When discussing the travel ban, it is vey important not to lose the forest for the trees. I have blogged at some length about the statutory nuances of the INA, the applicability of the Establishment Clause to immigration laws, and what sorts of due process rights non-resident aliens have. But there is something very, very significant going on. I addressed it in the concluding portions of my Politico piece:
A common trope among the chattering class is that our polity must resist “normalizing” Trump as president. Courts should not take the bait. When judges treat this president as anything other than normal, it sends a signal to the public that the chief executive is not as legitimate as his predecessors. For example, when Justice Ruth Bader Ginsburg suddenly skips Trump’s joint address—whom she inappropriately criticized—after years of giving President Barack Obama warm hugs, it sends a signal. Such behavior is par for the course on cable news, but should not infest the judiciary. Trump was elected through the same constitutional process by which judges received their lifetime commissions. He should be treated as such.
Courts need not be blind to Trump’s awful past statements (call it Fox News deference). Judges can and should ask if there is a plausible reason why those seeking admission from these six war-torn countries should undergo heightened review. However, courts should not uncharitably read every piece of evidence in the most negative possible light (call it MSNBC deference). It is insane to think that the president’s signature policy so far—on which he campaigned and was elected to the highest office in the land—ostensibly boils down to how Giuliani framed an impromptu answer on cable news. I don’t think it does. Consider a counterfactual where Giuliani skipped Fox that day. Would the policy now be ruled constitutional? I suspect the courts would still have struck down the orders, meaning Giuliani’s statement is “mere surplusage”—an irrelevant distraction that carries no legal weight. What matters to these judges is Trump, and Trump alone.
Rather—and despite his own egregious and inexcusable attacks against the courts—judges should treat the 45th president like any other (call it C-SPAN deference). It is true that Trump consistently disrupts all political norms. The courts should not respond in kind by disrupting judicial norms. Trump’s presidency will come to an end sooner or later. But the precedents set during this period will linger far, far longer.
BLACKMAN: Trump has been egregious towards the courts. He has been very critical of them. And he’s made comments about their race, ethnicity that are beyond the pale. But I’m troubled of the courts replying in kind. Even if Trump is disrupting all political norms, I am not comfortable that the courts are disrupting judicial norms.
But maybe I am wrong to assume precedent applies to Trump. In a must-read post, Ben Wittes and Quinta Jurecic assert that because courts think Trump is unable to follow his oath of office, the usual rules do not apply to him. We are witnessing, they note, a “revolt of the judges.”
To put the matter bluntly: why are so many judges being so aggressive here? The legal disputes are both interesting and important. But this meta-legal question strikes us, at least, as far more important and far-reaching. And we think the answer lies in judicial suspicion of Trump’s oath. The question goes to the manner in which we can expect the judiciary to interact with President Trump on this and other issues throughout his presidency. It goes, not to put too fine a point on it, to the question of whether the judiciary means to actually treat Trump as a real president or, conversely, as some kind of accident—a person who somehow ended up in the office but is not quite the President of the United States in the sense that we would previously have recognized.
The authors acknowledge that my arguments about the Establishment Clause may be correct under current law, but none of that may matter here:
But also there is a third possibility, and we should be candid about it: Perhaps everything Blackman and Margulies and Bybee are saying is right as a matter of law in the regular order, but there’s an unexpressed legal principle functionally at work here: That President Trump is a crazy person whose oath of office large numbers of judges simply don’t trust and to whom, therefore, a whole lot of normal rules of judicial conduct do not apply.
In this scenario, the underlying law is not actually moving much, or moving or at all, but the normal rules of deference and presumption of regularity in presidential conduct—the rules that underlie norms like not looking behind a facially valid purpose for a visa issuance decision—simply don’t apply to Trump. As we’ve argued, these norms are a function of the president’s oath of office and the working assumption that the President is bound by the Take Care Clause. If the judiciary doesn’t trust the sincerity of the president’s oath and doesn’t have any presumption that the president will take care that the laws are faithfully executed, why on earth would it assume that a facially valid purpose of the executive is its actual purpose?
Descriptively, I think the authors are right on point. Whether these judges realize it or not–motivated reasoning is a powerful force–they are not treating Trump like a normal President.
The authors explain that my approach, like that of Judge Bybee, is that of a “traditional judicial posture.” (I will gladly assume that mantle). Will the higher-ups agree with us, or will the revolting judges prevail?
The other question is whether the higher courts—including, ultimately, a majority of the Supreme Court—will share Brinkema’s sensibility or Blackman’s on the matter. There is no doubt that Blackman’s and Bybee’s approach represents the traditional judicial posture. It is a posture in which the judiciary has certain institutional obligations to the executive branch; in which those obligations exist independent of the person who embodies the executive branch at any given moment in time; in which the deference and respect owed the president exist largely in abstraction from the President’s fidelity to his oath or to the Take Care clause; in which that fidelity is non-judiciable in any event; and in which presidential misconduct does not warrant judicial action outside of the agreed-upon judicial function.
Tragically, I suspect my view will not prevail.
A fellow traveler of the “traditional judicial posture” is Judge Bill Pryor of the 11th Circuit. His commentary in the Virginia Law Review is worth reading over and over again.
For those who are concerned about judicial independence, history suggests that judges have an opportunity to do something about it, besides complain. It is not too much for us to look in the mirror and ask whether some criticisms are fair. As Justice Harlan explained in his famous dissent in Plessy, “[T]he courts best discharge their duty by executing the will of the law-making power, constitutionally ex- pressed, leaving the results of legislation to be dealt with by the people through their representatives.” Perhaps, even today, we sometimes fail in that limited and critical duty. Alexander Hamilton explained in The Federalist No. 78 that judges exercise “neither FORCE nor WILL but merely judgment.” Hamilton’s point was that we must depend on the persuasiveness of our written opinions to command the respect of our fellow citizens. In that way, we have the foremost responsibility of safeguarding our independence.
And for good measure, fast-forward to 6:35 with my interview on Lou Dobbs tonight. I make a very similar point.
Judges don’t exist in vacuums. They, as Alexander Hamilton said, have neither the power of the sword or the power of the purse. The validity their judgments depend on their legitimacy. And, when courts betray the legitimacy with these sorts of decisions, they become less reliable as an institution. So there is a distinct cost when judges go out on a limb like this, and treat Trump differently then they would treat any other President, because who Donald Trumps is.
This demise of judicial neutrality is truly regrettable. Our Constitution already has a safety valve in the case of a crazy President: the 25th Amendment. Courts should not twist and turn established law as a form of self-help. As I wrote in Politico, “The judiciary should not abandon its traditional role simply because the president has abandoned his.”