Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The question in the title of this post is not rhetorical; it’s a real question.
This morning President Trump unleashed a barrage of tweets that appeared, from a lawyer’s perspective, to be aimed squarely at torpedoing his own legal case. His tweets squarely undermined his various legal claims (1) that the latest travel ban is not a travel ban at all, (2) that it makes a clean break from the earlier ban that had been blocked in court, and (3) that it has nothing at all to do with Trump’s calls during the campaign for a “total and complete shutdown of Muslims entering the United States.” The tweets were awfully thorough and systematic (or as thorough and systematic as one can be in a few tweets) in their frontal attack on the legal case for the ban. “I am calling it what we need and what it is, a TRAVEL BAN,” he wrote. “The Justice Dept. should have stayed with the original Travel Ban, not the watered down, politically correct version they submitted to S.C.” He went on to eviscerate the core justification for the ban that he had offered, which was (4) to create a pause long enough to develop stronger vetting procedures. He tweeted, “In any event we are EXTREME VETTING people coming into the U.S. in order to help keep our country safe. The courts are slow and political!” Note the present tense: we are doing “EXTREME VETTING” right now. If so, then there is no need for a pause to develop a system of extreme vetting.
So to review: Trump has undercut his own lawyers’ best arguments for the constitutionality of the travel ban. And he is waving a red flag (“The courts are slow and political!”) in front of the Justices, who disagree on many things but not on the idea of the courts and especially the Court as an indispensable bulwark of the rule of law.
So what is going on here? Is Trump simply unable to control himself, exploding with self-destructive tweets that emanate unbidden from his ample id? I have sometimes thought this, but now I doubt it. I think there is a strategy here, even if it is a mostly intuitive one for Trump. The problem is that it’s a counterintuitive one for the rest of us, so it takes some thinking to get your head around it.
The standard model of presidential leadership imagines that the President has some policy goals and wants to achieve them. Here, one goal would be implementing the travel ban. From that perspective, Trump is a self-destructive mess, turning the judiciary against his goals.
But what if the goal is different? What if the purpose of the whole travel ban exercise is primarily to exacerbate political polarization in a way that, as Jack has recently explained, ultimately benefits Trump? If we begin with a general assumption that Trump has very little in the way of substantive policy goals, but has serious, substantive political goals, then it might start to make sense that he is provoking courts and calling them “political.” The point here is, in Jack’s words, precisely “to maintain polarization and whip up the Republican base into a frenzy of anger against their opponents.” By imposing and re-imposing an unconstitutional travel ban, Trump can demonstrate to his supporters that he is fighting the good fight against “political correctness,” to quote today’s tweet—that he is pushing and fighting against the liberal courts to secure that “total and complete shutdown of Muslims entering the United States,” or whatever version of it he can get.
And then he wins either way. If the Supreme Court upholds the ban, then Trump can crow that he successfully bullied and blustered them into it. If the Court strikes down the ban, then Trump can attack the courts, wrapping them in the rich fabric of resentment and polarized grievance that is the central element of his surprising political success. When courts do their job, in the ordinary way (albeit in an extraordinary situation) he can brand them as biased establishment institutions that are enemies of the people. (And besides, this way, if there is a terrorist attack, Trump can say he’s not to blame. He tried. It was that pesky rule of law.)
If this is right then the critics of courts’ close scrutiny of Trump’s actions have it all wrong. Those critics complain that courts are applying “TrumpLaw” to Trump—a special skepticism of executive action reserved for this President. I’m skeptical of the TrumpLaw claim. (How exactly are we supposed to infer that this president’s intentional-discrimination-evincing late night tweets are being treated differently from those of prior presidents?) But really the problem is different: Trump is loudly asking for special treatment from the courts—special negative treatment—that can demonstrate that courts are part of the system and part of the problem. In short, what he badly wants is TrumpLaw. And for better and worse, perhaps he will get it. Posted
by Joseph Fishkin [link]