“Unprecedented” is an adjective that’s used with usual frequency about presidential action these days. Take President Trump’s early morning sniper-attack on his own lawyers’ efforts to defend the March 6 executive order targeting seven Muslim-majority countries’ nationals. In the immediate term, the tweets reinforce the argument of those challenging the ban in federal court that the national-security justification is vanishingly thin, whereas evidence of unconstitutional motive is intolerably weighty.
Less remarked so far, the tweets also support the challengers’ argument based on the federal statute on which the President relies: That the executive order is not premised on the necessary factual finding about an “alien or group or aliens” presenting an actual risk, and is thus unlawful.
But would the ensuing judicial invalidation of a presidential action — as some commentators have worried — inflict lasting damage to the presidency as an institution? There is clear precedent for courts’ reliance on presidential public statements and a long history of courts invalidating executive actions related to national security. These past precedent have not prevented the secular rise of executive authority.
{mosads}Even if the present situation may indeed be unprecedented in some ways ways, a judicial check on wartime presidential authority would hardly be novel. And especially given Monday’s tweets, it is becoming easier for a court to craft an opinion that invalidates this one action without inflicting any lasting dent to presidential power–simply by relying on the president’s own words.
There is nothing new to this. It happened in the litigation over President Obama’s deferred action immigration directives, where both the district court and the Fifth Circuit Court of Appeals considered the president’s statement about the reasons for that directive in invalidating the order. Four Justices voted to uphold those lower court judgments — and it seems almost certain that Obama’s statements would have played some role in their decision in that regard.
Moreover, the federal courts have in past refused to credit the formal reasons supplied by the White House for a presidential action–and then invalidated that action. Perhaps the leading precedent on executive power generally is the 1952 Youngstown Steel and Tube v. Sawyer decision. In this case, the Supreme Court enjoined President Truman’s order taking possession and directing operation of most of the nation’s steel mills. In an opinion for the Court, Justice Hugo Black explicitly noted, and rejected, Truman’s professed reason — that the “action was necessary to avert a national catastrophe.” Hence, the seminal judicial decision on presidential authority illustrates both the judicial power to second-guess the reasons presidents give with respect to national-security actions, and also the judicial power to invalidate executive actions.
When the Supreme Court in 2006 invalidated President George W. Bush’s November 2001 order establishing military commissions in Hamdan v. Rumsfeld, its opinion pivoted on a seeming technicality. The Court found that President Bush had not made a necessary finding of impracticability in rejecting court-martials under the Uniform Code of Military Justice.
But, as the dissenting Justices in that case pointed out, it is hard to read the underlying executive order without discerning an implicit finding of impracticability. Rather, the Hamdan ruling rested implicitly on the Court’s refusal to believe that in November 2001 the president really had made a considered judgment as to whether military tribunals were necessary. That is, the Court second-guessed, and rejected the president’s judgment on a policy question related to national security.
Even in the national security space, in short, there is a history of courts declining to credit explicit presidential reasons and second-guessing their decision. Were the Supreme Court to follow suit in the travel ban case in either respect, it would be breaking no new ground.
If judicial consideration of the president’s reasons is old hat, it would break new ground for the Supreme Court to invalidate a presidential action on the basis of improper and unconstitutional motives.
Monday’s tweets embrace the term “travel ban,” underscore the continuity between the first and second executive orders, and criticize the March order as “politically correct.” It is hard to read the latter as anything other than an acknowledgement that the motives for the ban are “politically incorrect” — that is, they are based on negative generalizations about a religious minority based on the actions of a very small minority of adherents. This offends the Constitution.
To be sure, prosecutors, jurors, police officers, mayors, and even legislators routinely and uncontroversially find themselves condemned in court on the basis of their bad motives. Just last month, for example, the Court relied on improper motives among North Carolina legislators to invalidate its redistricting plan. But the Supreme Court has never been asked to invalidate a president’s decision on the basis of his invidious motive. This is perhaps a result of the unique centrality and the intense veneration of the office in our system of government.
Yet perhaps it should. After all, no other president has publicly professed that his motives are “politically [in]correct” and by implication unconstitutional. It is hard to see how our constitutional system, or our political culture, are enriched when those in high office embrace invidious stereotypes–even in veiled form.
Moreover, even if an invalidation of the travel ban on the basis of impermissible motive would have immediate repercussions today, but it would be unlikely to not have long term effects on the presidency: Presidents until now have known that their public reasons can be scrutinized, challenged, and even repudiated — and they have known to avoid public articulations of improper motive. Only if all presidents are impetuous and cavalier to deviate from the practice of all presidents until now who have eschewed proclamations of unlawful intent would such a decision inflect presidential power in any meaningful way.
Those commentators who worry about presidential power seem to have in mind a ratchet effect, whereby a decision today on the basis of impermissible motive somehow imposes a permanent disability on the executive branch. But why should this be so? The evidence of improper motive in respect to the travel ban is overt and ample, and hence perhaps unique in recent history. It was not obtained by discovery—and so opens the door to no future discovery. Future presidents could easily–perhaps too easily–achieve the same policy goals without using the same public language. Indeed, if anything, the law today makes it almost impossible to enforce any constitutional rule that hinges on motive against the president or cabinet officials. Only when the president overtly avows an unconstitutional motive are such rules in practice enforceable. And unless you think the president should be able to take coercive decisions on the basis of discriminatory stereotypes rather than fact and expertise, it’s hard to see what’s lost.
Deference to the president is based on the idea that the executive has better information and good-enough incentives. Judicial abdication when those conditions are not met does not impinge on the appropriate operation of such deference. Judicial abdication in those circumstances is instead an invitation to unwise and unconstitutional actions by future presidents.
The author, a law professor at the University of Chicago, is of counsel in a challenge to the travel ban case in the District of Columbia district court. He clerked for Judge Robert D. Sack of the U.S. Court of Appeals for the Second Circuit and then for Justice Ruth Bader Ginsburg of the Supreme Court of the United States.
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