The Fourth Circuit’s Establishment Of The TrumpLaw Doctrine

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.

  1. You need to be capable of distinguishing principle from emotion.
  2. 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:


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.

41 thoughts on “The Fourth Circuit’s Establishment Of The TrumpLaw Doctrine

  1. B. McLeod

    Obviously they don’t understand distilling. But it’s a great paragraph for declaring the court’s bias up front.

  2. Richard Kopf

    SHG,

    The Fourth Circuit is wrong for all the reasons you articulate. However, the blame also falls, in significant part on the district judge. Ultimately, the district judge, much like a fortune teller, claimed to read the President’s mind. I can confidently state that mind reading is not a skill possessed by any federal trial judge I have known.

    All the best.

    RGK

    1. SHG Post author

      Intent is a funny things, Judge. We infer it from the normal consequences of one’s actions because we lack the ability to read minds, which applies to everyone but police and special agents. If I had the ability to read the President’s mind, I would infer that he would say anything that would get him elected, as he has no principles and wanted only to be president at any cost. This is likely why I am not a judge.

  3. NickM

    There were some interesting concurring opinions, which were far more law-based.
    I would guess that if the Supreme Court takes the case, there will be a controlling opinion that relies heavily on one or more of them.

    1. SHG Post author

      In light of the extreme politicization of the issue, the Supremes will get ripped a new one no matter which way it goes. It’s a lose-lose for the Court, and the question will be whether they are willing to put their popular legitimacy at risk. This shouldn’t be part of the equation, but will it? Beats me.

  4. Jake

    Your opinion that the 4th circuit’s decision was ‘wrong’ is based on interpreting a single sentence in one paragraph in the opinion of one out of the seven justices (who voted against three) in a 205-page ruling.

    That’s some intellectual honesty right there!

    As I have other things to do today, and I’ve learned the futility of refuting such nonsense around here, I’ll just encourage your other readers to actually read the other 204 pages of the ruling. There are a few other reasons this court upheld the decision that the orange baby king’s EO is still unconstitutional.

    1. SHG Post author

      This is a wonderful example of the logical fallacy of begging the question. You assume that my opinion is based on “a single sentence in one paragraph” because my post doesn’t address everything in a 205 page opinion. If I did, it would be a very long post. Had you written that I failed to address other arguments, you might have a valid point (not really, but might), but that’s not what you did.

      Instead, you “read my mind” and asserted that only one sentence formed my opinion. Do you understand the difference? I know you will tell me you do, but you don’t, and can’t understand it or admit it. If you believe that you have greater legal insight, then write about it and, perhaps, you will become to toast of social justice warriors, and Larry Tribe will invite you to lecture his Con Law class. You aren’t limited to commenting here. See if the world is desperately seeking Jake’s thoughtful interpretation and understanding. Maybe you will be deemed the most brilliant legal analyst in the world, and I will be relegated to that “mean old lawyer who treated him poorly.” Go for it.

      1. Jake

        Now you’re projecting. I do not assume anything in my comment, other than the mutual understanding that a blog comment is a specific response to what is within the four corners of a blog entry. I am not commenting on anything other than what you have written in this post, as I am obviously not, as you have taken pains to point out, a mind reader.

        This is very unlike your post, which specifically states your personal opinion that the entire 4th Circuit’s En Ban Affirmation of the injunction is wrong, based on what one judge said, in one paragraph of his opinion, in a 205-page ruling.

        I’ll continue, because it’s a slow morning. You go on to say:

        “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.”

        This is also your opinion, which differs from the opinions of 7 judges on this case, and those on the lower courts who previously ruled on this matter. The difference between your opinion and theirs is quite simple: Their opinion is consequential to everyone in the United States and your opinion is consequential to you. Just as my opinion is only consequential to me. Squeek!

        1. SHG Post author

          You’re quite right that the opinion of seven Fourth Circuit judges is far more consequential than mine. Yet, here you are. Go figure. To the rest, I shrug. Repeating myself doesn’t seem like a good use of my time.

          1. Jake

            “Yet, here you are.”

            And now we come full circle. There are two *other* things that can exist simultaneously:

            You can think that there is value in the opinion of someone and think their opinion is astoundingly wrong.

          2. Sgt. Schultz

            I didn’t realize he was a 12-year-old girl who had to get in the last word. Now it all makes sense, except for why her mother named her Jake.

  5. Curtis

    If Trump dies this week, then Pence could re-issue the same executive order and it would be magically be constitutional because Pence is not a schmuck?

  6. jay-w

    If it’s not too far off-topic, could you briefly explain something to us non-lawyers in the audience:

    When a religion is intimately intertwined with a political movement (especially an illiberal political movement with a reputation for violence), at what point does it lose its First Amendment protection — and who gets to decide where to draw the line?

    Have there even been any relevant court decisions, defining exactly what the word “religion” means in the 1st amendment context? Why is the administration not pushing the argument that even if this were a Muslim ban, it would be based on the violent political activities of some percentage of Muslim followers, rather than on their religious beliefs?

    1. SHG Post author

      You ask a lot. The First Amendment (and its caselaw, which you are welcome to research, or perhaps some other lawyer will enjoy providing) provides a limit on the statutory authority of a president to limit entry to non-immigrants. There is no point where a religion-based determination loses protection, which is why the EO went territorial rather than religion, as per the court, but merely as a pretext for religious-based discrimination.

      There may be times when constitutional rights conflict with notions that appear otherwise rational, such as finding all Muslims more likely to be terrorists such that they should be subject to different scrutiny. But thankfully, we still have a Constitution that prohibits our government from doing things that may make complete sense to some.

