President Trump signs executive Orders in the Oval Office of the White House, February 3, 2017 in Washington, DC. (Photo by Aude Guerrucci – Pool/Getty Images)
I reacted with dread to the title of a USA Today story that recently popped up in my email inbox: “Trump Tries Little-Known Legal Tactic To Protect Controversial Executive Orders from the Courts.” What now, I thought; what now?
So I read on, preparing myself for outrage. It turns out that President Trump has, according to USA Today‘s account, included in eight executive orders severability clauses—provisions making clear that, if a court strikes down part of a legal document, the other parts should still be honored and enforced. That’s almost as many, USA Today continued breathlessly, as the ten that President Obama inserted in executive orders in his entire eight years in office.
Now I could let out a sigh, as the story’s headline was turning out to be misleading. Severability clauses aren’t “little-known” in legal practice—to the contrary, as the article itself acknowledges, “[s]uch provisions are commonly found in contracts and legislation,” and every law student knows about them. They’re not really a “legal tactic,” at least in any devious sense, as they’re simply clarifying language frequently included in statutes, contracts, and–as it were–executive orders. And they don’t actually “protect controversial executive orders from the courts,” as courts are still free to strike down any and all parts of an executive order deemed to merit such treatment. All that severability provisions actually do is offer a default guide to how courts should handle the stuff in legal documents that’s still “okay” once the problematic portions have been discarded. In other words, courts can still reject an executive order in its entirety, even with a severability clause; courts could have read in severability, even without a severability clause; and the inclusion of such a clause simply makes explicit what might otherwise be an implicit—and in some circumstances obvious—preference for how the Executive Branch would want the issue of severability treated.
There is, to be sure, a lot to be concerned about these days when it comes to our Constitution, laws, and norms. I’ve shared previously with Just Security readers my own serious concerns about the state of our constitutional values under the Trump Administration, from worries about President Trump’s infringement on free expression to agitation about President Trump’s apparent willingness to consider sending a lawful permanent resident from U.S. soil to Guantanamo to—just last week—concerns about President Trump’s infringement on the values of the First Amendment’s Establishment Clause. And, of course, there’s a lot more worth worrying about as well, perhaps most obviously what will emerge from the Special Counsel’s continuing investigation into links between Trump’s team and Russian election meddling.
But we simply can’t be outraged about everything, all of the time—even and perhaps especially in the era of Trump. It’s not healthy, and more importantly it can be counterproductive by drowning out the really big concerns with the picayune ones. Using severability clauses in executive orders faster than his predecessor did isn’t inherently suspicious, and frankly it doesn’t mean, as the USA Today story suggests, that Trump somehow thinks his executive orders are doomed once challenged in court. Instead, it just seems like the increased–and not even unprecedented–importation of a standard practice from statutes and contracts to executive orders. It’s sensible, not desperate, legal craftsmanship. Such legal devices do not rock the separation of powers; they engage it.
Just because it’s Trump doesn’t make it a constitutional crisis. Sometimes we just need to take a deep breath. So, as we reflect on 2017—and, to be sure, it’s been quite a year—let’s use the inevitable series of year-end retrospectives to focus on what really matters.