//  5/8/17  //  In-Depth Analysis

What follows is based on remarks I recently gave at the Seventh Circuit Judicial Conference, regarding “President Trump and the Future of the Supreme Court.” This post addresses the issue of judicial deference to President Trump; tomorrow, I’ll address judicial appointments. The question of judicial deference is core to how courts approach challenges to particular Trump policies, including the subject of today’s Fourth Circuit oral argument: Trump’s Travel Ban. The judicial decisions, briefs and commentary to date make clear that the case against Trump is persuasive in this context. In my comments at the Seventh Circuit Judicial Conference, I addressed the question of deference to Trump more generically and sought to make at least a preliminary case that, across contexts, Trump has forfeited some measure of the deference courts typically afford to Presidents.

President Trump featured in his hundred-day accomplishments the fact that he has issued a large number of executive orders. His thirty executive orders surpassed the numbers he listed for Presidents back to FDR – and several provide fertile ground for legal challenges. More than President Trump would like, Judges appropriately and closely have scrutinized his travel bans and sanctuary city policies, declining simply to accept his unsupported views on the national security threat posed by undocumented immigrants and looking to statements by him and others relevant to motive and meaning.

Today, I’d like to move beyond those strong initial judicial opinions and suggest we consider a more general proposition: Trump’s extraordinary – indeed, unprecedented – behavior more generally means that he is not due the deference traditionally afforded presidents. I feel confident that we all are hearing and thinking a great deal about Trump’s attacks on the courts and individual judges and his numerous false statements, including many about national security that reflect and foster prejudice and hate.

It is time to ask: Has Trump in effect forfeited some measure of judicial deference across contexts and cases, through his disrespect for the courts and the rule of law and his displays of prejudice and arbitrary decisionmaking? And if he has not yet reached that point, what more would it take?

First, an important preliminary question: is Trump truly exceptional in relevant ways? Some suggest comparisons to President Andrew Jackson—including Trump himself, who has hung Jackson’s photo in the Oval Office. Coincidentally, I recently heard presidential biographer Jon Meacham question the comparison. Meacham authored a Pulitzer Prize-winning biography of Jackson and recently completed a biography of President George H.W. Bush. He shared this story: in anticipation of Trump’s recent trip to Nashville to visit the Hermitage and honor Jackson, Meacham published in his local paper a public letter to Trump suggesting ways in which Trump actually might benefit from following Jackson’s example. The day after the story ran, Meacham got a call from George H.W. Bush. As Meacham described it, Bush opened by saying he had read Meacham’s open letter to Jackson. Meacham was a bit worried about the elderly Bush’s misunderstanding. He thanked him for the call and offered the gentle correction that the letter was addressed to Trump. Bush replied quickly: I think Jackson is more likely to read it.

Back to judicial deference. As every law student is taught, when courts review congressional and executive action, they often use standards and doctrines of deference. One way to think about it – an oversimplification – is that courts defer to political actors, except when there is good reason not to defer. Clear examples of when deference is not appropriate occur when, in the Court’s words, “a statutory classification … proceeds along suspect lines” or “infringes fundamental constitutional rights.” At the other extreme, deference may be especially appropriate where the Constitution confers special authority to the President or to Congress or to the political branches together, which traditionally has included matters of national security, war powers, and foreign affairs.

An historic example in which the Supreme Court almost unquestionably was correct to find deference warranted is the landmark 1819 decision in McCulloch v. Maryland. There, the Court famously viewed congressional authority broadly and deferentially because “we must never forget that it is a Constitution we are expounding ... a Constitution intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs.” McCulloch also relied upon the political branches’ prior consideration of the question, and its opening paragraphs approvingly referenced consideration “in the executive cabinet, with as much persevering talent as any measure has ever experienced, and being supported by arguments which convinced minds as pure and as intelligent as this country can boast.”

The musical Hamilton wonderfully reminds us that the “pure” and “intelligent” minds referenced in this passage describe President Washington asking his Cabinet for their assessment of the constitutionality of the national bank, which Hamilton fans may recall leads to a musical number in the tavern in which Alexander Hamilton, Thomas Jefferson, and others rap it out.

Spoiler alert: Hamilton wins.

Rarely does presidential decisionmaking reflect such venerable expertise. Much detail behind executive actions is kept confidential for good reason, particularly when national security is involved. (It’s important to note that federal legislation including the Administrative Procedures Act subjects some executive branch action to valuable transparency and accountability regarding the procedures and facts that inform executive branch action.)

But judicial deference generally embodies assumptions that the president’s actions reflect regular processes behind-the-scenes, that the decisions are informed by expertise and judgment and are made in good faith. At a minimum, deference reflects that we ordinarily have a plausible basis for believing that presidents are not making decisions arbitrarily, in bad faith, or on the basis of impermissible motives.

