Conservative Judge Ruling On Trump law May Be Counterbalancing Judicial Resistance Movement
WASHINGTON, D.C. (Dec. 17, 2018) – The fact that so many conservative law professors and other legal commentators – including many who themselves opposed Obamacare – have criticized the decision by Texas federal court Judge Reed O’Connor to not only find the plan’s individual mandate unconstitutional, but to also decide to invalidate all of it, including protection for people with pre-existing conditions, has led many to wonder why the ruling seems so far outside the mainstream of even conservative judicial thought.
Perhaps one reason, in addition to his general conservative philosophy, is that the judge is consciously or even subconsciously trying to counteract a particular form of judicial activism on the other side which has become so widely recognized that it has been given a name – Trump law – “a series of unique legal decisions that are grounded not in law or precedent but instead in fear and #resistance,” as it was recently described in the National Review, suggests public interest law professor John Banzhaf.
However this tendency of many judges to bend the law to rule against President Donald Trump and many of his controversial proposals has been recognized for a long time, and even by those who oppose Trump and who favor the outcome of the decisions, even if they find the reasoning weak or even ludicrous.
As Banzhaf noted more than a year ago, many who oppose Trump have nevertheless suggested that some judges are bending if not almost breaking the law as part of a phenomenon they call "Trump law."
For example, the New York Times 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 warned 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 Trump law, the assertion by the federal judiciary of the legal authority to stop Trump."
Law Professor Paul Horwitz, who supports some of Trump Law 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 'Trump Law,' 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."
With so many legal authorities - including those who themselves oppose Trump and his policies - sensing a new willingness on behalf of many judges to bend if not break existing legal precedent to hobble or at least delay the President's controversial initiatives, it would not be surprising that at least some judges of the opposite persuasion would be inclined to go well beyond established legal precedent in order to counter what they likely see as a judicial resistance.
In this context, Judge O'Connor's willingness to go far beyond even conservative judicial thought, and to invalidate all of Obamacare rather than simply the mandate, may seem easier to understand, if not to condone, says Banzhaf.
As he put it more than a year ago in reaction to some apparent Trumpl aw rulings then, "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"
The same can and should be said if judges on the other side push back with a form of equally lawless reverse Trump law.
Two judicial wrongs certainly do not make a judicial right, he reminds us.
JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
http://banzhaf.net/ jbanzhaf3ATgmail.com @profbanzhaf