A growing number of legal experts are charging that "lawless" federal judges are making up law simply to "hobble" the president.
Citing several recent sketchy decisions that stretch the legal limits of judges work under, the critics are concerned that the anti-Trump effort will set new precedents that will also hobble future presidents.
"There is growing concern and recognition – even among supporters, and liberal papers like the New York Times – that courts appear to be adopting a new jurisprudence called ‘TrumpLaw' aimed uniquely at this president; a method of judging cases which is aimed specifically at countering some of the practices of President Trump, even if this development means creating new legal principles and/or overlooking (or at least minimizing) other established ones," blogged George Washington University law professor John Banzhaf.
"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, " he wrote.
His blog in ValueWalk cited several sources worried about the activist judicial trend. Some examples:
-- The New York Times. "While hardly in favor of the president's so-called Muslim bans, the Times is nevertheless worried that the various court decisions staying them establish "a precedent that would further politicize an already-partisan judiciary, by licensing judges to constantly look beyond the law for excuses to rule against politicians (liberal or conservative) they dislike."
-- David French of the National Review. Banzhaf said he "warns 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.'"
-- Law Professor Paul Horwitz. He supports some of the effort and defines it as "about lower courts developing a form of what some critics call ‘TrumpLaw,' 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."
-- Law Professor Todd Henderson who said, "This is @realDonaldTrump-specific law, which is lawless."-- Attorney Scott Greenfield, who blogged on 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."
Paul Bedard, the Washington Examiner's "Washington Secrets" columnist, can be contacted at firstname.lastname@example.org