In modern times, the Attorney General relies upon the office in which I served, the Office of Legal Counsel (OLC), to advise within the Executive Branch on the legality of action under consideration, and to assist the President in his responsibility to “take Care that the Laws be faithfully executed.” I served at OLC during the Clinton Administration, first as deputy to Assistant Attorney General Walter Dellinger and later as the acting head of the office. In earlier administrations, Chief Justice Rehnquist and Justice Scalia served at OLC. (Full disclosure: shortly after he took office, President Obama nominated me to head OLC, but withdrew that nomination after the Senate refused to schedule a confirmation vote for more than a year.)

In some important respects, OLC functions similarly to a court – which supports the case for traditional deference. OLC enjoys a proud, bipartisan tradition of striving for accurate, untainted legal advice and of telling the President “no” when the law so dictates. The vast majority of OLC lawyers are not political appointees. They are extremely capable, dedicated career lawyers, whose efficacy depends greatly upon presidents and other top officials setting the right tone of commitment to the rule of law. When that is not present and traditional processes and standards for formulating legal advice are not valued, traditional judicial branch deference may result in serious unlawful executive action going entirely unchecked.

One more limited precedent for diminished deference may be found in some post-9/11 OLC legal advice. OLC’s reputation suffered greatly when someone leaked poorly done, ends-driven OLC memos on interrogation that found the president could rely on his Commander-in-Chief authority to order torture, notwithstanding a federal statute prohibiting torture. (The Bush Administration made similar bad claims about domestic surveillance counter to the terms of the FISA statute.) Those memos were harshly criticized, by Democrats and Republicans alike. Even the Bush administration itself disavowed its earlier reasoning in part, under pressure after the leak. Notable among the early critics was a subsequent Bush Administration OLC head (2003-2004), Jack Goldsmith (now Harvard Law professor), who disavowed them despite warnings from White House lawyers that the blood of the next terrorist attack would be on his hands.

I was part of a group of former OLC lawyers who responded to this dangerous aberration by coauthoring a statement of the principles that traditionally guide OLC. Later, President Obama’s acting OLC head (and now federal judge) David Barron authored guidelines that the Trump administration should embrace, so that nonpartisan processes and standards might better withstand illegitimate political pressures.

Many commentators have noted the Supreme Court’s unusually active review of several post-9/11 executive actions in which the Court rejected the Bush administration’s claims to sweeping judicial deference. This episode in our history supports the proposition that, in the demonstrated absence of the traditional important internal checks within the executive branch, less judicial deference may be due.

So what does all this signify for Trump and the deference he and his administration are due in the course of litigation challenging the legality of executive action? Courts attend to reality and context, and they can and should adapt their screens of deference when circumstances so indicate.

Again, the deference courts traditionally afford presidents is premised in part on the plausibility of some basic assumptions that typically go without saying, but that increasingly are implausible in the case of President Trump: that the president’s decisions reflect a respect for the rule of law, are informed by relevant advisors and information, are based in fact, and are in service of the public interest. Through his own actions across issues and in ways without precedent, Trump has eroded the plausibility of belief in even minimal versions of these traditional safeguards against executive action based on bad motive and arbitrary factors. To the contrary, Trump has evidenced a profound disrespect for the judiciary and the rule of law, has repeatedly told us that animus and improper motive infect at least some of his decisions, and often has misled or misstated facts to the public.

Examples are legion and widely known. Just a few: Trump’s false claim that President Obama used our national security apparatus to spy on him illegally (52 percent of Republicans believe that “the Obama administration intentionally spied on Trump and members of his campaign during the 2016 election campaign.”). Trump’s statements attacking the courts and individual judges, including suggesting that judges should be blamed for future violence and putting our country in peril. Trump’s numerous extreme, in some cases blatantly false, anti-Muslim statements. Trump’s irresponsible failure to take seriously financial conflicts of interests. Russian interference in our democracy. Trump’s failure to fill numerous vital positions throughout the administration, including national security and legal advisors. The absence of a confirmed head of OLC, which is particularly harmful given the president’s profound lack of respect for the rule of law.

Jack Goldsmith recently has mused about the impact on the senior executive branch officials who view themselves as working for both the President and the nation/American people: “ What happens when the President turns out to be a serial public liar and a man who attacks (and seems to want to harm) American institutions like courts, the press, and the intelligence community, not to mention allies and alliances?”

For executive branch officials and courts alike, we are in new territory and the right path forward is uncertain. I do think we need to take seriously the possibility that Trump has sacrificed his claim to traditional deference, not only in particular cases where litigants make a special case, but as a general matter across contexts and issues. Given what is known, to do otherwise risks wrong and arbitrary outcomes that, for example, depend excessively on whether Trump and his officials have been unusually circumspect and careful to hide in a particular instance (for a particular policy) what we know to be a general problem.

And in order not to jeopardize executive power more generally and for other presidents in contexts where deference will remain appropriate and important, courts should take care not to downplay or sanitize facts peculiar to Trump that specially shift burdens and diminish the deference due.

This is not to say Trump is powerless to earn back traditional judicial deference, only that he already has dug himself a special hole.

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