海角大神

From pink hat-wearing protesters to former FBI Director James Comey, President Trump has accrued plenty of challengers in his first four months in office 鈥� but perhaps none has been as effective as the federal courts.

The judiciary is a key cog in America鈥檚 checks-and-balances system, and a significant question mark loomed over how the institution would respond to such an unorthodox and unpredictable character in the White House. And ever since Judge James Robart in Washington became the first federal judge to block one of Mr. Trump鈥檚 policies nationwide 鈥� in that case, his first travel ban executive order 鈥� federal courts around the country have overwhelmingly done the same.

But as the losses have mounted for his administration, particularly in liberal-leaning courts, some have begun to wonder if the hype and fear surrounding his policies have led the judiciary to treat him unfairly.

For almost a century, presidents have enjoyed a 鈥減resumption of regularity鈥� that, barring evidence to the contrary, they always properly discharge their official duties.

Perhaps for the first time in history, the question of whether a president is entitled to that presumption is being seriously debated. And should it vote to take up a challenge to Trump鈥檚 revised travel ban order, which restricts the entry of immigrants from six Muslim-majority countries, the Supreme Court would be poised to issue a major judgment on the question.

鈥淲hat the court does here will signal how the judiciary should react to Trump鈥� in the long-term, says Josh Blackman, an associate professor at the South Texas College of Law in Houston. 鈥淚t鈥檚 not going to be constrained to this specific case.鈥�

Courts have blocked Trump on other policies, including his executive order on sanctuary cities. But the travel ban executive order is where claims of unfair treatment toward the president have focused. On Monday, a three-judge panel of the US Court of Appeals for the 9th聽Circuit handed the White House another legal defeat 鈥� becoming the latest appeals court to uphold an order blocking the ban from taking effect.

In recent arguments before the US Court of Appeals for the 4th Circuit over the second travel ban 鈥� revised after courts blocked the original version 鈥� Judge Paul Niemeyer asked the lawyer opposing the government if an identical order would be considered constitutional had it been signed by a president not named 鈥淭rump.鈥� After dancing around the question twice, the lawyer admitted, 鈥渋n that case it could be constitutional.鈥�

The exchange helped Judge Niemeyer drive home the point in his dissent that in continuing to block the order, which never mentions 鈥淢uslims鈥� or 鈥淚slam,鈥� the court 鈥渁dopts a new rule of law that uses campaign statements to recast the plain, unambiguous, and religiously neutral text of an executive order.鈥�

Instead, Acting Solicitor General Jeffrey Wall urged the 4th Circuit to grant Trump the 鈥減resumption of regularity鈥� as a reason for the judges to not look beyond the neutral (and perhaps constitutional) plain text of the order.

鈥淎 鈥榩resumption of regularity鈥� requires reading [executive orders] in a way that is not most hostile to the president, but would render the actions lawful,鈥� said Mr. Wall, in one of at least four references to the doctrine, which the US Supreme Court created in a 1926 case involving a lawsuit over a domestic monopoly of chemical industries. As part of their decision in the case, the justices wrote at the time聽that in authorizing an executive order, the president 鈥渋s presumed to have known and acted in light of the material facts.... Such orders are supported by a presumption of regularity, and [due to] the basis of fact on which they rest, will not be reviewed by the courts.鈥�

The lower courts, for the most part, have ignored that presumption when it comes to the travel ban. Among their most prominent justifications for doing so is that while the order is neutral on its face, statements made by Trump and some of his associates 鈥� both before and after he took office 鈥� suggest there may be discriminatory intent behind the order.

Most recently, Trump let forth a series of tweets last week criticizing his own Justice Department for revising the original order to a 鈥渨atered down鈥� version, and criticizing the courts for being 鈥渟low and political.鈥� The 9th聽Circuit cited those tweets in its unanimous ruling on Monday and stated that the administration had not made its case strongly enough for denying 180 million people entry into the country.

Previously, the president had said in an interview that the original order would prioritize 海角大神s. Statements by senior adviser Stephen Miller, former adviser Rudolph Giuliani, and other proxies also have also been cited in lower court decisions.

'Trump-only' decisions?

Court rulings premised on such statements are, in the eyes of some, overreaching and 鈥淭rump-only鈥� decisions.

The 4th Circuit 鈥渞efuses to apply the traditional deference to the president and Congress in immigration affairs because of Trump鈥檚 statements,鈥� John Yoo, a Berkeley law professor who served in George W. Bush鈥檚 Justice Department, told the Washington Examiner. 鈥淭here is no doubt that this is a Trump-only decision.鈥�

The rulings are 鈥淭rump-only鈥� decisions only in the sense that no other president has made statements as legally compromising as the president has, critics counter.

鈥淭his is not about being Trump-specific, it鈥檚 about being motive-specific,鈥� says Ilya Somin, a professor at George Mason University鈥檚 Antonin Scalia Law School.

Specifically,聽a central challenge to the travel ban is a pretextual discrimination claim: that the order, while facially neutral, would have a discriminatory impact on Muslims.

鈥淭here鈥檚 a general principle here against pretextual discrimination that the Supreme Court has applied in lots of previous cases,鈥� Professor Somin adds. 鈥淚t鈥檚 simply false to claim that the courts are somehow picking on Trump in a way they wouldn鈥檛 pick on another president who did the same thing.鈥�

Supreme Court decisions are by definition precedent-setting, and the justices will be acutely aware that their decision will long outlive Trump鈥檚 presidency. Thus, experts say, they will be careful about doing anything to trim the broad, congressionally-mandated discretion the president has in immigration and national security affairs.

But a ruling against Trump doesn鈥檛 necessarily have to mean a narrowing of executive power on these issues, according to Peter Spiro, a professor at Temple University Law School.

鈥淚f the Court rules against Trump, this will be an important explanation,鈥� he wrote in an email to the Monitor. 鈥淭hey can rule against this president knowing that the ruling is unlikely to apply to any future president, assuming the improbability of future presidents who continually undermine their own cases with tweets and the like.鈥�

Steven Schwinn, a professor at the John Marshall School of Law in Chicago, suggests such a decision could be helpful in drawing a bright line for future presidents.

鈥淣ot only might the court think other presidents wouldn鈥檛 behave that way, but then you鈥檝e also got a ruling that instructs future presidents not to behave this way,鈥� he adds.

On the flip side, if the court ruled in Trump鈥檚 favor, he thinks that may 鈥渋nvite future candidates to make wild and anti-religious statements and statements in support of a policy they later write to be facially neutral.鈥�

Supreme Court sets 'very high bar'

It is far from certain, however, that the Supreme Court will follow the lower courts in ruling against Trump.

The Supreme Court has set 鈥渁 very high bar for looking beyond a facially neutral policy鈥� in other areas of the law, Professor Schwinn says, particularly when it comes to racial discrimination.

Furthermore, the high court has 鈥� until recently, in some cases聽鈥� been comfortable giving broad deference to the White House.

Yet the White House has never been occupied by someone who has behaved like Trump, says Professor Blackman.

鈥淯nder the law, President Trump wins. Under the law, President Obama, President Clinton, President Bush would all win,鈥� he adds. 鈥淏ut President Trump is his own worst enemy, truly so.鈥�

鈥淲hen the Supreme Court does something, it lasts for generations,鈥� he continues. 鈥淚 sincerely hope that the justices view this case in the normal course of order 鈥� what the government鈥檚 called the 鈥榩resumption of regularity鈥� 鈥� but President Trump seems to be trying to undercut that at every possible juncture.鈥