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Thursday, February 16, 2017

Why the Rule of Law Matters, Especially Now

When the Judiciary operates outside of the constitution, it weakens its position as a check on the other two branches.

At the 2010 State of the Union address, President Obama rebuked members of the Supreme Court who were in the majority on the Citizens United case. These days, President Trump is fighting a two-front war against the judicial branch: in the courtroom, and on Twitter.

Both are examples of poor decorum, and neither is a coup d’etat.

Bad Policy

Whatever the long-term psychological effect of presidents calling out judges in public, the American legal system seems to carry forward. But we may underestimate the real damage caused by judges who trade in legal reasoning, for legislation and policy. The Ninth Circuit’s decision on Trump’s travel ban is just the latest example of this so-called judicial activism.

Congress has been exalting presidential powers for decades, and we should stop fainting like Victorian virgins every time they use that power.

Do not misunderstand: The travel ban, by this author’s judgment, is poor executive policy.

For one, it is too broad. Even some of Trump’s biggest supporters thought so. If the administration is concerned about “extreme vetting” of people from terrorist hot spots, it is mystifying why dual-citizens holding green cards should be affected.  

But the Constitution does indeed grant the president authority when it comes to national security policy. It is not absolute authority. By contrast, the judicial branch has virtually no authority in this domain. More on that in a moment.

Congress also shares authority over national security, and it has substantial authority over immigration and naturalization. In 1952, Congress passed the Immigration and Nationality Act (INA). Under this law, Congress delegated to the president broad power to restrict any class of immigrants from entering the United States, for any period he deems necessary, provided he finds it in the national interest.

This is one example of how Congress – and both political parties – have been exalting the power of the presidency for decades. And we should stop fainting like Victorian virgins every time they use that power.

President Trump’s travel ban relies on his power under the INA. Obama relied on it when he banned Iraqi refugees in 2011. Carter relied on it in 1980 when he banned Iranian visa holders. The power has been used on numerous other occasions.

In fact, the seven countries affected by the ban were not selected at random: In 2015, Obama approved a law, passed with bipartisan approval, to limit a visa waiver program for foreign nationals who had travelled to these countries.

Predictably, those who imagine that executive power has just now become a problem, want to draw irrelevant distinctions – or point out that Obama’s restrictions were not as mean or something.

Pardon me if I don’t reach for my smelling salts. While all of these policy distinctions may be prudent and interesting, these are still policy debates.

Like it or Not

The immigration ban might qualify as a legal issue if Trump issued a “Muslim ban.” The law does not permit discrimination on the basis of religion or national origin, even for immigrants. But it certainly permits the President to restrict immigration from specified countries if he deems it in the national interest to do so (even if those countries happen to be Muslim majority). Again, Carter in 1980, and Obama in 2011, and 2015 – all of these actions affected Muslim-majority countries.

Trump’s order does not refer to Muslims, and it does not affect about 40 other Muslim majority countries. Calling it a Muslim ban obscures the real problem: Executive power.

It is also not Nazism, and histrionic comparisons to the persecution of Jews only make this 90-day travel ban of seven countries, appear reasonable.   

It is not a reasonable policy. The thing is, the executive branch gets to set executive policy. Even bad policy, like Trump’s travel ban. And he gets to in this particular case because Congress wrote a bad law, which gives the president carte blanche.

Trump’s bad policy is legal, because of a bad law.

I said earlier that the president has broad constitutional authority when it comes to national security. Fortunately, it is a divided power. Congress has authority here too: they control revenues for executive departments, confirm ambassadors, have “advise and consent” power over treaties, and can declare wars. Through these powers, they can substantially affect trade, diplomacy, war, the military, and national defense. On immigration and naturalization, Congress has near total authority, except that Congress often delegates to departments of the executive branch powers to implement statutes.

Unfortunately, like with the War Powers Resolution of 1973, Congress often delegates vastly more authority to the president than is necessary to carry out his constitutional function as commander in chief. Such is the case with the INA.

Trump’s bad policy is legal, because of a bad law.

Not a Courtroom Battle

The Ninth Circuit has now decided to triple-down, with bad jurisprudence. The courts do not have any national security power, other than the Supreme Court prerogative to hear cases and controversies arising under the Constitution. That means a plaintiff seeking relief must demonstrate that he has actually suffered damages as a result of the defendant’s action, which the court is capable of redressing.   

Did a case or controversy occur here?

The Ninth Circuit held that the State of Washington had standing against the Trump administration because foreign students from the seven affected countries would be prevented from attending Washington state universities, and thus prevented from performing research.

That is an astonishing leap to find a constitutional standing, to say the least.  

Next, the court went on to examine the merits of the policy behind the travel ban, insisting that there is no evidence that foreign aliens affected by the travel ban have actually caused a terrorist attack.

When the Judiciary operates outside of the constitution, it weakens its position as a check on the other two branches.

Whether there is evidence of this, or not, is entirely beside the point. National security policy is often set by the president having received highly classified advice, and data. Congress is often advised of this information. It is usually not debated in open court.

Arguably, the interests of transparency and accountability may demand a more open process to this decision making. In any case, the president has not typically consulted the Ninth Circuit on national security issues, or on intelligence concerning which countries are considered terrorist hot spots.   

The law is important. If you care about liberty, legal procedure is important too. The Constitution is also important.

And when the courts decide to set aside the Constitution, and the laws of Congress, or play parlor tricks with questions of legal standing, they erode their credibility. They make the president sound reasonable when he laments activist judges. The president, in turn, endears himself to the public, which is now persuaded that a sweeping travel ban is needed for their safety.

In the end, the courts, operating with no discernible principle (say, a “constitution”), look just as partisan as the other two branches. Except the courts are not as good at politics as the guy who just convinced 60 million people to vote for him.

And they weaken their own position as a bulwark against tyranny and as a check on the other two branches.

Today, Tomorrow, Always     

I don’t care if you think Donald Trump is Hitler, or the devil himself. I happen to think there is a range of humanity between Jesus Christ and Adolf Hitler, and that men like Trump fall somewhere in between. Actually, we all do!

And, like all the rest of us, Trump cannot be trusted with absolute power. Not because he is Donald Trump, but precisely because he is a human being.

And the best check we have on that absolute power is a working legal system, with a separation of powers, and a rule of law. And if Trump were the devil himself, I’d give him benefit of that law for my own safety’s sake.

  • Thomas Smith is an alumnus of Berkeley and Pepperdine Law, and a corporate attorney.