Weekend Reading/Hoisted: Reading the Soul of Thomas Jefferson

Live from the Orange-Haired Baboon Cage: Benjamin Wittes and Quinta Jurecic: The Revolt of the Judges: What Happens When the Judiciary Doesn’t Trust the President’s Oath: "There’s quite a lot going here...

...There’s a legal debate, already ongoing, about both the propriety of the President’s order and the propriety of the judicial responses to it. But there’s also another meta-legal discussion.... What happens when people—including judges—don’t take the President’s oath of office seriously.... This meta-legal question strikes us, at least, as far more important and far-reaching. And we think the answer lies in judicial suspicion of Trump’s oath....

When the next executive order came out ten days ago, one of us (Ben) analyzed it along the following lines: Because the revised order was set to apply after a waiting period and did not affect current visa-holders or legal permanent residents, the order “[would] not cause people to be pulled off planes, or have their visas revoked, or suddenly be subject to detention at a port of entry.” As such, it seemed at the time that it would be “significantly harder to find plaintiffs with a cognizable injury” to challenge it. The Justice Department was clearly aware of this, writing in filings in both the Western District of Washington and the District of Columbia that “the New Executive Order does not present a need for emergency litigation.” Ben also predicted that, even if the ACLU or similar organizations were able to find plaintiffs with standing, they would find the new order much more difficult to attack in court....

It is early yet in the litigation, but it’s fair to say that at least in two of the first three district courts to rule on the matter over the past day, none of these predictions looks especially prescient.... Our point here is not that the district judges are clearly wrong.... In the face of real legal uncertainty as to the propriety of their actions, they are being astonishingly aggressive.... It really isn’t a normal thing for multiple district judges to do so in quick succession.... So what’s going on here?  

One possibility is that we’re dealing with a bit of a fluke. The President behaved very badly, not merely in issuing a grotesque policy in a grotesque fashion but then in attacking the judges tasked with hearing the litigation his conduct spawned.... A second possibility is that these judges, while indeed somewhat ahead of the state of the law, are correctly anticipating its directional momentum.... Maybe Trump’s behavior is forcing a reevaluation of both the application of the Establishment Clause to visa issuance and the scope of deference the courts owe the president on certain national security-inflected immigration matters....

There is a third possibility, and we should be candid about it: Perhaps... there’s an unexpressed legal principle functionally at work here: That President Trump is a crazy person whose oath of office large numbers of judges simply don’t trust and to whom, therefore, a whole lot of normal rules of judicial conduct do not apply.... The normal rules of deference and presumption of regularity in presidential conduct—the rules that underlie norms like not looking behind a facially valid purpose for a visa issuance decision—simply don’t apply to Trump. As we’ve argued, these norms are a function of the president’s oath of office and the working assumption that the President is bound by the Take Care Clause. If the judiciary doesn’t trust the sincerity of the president’s oath and doesn’t have any presumption that the president will take care that the laws are faithfully executed, why on earth would it assume that a facially valid purpose of the executive is its actual purpose?... This, we suspect, is the true significance of all of the references in both district court opinions to the many statements made by Trump and his aides about the Muslim ban and the true purpose of the policy effectuated in both orders....

The question is whether that decoupling of the presidency from the person of the president, which we anticipated in our original essay on the oath, is quite as indefensible as Blackman assumes—or whether it’s an inevitable consequence of vesting someone as volatile and fundamentally disingenuous as Trump with “the Executive Power” of the United States of America. The other question is whether the higher courts—including, ultimately, a majority of the Supreme Court—will share Brinkema’s sensibility or Blackman’s on the matter.... Imagine a world in which other actors have no expectation of civic virtue from the President and thus no concept of deference to him. Imagine a world in which the words of the President are not presumed to carry any weight. Imagine a world in which far more judicial review of presidential conduct is de novo, and in which the executive has to find highly coercive means of enforcing message discipline on its staff because it can’t depend on loyalty. That’s a very different presidency than the one we have come to expect.... It’s a presidency in which we owe nothing to the office institutionally and make individual decisions about how to interact with it based on how much we trust, like, or hate its occupant. The question is whether the revolt of the judges we are currently witnessing is the beginning of this world.

Comments