Posner And The “Trump Exception” To Principle

Chicago lawprof Eric Posner doesn’t appear to think any more highly of President Trump’s mad governance skillz than anyone else with even a slight knowledge of law or basic civics. Indeed, he even went so far as to argue that “would-be dictator” Trump won’t make it through his first term because of this, though how that might happen is something of a mystery.

But in the New York Times, Posner suggests a startling proposition, following the opinions on Trump’s Executive Order travel ban.

By resting on due process, the court was able to block the travel ban without addressing a more explosive argument. The court noted that “the states have offered evidence of numerous statements by the president about his intent to implement a ‘Muslim ban,’ ” but declined to resolve this claim “in light of the sensitive interests involved.”

The “sensitive interests” did not hold back a Federal District Court in Virginia. In an opinion issued on Monday, the court ruled that the president acted with animus against Muslims when he issued the travel ban. The court laid out the damning evidence: the campaign statement calling for a Muslim ban, which is still on the web; Rudolph Giuliani’s acknowledgment that the travel ban was really a Muslim ban; the failure of the lawyers who wrote the ban to consult national-security officials; and Mr. Trump’s statements in interviews.

Damn straight? Obviously, but that’s the difference between people who just want to hate Trump, no matter what the law provides, and those who need something more.

This is surely the first time in history that a court has found that a president acted out of bigotry. Yet the ruling contradicts the Supreme Court’s admonition that courts may not “look behind” a “facially legitimate” reason — here, the national security interest in stricter vetting — when the president exercises immigration authority.

This is a concept that compels a bit of extra digging. Even assuming Trump’s expressed animus toward Muslims on the campaign trail, and Rudy’s big mouth on the TV circuit, shows conclusively that Trump hates Muslims, that doesn’t resolve the problem. What if Trump, upon actually learning a little something about national security, finds out that there is a sound, substantive reason to impose a travel ban until better vetting procedures are established?

Trump may hate Muslims, but that doesn’t mean there isn’t also non-discriminatory reason for his EO, a real threat that demands the attention and action of the president. Does the stupid crap that emitted from his yap preclude his subsequent authority as president to act upon serious information? As much as one may think Trump a fool, he’s the fool President, and even fool presidents get to exercise the authority of the office.

Does this mean President Trump is right to complain that the courts are political? Not exactly. The courts were playing politics, but of a valid constitutional kind. (Emphasis added.)

And there’s the startling proposition, that there is such a thing as a “valid constitutional kind” of politics for the judicial branch of government to play.

Trump rhetoric, usually constrained by 140 characters, about the decisions on the EO has been, to be blunt, outrageous, stupid and clueless. But he’s the president, a political office. Plus, we knew he didn’t have a clue when we elected him, so it should come as no surprise to anyone that his utterances are nonsensical. Posner regales us with the list of Trump horribles.

James Madison rooted the separation of powers in the “personal motives” of the officers in one branch “to resist encroachments” of the other branches. If one branch attacks another, the latter will attack back. Weren’t the Ninth Circuit panel and the Virginia court acting in good Madisonian fashion?

Putting aside Posner’s reliance on Federalist 51, a marketing tool of its day when there was a Constitution to be sold, there is a huge gap in logic between the last sentence of that paragraph and the penultimate sentence: even if separation of powers entitles one branch to “resist encroachments” of another, which Posner transliterates into “attack back,” a different and surprisingly vulgar characterization, it still doesn’t provide an affirmative answer to his question.

Separation of powers not only provides the authority to resist, but the methods as well. Each branch has its ways and means, and the design of tri-partite government enables each to use its legitimate tools to prevent encroachments by another. For the judicial branch, the tools are logic, law and precedent.

Abandon those and the judiciary has nothing. Remember, it’s the “least dangerous branch,” having no army to enforce its decisions. Without credibility, it has no legitimacy. Even with credibility, it relies on the branch with the most guns to accept its decisions. So what’s Posner really claiming to be the “valid constitutional kind” of justification for a court abandoning the rule of law this time?

But there is a problem: Courts have historically deferred to the president on national-security matters because the president acts on the basis of classified information and may need to move quickly.

If courts are now creating a “Trump exception” to settled law on presidential powers, we should also remember that our safety depends on a return to the era in which the courts — and intelligence agents — trusted the president’s word. And if a terrorist attack does happen, as the president suggested in a tweet, he might feel empowered to defy the courts.

In essence, Posner contends that law is law, except when the president is a doofus, in which case the courts can ignore law and hold, “the government loses because President Trump is just a blithering idiot. Settle Order.”

If, like Posner, you hate Trump enough, then this rationale might well be sufficient for you. But if you prefer the Republic to persist despite Trump, the notion of the judiciary being justified in abandoning principle whenever the person elected president is deemed clueless is a more dangerous step than the election of a guy who wouldn’t know the Constitution if it bit him in the butt. One branch of government going awry is bad enough. Posner’s call for the judiciary to be just as bad, to forfeit its integrity to resist Trump, isn’t the answer.

