If the judiciary is so hostile to Trump, then there is no reason to think that hostility will stop with the immigration executive orders. So the fight over the executive orders may really be a proxy fight over whether Trump will be permitted to exercise the executive powers vested in the office.
This “revolt” is evidenced in several district court and one 9th Circuit rulings against Trump on the first and second executive orders on visas and refugees. Wittes is brutally correct that the legal weaknesses of those opinions against Trump suggest
something else is going on:
To put the matter bluntly: why are
so many judges being so aggressive here?
The legal disputes are both interesting and important. But this meta-legal question strikes us, at least, as far more important and far-reaching. And we think
the answer lies in judicial suspicion of Trump’s oath. The question goes to the manner in which we can expect the judiciary to interact with President Trump on this and other issues throughout his presidency. It goes, not to put too fine a point on it, to the question of whether the judiciary means to actually treat Trump as a real president or, conversely, as some kind of accident—
a person who somehow ended up in the office but is not quite the President of the United States in the sense that we would previously have recognized.
Yet it appears there are judges who have decided to
take matters into their own political hands. Wittes adds that possibility:
Perhaps everything Blackman and Margulies and Bybee are saying 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.
Prof. Josh Blackman writes of the above analysis:
Judges in Washington, Maryland, and Hawaii are signaling that they are not going to treat President Trump as if he were any other President. The sorts of analyses we’ve seen are absolutely insane under long-standing law….
But maybe I am wrong to assume precedent applies to Trump. In a must-read post, Ben Wittes and Quinta Jurecic assert that because courts think Trump is unable to follow his oath of office,
the usual rules do not apply to him.
We are witnessing, they note, a “revolt of the judges.” This demise of judicial neutrality is truly regrettable. Our Constitution already has a safety valve in the case of a crazy President: the 25th Amendment. Courts should not twist and turn established law as a form of self-help. As I wrote in Politico, “The judiciary should not abandon its traditional role simply because the president has abandoned his.”
If the judiciary is so hostile to Trump, then there is no reason to think that hostility will stop with the immigration executive orders. So the fight over the executive orders may really be a proxy fight over whether Trump will be permitted to exercise the executive powers vested in the office.
In recent comments after the latest round of TROs halting the second executive order, Trump expressed regret that he had abandoned the first executive order. He said his gut told him to fight it, but
he was advised that the better course was to rework it. He should have gone with his gut.
http://legalinsurrection.com/2017/03/the-judicial-insurrection-against-trumps-presidency/
