Yesterday’s Supreme Court session on the presidential travel ban helped illuminate and possibly eviscerate some of the “TrumpLaw” type arguments apparently successful below, and the Court’s expected decision upholding the ban may make lower court judges more cautious about embracing what many feel has become a new approach to dealing with issues raised by this president and only this president, suggests public interest law professor John Banzhaf.
A New York Times piece described TrumpLaw as “a set of restrictions on presidential action that only apply to Donald Trump. This president cannot do things that would be perfectly legal if any other president did them, under this standard, because the courts will rule against his past demagogy rather than the policies themselves.”
As another example, David French of the National Review, who has been described as a NeverTrumper, nevertheless warns about this “strange madness [which] is gripping the federal judiciary. It is in the process of crafting a new standard of judicial review, one that does violence to existing precedent, good sense, and even national security for the sake of defeating Donald Trump.”
The issue of repudiation is a good example of the weaknesses of the positions – and arguably examples of TrumpLaw – which prevailed below. According to the challengers, the major constitutional objection to the travel ban would conveniently vanish if the president simply repudiated the statements he made about Muslims before he became president.
But how can a simple 5-10 word statement solve all of the inherent and very serious arguments of alleged unconstitutional discrimination, especially since it could easily be made in bad faith simply to avoid a constitutional challenge, asks Banzhaf. Indeed, if that were to become the law, every president would be well advised to say “I repudiate my previous statements” to foreclose such constitutional challenges.
Another problem with the arguments accepted by many judges below – that the President’s campaign statements prevent an otherwise legal order from being upheld – is that there is no logical stopping point or cutoff if the President doesn’t expressly repudiate his campaign statement, apparently even years later.
Chief Justice John Roberts highlighted this very point when he asked how long Trump or any president should be prevented from taking actions he believes are necessary to protect the national security based solely upon his campaign-era comments “Is there a statute of limitations on it?” Roberts asked.
This suggests that, under the opponents’ view, Trump might be forever banned from taking any action – especially one about entry to the country, but possibly even including actions regarding security clearances, placement on a “no fly” list, launching air strikes against terrorists (as posed by Roberts), etc. – which adversely affected Muslims disproportionately, even if it applied to some non-Muslims, and did not apply to most Muslims.
Asking the question is to suggest the clear answer, one not based on a TrumpLaw form of judicial analysis, argues Banzhaf.
Another problem was suggested by Justice Elena Kagan who asked whether a judge could invalidate a presidential order banning immigrants from Israel, based upon concerns about a security threat, if the president has made campaign statements which the judge considered very anti-Semitic.
Even suggesting that a single lower court judge might conceivably strike down such an order – as was the case with several different travels bans – even though courts have no expertise or experience in evaluating terrorist threats, nor access to the classified reports upon which threat assessments are made, demonstrates the problems with much of the reasoning below, argues Banzhaf.
This concern is even more serious in real life, he suggests, because those opposed to a presidential policy can scour the entire country for a judge most likely to be susceptible to their arguments, and to issue an order preventing the president’s action from becoming effective, he says.
If the Court not only upholds the travel ban, but also uses strong language eviscerating some of the arguments accepted below, it may send a message to trial and appellate court judges that they cannot so readily depart from established precedent, and enjoin presidential actions based upon newly spun legal theories because they dislike the president and/or his critical comments about the judiciary, or because they think his policies are unfair or unwise, argues Banzhaf.