14 thoughts on “Posner And The “Trump Exception” To Principle

  1. Billy Bob

    You are forgetting one thing: It’s not *unprecedented* for the courts to “awry”. It’s not unprecedented for the courts to disagree with each other. It’s not unprecedented for the courts to reverse themselves over time, when they finally *see the Light*. Let all three branches go awry at the same time: Food Fight!
    The Congress has been awry for some time, it would appear from the outside looking in.

    It could very well be that Prez Trump is not a blithering idiot. It could be an *act*. He might be sly like a fox, wily as a coyote! Just because he says he wants to ban all Muslims, does not *really* mean he wants to ban *all Muslims*. He just says it to gain attention, and presumably votes–which he did not really anticipate getting in the first place. He’s a fluke, an outlier, a Black Swan who just happens to find himself in a very unlikely and awkward position which he does not know how to get out of. I.e., he’s “winging it”. He wants the courts to shoot him down in order that he be given the opportunity to fire back. He luvs this stuff. The courts are as illegitimate to him as they are to many of us. Who can take them seriously, no matter how *logical* they may be?

    So, here’s the question. Let’s say CBP decides to follow the EO and ignore the courts. Legal immigrants and those with valid visas are turned away. They are injured and go to the courts for relief. Will those same courts take up each and every one of those cases? (That is what Justice Scalia would have proffered as the solution to that little problem.) Answer–unambiguously–is No, they will not. They shall not, nor would they ever! Beeecause they’re too busy with more important matters and don’t have the *resources* to do the *right* thing for the little people. Let them eat cake while clamoring over the twelve-foot high wall to get into the land of the free-loaders and home of the Brave New World,… a chicken in every pot and a car in every garage is waiting for those who can get here by any means.

    Hope this was not too long! (We could go on, if you wish?)

    1. SHG Post author

      Didn’t we have an understanding that you wouldn’t be the first comment on a post? Much as I appreciate your not using “irregardless” to start off my morning, didn’t we agree to let you comment if you could only restrain yourself? Didn’t we Bill? We did.

  2. Richard Kopf


    As in most things, there is a middle ground. Deference to the Executive does not mean submission to the Executive. Many judges, I think, know this instinctively.

    What is more worrisome to me is the not small cadre of federal judges who really do hate Trump at the most visceral level. Such hatred is so overwhelming that they will not give the office of the President (currently occupied by someone other than the One) the deference both the Constitution and the underlying statute require.

    My guess:

    More than a few federal courts will as a matter of reflex frustrate Trump at every turn. In the short term, that may be good for the rest of us, but in the longer term the reincarnation of the Platonic Guardians (akin to the Warren Court on steroids) is something to be feared far more than a passive judicial branch.

    All the best.


    1. SHG Post author

      I’m seeing that as well. Once Pandora’s Box is opened, I don’t know how you get the evils back in.

      Every time my visceral disgust grabs me by the nuts, I remind myself that the best and brightest have had plenty of time to make the US totally wonderful and haven’t always done a bang up job of it. Maybe there’s some benefit to letting the clueless taken their simplistic shot at fixing it. There is certainly a downside, like nuclear annihilation, but maybe, since we’ve survived incompetence before, something not entirely batshit crazy will emerge that will end up being better than what the smart folks got us.

  3. phv3773

    “Trump may hate Muslims, but that doesn’t mean there isn’t also non-discriminatory reason for his EO, a real threat that demands the attention and action of the president.”

    In which case, he could maybe tell the court what that reason is. I understand that there are issues of classified information, etc, but I don’t think it’s too much for the court to expect more than “bad stuff might happen.”

    1. SHG Post author

      That’s important, since the test for disclosure of national security information for all presidents is “stuff phv3773 doesn’t think it’s too much to expect.” After all, it’s not as if an executive assertion of NatSec never sufficed with judges before. But that was other presidents, so its entirely different.

      1. Jonathan

        In fairness, they didn’t so much as file a declaration saying we have information we can’t disclose for NatSec reasons. There are decent arguments on both sides of the 9th Circuit’s decision but Posner doesn’t seem to understand any of them. At least he didn’t use the expression “constitutional crisis.”

        1. SHG Post author

          The question is whether judges accept the executive’s facial justification or look behind it for motive. You’re right, there was no declaration, but then, does that mean the objective test is now subjective, or is that only for blithering idiot presidents?

      2. Jim Tyre

        NatSec assertions by other executives in fact have been found to be wanting by judges. It doesn’t happen often, but it isn’t unprecedented. Now, if you’ll forgive me for getting too lawyerly:

        What if Trump, upon actually learning a little something about national security,

        Objection, assumes facts not in evidence.

        1. SHG Post author

          The Natsec assertions that have been scrutinized involve entirely different circumstances than here, and still don’t look to twits to discern “true motive.” As for facts not in evidence, duh.

  4. Allen

    I don’t think I’ve ever read a decision quite like the one from the District Court in Virginia. Apparently students at Virginia Universities that are sad and need counseling is proof of something. It’s not quite clear what exactly, but it’s bad. Campaign rhetoric as evidence? I’m not sure where that will take us but I suspect it won’t be a happy place.

    1. SHG Post author

      It opens a door to a whole new world of possibilities for every candidate hereinafter. What could possibly go wrong?

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