"Campaign Pledges Haunt Trump in Court"

So says the NYT, correctly enough for a change. It's a major change in jurisprudence, as up until now campaign rhetoric has been off-limits for judicial interpretation. The idea is that it would be bad for democracy if politicians couldn't speak freely in election campaigns, out of fear of being constrained by courts after-the-fact.

On the other hand, it also makes a kind of sense. Trump has been taking his campaign promises relatively seriously compared to previous presidents. It may be the reason that judges have been so willing to wink at campaign rhetoric in the past is the sense of, c'mon, it's just talk for the rubes. Nobody's seriously going to do that stuff in office. They just have to say it to get elected.

What happens when somebody comes along who maybe really is going to 'do that stuff in office'? It's easy to understand the panic. Nothing terrifies a cynic more than sincerity.

Nevertheless, I think Powerline has it right (previous link):
The states’ argument is in essence that Trump is a bigot, and thus his winning presidential campaign in fact impeaches him from exercising key constitutional and statutory powers, such as administering the immigration laws.
I kind of like the idea that you could elect a partial-president, one whose powers are limited by the flaws in their character. As a purely theoretical idea, it would be great if people who had the right virtues to execute the powers well were the ones entrusted with those powers. If someone without the right virtues was elected, it would be great -- in theory -- if the powers were temporarily entrusted in someone else who had those virtues.

However great this idea is as a pure theory, it's completely impossible in practice. There is no mechanism for making it work other than forcing the executive branch to completely relinquish the relevant power for as long as Trump is president. It's not that, since Trump is a bad guy in certain ways, the courts will delegate the powers to someone else they do trust -- Mattis or whomever. It's that America, not just Trump, would lose the capacity to make national security decisions based on immigration for four years.

That's unworkable. Many people might argue that other bits of campaign rhetoric make Trump unacceptably dangerous as commander in chief. (Indeed, one person who made that argument repeatedly was Hillary Clinton.) So does that mean the courts should prevent him from taking any military actions -- meaning, that America should stop defending herself for four years? Maybe just against the Muslim world, plus China, if those are the areas where Trump's rhetoric was especially explosive?

Obviously that isn't acceptable. Neither is it workable for every executive policy to have to satisfy each of the several hundred Federal judges out there in order to go into effect. This is going to cause problems, though, because the judges appear to be committed to the idea that they should have that power.


Texan99 said...

I thought I was hardened to this kind of thing, but it's a truly weird line of argument. As PowerLine observed, "If, for example, the United States were under attack, and a judge ordered the president to ground the U.S. Air Force–perhaps because using the Air Force would 'discriminate' against the country that attacked us–the president would disregard the injunction. No one would criticize him for doing so."

And it wouldn't matter if the president had spent years on the campaign trail wearing point-hatted white robes and explicitly threatening to discriminate against the citizens of the country he was ordering the Air Force to bomb. What in the world can these judges be thinking?

raven said...

What are they thinking? It is simplicity itself

They are thinking "this person is opposed to the leftist PC agenda, therefore he must be opposed."

The fact it is a court judgment is merely incidental- it was just another tool that seemed to have potential. When a tent peg needs to driven, if you don't have a mallet, you use the back of an axe. If you don't have an axe, you use a rock. Same thing- they just used a handy tool, it's suitability for the work was irrelevant, as long as it got the job done.

The entire leftist establishment (which includes a lot of Republicans) hate Trump with a passion, see the gravy train under attack, and want him stopped at all costs. The idea that the old "silent majority" should actually have an advocate in the executive is terrifying to their dream of omnipotent State power.

Assistant Village Idiot said...

It's an incredibly bad precedent. Even if it seemed entirely commonsensical to all right-thinking people (it doesn't, but just pretend), it would still be worth swallowing because of the Pandora's Box it would open.

This should be filed under "OMG, another tribe has power. That is clearly evil."

douglas said...

The best rebuttal I've seen thus far is:
Imagine a judge striking down the Obama administration re: Little Sisters of the Poor having to provide birth control coverage because during his campaign Obama called out religious people as 'bitterly clinging to their religion'.

Now I would have liked the result, but I would have had serious disapproval of the mechanism.