Unless you live under a rock, you’re aware that President Trump routinely tweets his way up to and over the edge of what is traditionally accepted as proper presidential conduct. Some even view this as a threat to the republic.
But the much greater threat is that members of the judiciary and attorneys in positions of power seem intent on using his intemperance to destroy the rule of law itself, and to assert a new standard, nowhere in the Constitution, by which some presidents are more equal than others.
This idea underpins opposition to the president’s so-called travel ban, which was argued before the Supreme Court on Wednesday. There isn’t much substance to the opposition’s legal argument. With the Immigration and Nationality Act, Congress explicitly granted all future presidents plenary power to impose just such a ban if they saw fit. The law reads: “[The president] 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.”
Congress might have erred here. Perhaps it should not have granted the executive such wide-ranging powers. Perhaps Trump’s travel ban is unwise or even immoral. If so, then Congress should change the law. But the idea that judges could arbitrarily curtail such clear-cut presidential powers, established in black and white, is an affront to the rule of law, and a much bigger threat in the long run than Trump’s impropriety.
When an elected Congress and an elected president implement a plainly constitutional law and the legal resistance actually reaches the Supreme Court, it’s clear that multiple judges have gone rogue.
Trump’s travel ban was only the first such legal circus in which long-established and long-uncontroversial presidential powers are being challenged just because Trump is president. But a similar legal silliness quickly consumed other issues as well. By the end of 2017, New York Attorney General Eric Schneiderman’s office had taken 100 legal or administrative actions against Trump and congressional Republicans, challenging among other things the repeal of Title II Internet regulations. With all the corruption in Albany and New York City, one must wonder whether Schneiderman hasn’t neglected his own backyard.
After the GOP passed a landmark tax reform bill, three Democratic governors actually tried to plot a lawsuit against it. Their legal justification basically boiled down to, “I’m as mad as hell, and I’m not going to take this anymore!”, which is probably why it never materialized.
When President Barack Obama stepped on the Constitution with his DACA executive order, it was widely understood that a future president could just as easily undo the program without even having to justify the decision. But no one told U.S. District Court Judge John Bates or the two other federal judges who have ruled against Trump’s attempts to let DACA expire. At this point, having passed the expiration date that Obama gave it, DACA is a judicially created program, something the Founders probably never imagined.
As far as the Constitution is concerned, all presidents are equal. But these lawsuits operate under a theory that Trump’s otherwise lawful and uncontroversial constitutional executive powers can be limited by the mere fact that his attitudes don’t match those of the Democratic donor class.
There is a history of laws being struck down because racist or biased motives influenced their intention or creation. But nowhere in the law or in the history of jurisprudence has a president simply lost powers that had been explicitly granted by Congress under constitutionally valid laws just because his general attitude was considered ignorant or even ugly. Yet therein consists the entire case against the travel ban.
If a president without Trump’s Twitter account had attempted the same action, no judge would entertain legal opposition to it. As Washington Examiner contributor Ilya Shapiro said, “The Supreme Court struggled mightily over a travel ban that, all sides seem to agree, wouldn’t be a legal controversy if any other president had implemented it.”
The #Resistance may think they’re saving the country and democracy by overstepping their bounds. In fact, they’re trivializing and politicizing the legal system to achieve political ends they will deeply regret later.
