From pink hat-wearing protesters to former FBI Director James Comey, President Trump has accrued plenty of challengers in his first four months in office – but perhaps none has been as effective as the federal courts.
The judiciary is a key cog in America’s checks-and-balances system, and a significant question mark loomed over how the institution would respond to such an unorthodox and unpredictable character in the White House. And ever since Judge James Robart in Washington became the first federal judge to block one of Mr. Trump’s policies nationwide – in that case, his first travel ban executive order – federal courts around the country have overwhelmingly done the same.
But as the losses have mounted for his administration, particularly in liberal-leaning courts, some have begun to wonder if the hype and fear surrounding his policies have led the judiciary to treat him unfairly.
For almost a century, presidents have enjoyed a “presumption of regularity” that, barring evidence to the contrary, they always properly discharge their official duties.
Perhaps for the first time in history, the question of whether a president is entitled to that presumption is being seriously debated. And should it vote to take up a challenge to Trump’s revised travel ban order, which restricts the entry of immigrants from six Muslim-majority countries, the Supreme Court would be poised to issue a major judgment on the question.
“What the court does here will signal how the judiciary should react to Trump” in the long-term, says Josh Blackman, an associate professor at the South Texas College of Law in Houston. “It’s not going to be constrained to this specific case.”
Courts have blocked Trump on other policies, including his executive order on sanctuary cities. But the travel ban executive order is where claims of unfair treatment toward the president have focused. On Monday, a three-judge panel of the US Court of Appeals for the 9th Circuit handed the White House another legal defeat – becoming the latest appeals court to uphold an order blocking the ban from taking effect.
In recent arguments before the US Court of Appeals for the 4th Circuit over the second travel ban – revised after courts blocked the original version – Judge Paul Niemeyer asked the lawyer opposing the government if an identical order would be considered constitutional had it been signed by a president not named “Trump.” After dancing around the question twice, the lawyer admitted, “in that case it could be constitutional.”
The exchange helped Judge Niemeyer drive home the point in his dissent that in continuing to block the order, which never mentions “Muslims” or “Islam,” the court “adopts a new rule of law that uses campaign statements to recast the plain, unambiguous, and religiously neutral text of an executive order.”
Instead, Acting Solicitor General Jeffrey Wall urged the 4th Circuit to grant Trump the “presumption of regularity” as a reason for the judges to not look beyond the neutral (and perhaps constitutional) plain text of the order.
“A ‘presumption of regularity’ requires reading [executive orders] in a way that is not most hostile to the president, but would render the actions lawful,” said Mr. Wall, in one of at least four references to the doctrine, which the US Supreme Court created in a 1926 case involving a lawsuit over a domestic monopoly of chemical industries. As part of their decision in the case, the justices wrote at the time that in authorizing an executive order, the president “is presumed to have known and acted in light of the material facts.... Such orders are supported by a presumption of regularity, and [due to] the basis of fact on which they rest, will not be reviewed by the courts.”
The lower courts, for the most part, have ignored that presumption when it comes to the travel ban. Among their most prominent justifications for doing so is that while the order is neutral on its face, statements made by Trump and some of his associates – both before and after he took office – suggest there may be discriminatory intent behind the order.
Most recently, Trump let forth a series of tweets last week criticizing his own Justice Department for revising the original order to a “watered down” version, and criticizing the courts for being “slow and political.” The 9th Circuit cited those tweets in its unanimous ruling on Monday and stated that the administration had not made its case strongly enough for denying 180 million people entry into the country.
Previously, the president had said in an interview that the original order would prioritize Christians. Statements by senior adviser Stephen Miller, former adviser Rudolph Giuliani, and other proxies also have also been cited in lower court decisions.
Court rulings premised on such statements are, in the eyes of some, overreaching and “Trump-only” decisions.
The 4th Circuit “refuses to apply the traditional deference to the president and Congress in immigration affairs because of Trump’s statements,” John Yoo, a Berkeley law professor who served in George W. Bush’s Justice Department, told the Washington Examiner. “There is no doubt that this is a Trump-only decision.”
The rulings are “Trump-only” decisions only in the sense that no other president has made statements as legally compromising as the president has, critics counter.
“This is not about being Trump-specific, it’s about being motive-specific,” says Ilya Somin, a professor at George Mason University’s Antonin Scalia Law School.
Specifically, a central challenge to the travel ban is a pretextual discrimination claim: that the order, while facially neutral, would have a discriminatory impact on Muslims.
“There’s a general principle here against pretextual discrimination that the Supreme Court has applied in lots of previous cases,” Professor Somin adds. “It’s simply false to claim that the courts are somehow picking on Trump in a way they wouldn’t pick on another president who did the same thing.”
Supreme Court decisions are by definition precedent-setting, and the justices will be acutely aware that their decision will long outlive Trump’s presidency. Thus, experts say, they will be careful about doing anything to trim the broad, congressionally-mandated discretion the president has in immigration and national security affairs.
But a ruling against Trump doesn’t necessarily have to mean a narrowing of executive power on these issues, according to Peter Spiro, a professor at Temple University Law School.
“If the Court rules against Trump, this will be an important explanation,” he wrote in an email to the Monitor. “They can rule against this president knowing that the ruling is unlikely to apply to any future president, assuming the improbability of future presidents who continually undermine their own cases with tweets and the like.”
Steven Schwinn, a professor at the John Marshall School of Law in Chicago, suggests such a decision could be helpful in drawing a bright line for future presidents.
“Not only might the court think other presidents wouldn’t behave that way, but then you’ve also got a ruling that instructs future presidents not to behave this way,” he adds.
On the flip side, if the court ruled in Trump’s favor, he thinks that may “invite future candidates to make wild and anti-religious statements and statements in support of a policy they later write to be facially neutral.”
Supreme Court sets 'very high bar'
It is far from certain, however, that the Supreme Court will follow the lower courts in ruling against Trump.
The Supreme Court has set “a very high bar for looking beyond a facially neutral policy” in other areas of the law, Professor Schwinn says, particularly when it comes to racial discrimination.
Furthermore, the high court has – until recently, in some cases – been comfortable giving broad deference to the White House.
Yet the White House has never been occupied by someone who has behaved like Trump, says Professor Blackman.
“Under the law, President Trump wins. Under the law, President Obama, President Clinton, President Bush would all win,” he adds. “But President Trump is his own worst enemy, truly so.”
“When the Supreme Court does something, it lasts for generations,” he continues. “I sincerely hope that the justices view this case in the normal course of order – what the government’s called the ‘presumption of regularity’ – but President Trump seems to be trying to undercut that at every possible juncture.”