The Unique Legal Problem Presented by a Know-Nothing President
by Ian Millhiser –
The law is not built for Donald Trump.
Eight of the most powerful words in American national security law are “the President of the United States has determined.”
The Trump administration’s motion to a federal appeals court asking to restore Trump’s Muslim ban starts with these eight words. In that case, Washington v. Trump, the President of the United States has determined that “deteriorating conditions” in seven majority-Muslim nations “increase the likelihood that terrorists will use any means possible to enter the United States.” And so the administration asked the court to defer to that presidential determination.
For now, Trump has not fared well in Washington. On Thursday evening, the United States Court of Appeals for the Ninth Circuit announced that it would leave a temporary order suspending Trump’s travel ban in place. Their opinion, however, still leaves many open questions. And the legality of Trump’s travel ban is all but certain to wind up before the Supreme Court eventually.
Trump’s request for judicial deference, moreover, was not frivolous. Trump roots much of his executive order suspending travel from these nations on a federal law providing that “whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States,” they may “for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or non-immigrants.”
The president’s words have power. When he says something is true, the law often bends to his will.
Calls for deference pervade the Supreme Court’s national security cases. “Unlike the President and some designated Members of Congress,” the justices warned in 2008’s Boumediene v. Bush, “neither the Members of this Court nor most federal judges begin the day with briefings that may describe new and serious threats to our Nation and its people.” Information on national security threats “can be difficult to obtain and the impact of certain conduct difficult to assess,” the Court explained two years later.
Normal presidents swim in a sea of information. They gorge themselves on the most recent intelligence. Judges do not possess a fraction of this knowledge, so they second-guess the president’s national security judgment at their own — and at the nation’s — great peril.
But what happens when the President of the United States is a short-fingered reality show host with little interest in informing himself? What if we have a president who’s spending his intelligence briefings tweeting about his daughter’s clothing line? What if his policies are rooted less in real concerns about national security and more in a desire to punish people of certain faiths?
What if the president’s determinations are no better informed than your Fox News-watching uncle’s rants?
Though it is unlikely that any of the judges hearing these cases will say so openly, this fundamental question — what happens when the president is fundamentally uninformed? — is at the heart of the many lawsuits challenging President Trump’s travel ban.
Who do you trust?
Ordinarily, the argument that the president should be trusted because he sees intelligence that the rest of us don’t is a powerful one. Judges do not know the things that they do not know, so who are they to second guess the man at the apex of one of the most sophisticated intelligence gathering machines in the known universe?
But Trump’s executive order also arises at a very unfortunate time for its defenders. Just one week before Trump signed this order, Susan Rice was the sitting president’s National Security Adviser. Lisa Monaco was President Obama’s counterterrorism adviser. John Kerry was Secretary of State.
These three very senior former national security officials, along with a bipartisan group of former cabinet secretaries, CIA directors, and top-level advisers, all signed a declaration stating that they are “unaware of any specific threat that would justify the travel ban established by the Executive Order issued on January 27, 2017.”
To the contrary, they argue, Trump’s order “ultimately undermines the national security of the United States, rather than making us safer.”
There’s no legal doctrine stating that a president is owed less deference in the early days of their presidency. But the fact remains that Rice, Monaco, and Kerry very recently had access to the nation’s most sensitive national security information, and they think Trump’s order is wrongheaded. This isn’t a case where judges need to trust the president because the president has unique information that no one on the other side of the case has seen.
And there are other reasons to doubt Trump’s judgment.
Shortly after Trump handed down his order, former New York City mayor and Trump confidante Rudy Giuliani gave an extraordinary interview to Fox News where he claimed to have played a key role in designing Trump’s order.
OK. I’ll tell you the whole history of it. So when [Trump] first announced it he said, “Muslim ban.” He called me up and said, “Put a commission together, show me the right way to do it legally.” . . . And what we did was we focused on, instead of religion, danger. The areas of the world that create danger for us. Which is a factual basis. Not a religious basis. Perfectly legal, perfectly sensible, and that’s what the ban is based on.
The legal term for what Giuliani described here is a “pretext.” Trump wanted a “Muslim ban,” but he knew that he couldn’t legally state openly that banning Muslims was his goal. So he brought together a team of lawyers and they found a way to cloak Trump’s real intention.
