Published by The Lawfare Institute
in Cooperation With
In her post “On Bullshit and the Oath of Office,” Quinta Jurecic joined several other commentators in reflecting that President-elect Trump is a bullshitter — in the technical sense of the term as defined by Harry Frankfurt in his classic essay On Bullshit. Trump, she explained, “gives every appearance of proudly moving through the world without ever bothering to consider how concepts of truth or falsehood might potentially shape his behavior.” Jurecic’s enlightening contribution was to reframe this description of the President-elect’s relationship with the truth in the realm of law: “How will his incessant bullshitting affect his ability to carry out the duties of his office?”
Assuming Jurecic is correct that Trump is a bullshitter, and assuming as a corollary that bullshit will therefore infuse Trump's actions and interactions with the other branches and levels of government, there is a broader question to consider: How will Trump’s bullshit affect others’ abilities to carry out the duties of their offices?
With regard to judicial supervision of the political branches’ exercise of national security powers, executive bullshit could prove debilitating. To illustrate this point, consider two ways in which executive bullshit could frustrate the judiciary’s ability to fulfill its role as a bulwark against governmental abuses of power.
1. Martial Law
The most drastic way would be for the President to use his authority to unilaterally close the courts and institute martial law. After all, for the judiciary to serve as a bulwark against government overreach, there must be a functioning, independent judiciary.
Steve Vladeck has detailed how Congress “delegated broad swaths of emergency power to the President” through the Militia Acts, currently codified under 10 U.S.C. §§ 331–335. These wide-ranging authorities are statutorily conditioned on a presidential determination that there has been a breakdown in the rule of law. Section 332 states that “[w]henever the President considers” there to be a domestic insurrection against federal authority that makes enforcement of federal law by ordinary judicial proceedings impracticable, he may use the military force that “he considers necessary.”
The statute entrusts the President, and the President alone, to make these grave factual determinations. As Vladeck explains in his Note, citing Martin v. Mott, Luther v. Borden, and the Prize Cases, the courts do not inquire into whether the President’s factual determinations were correct.
I do not mean to suggest it is likely that President Trump will abuse these emergency powers or that he could necessarily succeed in doing so using blatantly groundless facts to support his actions. But it is disconcerting that a President who seems to reject the existence of knowable facts is empowered to institute martial law on his own nonjusticiable declaration of the facts. The phrase “whenever the President considers” takes on an ominous quality where the President in question has publicly declared that the United States has admitted “tens of thousands” of “vicious, violent people” with whom we are “at war,” that black inner city communities are places where “you get shot walking down the street” and where there is a “slaughter going on,” and that Black Lives Matter is “certainly in certain instances” lighting the fuse for the assassination of police officers. The ominousness is only exacerbated by the expansiveness of the relevant statutory authorities, calling to mind Carl Schmitt’s infamous line: “Sovereign is he who decides on the state of exception.” (Jurecic offers an alternative version of how Trump might be our first Schmittian President here.)
2. Constitutional Claims
Most theorists have instinctively rejected the Schmittian approach to emergency powers in favor of a more limited approach. As Bonnie Honig noted, they have instead “focused on moral-political questions of justification: What may we do in response to emergency?” The court’s role is to answer the question of whether a particular national security measure is justified, to weigh the national security interests against civil liberties interests. These questions of justification are fact-intensive.
But, Honig warned, “Facts do not offer a safe harbor… [They] are as subject to political manipulation as anything else.” Justice William Brennan likewise cautioned us “to be suspicious of asserted security claims” because “the perceived threats to national security [that] have motivated the sacrifice of civil liberties during times of crisis are often overblown and factually unfounded.”
Generally, of course, facts are determined through the adversarial process, and the opposing party has the opportunity to counter the government’s statement of the facts. But the fact-finding process is different when the state interest is national security.
Adversarial determination of the facts in such cases is hindered because, among other things, the evidence is often secret. And even if the government does present its evidence, the opposing party is not necessarily privy to all of the relevant countervailing evidence.
Moreover, even if adversarial adjudication of a complete factual record were possible, it is very likely in these cases that the normal adversarial process will be set aside in favor of judicial deference to the government’s assertion of the facts, through what Bobby Chesney has termed “national security fact deference.” (I will argue in my Ph.D. dissertation that national security fact deference is a near-complete form of deference.)
