This morning’s arguments suggest that the Supreme Court might not only uphold President Trump’s travel ban, but also use the opinions to rebuke if not repudiate what even many who oppose the President’s policies have named “TrumpLaw” – i.e., roughly twisting and bending, if not actually breaking, existing law to thwart policies which are unpopular but probably not illegal – says public interest law professor John Banzhaf.
Banzhaf suggests that there is growing concern and recognition – even among supporters, and in liberal papers like the New York Times – that courts appear to be adopting a new jurisprudence called “TrumpLaw” aimed uniquely at this President; a method of judging cases which is aimed specifically at countering some of the practices of President Trump, even if this development means creating new legal principles and/or overlooking (or at least minimizing) other established ones.
Even more alarming is that even those in favor of this new approach to deciding cases appear concerned not only that it will extend too far and possibly hobble the new president, but that the new principles being developed will create legal precedents which will carry over and adversely affect other presidents, and even agency heads in the future, says Banzhaf.
For example, a New York Times piece described this new method of deciding cases 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.”
While hardly in favor of the President’s so-called Muslim bans, the author is nevertheless worried that the various court decisions staying them establish “a precedent that would further politicize an already-partisan judiciary, by licensing judges to constantly look beyond the law for excuses to rule against politicians (liberal or conservative) they dislike.”
Moreover, suggests the Times piece, such rulings – e.g., illegitimizing the immigration order as unconstitutional religious discrimination – could hobble efforts to protect against a “Manchester-type terrorist attack (or something even worse)” because “the most important terror threats are Islamist, and any move to safeguard Americans is likely to have a disproportionate effect on Muslims,” and thus courts are “automatically going to rule against Trump on any counterterrorism issue that touches on Islam.”
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.”
In his words, “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'” – “an otherwise lawful order is unlawful only because Donald Trump issued it. . . . All this adds up to Trumplaw, the assertion by the federal judiciary of the legal authority to stop Trump.”
Law Professor Paul Horwitz, who supports some of TrumpLaw to achieve a desired result, and says he could be persuaded to support all of it, defines it as “about lower courts developing a form of what some critics call ‘TrumpLaw,’ law responding to and designed especially for the Trump administration” and “may be seen as a radical departure from existing law and in effect a lawless set of actions.”
He writes that in some instances “it constitutes utter resistance to the Trump administration and its policies,” although “one might argue that the worse and more dangerous the administration’s actions are, the more necessary it is to resist them per se.”
Attorney Scott Greenfield, writing on his blog, argues regarding TrumpLaw that: “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.”
Law Professor Todd Henderson sums it up simply: “This is @realDonaldTrump-specific law, which is lawless.”
While most of the discussion of TrumpLaw so far has concerned court decisions regarding his immigration orders – which the courts opined were unconstitutional because of his prior statements, and which also radically departed from the normal standards for legal standing – it can also be seen in another judicial ruling striking down an order relating to so-called sanctuary cities, claims Banzhaf.
Although the judge agreed with the government that the sanctuary cities executive order was on its face “toothless” since it neither required cities to honor ICE detainer requests nor to provide the government with information about people’s immigration status, that it “did not change existing law” at all, “carries no legal force,” and was “merely an exercise of the President’s ‘bully pulpit,'” he nevertheless stayed it because it could be interpreted so broadly as to unconstitutionally frighten many cities into providing the broad range of cooperation on immigration matters which Trump wants.
Any radical and unprincipled departure from established legal principles, solely as a reaction to what some judges may see as a bullying, bigoted, and perhaps even irrational president, is cause for grave concern, because courts are then going beyond their traditional roles of deciding cases in accordance with established law, even where it may have to be modified somewhat to fit new circumstances, says Banzhaf.
It’s arguably even worse when there is an underlying suspicion that some of the decisions may result in part from the President’s harsh criticisms of the judiciary, and even of individual judges.
While judges are supposed to be dispassionate and to rule objectively, they are also human, and at least some may become upset by what they see as unfair attacks, not only on specific judicial rulings, but on the very legitimacy (“so-called judge”) and impartiality (“seem to be so political”) of their colleagues. This in turn could cause them, consciously or subconsciously, to be predisposed against Trump’s actions.
Judges are especially likely to see these attacks on fellow jurists as more unfair than Trump’s similar attacks on other political figures, members of the media, activists, etc. for a very simple reason.
Unlike these others who can defend themselves in public forums, judges – because of judicial ethics and long standing practice – cannot offer such public defenses. So fellow members of the judiciary are more likely to take offense when Trump launches personal attacks on one of their own, says Banzhaf.
At the very least, suggests Banzhaf, this may make at least some judges more likely to doubt his credibility when, for example, he asserts that admitting people from certain countries and not others creates a serious terrorist “peril,” that his executive order is aimed at countries selected for good reasons and not at the Muslim religion, etc.