Courts Must Decide How Much ‘Deference’ to Give Trump
(Bloomberg Opinion) -- One word holds the key to the major Trump-related court cases that you’ll be hearing a lot about in the next few months: deference.
In the lawsuits against President Donald Trump’s border wall, and in the U.S. Supreme Court case over whether the census will include a question about citizenship, a central issue will be whether the courts should defer to the assertions that the Trump administration says provide a basis for the decisions they’ve taken.
If the judges choose deference to the executive branch, that will mean wins for Trump. If, however, the judges trust their own judgment, expect Trump to lose.
The basic idea of judicial deference is that, when it comes to some situations, judges shouldn’t make their own assessment of the facts or the law, but instead yield to the assessment made by someone else, usually an actor from within the executive branch.
The concept of judicial deference is slightly weird in a legal system devoted to the idea that, in the words of Chief Justice John Marshall, “it is emphatically the province and duty of the judiciary to say what the law is.” According to this dictum, which dates back to the seminal 1803 case of Marbury v. Madison, courts have to decide legal issues, not duck them.
Consequently, courts have to give reasons when they choose to defer.
Sometimes the reason is that Congress has directed the deference, either expressly or implicitly. But it’s exceedingly rare that Congress directs judicial deference in so many words.
More often, courts defer because they want to defer. Judges say that the executive will do a better job of deciding certain things, or that they want to show respect for the constitutional prerogatives of the executive, or occasionally that they can’t do a good job of exploring the fact themselves.
The important thing to know about these rationales for deference is that they are makeweights: easy excuses for judges to avoid hard decisions or to find a way to reach unpalatable outcomes. When judges want to decide something without deference, they nearly always find a way.
Consider, for example, the wall-related cases. Deference will come up first when the challengers say that there is no national emergency that requires the president to divert money to build a wall along the border with Mexico.
Justice Department lawyers will answer that the courts should defer to the president about whether there is an emergency. The national emergencies law, they will point out, doesn’t specify the criteria the president must use. Therefore, they will conclude, the law must mean to give the president wide discretion to decide if there is an emergency or not.
Deference will next come up in the wall cases when the challengers assert that the wall isn’t a defense measure, as Trump has claimed in order to invoke a statute that allows presidents to reallocate defense appropriations for certain emergency purposes.
Trump’s lawyers will say that the executive as commander in chief is in charge of defense, and therefore the courts should defer to his judgment about whether the military and the wall are needed at the border.
In both parts of the argument, the courts could refuse to defer on the ground that Trump has so baldly flouted federal law as to forfeit any deference. Then the courts could find that there is no emergency at the border and no defense connection.
Yet it is also possible that a court seeking to uphold the wall spending could avoid the embarrassment of saying that the emergency is real and wall related to national defense by simply saying it was deferring to the executive.
In the census case, a federal district court already refused to defer to Secretary of Commerce Wilbur Ross’s explanation for why he wants to add a citizenship question to the census questionnaire. Instead, the court held that Ross had given a false, “pretextual” reason for the decision, thus violating the Administrative Procedure Act.
It would be hard for the Supreme Court to reverse the lower court’s factual findings. But the conservative justices could hold that the court should have deferred to the commerce secretary’s stated explanation rather than trying to look behind the statement and into the actual decision-making process.
If this talk of deference is giving you some “Russian Doll”-style déjà vu about Trump and deference, it isn’t something you smoked. In the first marquee Supreme Court case of the Trump administration, the challenge to the ban on people entering the U.S. from a group of majority Muslim countries, deference ended up playing a decisive role.
The court’s majority didn’t want to deal with the extensive evidence that Trump was motivated by anti-Muslim bias.
So it said that because the president was acting in the realm of immigration, where Congress has given him lots of power, the court would defer to his official explanation for the ban. That saved the court from having to consider the president’s tweets and statements that made the bias clear.
Here’s hoping Chief Justice John Roberts now regrets using deference to give Trump cover to violate the Constitution. The time for deference is over.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”
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