Trump Can’t Win His Battle Against the Judges. He Can Only Dig His Hole Deeper.
President Donald J. Trump is fuming at yet another federal judge. Earlier this week, San Francisco District Judge William H. Orrick temporarily enjoined the Trump administration’s simultaneously grandiose and ultimately toothless plan to strip federal funding from sanctuary cities. The president, as is his wont, apparently decided it’s pointless to threaten and undermine an individual jurist when he could go after an entire federal appellate court. So off he went on a boilerplate Twitter rant in which he wrongly blamed the 9th U.S. Circuit Court of Appeals for his loss at the trial court level; wrongly characterized that appellate court’s reversal record; and wrongly faulted a city and county in California for “judge shopping” (not an actual legal term) for opting to file in the jurisdiction in which they exist, as opposed to filing in, say, Texas or Georgia, where they do not exist. (Circuits are geographic, not ideological.) No matter what you do to the 9th Circuit, California will still be California. And Trump’s fury at the 9th Circuit ignores the fact that he has also been thwarted by federal judges on courts in various other jurisdictions, including the 2nd and 4th Circuits, where thinking jurists also roam free.
Never one to let actual facts or geographic reality stand between himself and his grudges, Trump escalated his war on the federal judicial branch Wednesday with an interview with the Washington Examiner in which he pledged to revisit plans to break up the 9th Circuit, presumably because he thinks breaking up a federal circuit court will magically change his badly drafted executive orders into legally sound ones: “Everybody immediately runs to the 9th Circuit. And we have a big country. We have lots of other locations. But they immediately run to the 9th Circuit. Because they know that’s like, semi-automatic,” Trump said. I am frankly shivering in delicious anticipation of Trump’s forthcoming executive order breaking up the 9th Circuit.
The president doesn’t seem to realize that his newest attack on the courts, by its own terms, simply strengthens Orrick’s case—that the order, read as Trump’s lawyers now suggest, reinforces the status quo, or, read as Trump characterizes it, is unconstitutional. Every time he talks, he makes things worse. Even his own administration formally stopped using the phrase Muslim ban when it tried to salvage his first executive order, so Trump’s decision to call it a “ban” again in his Wednesday tweetstorm and interviews just doesn’t much help him. Consider also that Trump’s defense of his vague and sloppily drafted executive orders consists, at bottom, of celebrating the fact that they are vague and sloppy. As he told the Examiner of his travel ban: “The language could not be any clearer. I mean, the language on the ban, it reads so easy that a reasonably good student in the first grade will fully understand it. And they don’t even mention the words in their rejection on the ban.”
Time and again, the president fails to comprehend that the reason a reasonably smart first-grader can understand his executive orders is because they appear to have been written by a different reasonably smart first-grader in orange crayon on the back side of a Red Lobster children’s menu. Time and again he asserts that there is some virtue in stripping away all nuance and legal meaning from his official acts as president. Time and again he complains bitterly when federal judges, searching for nuance and meaning, look to his words as a means of filling out the vague nonsense of his lawyers’ unerringly incoherent work product. First-grade homework may be clear to Trump, but that does not make it useful when it comes to practical application for governing our nation. As Garrett Epps notes, Trump’s sanctuary cities order fails even the most basic principles of interpretive clarity: “[I]t announces measures against ‘sanctuary jurisdictions’ but provides no definition of that term.” The fact that Trump’s own lawyers defended the order in court by saying it was essentially meaningless posturing helps him not at all. If the total force of the order was to create a “bully pulpit” that will later allow the president to say things that alternately have legal force or do not, Orrick cannot have been mistaken in enjoining it. Like the travel ban before it, the thing was nothing more than a Snapchat order, an executive action that could fade into nothing—or could be surreptitiously screenshotted to be preserved as something, at the president’s whim and pleasure.
Trump’s repeated—one might almost call them semiautomatic—presidential speech acts that contradict his formal orders as written cannot be excused as just further bloviating from an overtalkative and underinformed president. Both his travel ban and his sanctuary cities order have suffered in court because, in the absence of clarity and detail, federal judges may look to the president’s campaign promises, television appearances, and tweets to understand his intent in promulgating them. There is a robust and heated academic debate about whether judges should be in the business of probing what’s in the president’s heart of hearts, but wholly apart from that lies another problem: Do the president’s actual words matter at all? This isn’t about judicial efforts at mind-reading, a practice against which Justice David Souter famously warned about in McCreary County v. ACLU: a “judicial psychoanalysis of a drafter’s heart of hearts.” What’s in the president’s heart of hearts is unknowable and not remotely interesting.
But what he actually says, when the words come out of his face? What he writes, be it in pen or Twitter? These are still presidential actions. The dangerous judicial psychologizing here would be for reviewing courts to attempt to differentiate between those instances when the president means what he says and when he’s just blathering recreationally. In Josh Blackman’s excellent meditation on this subject in Politico, he warns judges not to treat Trump differently than they would treat other presidents. I agree. And that means when Trump says things about his policy goals, presumably to bolster or refine or undermine his sloppy legal orders, they have some legal force. The alternative is a jurisprudential Escher staircase of meaningless words on paper, in an unending shifting dialogue of meaningless presidential words that shift from bird to fish and back again. Trump has always spoken publicly as if his words have not only no meaning but also no lasting consequences—walking back his preposterous claims as soon as they become untenable. But as president of the United States, his words have both meaning and consequences, whether he wants them to or not. And as Orrick pointed out: “While the President is entitled to highlight his policy priorities, an Executive Order carries the force of law.”
Here is one thing I can say for certain about judges: In addition to having a generalized and free-floating anxiety about public attacks on their legitimacy and authority, they resent deeply any efforts to say that words—the sole implement of their craft—have no meaning or that those meanings are inchoate and shifting and may expand or contract with the president’s hastily tweeted words or fleeting feelings. So when President Trump and his administration attack the judicial branch with authoritarian threats to break up the federal appeals court that has nothing to do with the ruling he disputes or insults individual “unelected” federal judges based on race or geographic region, sane judges, regardless of their personal politics, will recoil. They will feel, as Neil Gorsuch once put it, demoralized and disheartened by the president’s contempt. And when Trump insists on taking legal positions that suggest his executive orders are inherently lawful merely because he is the president or because their written-by-a-7-year-old clarity makes them obvious, that is an insult to the judicial project, a threat to both separation of powers and judicial intelligence.
But when the president takes the posture, time and again, that his words and orders have meanings that are fluid and mutable and known only to himself, it is a surefire way for him to continue to lose in court. Trump and his advisers have long smugly intoned that the media, the public, and Congress must learn to take his words “seriously but not literally.” Sadly for him, the courts have no choice but take his words literally. There is, literally, no other option.
The executive branch is more than a gauzy dream sequence of a four-year “bully pulpit.” The check on lawless, shifting bullying has always been and will continue to be the judicial branch. But when the history books try to explain why the courts mattered most in the Trump era, I hope they note this as well: The judicial branch served as great check not only on Trumpism but for our sanity, each time a judge affirmed that, God be thanked, words and language still do have meaning and consequences.