It is understandable that many people in U.S. government are unhappy that Donald Trump is the president of the United States. It is also understandable that many people would contemplate constitutional mechanisms that might remove him from that office.
But so long as Trump remains the president – and even those of us who imagine 25th Amendment remedies would be wise to bet on at least three years and seven months more – then ad hoc, partisan and extra-constitutional attempts to strip him of normal presidential powers are a very bad idea.
This is basically what we have in the 4th Circuit Court’s ruling striking down the administration’s controversial travel ban, which seeks to temporarily restrict travel to the United States from six majority-Muslim countries – Sudan, Iran, Libya, Yemen, Syria and Somalia – that are either ruled by terror-sponsoring governments or in the throes of civil war.
There are reasons to think this ban overbroad, counterproductive, damaging to U.S. interests. But it not a “Muslim ban” under any reasonable legal definition of the term, and on its face it looks entirely constitutional. As the 4th Circuit concedes, the president has broad powers to restrict the entry of noncitizens, and an executive order restricting travel from a specified set of terror-affected countries would normally easily pass muster.
But what is different in this case, the 4th Circuit judges argue, is that Trump’s campaign-trail rhetoric about Islam, his wild promise to keep all Muslims out “until we know what’s going on,” proves that this executive order is really motivated by a religious animus that conflicts with the First Amendment’s religious-freedom guarantee.
Of course, constitutional guarantees do not normally apply to foreign nationals. But allowing an immigration restriction motivated by religious animus, the opinion argues, would create a strong likelihood that some “constitutional harm will redound to citizens” as well. And this is enough, it concludes, to make an order that only directly affects foreigners a violation of every American Muslim’s First Amendment rights.
The second half of the argument is a remarkable constitutional bankshot. But it’s the first half that’s most troubling, because it effectively creates what David French of National Review – no Trump admirer – describes as a kind of “Trumplaw,” a set of restrictions on presidential action that only apply to Donald Trump. This president cannot do things that would be perfectly legal if any other president did them, under this standard, because the courts will rule against his past demagogy rather than the policies themselves.
To some members of the Resistance this may sound like a brilliant approach. It is not. First, as the dissenting opinion rightly notes, it establishes a precedent that would further politicize an already-partisan judiciary, by licensing judges to constantly look beyond the law for excuses to rule against politicians (liberal or conservative) they dislike.
Second, it effectively tells populist politicians who flout norms on the campaign trail that they needn’t bother moderating once in office, because the system has already decided that they can’t. So it doesn’t matter that Trump has shifted his tone on Islam; it doesn’t matter that he spent the days before the ruling palling around with Saudis like a Bush Republican. Once a deplorable, always a deplorable – a judgment that’s likely to only confirm future populists in their antinomian and extralegal impulses.
And not only future populists but this White House, which remains responsible for counterterrorism in an age when the most important terror threats are Islamist, and any move to safeguard Americans is likely to have a disproportionate effect on Muslims.
One of the things that Trump critics fear most is his possible response to a Manchester-type terrorist attack (or something even worse). But rather than providing a check on future anti-terror overreach, the 4th Circuit’s overreaching opinion is likely to encourage it.
After all, if you tell the White House that it cannot do things that normal presidents are allowed to do because of Trump’s campaign-trail rhetoric, what incentive does the White House have to work carefully within constitutional lines should ISIS or al-Qaida strike?
Instead, if the courts are automatically going to rule against Trump on any counterterrorism issue that touches on Islam, the president may feel that he may as well prepare for war with the judiciary, since tailoring his policies to fit existing precedents is clearly just a waste.
There was a lot of loose talk about a “constitutional crisis” in the wake of the firing of James Comey. But it’s easier to imagine the term applying, as it did in the days of Trump’s idol Andrew Jackson, to a direct clash between the White House and the courts.
Trump’s flaws of temperament and character make such a clash dangerously likely. But so does a judicial activism that cuts down normal legal precedent in order to go after him, and tries to pre-emptively strip away his powers without any warrant save self-righteousness.