Pirate's Cove

It’s funny, we never saw this type of opinion piece in the NY Times while Obama was POTUS. He was constantly being sued for implementing policies that went well beyond what were his Constitutional and legislatively given powers. The contraception mandate? It was invented out of thin air. There was no real statutory provision in Obamacare for its creation. The Clean Power Plan and the Waters of the USA were both massive stretches of the Executive Branch. The Chrysler buyout. The improper implementation of Obamacare (giving some groups relief and waivers), using the IRS as a political weapon, illegal recess appointments, DACA and DAPA, and so much more. Mr. Pen and phone (the phone was for telling his underlings what to do) lived by unilateral executive action. Hilariously, on the one occasion he went to far and was called out for it, his Big Libya Adventure, the NY Times was blaming Congress.

But, hey, Trump’s in charge now, so Peter H. Schuck, a professor at Yale Law, thinks Congress needs to reign in Trump’s power

The Court Ruled Correctly

In some respects, the Supreme Court’s decision on Tuesday rejecting challenges to President Trump’s travel ban was highly predictable. Mr. Trump issued his series of executive orders under the authority of a breathtakingly broad statute — specifically, Section 212(f) of the Immigration and Nationality Act — a provision designed to forestall national security threats. And he issued it for two plausible reasons: the proliferation of international terrorism threats against the United States and the seeming inadequacy of overseas screening (“vetting”) of would-be travelers to the United States by some source countries. Given this context, the decision has all the surprise of a Golden State Warriors victory in the N.B.A. finals.

There were no complaints when Obama put in bans from a few countries.

Why, then, did the decision draw four dissenters? Here too the answer is quite straightforward. Mr. Trump is a man who proudly parades his many egregious biases, especially against immigrants in general and Muslims in particular. His campaign was replete with vile stereotypes and schoolyard bullying of minorities of all sorts, conduct that has only worsened since the election. The dissenters took the president at his anti-Muslim word and found support in our long legal tradition, encoded in the First Amendment, protecting religious minorities from overreaching majorities.

And the Court said that made no difference, because the law is the law.

The majority emphatically disagreed. Invoking the familiar deference principle commonly applied by the court when it comes to executive actions in the name of national security, it decided to demand only a “rational basis” for the executive order (indeed, the majority said, it could have applied an even more relaxed “facially legitimate” standard of review). It insisted, rightly in my view, on assessing the order on its face rather than probing Mr. Trump’s anti-Muslim motives (as evidenced by his rhetoric) and in trying to parse the relative weight that they played in his decision as compared with his legitimate national security concerns.

Well, yeah, because law is supposed to be applied equally and dispassionately.

The fact that the court ruled correctly, however, does not mean that the status quo is acceptable. The most fearful aspect of the court’s decision is already evident in Mr. Trump’s immediate, triumphalist response to it. The decision will certainly embolden him in his claims of vast presidential power and indifference to the rule of law, whether on immigration or in other policy areas.

Um, what? Team Trump was using the rule of law, the power provided through federally passed statutes. There’s no indifference to the rule of law. This was not something invented from thin air like the contraception mandate, nor a massive stretch like the Clean Power Plan.

All the more reason for Congress to confront and discipline those claims. It should promptly review Section 212(f) with a view toward prudently constraining any president’s power to bar broad classes of aliens whenever he deems it necessary to protect the national interest. At the very least, he should have to make specific factual and national security findings and provide his supporting evidence in as much detail as possible so that the public can assess his actions. Congress should also consider requiring a post-implementation inquiry into the actions and how the administration is implementing them on the ground.

The risk and temptation of presidents to use their power to overreach and ignore principles of justice is a constant threat to our democracy. This threat is especially grave when the policy objective is praiseworthy, as President Barack Obama’s unilateral, procedurally deficient Dreamers order was. Although Mr. Trump poses this threat most brazenly and in the extreme, it is by no means confined to him. Indeed, his precedent will embolden his successors.

See? Trump is using the powers delegated to the Executive Branch from duly passed legislation, making good on his oath to essentially follow the law, but, now, we have to worry about him setting a bad example for future presidents. Mr. Schuck finally mentions Obama and his unlawful DACA, but fails to note that Obama did most things unilaterally.

But, Trump, you know. Congress needs to reign him in or something.

On a separate note, Mr. Schuck is correct in one regard: legislation is often way, way too broad. I’m not picking on Democrats and their legislation per se, just highlighting several examples, but look at Obamacare, Dodd-Frank, and the Stimulus. All three were extremely broad, leaving so much up to the Executive Branch to implement as they will. This is how you get massive mission creep in the federal government. Legislation needs to be targeted and specific.