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.