If Donald Trump has his way, federal judges will be treated like Senator Elizabeth Warren: forced to sit down and shut up.
In a series of comments since a Seattle judge placed a temporary hold on his travel ban, Trump has escalated his attack on the institutions of democracy: last week, the free press; this week, the independent judiciary.
“The courts seem to be so political,” Trump said to a gathering of law enforcement officers Tuesday, “and it would be so great for our justice system if they would be able to read a statement and do what’s right.”
Trump also complained “It’s really incredible to me that we have a court case that is going on so long” (actually, the first cases were filed two weeks ago). And, echoing his “Second Amendment People” campaign rhetoric, Trump accused judges of “taking away our weapons, one by one.”
It’s no coincidence that Trump’s comments come as the confirmation process for attorney general nominee Senator Jeff Sessions winds down: it’s Sessions, after all, who co-authored the ban itself. That fact seems to have been conveniently forgotten by Republicans who have opposed the ban but still plan to vote for Sessions.And, of course, Trump’s comments Tuesday were but the latest in a week of court-bashing.
These are truly unprecedented statements. Even the court-packing scheme of FDR and Andrew Jackson’s alleged pronouncement “John Marshall made his decision; now let him enforce it!” do not approach this level of contempt for the rule of law. Of course, presidents have often vociferously disagreed with judicial rulings, but even Richard Nixon reserved his most acerbic comments for private (albeit taped) conversations, not public statements like these.
In public, presidents have generally deferred to courts, as the guardians of the rule of law, while expressing confidence that their views would prevail in the end—not calling a judge a “so-called judge” or an opinion “ridiculous.”
Now, some of this is just Trump being Trump. It’s probably best to take his from-the-hip comments with a grain of salt. But let’s remember the substance of the debate, and the power that Trump and Sessions wield.
In fact, contrary to Trump’s assertion that this is all political, the legal, constitutional problems with the ban are legion.
First, it is wildly overbroad. Trump and Sessions (with input, according to reports, from White House senior advisor, Stephen Miller) imposed a seven-nation travel ban that included people who had already cleared exhaustive vetting procedures, people with approved visas, and people with green cards. (It may also be under-inclusive, omitting countries like Saudi Arabia, but that is a separate matter.)
Second, it arguably discriminates on the basis of religion. While the ban is explicitly based on nationality, not religion, it banned people from Muslim-majority countries after a heated campaign in which Trump had called for a ban on Muslims.
Third, it was rolled out hurriedly, with a minimum of consultation, leading to immediate and widespread chaos, imposing harms on hundreds of thousands of people. There have been reports that government officials have even defied court orders, which, if true, would be extremely serious violations.
These are not political questions; they are legal ones. Trump was right to read, at his Tuesday remarks, from the Immigration and Naturalization Act, which indeed grants him broad latitude in matters of immigration and national security. But broad latitude doesn’t mean unchecked latitude. For example, in Trump’s reading of the law, he could order that only white people be let into the country. Would that be constitutional?
In other words, the judges hearing these cases—whether they have upheld, partially upheld, or rejected the ban—are doing their jobs. The ban brings up serious First Amendment, Fifth Amendment, and statutory questions. To strongly disagree with a judge’s interpretations of those questions is any politician’s prerogative. To accuse them of illegitimacy is authoritarian.
And however the Ninth Circuit rules on the temporary stay, it seems clear that this issue, in one form or another, is headed for the Supreme Court. Will Trump delegitimize the Court, too, if it does not rule as he likes? Is there no limit to his contempt?
It’s also best not to minimize Trump’s remarks because of the power that he wields.
First, the Trump-Sessions Justice Department has extremely wide discretion to pursue or ignore legal claims. Already, there are reports that the department intends to set aside the consent decree regarding pervasive racism in the Baltimore Police Department. That has an immediate effect on the ground, on real people. Now multiply that by a thousand, with a DoJ siding with police reflexively, as Trump promised today.
Second, the Trump administration has the power to shape the federal judiciary—beginning, of course, with the Supreme Court, but perhaps more importantly with district judges, appellate judges, immigration court judges, and administrative judges. To be sure, Judge Neil Gorsuch, Trump’s pick for the Supreme Court, is an outstanding, if arch-conservative, jurist. But down the line, the clear signal is that lower court judges will be picked on the basis of ideology rather than independence (or competence). We’re going to have immigration courts presided over by the likes of Sheriff Joe Arpaio.
Third, as the Washington Post’s Aaron Blake noted, it’s entirely foreseeable that the Trump administration will simply not comply with judicial orders it doesn’t like. It hasn’t disobeyed the current stay on the travel ban; people from the affected countries are again being admitted, as long as their papers are in order. But at the very least, Trump’s rhetoric puts courts on notice that their orders might not be obeyed in the future. That would be, by definition, illegal.
As Blake gamed out in his piece, it’s not clear what would happen next. Contempt of court is an impeachable offense, but would the GOP-led House of Representatives ever impeach Trump? Or would they, as seems far more likely, adopt his rhetoric that the court orders in question were political, and thus not legitimate?
Trump’s comments over the last week bring us one step away from a constitutional crisis. And surely he knows this. His base loves attacks on “the courts” or “the media.” They don’t know and don’t care about the legal niceties of the Immigration and Naturalization Act. Trump is scaring and warning them into acceptance of his own unlimited authority—and it’s a very easy sell.
Again, if Trump’s remarks were just the childish ravings of a blogger somewhere, they would be nothing to get upset about. But this is the president of the United States we’re talking about—and, if Republican senators don’t stand up to creeping authoritarianism, the attorney general as well.
The real threat to democracy isn’t the tweets. It’s the power Trump has to fulfill them.