      If this strikes you as ineffective, in that there is an inextricable link between terrorism and radical Islamic beliefs, consider that constitutional protections safeguard us from a great many rational actions by government that fundamentally undermine American freedom. An example might be the blacks were more likely to be criminals, so should be susceptible to being stopped and searched without reason. And if that reason doesn’t strike you as good enough, then you just don’t love liberty enough.

      1. Frank Miceli

        Should I infer that the Constitution is unable to adequately deal with the threat of Islamist violence before the fact? If so this is a counsel of despair. “Islam,” “Islamism,” and “Muslims,” are distinct concepts. Not all Muslims are Islamists, let alone violent, though all Islamists–including those who use violence, are Muslims.The religion of Islam should be distinguished from the political ideology of Islamism.

        Using Constitutional protections, Islamists of today replicate the “long march through the institutions” of twentieth-century Marxists. Non-violent means are used as a precursor, insofar as necessary, to violent means. It is subversion from within–the abuse of religious freedom to undermine that very freedom.

        1. SHG Post author

          First, it’s not the job of the Constitution to “deal” with the threat of “Islamist violence before the fact.”
          Second, word games are no more availing for the right wing than the left wing.
          Third, in America, we don’t criminalize beliefs, but conduct. Want to stop “subversion from within”? Stand for the freedoms that make America a more desirable choice than authoritarianism, whether right, left or “Islamist.”

          1. Frank Miceli

            In other countries we use military means to combat political Islam. In our country, where political Islam aims both to convert non-Muslims to Islamist views and instill Islamist views in existing Muslims, non-military means are available. The Islamist goal is to destroy the political institutions of a free society and replace them with shariah law.

            I’m no expert; I could be wrong, but I do not see any Constitutional bar to countering both the ideology of political Islam and the organizational infrastructure that Islamists use to inspire, indoctrinate, recruit, finance, and mobilize those Muslims whom they win over to their cause. We are already doing some of this but gingerly, in fits and starts. It’s time to go full bore.

            Lots of generalities here. Do I have a specific example? Well, yes–one example is that the FBI should aggressively surveil suspect mosques.

            1. Billy Bob

              The FBI should,… like you know anything about the FBI, other than what you read in in the NEWspaper. You are no expert. Well, no sh!t, Sherlock!
              “…no expert,…I do not see,… any Constituitional infrackstructlure,… that,…”
              Are you on drugs, or merely dyslexic? Insane! Hi Frank. You do not give up easily. That’s what we like about you.
              Otherwise, you are a blithering idiot. The FBI is aggressively surveilling you as we speak, and I don’t mean J. Edgar!?! Take cover!

            2. Frank Miceli

              Hi, Mr. Bob,
              The dog returns to his vomit and Billy Boy, who averred he’d be more civil, reverts to type. If only you compensated us by making sense. But you’re so far from knowing how to make sense that you should seek out a personal trainer.

              The real mystery is how you’ve come to believe that posting clumsy, inapt, inexact and unilluminating drivel makes you stand tall in the eyes of your cohort. There is nothing so feeble as the human mind when it is driven by such a desire.

              As to your assumption that I know nothing about federal law enforcement in general and the FBI in particular, how stupid it is for a grown man to indulge in unrestrained, untested preconceptions.

            3. Billy Bob

              Blame Mr. Scott for posting your nonsense which led to BB’s drivel. Personal trainer, that’s the part I like. You do have a sense of humor. Now if only you could write something halfway intelligible?
              If you’re on the payroll there in the Western District, I would be concerned. What is it with this obsession that you have? Train this! Is that civil enough?

            4. SHG Post author

              I let you kids go out and play and look at how you’re at each other’s throat. Now big hug and stop this bickering, or its to your room without dinner!

            5. Frank Miceli

              OK, Pops. Duly noted. Peace is precious.

              As to the military, law enforcement and the men and women in blue, I was once on the other side. Charter member of SDS, signer of the Port Huron Statement, member of Fair Play for Cuba, subscriber to Liberation and The Progressive, ACLU acolyte–the whole bit. And then, as they say, I was mugged by reality.

            6. SHG Post author

              You realize that being a charter member of SDS is just the flip side of blue, right? Some people just like authority, even though their tastes change as they grow up and they switch from chocolate to vanilla.

            7. Frank Miceli

              As often, you offer food for thought.

              And further, I can’t fight city hall.

              Happy Memorial Day.

            8. SHG Post author

              You need to stop hanging out at those white supremacist cop sites. They use bullshit words and rot your brain. Aside from my usual snark, there’s little hear worth responding to. It’s crazy and best discussed by people with tin foil hats on reddit. Or Bill.

      1. Patrick Maupin

        I think it’s that thing from the first ghostbuster movie acting up again. People are confusing you with the evil SHG from the parallel multiverse.

  7. Joseph

    >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.

    For someone who criticizes other people for mind reading, this looks like more of the same. The opinion of the court is that the EO would be facially constitutional but for the fact that it was issued by a president who made explicit statements on the campaign trail that indicated that he had planned to enact a Muslim ban. Unless, of course, the justices were only using that logic as a _pretext_ for invalidating the EO to hide the fact that they did so primarily because it was written by a malevolent, incompetent schmuck…

    The plot thickens.

  8. Mr. Median

    In the late 80’s Paramount lost two hostile takeover cases in the Delaware Supreme Court. In the first case it lost as the bidder and in the second it lost as the target, doing what the court in the first case seemed to have approved for the target. This prompted one academic to suggest that the case law in Delaware, per those two cases, was this: If your name is Paramount, you lose.

    1. SHG Post author

      I sat at a table a couple weeks ago with a judge of Delaware’s Chancery Court. He never mentioned Paramount. It was like it didn’t exist. Or there was no reason to mention Paramount since it was a wedding.

  9. Pingback: A “Conceptual Ledge” To The Slippery Slope of TrumpLaw | Simple Justice

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