Trump v the judges: norms breaking down

I deeply oppose the Trump travel bans on two main grounds: 1) We should strive to admit refugees from the terrible war zones of the world, and 2) a policy that’s rhetorically linked to anti-Muslim motivations threatens the standing of Muslim citizens and residents of the US, as well as the religious equality and tolerance that should be important to all of us.

Nevertheless, I thought the revised travel ban was probably both legal and constitutional. One interpretation of the injunctions against the ban is that certain federal judges have overstepped their bounds because of objections to the policy (and the president) that I share, but that shouldn’t influence them in their judicial roles. I’d advance a different interpretation, however. These judges are relaxing some traditional norms and constraints because the Trump Administration has shed its commitment to norms that have constrained previous presidents. The resulting conflict is dangerous for the constitutional order but preferable to an alternative in which only the executive branch ignores key norms.

I’d have thought that the revised ban would be upheld for several reasons. First, Congress may regulate immigration by statute, but the law it has chosen to enact (8 U.S.C. § 1101) says:

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

Second, people who are neither citizens nor residents of the US are typically seen as having no rights under the US Constitution. Third, in a wide range of situations, courts don’t inquire into the motivations of policymakers when they assess legality and constitutionality. Finally, the argument that the revised order is a Muslim ban, and hence detrimental to US Muslims and every citizen’s religious liberties, could founder on the fact that of the ten countries with the largest Muslim populations in the world, only one (Iran) is on the banned list. The banned countries seem rather to be sources of refugees, and the president is not legally obliged to admit refugees, even if human rights and morality demands that.

Yet two federal judges have blocked the order, one with a nationwide injunction, and a Ninth Circuit panel has refused to reconsider its block of the earlier order.

Critics of the injunctions note that they seem to exceed precedents and they seem to rely on critiques of Trump as a person. Josh Blackman writes:

Judge [Leonie] Brinkema has applied a “forever taint” not to the executive order, but to Donald Trump himself. For example, the government defended the selection of the seven nations in the initial executive order because President Obama approved a law that singled out the same seven nations for “special scrutiny” under the visa waiver program. Judge Brinkema rejected this reasoning: “Absent the direct evidence of animus presented by the Commonwealth, singling out these countries for additional scrutiny might not raise Establishment Clause concerns; however, with that direct evidence, a different picture emerges.” That is, if Barack Obama selected these seven countries for extreme vetting, it would be lawful, because he lacks the animus. But because Donald Trump had that animus, it would be unlawful. … It will always a “Muslim ban” because of comments he made on the O’Reilly Factor in 2011, a policy he adopted in 2015, and abandoned after his lawyers told him it was illegal. She admits as much. “A person,” she writes, “is not made brand new simply by taking the oath of office.” Not the policy. The person. Trump.

Blackman thinks the courts are overstepping their bounds. See also David Frum on the “dangerous precedent” these injunctions could set. In his 9th Circuit Dissent, Judge Jay Bybee warns, “We cannot let our personal inclinations get ahead of important, overarching principles about who gets to make decisions in our democracy. For better or worse, every four years we hold a contested presidential election. We have all found ourselves disappointed with the election results in one election cycle or another. But it is the best of American traditions that we also understand and respect the consequences of our elections.”

Indeed, it’s worth worrying about what will happen if our courts start assessing individual presidents when they rule on legality and constitutionality. But this is my take (reminiscent of a piece by Benjamin Wittes and Quinta Jurecic):

The Constitution vests the various branches with powers and doesn’t say a lot about how they should be exercised. Like people playing a board game that has simple rules printed on the inside of the box, our officials have developed a long set of norms, some written as precedents and some unstated, to complement the basic rules. The board-game players know that no one will take an hour to decide on her move or start yelling insults during the game. Judges know that presidents will not single them out for abuse, deny the legitimacy of judicial review, blatantly lie and maintain their lies in the face of evidence, or say things–even informally–that undermine the basic principles of our republic, such as religious neutrality. Presidents, for their part, can count on judges to believe their assertions about national security and to read their executive orders charitably.

At least some judges believe that Trump is like a board-game player who is technically following the rules on the back of the box but violating the norms that make the game playable. So they are going to use their express powers under the basic rules to counter him and either force him to play by the norms or reduce his power. Even Judge Bybee (previously known to me only as an author of the “torture memos”), who dissented in the Ninth Circuit judgment, ended his dissent with a rather extraordinary coda:

Even as I dissent from our decision not to vacate the panel’s flawed opinion, I have the greatest respect for my colleagues. The personal attacks on the distinguished district judge and our colleagues were out of all bounds of civic and persuasive discourse—particularly when they came from the parties. It does no credit to the arguments of the parties to impugn the motives or the competence of the members of this court; ad hominem attacks are not a substitute for effective advocacy. Such personal attacks treat the court as though it were merely a political forum in which bargaining, compromise, and even intimidation are acceptable principles. The courts of law must be more than that, or we are not governed by law at all.

The prime danger is that Judge Bybee’s colleagues have judged Trump wrong and been biased by the abuse directed at them. But on balance, I think their response is for the best under these dire circumstances.

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About Peter

Associate Dean for Research and the Lincoln Filene Professor of Citizenship and Public Affairs at Tufts University's Tisch College of Civic Life. Concerned about civic education, civic engagement, and democratic reform in the United States and elsewhere.