//  4/26/17  //  Quick Reactions

I've just published an op-ed in The Guardian discussing yesterday's sanctuary city ruling.  I emphasize the continuing importance of taking President Trump at his word, even as efforts to save his executive orders from his weets inevitably push Trump's defenders to come up with new and creative reasons for ignoring Trump's public statements:

Welcome to the age of presidential sabotage. Since assuming office, President Donald J Trump has shown little inclination to “take care that the laws be faithfully executed”, as commanded by the US constitution. Instead, he has openly declared his intention to wreak havoc in key programs . . . 

[The sanctuary city case] wasn’t the first time, and it surely won’t be the last, that courts are asked to take Trump at his word. In many cases, Trump’s word may spell doom for his policies, given his comfort with tweeting forbidden motives and threatening opponents. In important constitutional and administrative cases, courts will have to reckon like never before with well-supported attacks on presidential motive and intent. Presumptions of deference, good faith, and regularity will certainly come under unyielding strain. While Barack Obama’s public statements were sometimes used against him in court, the sheer frequency and relevance of Trump’s public comments on so many issues will dramatically raise the stakes.

Trump’s defenders will thus have no choice but to argue that we just can’t take Trump at his word. They’ll insist that his campaign statements are uniquely off limits; that his motives are endlessly mysterious; that he’s just engaging in public and political advocacy; that formal doctrines forbid any judicial inquiries into motive; and that his statements are unrelated to policies and decisions issued by other parts of the executive branch. And they’ll impugn judges who take Trump seriously, as White House chief of staff Reince Priebus did in describing Judge Orrick’s ruling as “bananas”.

As the nation reels under the onslaught of one tweetstorm after another, punctuated by incendiary interviews, it’s easy to grow desensitized – and to conclude that Trump’s words mean nothing, either to him or to anyone else. Professor Laurence Tribe accurately captured the lurking danger here: “[A] constant, unyielding, numbing fire hose of complete and utter bullshit – some of it barely intelligible – that engulfs Trump and everyone around him in a suffocating, disorienting haze that blurs the boundaries of truth and all but eviscerates the very notion.”

That impulse is understandable, but must be resisted at all cost. While Trump seems dead set on sacrificing his credibility, so that he may speak without legal consequence, the fact remains that he is president of the United States. His words are deeds, and that is nowhere more true than alongside executive orders.

Everything he says and does can shape our national destiny. He holds lives in his hands. No matter how overwhelming the flood of improper statements, Trump is the president. Every word matters. Every word must be taken seriously. Especially in this era of presidential sabotage, the rule of law means little if the president’s word means nothing.


Korematsu And The Entry Ban (Again)

2/4/19  //  In-Depth Analysis

Recently revealed errors in the report that the administration created pursuant to the second entry ban further underscore the parallels between Korematsu v. United States and the entry ban.

Leah Litman

U.C. Irvine School of Law

The National Emergencies Act Is Not a Blank Check

2/1/19  //  Uncategorized

The National Emergencies Act doesn't give the President unlimited power to declare a national emergency even when no emergency exists

Brianne J. Gorod

Constitutional Accountability Center

Revisiting The Presumption of Regularity

1/28/19  //  Commentary

Subsequent events have made clear that courts were--and are--right to recognize that all is not regular in the executive branch.

Leah Litman

U.C. Irvine School of Law