I’m looking for someone who will provide a legal or constitutional defense of Trump’s attack on the courts. The absence of such a defense poses problems for Trump’s critics: they are flailing away at real and imagined arguments without knowing where to aim their fire.
Remember the Bush 2 and Reagan administrations? Officials in both administrations really did take the trouble to set out explanations for their actions. Both administrations believed that the presidency had been enfeebled by post-Watergate legal reforms, and sought to revive the office. To do so, they argued that Article II of the Constitution conferred on the executive vast powers that Congress was powerless to oppose, and that the post-Watergate presidency could not protect the country from foreign threats. Notably, their hostility was directed at Congress rather than the courts—no doubt because the courts were deferential to the executive in the area of foreign affairs, while Congress was the author of the post-Watergate reforms, and was a constant irritant as both administrations sought to expand presidential powers. Both administrations clashed with Congress but not with the courts—in the sense that they both were willing to defy Congress by refusing (or threatening to refuse) to comply with some of its laws or orders but neither of them disobeyed a court. (While the Reagan administration disagreed with huge swathes of constitutional doctrine, it sought to change that doctrine from within by appointing ideologically committed conservative judges and justices.)
What might the Trumpian view be? It could be an updated version of the Bush/Reagan view. Now the threat comes from the judiciary rather than from Congress, which is firmly under Republican control. But the Trump administration has not made the case that the judiciary as a whole is out of control, cannot be trusted, is politically biased, lacks competence, or in any way has exceeded its constitutional authority. Contrast Franklin Roosevelt, who argued that a majority of the Supreme Court justices sought to defend an old order that benefited moneyed interests and were politically opposed to his New Deal reforms. Agree or disagree with Roosevelt, he laid out his case. If Trump’s argument is that the judiciary gives insufficient deference to the president in the area of national security, he has jumped the gun. While the Supreme Court has ruled against the Bush administration’s counterterrorism policies in a few cases, the practical effect of those rulings was limited; the judiciary as a whole largely acquiesced. Judicial doctrines that touch on national security give significant leeway to the president.
Another possible theory—which I have discussed elsewhere—is that the problem is not the judiciary’s attitude toward national security but its position in the culture wars. If Trump’s goal is to purify America of foreign influences in a cultural or even ethnic sense, then he really will run into opposition from the judiciary, on both the right and left. I suspect that Judge Robart ruled against Trump because he suspected that Trump was motivated by religious bigotry, and not because he believed that judges know the nation’s security needs better than the president does. Trump says that Robart puts the nation at risk of another terrorist attack, but if the second theory is correct, then Trump is concealing his real objection, which is that Robart will not tolerate discrimination against Muslims. If all this is true, then Trump’s legal defenders must make the argument that the judiciary has illegitimately put into place doctrine that will block the president’s goal of protecting American culture from foreign cultural contamination.