There are good reasons for courts to rely on the facts the government proffers in national security cases, including reasons of comparative competence, prudence, and legitimacy. These reasons justify a national security fact deference that is not limited to factual assessments for which sources and methods are necessarily obscured. Rather, judges are loath to question the government's national security or military assessments generally, secret or not. (A few examples of fact deference in the absence of secrecy concerns include Goldman v. Weinberger, Winter v. NRDC, and the "Don’t Ask, Don't Tell" cases. Holder v. Humanitarian Law Project was largely decided on the basis of what David Cole has called “a single affidavit from a State Department official…which combined conclusory assertions about the structure of terrorist organizations with hearsay allegations about specific violent acts of the PKK.”)
Yet experience has also shown the abuses left unchecked by judicial reliance on the government’s proffered facts. Mark Graber has argued, “Whether government officials restrict liberty, history suggests, depends more on ethnic stereotypes and contestable beliefs about the value of civil liberties than on clear threats presented by the exercise of a particular right during a particular war.”
The Japanese Internment Cases are the most obvious, and perhaps the most extreme, example. The government asserted that the restrictions on the liberty of those of Japanese descent were necessary for national security, and the Supreme Court refused to question the government’s account. The evidence the government submitted was subsequently revealed to be false and misleading. “The dominant factor in the development of this policy,” Eugene Rostow wrote, “was not a military estimate of a military problem, but familiar West Coast attitudes of race prejudice.” In General John DeWitt’s own words, the nation need not worry about those of German or Italian descent, “[b]ut we must worry about the Japanese all the time until he is wiped off the map. Sabotage and espionage will make problems as long as he is allowed in this area — problems which I don’t want to have to worry about.”
What is most flawed about the Japanese Internment Cases is not that the Court deferentially accepted racist lies as fact. Rather, it is that the Court’s acceptance of these “facts” led almost automatically to the Court’s acceptance of the constitutionality of internment. Accepting DeWitt’s version of the facts, Chesney argues, did not require the Court to find DeWitt's orders constitutional. Instead, he suggests, “The Court still could have identified a profound mismatch between the justifications offered by the government and the means selected to address them….” Yet questions of justification are fact-intensive, and the Court was swept up in the one-sided account of the “facts.”
My point here is not that the Japanese Internment Cases are good law or are likely to be cited favorably in future such cases, but rather that the Japanese Internment Cases should be a warning about the repercussions of a bullshit factual claim. The Japanese Internment Cases may not be good law, but national security fact deference certainly is.
In this light, consider Trump’s call for “a total and complete shutdown of Muslims entering the United States” as ostensibly justified by the threat of terrorism. Would the courts uphold the constitutionality of such a ban? The answer would largely depend on the factual findings, namely the evidence proffered by the government. As it happens, based on Trump's statement, we have some idea of what this evidence would include.
Controversially, the statement cited polling data from the Center for Security Policy. The Southern Poverty Law Center, which lists the CSP as an extremist group, noted that the poll in question had been debunked upon its release months earlier. But courts often rely on the affidavit of a government or military official stating the existence of a threat and the means required to counter it, without reviewing the quality of the underlying evidence. Nearly mirroring the military authorities' judgments to which the Supreme Court deferred in the Japanese Internment cases ("that there were disloyal members of that population, whose number and strength could not be precisely and quickly ascertained" and that the urgency of the situation demanded a curfew and subsequently internment), Trump's statement declared that large segments of the Muslim population have a great and violent hatred of Americans, and a ban on Muslims entering the country is necessary "[u]ntil we are able to determine and understand this problem and the dangerous threat it poses..." Recast as the sworn statement of a government official, these conclusions are the evidence that our highest court has, at least in the past, adopted as its factual findings.
In adjudicating whether national security measures are justified, Mark Tushnet explained, “courts implicitly rely on the good faith of executive officials.” But it is impossible for a bullshitter to act in good faith. The bullshit will likely seep unchecked into judicial fact-finding and threaten to derail the judiciary’s ability to determine whether a national security measure is justified.
This challenging moment for our nation comes precisely 150 years after the Supreme Court’s landmark decision in Ex Parte Milligan. With no small measure of chutzpah, Justice David Davis held President Lincoln to account for overstepping the boundaries of executive emergency power and thereby interfering in the judiciary’s ability to carry out its duties. Our nation, he wrote:
has no right to expect that it will always have wise and humane rulers, sincerely attached to the principles of the Constitution. Wicked men, ambitious of power, with hatred of liberty and contempt of law, may fill the place once occupied by Washington and Lincoln; and if this right is conceded, and the calamities of war again befall us, the dangers to human liberty are frightful to contemplate.
Those dangers to liberty are indeed frightful to contemplate, but contemplate them we must. Our judiciary stands vulnerable to the coming tsunami of bullshit from the executive branch. It is our patriotic duty to guard our courts and bear witness.