Instead of announcing that the United States was banning Muslims outright, according to Giuliani, the White House picked out nations that they could claim were more likely to “create danger for us” — nations which also happen to be majority Muslim. That way, they could claim that they had a valid, nondiscriminatory reason for handing down the executive order.
But Trump hasn’t really tried to hide from the claim that the stated reason for his order is merely a pretext. On the campaign trail, he repeatedly promised to implement a “Muslim ban.” A provision of the executive order gives priority to refugees who practice “a minority religion in the individual’s country of nationality.” On the same day that the executive order was handed down, Trump indicated to the Christian Broadcasting Network that he will use this provision to give special treatment to Christians.
Normally, someone who engages in unlawful discrimination — and just in case there is any doubt, it is almost always illegal for the government to treat people differently because of their faith — can’t excuse such discrimination simply by dressing it up with a pretext. Otherwise, a racist employer could fire all of their minority employees so long as they invented fake reasons for doing so.
Trump’s core legal argument in the Muslim travel ban cases, however, is that courts simply have to trust him when he says that his stated justification for the ban is the real reason. “When Executive exercises” its power to exclude a foreign national “on the basis of a facially legitimate and bona fide reason,” the Supreme Court indicated in its 1972 Kleindienst v. Mandel, “the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment interests of those who seek personal communication with the applicant.”
If Trump is lying — and there’s strong evidence suggesting that he is — existing legal doctrines are equipped to handle that problem. As Justice Anthony Kennedy wrote in a 2015 opinion, the general rule that courts may not look into the executive branch’s true motive for excluding a foreign national can be breached when there is “an affirmative showing of bad faith.”
It’s also far from clear that Mandel applies to a broad executive order such as Trump’s Muslim travel ban. As the Ninth Circuit explains, Mandel involved “an executive branch official’s decision to issue or deny an individual visa.” Trump’s executive order, by contrast, announced a broad policy that sweeps up thousands of individuals.
It’s one thing to ask for deference to a very specific determination involving a very particular individual. It’s another thing altogether to dispose of people in bulk.
What our current legal doctrines aren’t equipped to handle, however, is what happens if a president is simply wrong. What if Trump honestly believes that his executive order is necessary to protect the nation’s security? What if that was his sole basis for handing down the order?
What if Trump is merely ignorant of the danger that his order will, in the words of Rice, Kerry and the other former national security officials who came out against it, “endanger U.S. troops in the field,” “disrupt key counterterrorism, foreign policy, and national security partnerships,” “endanger intelligence sources in the field,” “disrupt ongoing law enforcement efforts,” “cause economic damage to American citizens and residents,” and, most likely, “feed the recruitment narrative of ISIL and other extremists that portray the United States as at war with Islam?”
The law offers no good answers to these questions. And even if the Supreme Court ultimately concludes that Mandel does not apply to this executive order, such a determination still does not require the Court to also conclude that Trump violated the Constitution.
In the short term, Trump’s inability to keep his mouth shut — the fact that both he and his confidants have spoken of his order as a ban on Muslims or a vehicle to give preferential treatment to Christians — combined with the fact that Trump’s national security claims can be credibly rebutted by people who have seen the nation’s most sensitive intelligence, mean that there is a very good chance that the courts will strike this particular order down.
As the Ninth Circuit notes, moreover, Trump’s current order is probably unconstitutional with respect to some foreign nationals because it does not provide adequate process to people impacted by it — though it’s is far from clear that the Ninth Circuit’s due process objections to the executive order extend to all of the individuals impacted by that order.
More importantly, Trump is likely to be president for nearly four more years, and, as time passes, he will have a much more credible claim that he, and he alone, knows what needs to be done to protect the nation’s security. He also may not be stupid enough to brag about how he intends to treat people of different faiths differently the next time he hands down a discriminatory order.
When that moment arrives, Trump will still benefit from broadly worded statutes that begin with phrases like “whenever the President finds.” He will benefit from legal doctrines encouraging courts to be cautious. And he will benefit from judges’ understandable instinct to defer out of fear that they too might be wrong, and the stakes are measured in human lives.
The law is not prepared to deal with a president who cannot handle their awesome power. But that is the president that we now have.