice Department would have been stronger had she set forth more precisely her legal arguments against the Order, arguments that almost surely would have been vindicated in the 9th Circuit’s opinion (though surely she could have articulated grounds for the Order’s defense, as well). And there is no question that the President had the power to relieve her of her duties. But firing her on the spot did little to inspire confidence in his judgment; it was a rash display of raw power that sent the wrong message and failed to consider the longer-term consequences. Imagine now how Attorney General Sessions must feel. General Sessions has been placed in an untenable position, and one that diminishes his capacity for independence from the President. Even the most ardent defender of the Unitary Executive must shudder at the thought of an Attorney General who may have to choose between defending the Constitution and losing his job.
To some extent, the President’s constitutional schooling of late may include a lesson on a truth that his critics repeatedly noted during the campaign: words matter. Lately, the President has been reminded of his disgraceful pander that called for a “complete and total shutdown of Muslims” entering the country. But the problem goes even deeper. The Government’s claim in litigation that the President should be entitled to great deference in matters of national security is a sound, if imperfect, claim. But when giving deference to Presidents, it may well be that courts generally trust that the President is knowledgeable and credible on those matters, that his judgment is worthy of deference because he has thought seriously about the problem and vetted his decisions through the collective expertise of the military, intelligence, and security communities. This President, by contrast, is the one who said he knows more than the generals about ISIS, appeared to suggest that the CIA was using the same tactics as the Nazis, heaps bizarre praise on Russia’s ruling dictator while heaping scorn on genuine American heroes like John McCain and John Lewis, and said our military leaders had been “reduced to rubble.” And it is becoming increasingly clear that the vetting of this Order was shoddy, at best. Is it any wonder, then, that informed jurists would be reluctant to defer to this President’s judgments?
Does all of this make the Trump Presidency hopeless? It does not. On the Executive Order, the Government retains considerable arguments in favor of its constitutionality – or at least in favor of substantial deference to the President’s national security decisions, in light of the limits on the judiciary’s expertise in such matters – though the prudent course may be to scrap the Order altogether and start over. Judge Gorsuch will likely make an outstanding Supreme Court Justice. Tax reform is a real possibility. And this President may be able to play to his strengths in securing a major infrastructure package on a bipartisan basis.
But the President needs to right this ship in a hurry. The collection of rash, impulsive, and even bitter statements over the past two weeks has created a portrait of a President who views his official powers as a one-way ratchet. He has created the impression that the law must bend to his will, lest a tantrum follow. Of course, Americans should have seen some of this coming. But the people, through their representatives in the Electoral College, elected him anyway. Perhaps, then, it is fitting to be reminded of Madison’s admonition in Federalist 51 on the importance of separated powers: “A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”