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Saturday, February 18, 2017

Richard Primus Guest Posts on Public Opinion and Presidential Disregard of Judicial Decrees

[The following is a guest post from Richard Primus, my friend and former colleague]

Last week, when Public Policy Polling released a survey showing that 51% of Trump voters think he should be able to overturn judicial decisions with which he disagrees, I expressed concern on Twitter. I’m not usually given to alarmism, but Trump’s repeated attacks on judges, combined with his general bullying style and his relative lack of regard for constitutional limits, make it necessary to think about scenarios in which he might try to rule as a presidential strongman, unchecked by judicial enforcement of the Constitution. To be sure, even in the present circumstances I think that the extraconstitutional-strongman scenario probably won’t materialize. But—and I never imagined saying this about the United States until sometime last year—I do now think the likelihood of that scenario is no lower than fifteen percent. A fifteen percent probability of something that disastrous seems high enough to be taken very seriously. Here’s a story, playing on a theme suggested by Jack Goldsmith, about how that scenario might come about: after the Administration negligently degrades American intelligence, a foreign terrorist group launches a major and successful attack within the United States, whereupon Trump blames the judges, insists that he will no longer let them stand in the way, and directs the armed forces and the Executive Branch generally to ignore judicial authority. Any such attempt would be significantly facilitated if large numbers of Americans were ready to cheer the President on. So the finding that half of Trump supporters already endorse the view seemed troubling.

My friend Rick Hills tweeted a response to my concern, saying that there was nothing to see here. There had been similar survey findings back in the 1950s, he said, and probably also since. But on closer scrutiny, this seems not quite to be the case (as Rick and I both concluded after joint investigation). There have been many polls showing that large numbers of Americans have little regard in practice for civil liberties—polls showing, for example, little tolerance for the free speech rights of Communists, or athiests, or anti-American Muslim clergy. But neither Rick nor I could locate a pre-2017 poll in which half of the people who voted for the sitting President (or anything remotely approaching such a large percentage of the population) addressed the structural check-and-balance question itself and said, as a general matter, that the President should be able to roll over the courts. So I persist in thinking that this phenomenon is new. And dangerous.

Given the expert audience for this post, I should address a couple of objections to my view that might occur to elite lawyers. Here’s one: some will contend that it’s not alarming for people to say that the President should be able to overturn judicial decisions, because in fact our legal system already authorizes the President to do that, or to do the practical equivalent of that, in certain circumstances. Think of the Chevron context. If a court reads a statute whose mandate is to be implemented by an executive agency one way, and the President thinks it should be read another way, and the agency (under the President’s influence) announces an interpretation of the statute that conforms to the President’s desired reading, the courts will probably defer to the agency’s reading, at which point the President will have successfully overcome the court’s initial reading of the statute. But this and similar examples of presidential countermoves to adverse judicial rulings are not really helpful in thinking about the meaning of last week’s poll. For one thing, the Chevron dance is a process well within our system’s ordinary legal rules. It has been sanctioned, and is policed, by the courts themselves. No less importantly, I’ll eat my syllabus if one out of a hundred poll respondents was thinking about Chevron or anything like it. What the survey means is that half of Trump voters think the President should be able to disregard full-on constitutional rulings like the one Judge Robart issued days before the poll was conducted.

Another possible attempt to deflect the significance of the poll runs like this: maybe the poll simply means that many Trump supporters agree with some form of departmentalism in constitutional interpretation, and departmentalism has much to be said for it. It’s certainly true that departmentalist ideas kick around constitutional discourse, especially among professors. In my own introductory con law course, I expose my students to departmentalism and ask them to think about its virtues and vices. But whatever appeal departmentalism has in the academy, modern American law has nothing like a practice of Presidents actually saying “A court said this was unconstitutional, but I disagree, so I’m going to do it anyway.”

There’s a stock set of examples that people give of prominent presidents—FDR, Lincoln, and Jackson—saying departmentalist things. But it adds up to relatively little, both as a historical matter and even more clearly as measured by its significance for constitutional law today. FDR is reported to have said in private that he wouldn’t hand over German saboteurs even if Ex parte Quirin went against him. But he didn’t say it publicly, and he never actually disregarded a judicial order. Jackson’s famous (if perhaps apocryphal) remark about what John Marshall could enforce after Worcester v. Georgia is also not on point. Yes, Jackson declined to enforce a judicial order running against a state government, and yes, his statement indicated a certain contempt for judicial authority. But Jackson did not actually flout a judicial order: the Worcester Court did not ask Jackson to enforce anything, so his not enforcing the decision was not a refusal to abide by a judicial mandate. Moreover, even if Jackson had somehow acted in contravention of judicial authority by not enforcing Marshall’s ruling, there would still be an important distinction between declining to enforce an order against a third party and the Executive Branch itself persisting in a course of conduct that the courts deemed unconstitutional. And the other standard example of Jacksonian departmentalism—the Bank veto—is even further off the mark. Yes, Jackson deemed the Bank unconstitutional even though the Court in McCulloch had declared it constitutionally permissible. But a governmental decisionmaker is always free to decline to do something that the courts say would be all right to do. In vetoing the Bank, Jackson was not refusing to cease doing something that the Court had declared constitutionally prohibited. He was doing something more like what Congress has done, every day in the last three decades, by not imposing a military draft. The action at issue is constitutionally permitted, and a political branch decides not to do it. Nothing to see here.

