The U.S. Supreme Court has upheld President Trump’s travel ban.
The decision represents a triumph of – and return to – the rule of law and long-settled legal precedents, and away from decisions arguably motivated more by judicial distaste for the underlying policy if not the president himself, says public interest law professor John Banzhaf, who had long predicted the ruling.
The decision appears 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 legal precedents to thwart policies which are unpopular but probably not illegal – argues 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.”
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.”
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.”
Law professor Todd Henderson sums it up simply: “This is @realDonaldTrump-specific law, which is lawless.”
Thus today’s decision, in addition to upholding this specific travel ban and the president’s power to adopt it, appears to serve as a reminder to lower courts that they should be bound by established legal precedents in deciding cases involving Trump, and not be willing to bend them simply because of personal dislikes of the policy or even the President Trump himself.