By questioning the legitimacy of judges who disagree with him, and giving agencies room to ignore court rulings, President Donald Trump has turned a once-academic legal question — whether the president has a duty to obey the courts — into a more practical matter of current events.
“The vast majority of experts, both right and left, believe that the president cannot simply just refuse to obey,” George Mason University School of Law professor Ilya Somin said.
That’s how most of us non-lawyers understand the balance of powers, too. But in 2015, Somin was one of a handful of conservative constitutional scholars who batted around the question of whether the Constitution truly gives the Supreme Court supremacy over the president’s judgment.
Somin and most of the other scholars agreed that it does, but University of St. Thomas law professor Michael Paulsen staked out an argument for “departmentalism.” In other words, that in cases where the president and the courts interpret the Constitution differently, the president can basically tell the courts to get lost.
“The power of constitutional interpretation is a divided, shared power,” Paulsen argued, “incident to the functions of each of the branches of the national government — and to instruments of state governments, and of juries, as well — with none of these actors literally bound by the views of any of the others.”
In the chaos following Trump’s ban on refugees and visa-holders from seven mostly Muslim countries, lawyers at airports across the country said that U.S. Customs and Border Protection and court officers were failing to follow court orders suspending the ban.
Although judges in New York, Boston and Los Angeles called on the U.S. Marshals Service to make sure their orders were followed, there was no sign that they got involved.
The Department of Homeland Security’s contradictory pledge to continue enforcing Trump’s order and abide by the court orders against it only added to the confusion.
Once federal Judge James Robart issued a temporary restraining order against the ban on Friday, Trump finally backed down — and then questioned the legitimacy of the “so-called judge,” suggesting the judiciary be held accountable for its meddling should “something happen.”
The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!
— Donald J. Trump (@realDonaldTrump) February 4, 2017
Just cannot believe a judge would put our country in such peril. If something happens blame him and court system. People pouring in. Bad!
— Donald J. Trump (@realDonaldTrump) February 5, 2017
On Tuesday, Trump’s lawyer told a judges on the Ninth Circuit Court of Appeals that Trump’s travel ban shouldn’t be subject to review by the court, because it deals with national security. Trump continued badmouthing the judiciary today, calling the hearing “disgraceful” and comparing the judges to bad high school students. The president’s comments have reportedly alarmed his own nominee for the Supreme Court, Judge Neil Gorsuch.
To lawyers and legal scholars, Trump’s statements, and his agencies’ behavior so far, are reminiscent of a very few episodes from America’s past when the balance of power between the president and the courts was so strained.
“The system depends on the president feeling an obligation to follow court orders,” University of San Diego Law School professor Michael Ramsey said.
When the president has been headed for a showdown with the Supreme Court in the past, one side usually finds a graceful way out.
The most notable exception is Abraham Lincoln, who suspended the writ of habeas corpus to jail suspected Confederate sympathizers at the start of the Civil War. Chief Justice Roger Taney ruled that the Constitution gave that power to Congress, not the president. But Lincoln ignored the ruling — and if it was a constitutional crisis, well, America in 1861 had a few of those already.
Should Trump imagine himself at the helm of a Lincoln-grade crisis someday, the first weekend of his travel ban offers a glimpse at how things could play out.
Darius Amiri was one of a few lawyers in Los Angeles who saw that a nationwide ruling from a judge in New York wouldn’t necessarily be followed by customs officers on the West Coast. When he and a group of attorneys lobbied U.S. marshals to serve Customs and Border Protection officers with a court order against the ban, he said they were simply referred to the U.S. Attorney’s Office.
Amiri noted that the marshals — the courts’ only means of enforcement — fall under the Department of Justice, which answers to Trump. “It’s their job to serve notice of district court orders to executive agencies if there’s a court order,” Amiri said. “We’re asking them to do their job.”
“We have a very unique situation that has never happened in the history of our country,” agreed Faith Nouri, another of the lawyers. “In the old days, when President Nixon did something wrong, the other branches were not afraid to do their jobs.”
In July 1974, President Richard Nixon claimed that executive privilege entitled him to withhold recordings from investigators. The Supreme Court disagreed, ordering him to hand over the tapes. The court’s ruling was unanimous and unequivocal: “No person, not even the president of the United States, is completely above the law,” justices wrote. The only question left was whether Nixon would hand over the tapes or keep fighting.
It might’ve made a great reality TV cliffhanger in another era, but Nixon didn’t leave much suspense. As the Washington Post reported immediately after the decision, “The President said he was ‘disappointed’ by the decision but said he would comply. … Only a few times in its history has the court grappled with such large assertions of governmental power. As in most of those encounters, the justices concluded that the judiciary must have the last word in an orderly constitutional system.” Two weeks after the court’s ruling, Nixon resigned.
When Arkansas Gov. Orval Faubus and Mississippi Gov. Ross Barnett defied the Supreme Court over school segregation, Presidents Dwight Eisenhower and John F. Kennedy had to decide how far they’d go to enforce the court’s rulings. They sent federal troops and took control of each state’s National Guard. But presidents haven’t always felt such a duty to impose the court’s will on state executives — another possible test of Trump’s deference to the courts.
In 1832, President Andrew Jackson sat back and let Georgia Gov. Wilson Lumpkin ride roughshod over Cherokee land rights that the Supreme Court had asserted in Worcester v. Georgia. He mused to a friend, ”the decision of the Supreme Court has fell stillborn, and they find that they cannot coerce Georgia to yield to its mandate.”
There have been other close calls, when presidents toyed with the notion of ignoring the courts.
At the start of World War II, President Franklin D. Roosevelt suggested he would try a group of German saboteurs in a military tribunal, whether or not the Supreme Court agreed it was right. (The court took Roosevelt’s side.) Two court rulings on prisoners’ rights at Guantanamo Bay conflicted with President George W. Bush’s post-9/11 national security strategy. (Bush acquiesced to the court.) And in 2011 Newt Gingrich once vowed that, as president, he would disobey the courts in accordance with his judgment. (Gingrich never got the chance.)
Lincoln’s refusal to defer to Chief Justice Taney during the Civil War is the nearest example of direct defiance that experts could name. Having already generally defied a Supreme Court’s defense of slavery, Lincoln specifically flouted Taney in the case of John Merryman, a Maryland militia member charged with treason. Merryman’s lawyers demanded a justification for his imprisonment; Taney wrote that only Congress, not the president, could suspend habeas corpus.
As Paulsen, the University of St. Thomas professor, wrote in a book co-authored with his son, Luke: “Implicit in Lincoln’s action was his belief that he was not bound as President to obey a judicial order he believed incorrect as a matter of constitutional law — the boldest challenge ever made to judicial supremacy in constitutional interpretation.” Michael Paulsen has jauntily dubbed this the president’s “Merryman power.”
Somin says there’s no recent case law that justifies such a power. But then again, should Trump take such a “departmentalist” reading of the Constitution, he probably wouldn’t worry much over the legal precedent. “The whole point of departmentalism means that ‘I’m allowed to go against the court if I want,’ ” Somin said.
Before the election last fall, Somin and Paulsen were among a group of conservative constitutional scholars who co-authored a statement of “Originalists Against Trump,” doubting his judgment in nominating Supreme Court justices and warning that “we do not trust him to respect constitutional limits in the rest of his conduct in office.”
Trump’s presidency so far has been a reminder, Somin said, that “the whole structure of political power rests on political norms, and not just legal procedures.”