Can the powers of a president grow or shrink permanently based on what a president has said — even before he took office?
It seems like the acceptance of such an idea would set a very dangerous legal precedent, and one that would make some presidents more “president” than others. But it’s precisely what the American Civil Liberties Union is arguing in its case against President Trump’s travel ban. Because Trump had previously flirted with the idea of temporarily banning Muslim visitors to the U.S., the theory goes, his ban must be an unconstitutional use of government to discriminate on the basis of religion. This would be true even if the executive order in question was perfectly lawful on its face, based on the vast statutory powers given the president in the areas of immigration and limitations on entry to the U.S.
Fourth Circuit judges mulled over the question yesterday, with an apparent split in their thinking. Ultimately, this is the key question to the entire case, and a question that goes way beyond Trump himself or this specific policy.
Omar C. Jadwat, a lawyer with the American Civil Liberties Union representing people and groups challenging the order, said the volume and specificity of the comments from Mr. Trump and his advisers could not be ignored. He was repeatedly pressed by Judge Niemeyer on whether the order was problematic on its own.
“You just don’t want to answer the question of whether this order on its face is legitimate,” Judge [Paul] Niemeyer said.
Judge King said the two sides were separated by a wide gulf on the central question in the case: that of whether to interpret the order in isolation or in the context of the various statements. “That’s where you all are like ships in the night,” Judge [Robert] King told Mr. Jadwat. “That’s the most important issue in the whole case.”
I’m a big fan of limiting presidential powers, but not of limiting some presidents and not others. I don’t know off the top of my head of any other instance in which presidential powers have been scaled back solely in one president’s case and solely because he had previously said something.
And if we’re going to start arbitrarily hobbling some presidents based on their statements prior to taking office, then how far back will we be allowed to go in finding a stupid thing that some future president said, which could presumably be presented as evidence of bad faith in his exercise of presidential powers? As Judge Niemeyer put it during oral arguments, “Can we look at his college speeches? … How about his speeches to businessmen 20 years ago?” It’s pretty hard to answer that question persuasively with anything other than “no.”
This case should really be about the executive order itself and whether it stands up to legal scrutiny. Because if Trump is president — as appears to be the case — he gets the full set of powers that come with the job, not a special set based on how good or bad a person judges decide him to be.