That leaves Lincoln, and in particular it leaves the 1861 cases of Ex parte Merryman and United States v. Porter. In Merryman, Chief Justice Taney (by himself, riding circuit) ordered the commandant of the fort where John Merryman was being detained on treason charges to comply with a writ of habeas corpus directing that Merryman be brought to court for a hearing on the validity of his detention. (In the department of things one cannot make up: the court clerk who issued the habeas writ was a Mr. Spicer.) The relevant military officials, who were answerable to Lincoln (and who may or may not have been acting on Lincoln’s instructions), did refuse to obey a judicial command. Porter similarly involved a refusal to comply with a habeas writ, and it seems more clear in that case that Lincoln himself ordered his officers to refuse to acknowledge the writ’s authority. So I suppose it did happen once or twice, more than a hundred and fifty years ago. But we should be cautious about overestimating the degree to which a President flouted judicial authority even in these cases. For example, and to the extent it matters, both orders were from lower courts. Perhaps more significantly, Taney’s substantive beef with Lincoln in Merryman was over whether the President had the power to suspend habeas corpus unilaterally or whether that power lay with Congress—and when Congress came into session six weeks after Merryman was decided, Lincoln asked Congress to suspend the writ, and it did. And then there’s also the small matter that we’re talking about whether Abraham Lincoln, in the first weeks of active fighting during the Civil War, was going to be punctilious about an order from the man who wrote Dred Scott. So if these cases are the best historical precedents for strong Presidential departmentalism, the case for such a practice remains pretty thin.

But now pull the lens out a bit. There’s a larger point to be made about the recitation of the canonical list of historical hints at the strong form of Presidential departmentalism—the one where the President asserts the authority to do something the judiciary has ruled invalid. It’s this: the actual institutional arrangements of American government in the late 20th and early 21st centuries are rather different from the arrangements of the 1830s, or the 1860s, or even the 1940s. After World War II, the federal courts assumed a more important role in checking the Executive than the one they played early in American history, partly in response to the Executive Branch’s becoming vastly more powerful than it had even been before. So even if legendary Presidents engaged in a certain practice long ago under substantially different circumstances—and to repeat, they pretty much didn’t—it would not follow that President Trump could do so today without threatening the going system of constitutional checks and balances.

In the end, I am comforted neither by the possibility that the voters who said Trump should be able to override judicial decisions might have been thinking of Chevron nor by the idea that Stephen Miller is really just a twenty-first century retread of Abraham Lincoln. Trump is not like prior Presidents, and the current moment is different from earlier times. Trump in office is dangerous; Trump in office backed by large numbers of Americans who think Trump should be able to override the system of checks and balances is more dangerous still. If we imagine that the situation actually presents no greater danger than we’ve seen many times before, we do so at our peril.

Posted by Rick Hills on February 18, 2017 at 01:06 PM | Permalink

Comments

Thanks for that very interesting post . Many complications , but just to add some few more considerations :

And first , the courts , wouldn't hesitate to order Trump , not to breach or violate international norms or conventions . This is a problem . Especially when dealing with " jus cogens " means: customary international law has to do with absolute prohibitions, no matter whether prescribed or ratified by conventions ( like : torturing , genocide and so forth ) . Take for example his statement, during the election campaign, that he would adopt torture as a practice for the sake of the national security. This is forbidden whatsoever , let alone , while the US is party to the convention against torture .

Well , one may suggest that the real issue of potential divergence , has to do mainly with national security . But one should not forget , the 9th circuit hasn't prevailed really on the merits ( national security ) but : balancing and considering provisional harm of the states Vs. provisional harm to the federal government . So, the real one, yet to come, surly with the new EO prepared these days by Trump.

Finally, The respectable author of the post, has insisted on courts and government, less on the people of the American nation. The constitution , overwhelmingly is considered as almost sacred document , inviolable one !! Yet , maybe the poll presented , has triggered response concerning national security , not general violation of the constitution as a way of governing . Needs to be checked more intensively .

Thanks

Posted by: El roam | Feb 18, 2017 6:14:21 PM

Unless I am mistaken, despite his bluster, President Trump obeyed the order and is drafting a new EO to try and conform to the 9th Circuit decision. Let's also not forget that another Judge, in Massachusetts, did not grant the TRO so its not as if there is unanimity of opinion on its validity. Which brings me to my main point. The public at large has a hard time understanding the Jerome Frank view that all that matters is who the judge is. There is a statute, or the Constitution for that matter, and yet educated, intelligent lawyers can't agree on what it means. That leads the public to believe that its all politics and political viewpoints. Ultimately when the Supreme Court in matters of great public interest comes out 5 to 4 the public becomes cynical about the law and judges. One of the great failings of the Supreme Court is that they have a difficult time arriving at consensus and seem to decide along ideological lines. Brown v. Board as a unanimous decision enhanced the Court, while Roe and Obergefell, no matter whether one agrees with the ultimate outcome, led to increased polarization and cynicism. Justice Roberts when appointed said he wanted to increase consensus. That hasn't worked out so well. So the answer is either the Justices need to try and do a better job in reaching consensus, or we need to do a better job educating the public about why a lack of consensus doesn't mean the system is flawed.

Posted by: sam tenenbaum | Feb 18, 2017 11:49:01 PM

I neglected to add we already were there as a country in US v Nixon an 8-0 opinion. Imagine the havoc had it been 4-4.

Posted by: Sam Tenenbaum | Feb 19, 2017 12:40:02 AM

Richard: There is at least one other case in which a President himself (Andrew Johnson) did direct executive officials to disregard a court order -- an order that would have prevented an execution later that day. He did so by "especially" suspending the habeas writ in that particular case, after the judge had issued the order for the prisoner to be brought to court to have her constitutional claim adjudicated less than three hours before her hanging. See pp. 66-68 of

https://papers.ssrn.com/sol3/papers2.cfm?abstract_id=2854195

Posted by: Marty Lederman | Feb 20, 2017 7:44:42 AM

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