It’s good to see that National Review is awakening to the threat of one branch of government being afflicted by lunacy and threatening to ride roughshod over the other branches, and the Constitution.
I’ve been seeing much Facebook bemusement this morning over this opinion piece by Eugene Kontorovich.
More broadly, constitutional structure supports examining only executive statements to interpret executive action. When Trump made his most controversial statements, he was private citizen. He had not sworn to uphold the Constitution, or to take care that the laws be faithfully executed. He was, in this sense, a legally differently obligated person. His policies and their relation to the Constitution would presumably be affected by his oath — that is why the Constitution requires it.
I wish I’d thought of that joke I read about the President’s two bodies – the body campaign, which is corruptible; and the body Presidential, which is not. But that was someone else. The funny thing is that a lot of conservative pundits are howling about how the 9th Circuit is once again throwing common sense to the wind. The truth is (it seems to me): there is a real legal argument here, but it hinges on the potential need to maintain a legal fiction. That is, to throw common sense to the wind, because the law demands it.
Suppose candidate Trump had – on 5th Avenue, in clear daylight – promised ‘a Muslim ban’. And then he had added: “And if the courts try to stop me, because it’s unconstitutional and illegal, I promise to get you the closest thing to it I can, under pretext of doing something else. As the President, I’ll have broad latitude and discretion, so you’ll get something like a Muslim ban, as promised. The courts won’t be able to stop me, even though they’ll know – just like I’ll know, and you’ll know, the real score!”
I know, I know, that’s crazy. ‘Latitude’ is not a Trump word. He wouldn’t use that word. You get the idea. Just grant me that, in some possible world, he said that. On tape. Would all THAT still be rightly ruled out as a mere statement by a private citizen? Would motive be reviewable THEN? (But he swore to uphold the Constitution!)
At some point you have to get off the bus with regard to the legal fiction about the President’s two bodies. The counterfactual strain becomes too much. (We could actually make it more extreme, if need be. At some point something has got to give. Right?)
Politicians campaign in poetry and govern in prose. That would be the standard line to explain why ignoring campaign promises would be in order (never mind that, actually, politicians generally try to fulfill their campaign promises.)
So what has changed?
Has the 9th Circuit run mad, suddenly, for no apparent reason? No, we have an unusual President. It is unusual to have this sort of explicit evidence of bad motive. Maybe a sign of things to come? For the next few decades we will need a new form of warm, conventional wisdom? “Republicans campaign in jack boots but govern as Jacksonians”? Time will tell. I guess it could eventually become normal for Republicans to campaign on explicit promises to do something flagrantly unconstitutional, then do less, once elected. If that becomes normal, a version of the old poetry-prose dichotomy might take stable hold. But, at the moment, while we wait to find out what Brave New World we inhabit, why should we read the poetry of the executive order as prose? It didn’t function smoothly as legal apparatus, which is the typical use for legal prose. Isn’t ‘they are trying to govern in poetry,’ to please their base, an inference to the best explanation? What if, instead of reading the immigration order as prose, we read it as poetry – kind of a “Howl”-type deal – you know, like the President’s inaugural? American carnage.
I saw the best minds of my generation destroyed by madness,
starving hysterical naked,
dragging themselves through the negro streets at dawn looking
for an angry fix,
who bared their brains to Heaven under the El and saw
Mohammedan angels staggering on tenement roofs
who passed through universities with radiant cool eyes
hallucinating Arkansas and Blake-light tragedy among the
scholars of war,
who were expelled from the academies for crazy & publishing
obscene odes on the windows of the skull,
who cowered in unshaven rooms in underwear, burning their
money in wastebaskets and listening to the Terror through
Sounds about alt-right to me. Steve Bannon is pretty smart, after all. Mad, but smart. In general, conservatives are always looking to the inner cities for an angry fix. And that thing about the universities is Milo all over. The underwear is blogs and Twitter and the money in wastebaskets is the financial crisis and how hard it is for Trump’s friends to get loans because Dodd-Frank. And Terror through the wall? Please. That’s why we need a wall. Can’t have Terror through one without one. A bit further on: “The mind leaping toward poles of Canada”? It’s true many liberals are looking north, as they are periodically wont, with some degree of envy.
Obviously it wouldn’t be reasonable for the 9th Circuit to read the executive order as beat poetry. I kid. The real question is: is reading it as campaign poetry, though the campaign is over, a dangerous precedent? How hard will it be for future Presidents (God-willing!) to avoid the problem of having foreign policy latitude and discretion pinched by the courts?
By accepting the use of preelection statements to impeach and limit executive policy, the 9th Circuit is taking a dangerous step. The states’ argument is in essence that Trump is a bigot, and thus his winning presidential campaign in fact impeaches him from exercising key constitutional and statutory powers, such as administering the immigration laws.
This would mean that Trump is automatically disbarred, from the moment of his inauguration, of exercising certain presidential powers, not because of his actions as president, but because of who he is — that is, how he won the presidency.
This is right, but for a more restricted domain value of ‘who he is’ than bigot. To maintain a free hand, future Presidents will need to avoid:
1) Campaign promises to use executive power to do something that would clearly violate the Constitution.
2) Executive orders so ill-constructed everyone figures they can’t be serious attempts to do what, nominally, they are intended to do.
The legal standard for judging when cases 1) or 2) arise will be ‘all kidding aside’. That is, no legal fictions; but a great deal of deference still to be allowed the executive.
Should the 9th Circuit’s decision be upheld on appeal, future Presidents will forevermore be constrained in the following way: they will still be able to do either 1) or 2) freely, but they won’t any longer be able to do 1) AND 2) in very close, connected conjunction. There will need to be a decent interval between promising to violate the Constitution and doing something so weird people figure you are actually trying to do something else, causing them to think back to that time, last month, when you promised to violate the Constitution.
I guess I can live in this mad world the 9th Circuit – that “lost battalion of platonic conversationalists”! – would make, in its hubris.
All that just for a strained Miyazaki/Wynne-Jones title joke, Holbo? Well, sure!
But seriously: the serious point is that all the legal hand-wringing over the black-letter niceties of the 9th Circuit decision is one part serious analysis (it is kind of a legally weird, hence precedent-setting case); but two-parts goal-post shifting. If Trump is normal, this decision is weird. Because it constrains normal activities of the President. But Trump is (all kidding aside!) not normal. The Presidency is not just howling, these days, but moving from its familiar location at a rapid pace. Any assessment of what the judiciary is doing, in response, needs to be realistic about facts on the ground, though it can be legalistic in its reasoning. Some people are entitled to legal fictions, by law. But no one is entitled to ignore the facts, by reason.