[I]f the courts are going to write a new jurisprudence for an oathless presidency into the law, Mandel and Din actually make for a very natural place to start. Both literally concern the question of “bad faith,” the same question raised by whether the courts can trust Trump’s fidelity to his oath. To put it another way, the cases are an expression of the “presumption of regularity,” the idea that we can usually trust public officials to do their duty. And as the Trump administration is discovering, that presumption of regularity is only a presumption, which courts can waive in extraordinary circumstances.What justifies this "presumption of regularity" even as a presumption? The oath of office is to the Constitution; many acts by Presidents, Senators, and Congressional representatives are facially unconstitutional. Any sort of "campaign finance reform" appears to violate the First Amendment, which plainly states that Congress shall make no law abridging freedom of speech. The vast majority of Congressional and Executive acts violate any reasonable reading of the 10th Amendment. Many campaign promises also plainly violate the 10th Amendment, as candidates pledge to pursue powers that the Constitution never delegates to the Federal government.
Yet normally courts presume campaign rhetoric is a sort of nonsense that has no bearing on how one actually governs -- and that seems to be a presumption justified by the facts to some degree. If anything justifies presuming Trump's oath is less reliable than usual, it must be that he is unusually likely to pursue his campaign statements. He did, after all, pull us out of the Paris accords. He did, after all, appoint a hardliner to run the CIA's operations against Iran (and, by the way, we need to have a talk with our 'paper of record' about the propriety of publishing the names of such officers). He did, after all, prefer a serious textualist to the Supreme Court. He hasn't kept all his promises (e.g., moving the embassy to Jerusalem), but he has apparently taken a number of them seriously.
Compare and contrast with President Obama, "I'll close GitMo," "if you like your plan you can keep your plan," "if you like your doctor you can keep your doctor," "the Iran deal is not a treaty," "the Paris climate accord is not a treaty," etc. I should be more suspicious of the oaths of, say, Supreme Court justices who feel that the Constitution is a living document they are free to modify at will. That is plainly not in keeping with an oath to protect and preserve the Constitution; it is making it one's own playtoy, and arrogating powers never intended by the Constitution to one's self and one's own office. It is their oaths I doubt.
It seems strange to doubt Trump's oath more than one would doubt the oaths of other politicians on the precise ground that he seems unusually likely to keep his promises. I don't take his word seriously because he often seems to say things he doesn't mean, but that approach undermines the 4th and 9th circuit opinions: why bother worrying about what he said on the campaign trail if you don't worry about what he says in general?
Their argument is just the opposite: 'We doubt his oath because we believe he will keep his word.'
No comments:
Post a Comment