The fact that the President is likely wrong about [birth right citizenship] ... does not ineluctably lead to the conclusion that we live in a constitutional dictatorship. If the President’s executive order is contested in litigation, and the federal courts rule against the President, and the President abides by any adverse order (as he has done to date), then it can fairly be said that we do not live under a constitutional dictatorship. In such a situation, we have a robust rule of law society. I see no reason to believe that this action by the President is what Professor Paulsen (in his prior publications) has described (for better or worse) as an exercise of a purported “Merryman Power.”
The same logic applies each and every time Congress passes an unconstitutional statute—even a facially unconstitutional one. As long as the President might fail to enforce it, or as long as the courts can strike it down—there is no dictatorship.
The fact that a branch might act illegally / unconstitutionally does not mean we lack the rule of law or that we are now under a dictatorship. These things happen all the time—sometimes by the President, sometimes by the Congress, sometimes by the Courts (unless you think that wearing a robe means you cannot act lawlessly / unconstitutionally).
I might add that the overwhelming majority of federal judges remain non-Trump appointees. I see no reason to believe that they are enamoured or afraid to rule against the President. See Judge Sullivan in D.C. in the Emoluments Clauses case; and Judge Messitte in D. Md. (same). Again, the President’s party has majority control in both houses, and his party might retain that control in the election next week. But his support among his own members is not deep. They could easily turn on him. Consider: Governor Evan Mecham.
What the President has done here is to purchase a lottery ticket—that he might prevail in the courts (as unlikely as that may seem), and if he does not prevail, then he is hoping that the overreaction of his opponents (or the misstatements they make on the way) will earn him additional political support among voters. None of this is anything but normal politics.
Part II: De We Live in a Constitutional Dictatorship?
It all depends on why the courts deferred [to the President].
If the courts deferred to the President’s view here because he (the President) threatened them (the courts) or because he threatened not to obey them, and they gave in to his threat, then that is (or is, at least, close) to a dictatorship. (This is what Professor Fallon thinks happened in Ex parte Quirin—and [yet] who now calls FDR a dictator?)
But if the courts deferred because they agreed with the President—that he has the power to make this determination—because it corrects a prior misunderstanding, because it is good policy, because it is correct as a matter of original public meaning, or for any other reason that they [the courts] think satisfactory—and in reaching an independent judgment their decision-making was unimpeded, then that result might be unfortunate, it might be a mistake, but it is not anything like a dictatorship. Why? Because as long as the courts make the call (even if mistaken) we are not being ruled by the dictator—our rights will depend on the intervening agency of someone or something other than the purported dictator. Here it would be the courts—as it usually is.
So the fact that the courts might defer does not ineluctably lead to the conclusion that we live under a dictatorship. Isn’t the dominant understanding of what makes a dictatorship ... is rule by the command of the dictator?
Part III: The President and Constitutional Litigation
It is not uncommon for an Executive Branch officer to take the position: I am not sure what the law is—I can leave it to the courts. Professor ZZZ thinks the President is involved in some sort of lie. That’s just a way of his stating that he knows what the Thirteenth Amendment means, and [the President’s] departure from what he knows as authoritative casts the other as lying.
But the President is not a Thirteenth Amendment scholar, and he may very well have been told birth right citizenship is the historical & majority view, but there is a minority view developed in the odd case and in the odd law review article—long predating your administration. And Trump’s response (like many other officials and officers) in similar positions—OK, what do I have to do to get the courts to decide?
There was a time, not so long ago, that the largest number of legal academics used to think well of Presidents (and their staff) engineering such cases—rather than avoiding the courts and ruling by fiat or by executive actions which escape (and seek to escape all) judicial review. Here Trump has thrown the issue into the public square for public debate [before an impending election!] and into the courts. He is not ruling as a dictator. He is embracing politics—normal politics. Now compare and contrast this conduct to another President who uses “prosecutorial discretion” in a way that might defeat judicial review—because no one can show standing. Who is the dictator? And who is undermining judicial review of major Executive Branch policy initiatives?
Seth Barrett Tillman, Is Trump a Dictator?: Tillman’s Response on Conlawprof, New Reform Club (Oct. 31, 2018, 5:18 AM), https://reformclub.blogspot.com/2018/10/is-trump-dictator-tillmans-response-on.html.