In coming days and weeks, much of the discussion about President Donald Trump’s new travel ban will focus on its similarities and differences from its predecessors and what those mean for its avowed constitutionality and statutory basis. And rightly so. For the moment, though, it’s worth pausing to reflect on what its very issuance means for this President’s relationship to the courts. As with other signature Trump activities, from the pardon of former Sheriff Joe Arpaio to the practices of the Presidential Advisory Commission on Election Integrity (a.k.a. the “Pence-Kobach Commission”), the issuance of a new travel ban just weeks before the Supreme Court was scheduled to hear oral argument on the last one may sit uneasily with one’s sense of proper Executive Branch respect for the judiciary. Yet, just as with those other matters, there are ways to see the timing of the new travel ban as cause for special concern about this White House’s approach to the courts, and ways to see it as fairly ordinary Executive practice. It’s important to spell out these different views and to consider why, at this point, each could be valid.
Let’s start with the new travel ban itself. There’s one sense in which Sunday’s new presidential “proclamation” is deeply worrisome when considered in the context of judicial review of Executive Branch actions. Since the very day on which the first travel ban was issued, there has been extensive litigation about whether it, and then its successor, were lawful. And, at last, the highest court in the land was going to serve, as it so often does on critical issues of Executive authority, as the final word—“not final because we are infallible, but . . . infallible only because we are final,” in the famous words of Justice Robert Jackson. Now, it seems as if the Trump Administration has snatched that finality away from all of us. Don’t we all deserve to know whether this centerpiece of Trump’s campaign and the first several months of the Administration was or was not a lawful exercise of his authority? What about the many lives disrupted by the first and second iterations of the travel ban—don’t those individuals deserve their day in court? What if the newest travel ban is successfully challenged and, again, on the eve of the Court’s assessing its legality, the White House were to roll out something new and purportedly different enough to moot the challenge, as the Administration seems likely to argue that Sunday’s proclamation does for the current challenge? (Whether the Court accepts that argument is, of course, an open question for the moment, though it’s a distinct possibility.) All told, there are ways to tell the story of Sunday’s issuance as a sign that, even if the Trump Administration does not intend to flout decisions of the courts outright, it does seek to avoid giving the Supreme Court the chance to declare key Administration actions unlawful.
But there are other ways to tell the story, too. First, the previous travel ban was explicitly “temporary” and therefore set to expire at some point. There was, of course, no obligation on the part of the Administration to renew it simply to preserve the possibility of judicial review. Indeed, one might see the most recent alteration as a triumph of litigation and the adverse judgments of lower federal courts, even if the replacement may offer new fodder to challenge in its own right. But the Administration had to do something upon expiration, and so it chose to make some changes, at least purportedly based on new information and activities that arose in the interim. Second, even if the Administration made the change in part to avoid the Supreme Court’s review of the earlier ban, that’s hardly a stark departure from previous Executive practice. To give just one example, it’s hard to imagine that imminent Supreme Court arguments didn’t hasten the Obama Administration’s efforts to resettle certain Uighurs held at Guantanamo Bay, thus avoiding the Court’s review of thorny questions associated with their detention and resettlement. Indeed, it’s a typical strategy of Executive Branch lawyers to avoid potentially adverse rulings from any federal court, especially the Supreme Court, and that hasn’t been seen traditionally as an improper approach. And, yes, aggrieved plaintiffs generally deserve their day in court, but they do not necessarily get it in the Supreme Court. All told, there’s a way to view Sunday’s issuance of a new travel ban as consistent with what the White House had always said about its travel ban’s status; with the impact of lower court rulings to which the Administration had adhered, however begrudgingly; and with traditional Executive Branch lawyering.
So, one is inclined to look to other examples to assess how much we should worry about this President’s evading and potentially even defying the judiciary. Yet, there are similarly competing stories that can be told about other key examples.
Take the President’s pardon of Arpaio. It too can be argued either way. I’ve written elsewhere that this is, at a minimum, no ordinary pardon—that it takes direct aim at a pronouncement on constitutional rights by the federal judiciary and that it deserves at least heightened scrutiny for that reason. Viewed in this light, the pardon is, like the issuance of a new travel ban, a way for Trump to ignore the judiciary: in the case of the travel ban, by pulling it out from under the Supreme Court’s nose before it can inspect it; in the case of Arpaio, by declaring that he was “doing his job” when one federal judge had found him to be violating constitutional rights and another had found him guilty of criminal contempt for persisting in such violations.
At the same time, there’s another story that could be told, in which any pardon is, in effect, a second-guessing of a judicial determination, whether before or after it’s actually been rendered. That’s when a pardon is issued, after all: when a President elects not to leave a final determination of punishment to a court. While there are reasons that the Arpaio instance may be distinctively troubling (which I explore in the other piece), the key point here is that, again, we’re left uncertain about how to understand it in terms of Trump’s relationship to the federal judiciary. Should we view the Arpaio pardon as a Trumpian defiance and disrespect of the courts or as a relatively traditional exercise of Executive prerogative, perhaps simply unfortunate in how Trump chose to wield and describe it?
Or take the recent revelation that the Pence-Kobach Commission flatly disobeyed a previous pledge to share with the public all relevant records before the Commission’s first meeting. The Commission’s Executive Director had promised to make the Commission’s records public; but it failed to do so, including documents discussed by Commission members at the first meeting and even a PowerPoint presentation that the Commission’s staff has acknowledged it knew would be shared at the session. When a federal judge admonishes the Executive Branch that “you didn’t live up to the representations” made before a much-anticipated meeting, there’s good reason to worry that the Commission isn’t operating on the level, despite the massive amount of litigation that’s been brought precisely to increase the transparency associated with its activities. (To be clear, this concern is directed at the Commission itself—not at the able and long-serving Justice Department lawyers who had to bear the judge’s wrath.) At the same time, perhaps these misrepresentations were, as the Administration has subsequently alleged in court, simply growing pains for a new Commission. On that view, whatever other concerns the Commission may raise, these particular mistakes were not so much an example of deliberate misrepresentations to the public and to the judiciary as a symptom of more mundane, organizational disarray.
All in all, what should we make of these early examples of Trump’s relationship to the judiciary? I’m reminded of the answer that Zhoi Enlai purportedly gave to Henry Kissinger when Kissinger asked for Enlai’s assessment of the French Revolution: “too early to say.” One could imagine further evidence emerging over coming months that points toward a firmer conclusion in one direction or the other. For example, accounts of the White House’s decision-making calculus on these and other issues may emerge, tipping the scales. Moreover, if a growing set of data points appears to fit a single explanation—defiance of the judiciary, at least of a sort—that explanation will grow more compelling. Until we reach that point, however, we remain uncertain, not knowing which account is right, and not knowing just how much we should worry about the extent to which this Administration intends to accept or challenge the integrity of our nation’s courts.
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