Following oral arguments in IRAP v. Trump, I wrote at length about the “presumption of regularity.” Following my post, numerous commentators addressed this topic, arguing that Trump has rebutted this presumption. Today I spoke with Carrie Johnson of NPR for a feature on All Things Considered about the “presumption of regularity.” I explain that this is a political crisis, and not a constitutional crisis. Our separation of power demands that Congress, and not judges, deal with our unpresidented president.
You can listen to me, Jack Goldsmith, and Christina Rodriguez here:
Update: Here is the transcript:
ARI SHAPIRO, HOST:
In a moment, we’re going to get reaction from a Republican congressman to the allegations that President Trump shared sensitive information with Russia. First, a step back, a look at how courts and legal scholars are wrestling with how to evaluate this president. He has not been shy about flexing the muscles of his executive power, from enacting a travel ban after a week in office to the firing of the FBI director and now this latest situation with Russia. NPR’s Carrie Johnson reports.
CARRIE JOHNSON, BYLINE: Congress has handed the White House enormous authority when it comes to immigration and national security. There’s a phrase for this – the presumption of regularity. Law professor Josh Blackman explains.
JOSH BLACKMAN: Trump was elected. He had a majority of the Electoral College, and with that goes certain powers, including this presumption of regularity that he acts in a lawful manner.
JOHNSON: In normal times, that presumption that an official in political office is acting properly and legally carries a lot of weight. Problem is, some lawyers argue these are not normal times. Harvard Law School’s Jack Goldsmith.
JACK GOLDSMITH: The broad delegation to the president assumes a minimally competent, minimally truth-telling, minimally steady president. We’ve never seen the president this much outside the lines, someone who is defying the norms of the presidency every day, someone who attacks the intelligence community, someone who is impetuous in his decisions.
JOHNSON: In the past two weeks, Trump has fired the FBI director, he called on the intelligence community to hunt for leakers and now accusations that he shared sensitive classified information about ISIS with Russia. Cristina Rodriguez teaches at Yale Law School. She says courts are uncomfortable.
CRISTINA RODRIGUEZ: I think it’s definitely the case that both the Constitution and especially Congress have delegated a lot of authority to the president. But I think what you’re seeing now are some of the institutional limits on that power and especially the capacity and willingness of the courts to question some of the judgments that are underlying the current president’s immigration policies.
JOHNSON: These policies are playing out across the country as judges hear challenges to President Trump’s travel ban. This month, two different appeals courts have been considering whether remarks by Trump and his advisers about banning Muslims from the country outweigh a president’s strong prerogative on national security. The ACLU and the state of Hawaii recently argued the statements are fair game and evidence of improper religious discrimination. Here’s Judge Henry Floyd asking acting Solicitor General Jeffrey Wall about the remarks.
(SOUNDBITE OF ARCHIVED RECORDING)
HENRY FLOYD: Is there anything other than willful blindness that would prevent us from getting behind those statements?
JEFFREY WALL: Yes, Judge Floyd, respect for the head of a coordinate branch and the presumption that officials act legally, which is to say the presumption of regularity.
JOHNSON: To hear Cristina Rodriguez tell it, Trump has only himself to blame for his skeptical reception in court.
RODRIGUEZ: The fact that the courts are willing to consider these other motives does feel like a step beyond what courts ordinarily do, but that is the result of, in my view, an undisciplined administration.
JOHNSON: Josh Blackman of the South Texas College of Law could not disagree more.
BLACKMAN: He’s the president, and I don’t think courts should be in the business of flipping on or off various switches of the rule of law depending on who the president is.
JOHNSON: The judicial branch isn’t the place to make those sensitive political determinations, he says. But there is a third way, Blackman adds.
BLACKMAN: Congress will be far more effective at hobbling Donald Trump’s presidency than a bunch of judges ever could. And I think that is how our separation of powers was designed to deal with this issue. We are not in a constitutional crisis. This is a political crisis.
JOHNSON: For now, there’s no sign that Republicans in Congress intend to yank back power from a president from the same political party. Carrie Johnson, NPR News, Washington.