Professor Eric Posner recently explained a dilemma the federal courts face in the wake of President Trump’s election: how to check unconstitutional excesses while, at the same time, respecting the deference afforded “the president on national-security matters” in light of the president’s ability to act “on the basis of classified information,” coupled with the “need to move quickly.”
That deference turns on a level of trust of the executive that courts, as exemplified by the unanimous decision of the Ninth Circuit Court of Appeals in State of Washington v. Trump, may not hold. Posner warns of the possibility that the president, faced with many such decisions, might defy the courts. This raises the question whether the possibility of defiance, in itself, justifies adhering to the traditional deference the courts accord national security decision-making.
This is not a new question. In the infamous World War II-era case, Korematsu v. United States, a majority of the Supreme Court held that classifications based upon race must be justified by the most stringent standard—and then immediately concluded the government’s internment of Japanese-American citizens satisfied this standard, notwithstanding the lack of evidence that any of those individuals had engaged in disloyal conduct or were likely to do so. In his dissenting opinion, Justice Murphy viewed the internment order as the embodiment of the kind of invidious discrimination our equal protection jurisprudence condemns. Justice Jackson, in his dissenting opinion, challenged the majority’s willingness to bend the application of a constitutional standard to meet an alleged necessity unilaterally declared by the executive branch.
Let’s consider each of these approaches in the context of President Trump’s executive order imposing a temporary moratorium on travel visas from seven Muslim countries. One could argue that the decision in State of Washington represents a vindication of the Murphy approach—a commitment to separation of powers and the rule of law through review of executive decision-making, even in the realm of national security. It is this approach, though, that Posner suggests may lead a president to ignore judicial rulings that challenge the validity of his or her national security actions.
But, you may be thinking, wouldn’t we prefer that courts seriously review those executive actions, rather than blindly defer to whatever the president believes expedient? Indeed, the argument for showing that kind of deference in State of Washington is particularly weak given the publicly available facts regarding the actual threat posed by those individuals targeted by the Trump immigration order.
Perhaps Justice Jackson’s approach offers the courts an alternative path. He urged the courts not to exercise deference that “distort[s] the Constitution to approve all that the [president] may deem expedient.” The judiciary, he continued, should leave to the executive determinations of what is reasonable and decline to enforce those actions that it deems unconstitutional. For “[t]he chief restraint upon those who command the physical forces of the country,” he concluded, “must be their responsibility to the political judgments of their contemporaries and to the moral judgments of history.”
In the end, then, the best the courts may be able to do is to publicize the details of executive actions—to explain, simply and clearly, what the executive seeks to accomplish and how. Then it becomes the responsibility of Congress and the people to act. This is no small thing: no president since the case was decided has relied on Korematsu to justify any national security policy, a tacit rejection of the government’s asserted justification for the quarantine orders.