Lawfare Blog: The Revolt of the Judges: What Happens When the Judiciary Doesn’t Trust the President’s Oath
Our point here is not that the district judges are clearly wrong. It’s merely that they are not clearly right—on a whole lot of points. And in the face of real legal uncertainty as to the propriety of their actions, they are being astonishingly aggressive. It is not, after all, a normal thing for a single district judge to enjoin the President of the United States nationally from enforcing an action that the President contends is a national security necessity, much less an action taken pursuant to a broad grant of power by the legislature in an area where strong deference to the political branches is a powerful norm. And it really isn’t a normal thing for multiple district judges to do so in quick succession—and, moreover, to do so in the face of substantial uncertainty as to the actual parameters of the constitutional and statutory law they are invoking and powerful arguments that they are exceeding their own authority.
So what’s going on here?
One possibility is that we’re dealing with a bit of a fluke. The President behaved very badly, not merely in issuing a grotesque policy in a grotesque fashion but then in attacking the judges tasked with hearing the litigation his conduct spawned. In this understanding of what is happening, some—but not all—judges are responding overly emotionally and are going out on any number of legal limbs in response in their attempts to bat Trump back. Notably, even Bybee’s otherwise scathing dissent pushes back quite hard against “the personal attacks on the distinguished district judge and our colleagues,” which, he writes, “were out of all bounds of civic and persuasive discourse” and “treat the court as though it were merely a political forum in which bargaining, compromise, and even intimidation are acceptable principles.”
If this reading is correct, we can expect something of a reversion to more normal judicial behavior as larger number of higher-level appellate judges get involved and more time elapses, particularly if Trump is able to show some modicum of self control over the coming weeks and months. (This is admittedly a very big if—especially given Trump’s intemperate comments yesterday evening.) If this is what we’re dealing with, expect Trump to begin prevailing as more appellate courts begin dragging the lower courts back towards more conventional legal analyses.
A second possibility is that these judges, while indeed somewhat ahead of the state of the law, are correctly anticipating its directional momentum. In other words, perhaps we are experiencing one of those shocks to the system that punctuates the equilibrium of a certain body of case law; that is, maybe Trump’s behavior is forcing a reevaluation of both the application of the Establishment Clause to visa issuance and the scope of deference the courts owe the president on certain national security-inflected immigration matters. Robert Loeb made a similar point on Lawfare earlier today, arguing that the two executive orders “threaten to undermine the broad judicial deference that has applied to the Executive in the immigration context for more than 100 years.”
But also there is a third possibility, and we should be candid about it: Perhaps everything Blackman and Margulies and Bybee are saying is right as a matter of law in the regular order, but there’s an unexpressed legal principle functionally at work here: That President Trump is a crazy person whose oath of office large numbers of judges simply don’t trust and to whom, therefore, a whole lot of normal rules of judicial conduct do not apply.