Trump Senior Adviser: His Powers are “Substantial” and “Will Not Be Questioned.”

Trump Senior Adviser: His Powers are “Substantial” and “Will Not Be Questioned.” February 13, 2017

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Public domain image

No one doubts that presidents have authority in national security matters. But their power is not, never has been, and must never be, unlimited and immune from question or check. That is not the way of the United States.

For example, Article I of the Constitution gives the Congress the power to declare war. War is a national security question too, but the president can not declare a war on whoever he likes.

The president has limited powers. But who keeps him in check? The Congress can do so for one; in cases of high crimes and misdemeanors, the Congress can impeach and remove the president. And if there is a dispute about whether or not the president had the authority to take Action X, or whether Action X is consistent with the law, who decides that question?

That would be the courts.

Now, we may not always agree with the decisions that courts make. We don’t have to. But without them, who will arbitrate legal disputes? Who will determine whether or not something the president did was actually in his power to do? The Constitution gives those powers to the judicial branch (Article III).

(Congress, or a state legislature, can impeach judges; so judicial power is subject to checks as well.)

But now Stephen Miller, a senior adviser to President Trump (read more lovely things about him here, comes along and utters words that—to my knowledge—have never been dared spoken about a president of the United States before, unless Mr. Trump imagines that he is about to suspend habeas corpus.

The subject was the travel ban, and the venue was an interview on “Face the Nation.” Now, lest someone claim that I have cherry-picked quotations or took them out of context, you can check the transcript. There you will read Mr. Miller’s complete words, which are:

Well, I think that it’s been an important reminder to all Americans that we have a judiciary that has taken far too much power and become in many case a supreme branch of government. One unelected judge in Seattle cannot remake laws for the entire country. I mean this is just crazy, John, the idea that you have a judge in Seattle say that a foreign national living in Libya has an effective right to enter the United States is — is — is beyond anything we’ve ever seen before.

The end result of this, though, is that our opponents, the media and the whole world will soon see as we begin to take further actions, that the powers of the president to protect our country are very substantial and will not be questioned.

Let us pick this apart.

It may be true—I will not dispute it—that Courts have usurped far too much power unto themselves. This is a standard conservative critique of the courts. I agree with it.

But that does not mean that presidents may just ignore decisions they think are wrong, or that are an inconvenience to something they want to do. If a court has overstepped its power, a president may not overstep his in response. In this case, there’s not even a rational reason for Mr. Trump to do so. He can appeal the decision to the Supreme Court. Perhaps the Supreme Court will see things his way.

Second, the Ninth Circuit in this case is not acting as though it is a “supreme branch of government.” A plaintiff asked it to make a legal decision. It did so. It did not meet on its own in the dead of the night, on its own, just because, and say, “We don’t like this travel ban. We overturn it.” Courts do not do that.

And if Courts do not have supreme power, presidents do not have supreme power either. One does not correct judicial overreach by establishing presidential overreach.

Third, the fact that voters do not elect judges has nothing to do with this whatsoever. Mr. Miller brings up the word to bias the public against judges. He brings up the word to question the judge’s legitimacy. The founders wanted the executive to appoint judges. Judges are not beholden to a constituency or public passions when they don’t have to campaign for office. The idea of the founders was to keep them independent of the changing whims or fancies of the people. They are better able to render just judgment that way.

Fourth, the Court is not “remaking” a law. What is in question is not a law in the first place, but an executive order. If it were actually a law, Congress would have passed it and the president would have signed it. This is not what happened with the executive order. What the Court is deciding is whether or not the order is consistent with laws that have already been passed, including the Constitution.

The president does not just make laws on his own. Mr. Miller does not know this? Someone, please, hand him a copy of the Constitution. He needs to read it.

But then Mr. Miller follows up all that dubiousness with this truly awful statement. I quote it again.

The end result of this, though, is that our opponents, the media and the whole world will soon see as we begin to take further actions, that the powers of the president to protect our country are very substantial and will not be questioned.

“The powers of the president … will not be questioned?

Can you say “Sieg Heil”?

No, I do question. I have always questioned, and I always will question.

And one of those questions is how Trump apologists will try to defend this. Rick Rice posted the following on his Facebook page:

Imagine for a moment, those of you who are Trump supporters but also claim to be conservative, what the reaction would be if a Democrat were to have said what is quoted above.

Imagine it.

But a Trump spokesman, highly praised by Trump over the weekend, says it and… nada, nothing, zilch.

Where has conservatism gone? Anyone seen it?

He is right. If a senior White House adviser had said something like, “People all over the world will see that Mr. Obama’s powers are substantial and not to be questioned,” conservative heads everywhere would have rightly exploded. There would have been talk of impeachment. “Obama is not a king! Who does he think he is?” they would have shouted from the rooftops.

Where are they now?

I will say this: Any Trump apologist who does not immediately, unequivocally, and without equivocation condemn these words and slap down this despotism right away will be complicit in everything that happens from this point on. Don’t claim ignorance.

As for me, I state clearly to Mr. Trump: Non serviam.

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