"There is always a philosophy for lack of courage."—Albert Camus

Wednesday, June 07, 2017

President Trump’s Reverse Merryman




In Merryman, Chief Justice Taney did not actually force President Lincoln’s hand. Merryman was more of a warning shot by Taney across the President’s bow. Taney declared the law: unilateral presidential suspension of the writ of habeas corpus is unconstitutional. Still, Taney did not actually order the President to comply: i.e., to release the petitioner—John Merryman. Why did Taney do this? Taney shifted all political responsibility onto Lincoln. If Lincoln was going to intern people in the name of war-time necessity: the courts would not share political responsibility with the President (albeit, the courts—at this juncture—would not stand in the way either).

Trump is doing what Taney did, but he is doing it to the courts. Absent his recent tweets, Trump might very well have won*** the travel ban case: an appeal from the Fourth Circuit’s decision to uphold the trial court’s grant of a preliminary injunction against the (modified) Executive Order. But Trump does not want to merely win. He wants to win Yuuge! He does not want to squeak out a narrow win by a divided court promising more time-consuming, after-the-fact, and morale-draining oversight in the future (e.g., where such future oversight might threaten lower level Executive Branch officers with individual liability). 

Trump is telling the courts, loudly and truthfully, this is what I intend to do to secure the country in what I and half the country believe to be an emergency of an existential kind. If the courts constrain my hands, the President will not share political responsibility for the consequences with the courts. Trump is saying that if you (the courts) constrain the presidency, and afterwards, should harmful consequences follow, then you (the courts) will have to own all the consequences. In doing this, Trump has not broken any rules relating to the conduct of litigation. He is not threatening to burn the Court down or stop the Justices’ salaries. But he is doing his very best to make them decide, and if that inconveniences them or makes them squirm, he does not care. This is what Taney did to Lincoln, and this is what Trump is doing to the Court. Taney’s course of conduct in Merryman was entirely transparent, legal, and smart. Whether the same can be said for the President’s conduct is something we will only know in the fullness of time.


Seth

***Trump still may prevail, but it is now less likely.

Citation: Seth Barrett Tillman,  President Trump’s Reverse Merryman, The New Reform Club (June 7, 2017, 8:52 AM), http://tinyurl.com/ychst3x6 

1 comment:

lawrenceserewicz said...

Trump is not a statesman. Lincoln was a statesman. The court has not changed.
Taney pointed out that Lincoln, if he was to remain an American would have to uphold the Constitution, the whole reason Lincoln was fighting the war, or he would become like the Southern slave states who wanted might, not right or the law, to decide.
Lincoln saw he was caught by his own efforts and he accepted. Taney had no need to tell Lincoln to obey the law for that is what he was fighting to ensure.

Trump, by contrast, does not believe in the law. He is playing politics with the courts because like political bullies, he wants someone to blame for his failures, when the failure is on his end. Any failure in security is a political issue not a legal issue. The court is not responsible for national security, that is POTUS. Trump, unlike Lincoln, does not want to take responsibility for that leadership and he wants an excuse should something go wrong. However, as Truman explained the buck stops with POTUS not SCOTUS not the Democrats or whomever is the excuse of the day.
The darker point here, though, which is worrying and deeply so, is that Trump wants to create a situation, an exception to use Carl Schmitt's term, so that he can sweep away SCOTUS and the Constitution. He wants to make it all the SCOTUS and the law's fault for any security incident so he can call for more powers.
We have already gone through that in the US in 2001 and everyone reacted badly to that attempt. We went through it in 1941 and we learned from it for 2001. However, 1941 and 2001 were mitigated by Merryman for they showed that the US is a nation of laws and it is defined by its Constitution not the exceptions to it.