President Trump speaking with reporters on Air Force One on Friday. He has quickly pushed into a confrontation with the courts as he tests the limits of executive power. Stephen Crowley/The New York Times
WASHINGTON — President Trump is barreling into a
confrontation with the courts barely two weeks after taking office,
foreshadowing years of legal battles as an administration determined to disrupt
the existing order presses the boundaries of executive power.
Lawyers for the administration were ordered to submit
a brief on Monday defending Mr. Trump’s order temporarily banning refugees from
around the world and all visitors from seven predominantly Muslim countries
from entering the United States. An appeals court in California refused on Sunday to
reinstate the ban after a lower court blocked it.
As people from the countries targeted by Mr. Trump
struggled to make their way to the United States while they could, the
president for the second day in a row expressed rage at the judge in the case,
this time accusing him of endangering national security. Vice President Mike
Pence defended the
president’s tone, but
lawyers and lawmakers of both parties said Mr. Trump’s comments reflected a
lack of respect for the constitutional system of checks and balances.
Late in the day, Mr. Trump took to Twitter to
pre-emptively blame the judge and the judiciary for what the president
suggested would be a future terrorist attack.
“Just cannot believe a judge would put our country in
such peril,” Mr. Trump wrote, a day after referring to the
“so-called judge” in the case. “If something happens blame him and court
system.”
Even before the latest
post, Republicans joined Democrats in chiding him. Senator Mitch McConnell of
Kentucky, the majority leader, said it was “best not to single out judges.”
“We all get disappointed from time to time,” he said
on CNN’s “State of the Union.” “I think it is best to avoid criticizing judges
individually.”
The White House offered no evidence for Mr. Trump’s
suggestion that potential terrorists would now pour over the border because of
the judge’s order. Since Sept. 11, 2001, no American has been killed in a
terrorist attack on American soil by anyone who immigrated from any of the
seven countries named in Mr. Trump’s order.
The impassioned debate over the immigration order
brought to the fore issues at the heart of the Trump presidency. A businessman
with no experience in public office, Mr. Trump has shown in his
administration’s opening days that he favors an action-oriented approach with
little regard for the two other branches of government. While Congress,
controlled by Republicans, has deferred, the judiciary may emerge as the major
obstacle for Mr. Trump.
Democrats and some Republicans said Mr. Trump’s attack
on the courts would color the battle over the nomination of Judge Neil M.
Gorsuch to the Supreme Court as well as the president’s relationship with
Congress.
Other presidents have clashed with the judiciary. The
Supreme Court invalidated parts of Franklin D. Roosevelt’s New Deal, forced
Richard M. Nixon to turn over Watergate tapes and rejected Bill Clinton’s bid
to delay a sexual harassment lawsuit.
The last two presidents battled with courts repeatedly
over the limits of their power. The judiciary ruled that George W. Bush overstepped his bounds in denying due
process to terrorism suspects and that Barack Obama assumed power he did
not have to allow millions of unauthorized immigrants to stay
in the country.
Charles Fried, solicitor general under Ronald Reagan,
said the ruling by a Federal District Court in Washington state blocking Mr.
Trump’s order resembled a ruling by a Texas district court stopping Mr. Obama
from proceeding with his own immigration order.
But rarely, if ever, has
a president this early in his tenure, and with such personal invective, battled
the courts. Mr. Trump, Mr. Fried said, is turning everything into “a soap
opera” with overheated attacks on the judge. “There are no lines for him,” said
Mr. Fried, who teaches at Harvard Law School and voted against Mr. Trump.
“There is no notion of, this is inappropriate, this is indecent, this is
unpresidential.”
Other Republicans brushed off the attacks, noting that
judges have lifetime tenure that protects them from criticism. But even some
Republicans said Mr. Trump’s order raised valid legal questions for the courts.
“If I were in the White House, I’d feel better about
my position if the ban or moratorium or whatever you call it were based on an
actual attack or threat,” former Attorney General Alberto R. Gonzales, who
served under Mr. Bush, said in an interview. Still, he said, when it comes to
noncitizens overseas, “the executive has enjoyed great deference from the
courts.”
Judge James Robart, a Federal District Court judge in Seattle appointed
by Mr. Bush, on Friday issued a nationwide
suspension of Mr. Trump’s order while its legality was debated.
The administration quickly asked the United States Court of Appeals for the
Ninth Circuit to overrule the judge, but it refused early Sunday and instead
ordered the government to file a brief on Monday. The quick briefing schedule
indicated that the appeals court could issue a ruling on the merits of the
president’s order within days.
In the meantime, refugees vetted by the government can
proceed to the United States, as can any travelers with approved visas from the
seven targeted nations: Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen.
Still, widespread confusion and anger were reported at
overseas airports on Sunday. Unsure which orders to follow, airlines stopped
even some of the people named in the lawsuits who were technically cleared to
come to the country, according to a government official.
The assertion of broad latitude by the president in
areas of national security resembles the struggles of the Bush years, when in
the months after the Sept. 11 attacks the administration claimed sometimes
sweeping power in the name of fighting terrorism.
Jack Goldsmith, who as head of the Justice
Department’s Office of Legal Counsel under Mr. Bush argued that some of the
initial orders went too far and forced them to be rolled back, said on Sunday
that there were similarities. “But Bush’s legal directives were not as sloppy
as Trump’s,” he said. “And Trump’s serial attacks on judges and the judiciary
take us into new territory. The sloppiness and aggressiveness of the
directives, combined with the attacks on judges, put extra pressure on judges
to rule against Trump.”
This was not the first
time Mr. Trump has castigated a judge who ruled against him. As a candidate
last year, Mr. Trump asserted that Judge Gonzalo P.
Curiel, who was presiding
over a fraud lawsuit by former students of Trump University, had a conflict of
interest because his family was of Mexican heritage and he therefore would be
biased because of Mr. Trump’s promise to build a border wall.
Such comments from a sitting president, however, were
unusual and triggered consternation in the legal community. Bartholomew J.
Dalton, the president of the American College of Trial Lawyers, called Mr.
Trump’s “insulting language” inappropriate.
“It is wrong for the chief executive of the executive
branch to demean a member of the judiciary with such language,” Mr. Dalton said
in a statement. “This undermines judicial independence, which is the backbone
to our constitutional democracy.”
Senators of both parties appearing on Sunday talk
shows concurred. “I’ll be honest, I don’t understand language like that,”
Senator Ben Sasse, Republican of Nebraska, said on “This Week” on
ABC. “We don’t have
so-called judges. We don’t have so-called senators. We don’t have so-called
presidents. We have people from three different branches of government who take
an oath to uphold and defend the Constitution.”
“The president is not a dictator,” Senator Dianne
Feinstein of California, the Judiciary Committee’s top Democrat, said on “Fox News
Sunday.” “The framers of our Constitution wanted a strong
Congress for the very reason that most of these kinds of things should be done
within the scope of lawmaking. This is done within the scope of executive
power.”
It fell to Mr. Pence to defend Mr. Trump. “Well, look,
the president of the United States has every right to criticize the other two
branches of government. And we have a long tradition of that in this country,”
he said on “Meet the
Press” on NBC.
“The judge’s actions in this case,” he added, “making
decisions about American foreign policy and national security, it’s just very
frustrating to the president, to our whole administration, to millions of
Americans who want to see judges that will uphold the law and recognize the
authority the president of the United States has under the Constitution to
manage who comes into this country.”
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