We’d be safer for it—but at a cost. When we weaken the administrative state because we are afraid of its concentration of powers, we strengthen the hand of the powerful private players that the agencies are supposed to regulate. In many ways, the growth of the administrative state into a separation-of-powers nightmare has been the result of Congress’s failure to do its job. When Congress doesn’t act in settings crying out for government regulation, the president must step in. When Congress acts by passing absurdly ambiguous laws delegating vast discretion to agencies, the agencies have no choice but to do the best they can. Unless voters compel Congress to fulfill its responsibility to be the sole organ to make new law by enacting thoughtful, relatively precise laws for the agencies to enforce, the cure of negative separation may be worse than the disease of concentrated agency power. In the end, it’s your call, enforceable through the democratic processes through which Congress and the president are elected, and the deferred democratic process through which Supreme Court justices are placed into office.
My seventh-grade-civics version of classical negative separation of powers is dented—but it is not completely broken. The touchstone is still whether there has been an unduly dangerous concentration of powers in the hands of a single branch. Don’t leave it entirely to the lawyers and an opaque process of judicial review to decide how the modern, somewhat dented version of separation of powers should function in the Time of Trump.
8
Applying Separation of Powers in the Time of Trump
Five Test Cases
We’re now at a point where we can assess the thrashings of the current very large presidential bull in the separation-of-powers china shop. This isn’t just an academic exercise. As we’ve seen, we start with a dangerously bloated executive branch far more powerful than the Founders imagined, and a dangerously unstable man wielding that enormous executive power.
Every time Trump crosses the separation-of-powers line and seeks to accumulate yet more unilateral power, he is one step closer to a point of no return where the concentration of power in the hands of an unstable president threatens our constitutional republic. My fear is that craven Republican legislators can’t be counted on to exercise an effective separation-of-powers check. That leaves an informed public and the Supreme Court as the only two games in town.
The following five case studies drawn from the first eighteen months of the Trump presidency—the overwhelmingly Muslim travel ban; the Mueller investigation into Russian interference in the 2016 elections; the setting of immigration policy, especially for the Dreamers and asylum seekers; the status of government regulations designed to protect the environment; and the struggle between Congress and the president over whether to build the Great Wall of Trump—allow us to assess the degree to which powers have remained effectively separated. They also offer opportunities to think about how the Supreme Court, Congress, and average citizens can tighten the separation-of-powers brakes on the democracy train.
THE TRAVEL BAN
As one of his first acts as president, Donald Trump delivered on an ugly campaign promise to bar Muslims from entering the United States. Six days after his inauguration, the new president unilaterally issued an executive order preemptively blocking 180 million nationals of six predominantly Muslim nations from entering the United States as immigrants, tourists, students, or employees. As successful challenges to the Muslim travel ban careened through the lower federal courts, the president scrapped the first, hastily prepared, legally indefensible version and issued successive amended executive orders and presidential proclamations barring Muslims, finally settling on a complex executive order blocking entry into the United States indefinitely by some or all of the nationals of six overwhelmingly Muslim nations—Iran, Syria, Yemen, Chad, Somalia, and Libya—as well as two non-Muslim nations, North Korea and Venezuela.
Understandably, given Trump’s crude campaign statements appealing to religious bigotry about the necessity of closing the border to Muslims, public discussion and criticism of the travel ban centered on allegations of religious bigotry, with little public discussion of the constitutionality of the president’s insistence on acting unilaterally in disregard of limits on presidential lawmaking imposed by the separation of powers.
The president denied that the travel ban was—or is—an act of religious bigotry, insisting that he was seeking to protect the security of the United States by imposing blanket entry bans on travelers from nations deemed at risk of harboring substantial numbers of ISIS, Taliban, or Al Qaeda terrorists, and where reliable information permitting trustworthy individualized screening is difficult or impossible to obtain. Trump’s critics scoffed at his attempt to articulate a religiously neutral explanation, pointing to four factors: the ban’s dramatic, predictable impact on the ability of as many as 180 million Muslims to visit the United States; a series of openly bigoted anti-Muslim campaign statements made by the president promising to close the border to Muslims; the long-standing existence of an effective pre-entry vetting process capable of screening out potential terrorists; and the utter lack of any evidence indicating that nationality correlates with risk of terrorist behavior.
Given his anti-Muslim tirades, I’m prepared to believe that Donald Trump was motivated by religious bigotry when he issued the travel ban. But what if Trump’s motives were an untidy blend of concern over national security, concern over the effectiveness of existing screening procedures, a desire to please his rabidly anti-Muslim base, and a healthy dollop of anti-Muslim bias of his own? As a legal matter, should it be necessary to decide which motive predominated? How can you possibly tell?
In Trump v. Hawaii, five Republican Supreme Court justices (including Justice Kennedy and the newly appointed Justice Neil Gorsuch, occupying the seat that should have been filled by President Obama’s nominee, Merrick Garland) decided to ignore the apparent religious bias at the core of the travel ban and to defer to the president’s other alleged motive—protecting national security. The four Democratic justices dissented.
