Regarding the importance of the Presidential oath of office, Benjamin Wittes and Quinta Jurecic on Lawfare continue their discussion, noting we may be seeing the evolution of an entirely new body of law in which the person, and not just the role, is in play during judicial reviews:
In this scenario, the underlying law is not actually moving much, or moving or at all, but the normal rules of deference and presumption of regularity in presidential conduct—the rules that underlie norms like not looking behind a facially valid purpose for a visa issuance decision—simply don’t apply to Trump. As we’ve argued, these norms are a function of the president’s oath of office and the working assumption that the President is bound by the Take Care Clause. If the judiciary doesn’t trust the sincerity of the president’s oath and doesn’t have any presumption that the president will take care that the laws are faithfully executed, why on earth would it assume that a facially valid purpose of the executive is its actual purpose?
In this scenario, there are really two presidencies for purposes of judicial review: One is the presidency when judges believe the president’s oath—that is, a presidency in which all sorts of norms of deference apply—and the other is a presidency in which judges don’t believe the oath. What we may be watching here is the development of a new body of law for this second type of presidency.
This, we suspect, is the true significance of all of the references in both district court opinions to the many statements made by Trump and his aides about the Muslim ban and the true purpose of the policy effectuated in both orders. These references present, of course, as discussions of whether there is truly a secular purpose to the policy in an Establishment Clause analysis using the Lemon test. But there’s at least a little more going on here than that. The lengthy recitations of large numbers of perfectly objectionable presidential statements about Muslims coexist with a bunch of other textual indicia showing not merely that the judges doubt Trump’s secular purpose but that they doubt the good faith of his purpose at all—indeed, that they suspect that he is simply lying about his own motivations.
Perhaps an unanticipated move by the judiciary, but it does seem logical. The erratic behavior of Trump during the campaign and, more importantly, since his victory in the Electoral College, has been alarming – and it’s not been just a media thing, I suspect, for the judiciary, but a real What The Hell Is This? moment.
So, if Benjamin and Quinta are correct, what does this presage for the future? Will the character and publicized utterances of a President, or other officer of the government, become a regularly pertinent facet in court cases? Will the judiciary come to a collective, informal conclusion concerning the trustability of the President & other officers during judicial reviews of the Executive Branch? And will this lead to a political polarization of the judiciary, or will their loyalties be largely to the judiciary rather than the political party which happened to appoint them? I suspect that as the political parties become cognizant of a new body of law, they will redouble their attempts to control the judiciary – although this would collide with the current urgings to make judges an elective, rather than appointed, position.
So long as we are a tolerant liberal democracy at heart, we can hope for a judiciary that remains loyal to its own ideals. But if we continue down the path of mutual intolerance, where the vendetta against “liberal” continues largely unrebuffed by the conservative community, where the worst tendencies of religious sects are uncurbed and even nurtured by congregants distrustful of education and expertise, and where, on the other side, the loathing and disdain for their political opponents by the progressive community leaves me cold and unsympathetic to their position … where was I going with this? Oh, yeah, I was getting a bit pompous. And, honestly, I grew up in an era where the intolerance of both sides was primarily a fringe phenomenon; I suspect, if you look through American history, you see a lot of this sort of thing, and we’ve mostly survived it – with the ugly volcanic exception of the Civil War.
So now we’re going through another period of religious dominance and political intolerance. Hopefully, the lessons of such soft-minded indulgences are not lost on the new generations, who’ll use them to relearn the lesson of mutual tolerance and trust which makes us a great nation.
