Published by The Lawfare Institute
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In a new essay, Sandy Levinson and Mark Graber candidly admit what the legal resistance has long refused to acknowledge: Donald J. Trump, an “anti-Publian” president, is not entitled to the “presumption of regularity,” and judges should drop the pretense of applying what Herbert Wechsler called “neutral principles” in evaluating his actions. Their admission is at once both revolutionary and self-evidently reflective of what is going on. It is revolutionary because it fully sanctions judicial usurpation of presidential authorities; it is self-evident because that usurpation is exactly what judges have been doing since shortly after the inauguration.
For a foil, Levinson and Graber cast me as the archetypal Wechslerian. (In any other context, I should be flattered.) Shortly after a federal court enjoined President Trump’s second travel ban executive order, I wrote that “[t]he judiciary should not abandon its traditional role simply because the president has abandoned his.” In subsequent writings, I urged the courts to maintain the “presumption of regularity” when dealing with Trump, even if he is anything but regular.
Levinson and Graber challenge my “almost unexamined assumption that the constitutional powers of the president can be blithely abstracted from the occupant of the White House.” They counter that judges should “take into account (assuming they realize) whether they are making decisions for a constitutional order functioning within normal parameters or a constitutional order reeling from the collapse of crucial assumptions underlying the constitutional text and ordinary constitutional practice.” Dawn Johnsen offered similar guidance earlier this year, writing that “Courts attend to reality and context, and they can and should adapt their screens of deference when circumstances so indicate.”
How should those screens of deference be modified? Levinson and Graber write that “the remedy for a broken constitutional order is not constitutional interpretation as usual.” Just as an actor goes off script when another actor forgets a line, or an athlete improvises after a broken play, judges should do likewise. For example, with respect to the travel ban, they write, judges should “assume that Trump is keeping unconstitutional campaign promises, not defer to post hoc accounts of the underlying facts invented by administrative lawyers for litigation purposes only, and limit executive decision making whenever legally possible.”
But by no means is this analysis limited to the travel ban and the President’s pre-inauguration statements. Judges “have no more reason to assume that Donald Trump’s executive orders are based on rational policy judgments,” Levinson and Graber write, “than the Warren Court had to believe that segregated schools were grounded in reasonable pedagogy.” And this species of Trump Law is not limited to the Presidency. Judges should demand from Congress, they write, “clear statements from Congress that the Trump administration is authorized to make a policy before permitting the administration to make this policy.” (So much for the non-delegation doctrine and Chevron deference). How are judges to know when our Republic has gone off the rails because of a “constitutional breakdown,” and some improv is called for? Here Levinson and Graber draw direct comparisons between the Jim Crow regime that gave rise to Brown v. Board of Education and the election of Donald J. Trump, which both occurred “because constitutional institutions failed, whether the failure was inherent in the institutions themselves or in the people operating the constitutional institutions.”
In the final paragraph of the essay, right before the conclusion, Levinson and Graber get to the “so what” portion of the analysis. So what if courts usurp authorities constitutionally granted to other branches of government? “The constitutional universe did not fall apart,” they write, “when the Supreme Court abandoned inherited practices in order to repair the constitutional breakdown caused when southern (and many northern) governing officials refusal to make good faith interpretations of the equal protection clause.” And then comes the nub, in the final sentence: “If [these decisions] unsettle constitutional law a bit, that may be a good thing.”
There are three primary problems with this very direct thesis. First, Levinson and Graber’s candor is offset by their hyperbole. Jim Crow, an institution that corrupted our Republic for more than a century, amounted to a direct repudiation of the Reconstruction Amendments. Donald Trump has been president for less than eight months. His popularity is plummeting. Even his own party is abandoning him. (On this front, see Jack Balkin’s excellent post about the future of the GOP). Unlike in the Jim Crow South, where huge portions of the populace supported segregation, Trump’s policies are favored by a strikingly small segment of the electorate. The need for judicial intervention here falls far short of the need to halt the monolithic segregationist policies in the Jim Crow south. Trump’s utter inability to achieve any legislative gains should give courts an opportunity to reevaluate how dangerous he is. Indeed, even his own cabinet has begun to push back on his own administration. A solitary executive can do little, if his own administration will not help him.
Second, the Supreme Court’s decision in Brown did not arrive overnight. The Supreme Court built up to that crescendo over the course of a decade, with interim opinions that chipped away at Plessy v. Ferguson’s separate-but-equal doctrine. Not so here. Barely a week after the inauguration, the courts engaged in acts of judicial self-help, along precisely the lines Levinson and Graber praise. There was no percolation before these avulsive changes.: these were exercises of raw, ill-considered, ad hoc judicial power. The courts’ analysis would be scoffed at in any other context, but instead the judges in question were feted because of Trump’s egregious excesses. With each nationwide injunction, the lower courts told Trump, “Go directly to Jail. Do not pass Go. Do not collect $200.” They all jumped the gun. In our constitutional order, if any court is to abandon that presumption of regularity, it would need to be the Supreme Court. What’s more, much to the dismay of the #Resistance, the Supreme Court has rebuked the lower courts for their wide-ranging injunctions concerning the travel ban. Once again, the Supreme Court’s recent per curiam orders should give the lower courts an opportunity to reassess their variable deference screens, and, in the words of Jack Goldsmith, “turn down the temperature.”
Third, I take exception with Levinson and Graber’s parting salvo that unsettling “constitutional law a bit . . . may be a good thing.” The abandonment of traditional modes of deference is not an itty-bitty change but a gargantuan one. And it is not a “good thing.” Power amassed is seldom surrendered. I do not know what a post-Trumpified judiciary looks like. Perhaps my Burkean conservatism, tempered by my Wechslerian neutrality, gives me pause before readily jettisoning our current, settled constitutional order. I prefer the evil I know to the one that I do not. Levinson, who has argued for years that we should abandon our Constitution, sees a window for some creative destruction. To paraphrase Rahm Emanuel, a disaster is a terrible thing to waste. This wolf comes as a wolf.