President Enjoined Once Again - Bad Lawyering, Tweeting, or Trumplaw?

WASHINGTON - Jan. 11, 2018 - PRLog -- In only the latest of many situations in which a single federal judge has stopped an important presidential action dead in its tracks with an injunction, Judge William Alsup just enjoined the administration from ending the DACA program.

This is only the latest in a long strong of similar actions by judges stymieing President Donald Trump's major presidential initiatives; a list which includes not just DACA but also:
* several travel bans which yielded many different injunctions,
* efforts to rein in sanctuary cities,
* an attempt to ban transgender individuals from the military,
* efforts to deny abortions to young immigrants in custody,
* a move to limit contraceptive coverage, and
* even an effort to keep information from a member of his own voter fraud commission.

Not surprisingly, many legal experts - including even those generally regarded as impartial, and/or opposed to Trump and his policies - have struggled to explain this extraordinary string of spectacular and embarrassing failures, says public interest law professor John Banzhaf, noting that it's unlikely to be due to bad lawyering.

The Justice Department has many very skilled and experienced lawyers who can help to craft new initiatives in such a way that they are designed to withstand judicial scrutiny, and to provide strong arguments when they are challenged in court, he says.

Although several judicial opinions have alluded to tweets and other arguably damaging communications from Trump himself, they were never the major basis for issuing the injunctions, and many of the opinions issued in support of the stays never mentioned the President's tweets.  All of this has led a growing number of legal observers to observe or at least suspect that something deeper - and more serious if not insidious - was behind many if not most of these judicial actions, and it is being called Trumplaw, says Banzhaf.

As he earlier reported, there is growing concern and recognition - even among supporters, and in liberal papers like the New York Times - that courts appear to be adopting a new jurisprudence called "TrumpLaw" aimed uniquely at this President; a method of judging cases which is aimed specifically at countering some of the practices of President Trump, even if this development means creating entirely new legal principles and/or overlooking (or at least minimizing) other established ones.

        Even more alarming is that even those in favor of this new approach to deciding cases appear concerned not only that it will extend too far and possibly hobble the new president, but that the new principles being developed will create legal precedents which will carry over and adversely affect other presidents, and even agency heads in the future, says Banzhaf.

        For example, the New York Times piece described this new method of deciding cases as "a set of restrictions on presidential action that only apply to Donald Trump. This president cannot do things that would be perfectly legal if any other president did them, under this standard, because the courts will rule against his past demagogy rather than the policies themselves."

        Moreover, it suggests, such rulings - e.g.,  illegitimizing the immigration order as unconstitutional religious discrimination - could hobble efforts to protect against a "Manchester-type terrorist attack (or something even worse)" because "the most important terror threats are Islamist, and any move to safeguard Americans is likely to have a disproportionate effect on Muslims," and thus courts are "automatically going to rule against Trump on any counterterrorism issue that touches on Islam."

        David French of the National Review, who has been described as a NeverTrumper, nevertheless warns about this "strange madness [which] is gripping the federal judiciary. It is in the process of crafting a new standard of judicial review, one that does violence to existing precedent, good sense, and even national security for the sake of defeating Donald Trump."

        In his words, "when existing precedent either doesn't apply or cuts against the overriding demand to stop Trump, then it's up to the court to yank that law out of context, misinterpret it, and then functionally rewrite it to reach the 'right' result'" - "an otherwise lawful order is unlawful only because Donald Trump issued it. . . .  All this adds up to Trumplaw, the assertion by the federal judiciary of the legal authority to stop Trump."

        Law Professor Paul Horwitz, who supports some of TrumpLaw to achieve a desired result, and says he could be persuaded to support all of it, defines it as "about lower courts developing a form of what some critics call 'TrumpLaw,' law responding to and designed especially for the Trump administration" and "may be seen as a radical departure from existing law and in effect a lawless set of actions."

        He writes that in some instances "it constitutes utter resistance to the Trump administration and its policies," although "one might argue that the worse and more dangerous the administration's actions are, the more necessary it is to resist them per se."

        Attorney Scott Greenfield, writing on his blog, argues regarding TrumpLaw that: "the exercise of authority going forward will be subject to judicial approval of the president's 'bona fide' intent behind facially constitutional exercises of authority. Every act, every burp, despite its being completely within a president's power, will be subject to a judge's post hoc approval of her underlying intentions. All one would need to stop the president from doing her job is a district court judge who finds her secret, hidden purposes improper. And by improper, it means different than the judge's sensibilities."

        Law Professor Todd Henderson sums it up simply: "This is @realDonaldTrump-specific law, which is lawless."

http://banzhaf.net/  jbanzhaf3ATgmail.com  @profbanzhaf