There are two things that can exist simultaneously: You can think that Trump’s Muslim Ban Executive Order was terrible policy and think the Fourth Circuit’s en banc affirmance of its injunction astoundingly wrong. Then again, two things would have to happen in order for this to be true.
- You need to be capable of distinguishing principle from emotion.
- You need to believe that the ends do not justify the means.
Can you do these two things? The opening paragraphs of the opinion are forceful and emotionally appealing.
If you hate the travel ban, how can you not love these words? Perhaps Chicago lawprof Todd Henderson sums it up best:
— ProfHenderson (@ProfHenderson) May 25, 2017
During oral argument, the question was put to ACLU lawyer Omar Jadwat by Judge Paul Niemeyer:
“We have a candidate who won the presidency, some candidate other than President Trump won the presidency and then chose to issue this particular order, with whatever counsel he took,” Niemeyer said. “Do I understand that just in that circumstance, the executive order should be honored?”
“Yes, your honor, I think in that case, it could be constitutional,” Jadwat admitted.
For all the passion reflected by Judge Gregory’s powerful opening, this remains the problem. The EO would be facially constitutional but for the fact that it was issued by a president whom so many believe to be malevolent and incompetent. That is good enough reason, it’s believed, to indulge in the bastardization of legal doctrine to thwart Trump’s actions.
As Henderson says, this is lawless.
The question is whether the ends justify the means, whether Trump is so awful, whether this EO is so terrible, that this is the hill upon which the law should die. If that’s what you believe, then don’t bother reading further, as nothing here will alter your belief that this is the end of the world and it must be stopped by any means possible.
But what if we survive Trump? What if the Apocalypse doesn’t happen and four (or eight, if the Democrats run Elizabeth Warren, Kirsten Gillibrand or Kamala Harris) years from now, a president is elected who possesses that combination of knowledge and experience that returns us to some semblance of normalcy? What happens to the legal constraints on governance crafted to prevent Donald J. Trump from exercising his authority as president?
Since Trumplaw is such a novel form of jurisprudence, it’s exceedingly hard to square with existing precedent. So, when existing precedent either doesn’t apply or cuts against the overriding demand to stop Trump, then it’s up to the court to yank that law out of context, misinterpret it, and then functionally rewrite it to reach the “right” result.
It’s not that the concerns expressed by Judge Gregory aren’t real or legitimate, though they may be seen as somewhat disingenuous given that Trump’s word choice and usage lack the clarity and precision one would expect from a reasonably sentient president. When one’s primary language is gibberish, can it be interpreted through the lens of intelligent, educated people?
However, cherry-picking the bad words, the animus, in order to ascertain the secret intent behind a facially lawful exercise of authority is a shift in law, and a challenge to separation of powers, that precedent cannot support.
We hold that, when the Executive exercises [its] power negatively on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment interests of those who seek personal communication with the applicant.
In his dissent to the en banc opinion, Judge Niemeyer made this point:
In looking behind the face of the government’s action for facts to show the alleged bad faith, rather than looking for bad faith on the face of the executive action itself, the majority grants itself the power to conduct an extratextual search for evidence suggesting bad faith, which is exactly what three Supreme Court opinions have prohibited. Mandel, Fiallo, and Din have for decades been entirely clear that courts are not free to look behind these sorts of exercises of executive discretion in search of circumstantial evidence of alleged bad faith. The majority, now for the first time, rejects these holdings in favor of its politically desired outcome.
Assuming, and it’s a fair assumption given that we survived Millard Fillmore, we survive the Trump presidency, the exercise of authority going forward will be subject to judicial approval of the president’s “bona fide” intent behind facially constitutional exercises of authority. Every act, every burp, despite its being completely within a president’s power, will be subject to a judge’s post hoc approval of her underlying intentions. All one would need to stop the president from doing her job is a district court judge who finds her secret, hidden purposes improper. And by improper, it means different than the judge’s sensibilities.
Much as many approve of the Fourth Circuit’s ruling this time, for this president, it breaks through a wall that separates a nation of laws from a nation of men. If you hate Trump enough, the new doctrine of TrumpLaw won’t trouble you for now. But one day, when he’s gone, and we’re still here, you will regret the shortsighted hypocrisy of this lawlessness.