We’ve already seen how dangerous it is for the Supreme Court to shirk its responsibility to enforce the Constitution by granting excessive deference to the president, especially in the name of national security. Excessive Supreme Court deference to the president is what allowed the United States to place Japanese Americans in detention camps during World War II, to jail the leaders of the American Communist Party during the Cold War, and to wage an undeclared war in Vietnam that killed 60,000 Americans and more than two million Southeast Asians. For each of those cases, the Supreme Court was paralyzed by the word “deference.”
While Chief Justice Roberts, in choosing to ignore the issue of religious bias posed by the travel ban, piously disclaimed reliance on the World War II Korematsu decision upholding Japanese American internment—indeed, he claimed to overrule the appalling precedent—he followed the Korematsu playbook to a tee, deferring to the president’s invocation of national security to uphold a shocking exercise in religious, as opposed to racial, bigotry.
Justice Anthony Kennedy, after casting the swing vote upholding the travel ban 5–4, wrote a valedictory concurrence on the eve of his retirement warning that the Supreme Court must be vigilant in protecting the weak against the religious bias and xenophobic hysteria of the strong. Unfortunately, Justice Kennedy didn’t back up his words with the only thing that mattered: his vote to protect them. In the end, he sounded for all the world like Pontius Pilate washing his hands. It was an unworthy end to a Supreme Court career that warrants our gratitude and respect.
Once the five Republican justices had ducked the religious discrimination issue by giving it a deference-based national-security bath, the powerful separation-of-powers objection to the travel ban became the principal legal issue before the Court. In imposing the travel ban unilaterally, without consulting Congress, didn’t President Trump make new law by himself—just as President Truman did back in 1952 when, in the midst of the Korean War, he unilaterally seized the natio
n’s steel mills and ordered the strikers back to work?
In Youngstown Sheet & Tube v. Sawyer, the Supreme Court made short work of President Truman’s unilateral effort to make new law. Why didn’t the Court do the same with Trump’s?
A platoon of lower-court judges—most of them Democrats—had little difficulty in striking down the unilateral travel bans down on separation-of-powers grounds. In Trump v. Hawaii, though, the five Republicans on the Supreme Court reversed the lower court decisions. Can the Supreme Court’s reversal be defended on principled grounds, or is it a frightening harbinger of a tame Supreme Court in the mold of the 1938 German judiciary, unwilling to defend separation of powers against the will of the leader?
In trying to answer that question, we start with two clear propositions: the explicit constitutional grant to Congress in Article I, Section 8, of the sole power to make the laws governing immigration, and the undeniable fact that President Trump consulted with no one outside his narrow circle (not even executive officials in the State Department or the Department of Justice) before unilaterally imposing the first version of the travel ban, and adamantly refused to seek congressional authorization for the next two versions. Does such unilateral executive action in the teeth of a constitutional delegation of exclusive lawmaking power to Congress require a principled court to hold the travel ban illegal?
President Trump’s lawyers began his defense in the courts by mounting a separation-of-powers counterattack, challenging the power of courts to question a president’s exercise of unilateral power over immigration in settings where national security is at stake. They argued that the president, as chief executive and commander in chief of the armed forces, enjoys inherent, unchallengeable power to seal the nation’s borders to protect us from an armed threat from abroad. Trump’s lawyers then followed up their inherent-power argument with an assault on the power of the Supreme Court to “say what the law is” in settings where the president claims to be restricting the entry of immigrants into the United States in the name of national security. The duty of the courts in such a national security setting, Trump argued, is to defer (that word again) to the president’s judgment about what must be done to protect the nation.
In effect, therefore, in the name of national security, President Trump’s lawyers claimed the right of the president to exercise supreme governmental power over immigration into the United States, with unilateral power to make new laws, enforce existing laws, and resolve disputes about the application of the laws to individuals, without consulting anyone else, including the Supreme Court. It’s hard to imagine a more chilling rejection of the Founders’ commitment to checks and balances.
If the Supreme Court were to accept Trump’s grandiose vision of an all-powerful president with unilateral power to control entry into (and out of) the United States, the idea of separation of powers would suffer irreparable harm. Presidents would be licensed, in the name of national security, to wield the very supreme governing power that separation of powers was supposed to eliminate once and for all.
I wish I could report that the Supreme Court rose up and indignantly rejected the president’s assertion of imperial power. While the lower courts reacted with incredulity and anger to such a dangerous assertion of excessive power, all five Republican justices ducked the issue by saying that it wasn’t necessary to pass judgment on the president’s extreme arguments.
Make no mistake about it: the Court’s failure to rebuff Trump’s assertions of imperial presidential power leaves a ticking time bomb at the heart of the structural Constitution. I have no doubt that Trump will exploit the Court’s timidity by insisting on acting as an imperial president whenever he wishes—until the people push back at the polls.
