Thursday, February 16, 2017
Whittington on Trump and the courts
This Balkinization piece by Keith Whittington. I have been trying to figure out why Trump's comments about the judiciary have rankled, especially given my (newfound) adherence to departmentalism. Keith's answer is that they are content-free and rest on a rejection of judicial authority (and an attempt to scapegoat judges for whatever might happen in the future), rather than a substantive critique of why the judiciary, while authorized, was wrong.
To be fair to Trump, he actually has substantively criticized the injunction in Washington v. Trump. In remarks given the morning after oral argument in the Ninth Circuit, he rather colorfully and, I thought, not entirely unpersuasively, read from the statute that gives him authority to bar classes of aliens from entry if he finds their entry would be detrimental to the interests of the country, and opined that the courts (including the Ninth Circuit in the oral argument) just weren't paying attention to this statute. Academic criticisms of the Ninth Circuit's order have gone along similar lines. It's true that Trump has also said more unreasoned things on Twitter, but that's Twitter for you. As for a rejection of judicial authority, isn't he following the injunction? Isn't "not worthy to be called a judge" a more viable reading of "so-called judge" than "this judge has no authority over me (yet I follow his orders anyway)"? Here's a transcript of his remarks:
Posted by: Asher Steinberg | Feb 16, 2017 4:34:16 PM