|Here's his Hugeness hugely blowing it. How long will his own words haunt him?|
Indeed, it's Trump's own words that follow him around, most especially on the pair of travel bans that haven't passed muster with the courts. He may still win, especially in the Supreme Court, but so far his words are trampling on his hoped-for deeds.
Paul Krugman linked to this fascinating post on a legal blog operated in part by Harvard law professor Jack Goldsmith questioning the legal rationale for ruling against Donald Trump on his legal ban:
But also there is a third possibility, and we should be candid about it: Perhaps everything Blackman and Margulies and Bybee are saying [in their dissents against injunctions of the travel bans] is right as a matter of law in the regular order, but there’s an unexpressed legal principle functionally at work here: That President Trump is a crazy person whose oath of office large numbers of judges simply don’t trust and to whom, therefore, a whole lot of normal rules of judicial conduct do not apply.
In this scenario, the underlying law is not actually moving much, or moving or at all, but the normal rules of deference and presumption of regularity in presidential conduct—the rules that underlie norms like not looking behind a facially valid purpose for a visa issuance decision—simply don’t apply to Trump. As we’ve argued, these norms are a function of the president’s oath of office and the working assumption that the President is bound by the Take Care Clause. If the judiciary doesn’t trust the sincerity of the president’s oath and doesn’t have any presumption that the president will take care that the laws are faithfully executed, why on earth would it assume that a facially valid purpose of the executive is its actual purpose?
In this scenario, there are really two presidencies for purposes of judicial review: One is the presidency when judges believe the president’s oath—that is, a presidency in which all sorts of norms of deference apply—and the other is a presidency in which judges don’t believe the oath. What we may be watching here is the development of a new body of law for this second type of presidency.
This, we suspect, is the true significance of all of the references in both district court opinions to the many statements made by Trump and his aides about the Muslim ban and the true purpose of the policy effectuated in both orders. These references present, of course, as discussions of whether there is truly a secular purpose to the policy in an Establishment Clause analysis using the Lemon test. But there’s at least a little more going on here than that. The lengthy recitations of large numbers of perfectly objectionable presidential statements about Muslims coexist with a bunch of other textual indicia showing not merely that the judges doubt Trump’s secular purpose but that they doubt the good faith of his purpose at all—indeed, that they suspect that he is simply lying about his own motivations.A few points. One, a president could normally be afforded deference and granted the right -- on its face -- to assume a national security interest in determining who enters the U.S. Two, what stands in Trump's way is his own widely expressed animus toward the religion in question, Islam. Three, the Lemon test to which the author refers derives from a Supreme Court case that tested the limits of government interference either for or against a religion. (Such interference can be neither.)
Barack Obama would have been afforded that deference. Donald Trump, due to his clear statements wanting to ban Muslims from entering the country, can hardly expect the same deference. And were a court or a judge to wonder how to decide, Trump, because of his numerous statements on the subject, has no doubt illustrated that his travel ban(s) utterly fail a Lemon test.
Those who want Trump to prevail in these disputes state plainly that the law does not allow a policy to be set aside simply because one president is different from another. But anyone who looks at Donald Trump can't help but notice that he's not like other presidents. In many ways, he's thrown the office of the presidency into a kind of chaos by his clearly demonstrated untrustworthiness. His lack of veracity calls into question his actual adherence to his oath of office.
In the end,Trump's faithful adherence to the so-called Take Care clause -- to actually follow the law -- cannot be relied on. Judges trust Trump at their peril. Oh, what a new normal that is.