In fact, Trump is already doing just that, invoking national security to impose tariffs unilaterally on a wide range of products; refusing to entertain asylum petitions in the teeth of contrary congressional rules; seeking to impose more stringent work rules on recipients of food subsidies in the teeth of a congressional refusal to do so; and invoking national emergency powers to build his border wall unilaterally in the teeth of congressional opposition. The Supreme Court’s spineless response is why Trump believes he can get away with threatening to issue an executive order purporting to abolish birthright citizenship for children of undocumented aliens born in the United States.
Trump seems confident that a tame Supreme Court will continue to roll over in the name of deference to unilateral presidential actions assertedly aimed at protecting national security. The frightening thing is that, based on the five votes failing to reject the idea of imperial presidency in the travel ban case, he may be right.
Trump’s fallback separation-of-powers argument in defense of the travel ban was more conventional. The president argued that, in issuing the ban unilaterally, he was not making new law at all, but simply enforcing existing law by implementing Congress’s decision in 1952 to pass a law delegating unlimited power to the president to bar entry into the United States of anyone he deems detrimental to the national interest. It is true that Congress made no effort in the 1952 law to define what it meant by “detrimental,” leaving Trump free to argue that he has been given a blank check to ban anyone he wishes for any reason.
If the 1952 statute actually authorized the president to exercise such an unfettered discretionary power, the statute itself should be deemed to violate separation of powers because it unconstitutionally delegates Congress’s exclusive lawmaking powers over immigration to the president. A Supreme Court that genuinely respected separation of powers would instruct Congress to go back to the drawing board to give the president real policy guidance, not a blank check. Ironically, had he lived, Justice Scalia might well have rejected the president’s blank-check argument. Before his death, Scalia had for years campaigned for a renaissance of the so-called delegation doctrine, which once forbade Congress from giving away (delegating) to the president its exclusive power to make new law. I think Scalia was right. The last time the Supreme Court invoked the delegation doctrine was in 1935 to strike down FDR’s National Recovery Act.
At a minimum, any president who wished to implement the 1952 statute in a manner consistent with separation of powers should have been required to make specific findings on what he or she meant by “detrimental,” and show why the presence of every single one of the 180 million nationals of the six designated Muslim-majority nations would be detrimental to the United States. The lower courts refused to uphold the ban in the absence of such findings. In its rush to deference, the Supreme Court made no effort to narrow the massive grant of discretion to the president in the 1952 statute.
Even more dramatically, in 1965 Congress took away the president’s power under the 1952 statute to use a person’s “nationality” to decide who gets long-term immigrant visas to settle in the United States. In 1924, Congress had adopted an openly racist immigration system that formally locked the issuance of long-term immigration visas into the racial and ethnic mix of the United States as it existed in 1890. Under the 1924 statute, immigration officials repeatedly saw to it that people from white nations, such as Norway, were awarded lots of immigrant visas. Prospective long-term immigrants from nonwhite nations received few or none.
In 1965, troubled by the use of nationality as a stalking horse for racial and religious bigotry, Congress barred the use of nationality as a criterion for long-term visas. But that’s exactly what President Trump did in January 2017, using nationality in a predominantly Muslim nation as a proxy for religious bigotry against Muslims.
I believe that Congress’s expression of hostility in the 1965 statute to the president’s use of nationality as a criterion for granting long-term immigration visas should have blocked Trump’s power to invoke the identical criterion unilaterally in imposing a nationality-based ban on entry into the United States. Just as with President Truman’s effort to seize the nation’s steel mills in the teeth of a prior congressional refusal to authorize such a remedy for breakin
g a strike, Congress’s 1965 statute should have ended the president’s power to act unilaterally to impose an immigration criterion explicitly rejected by Congress. But it didn’t. While the Democratic-controlled lower federal courts read the 1965 law as limiting the president’s power under the 1952 law, the five Republican justices ignored the 1965 law because, they argued, it dealt with the issuance of immigration visas, not physical entry into the United States.
It borders on the absurd, though, to argue that Congress can prevent the president from using nationality to allocate the issuance of entry visas but then be forced to watch the president unilaterally shred the prohibition by refusing to let the newly protected visa holders into the country. Yet that’s just how the five Republican justices made the 1965 statute disappear.
That’s not a good sign. Remember the 1938 German judiciary.
THE MUELLER INVESTIGATION
From 2014 to 2016, the Russian government mounted a massive intelligence operation designed to elect Donald Trump as the forty-fifth president of the United States. We don’t know exactly why. Some say it was Putin’s revenge against Hillary Clinton for her vocal criticism of Russia’s rigged 2011 parliamentary elections. Perhaps that’s where it started. For whatever reason, once Trump’s presidential candidacy surfaced, Russia became hell-bent on installing Donald Trump as the leader of its principal global rival.
When at Times the Mob Is Swayed Page 18