Wow! Did the Supreme Court just give the president the power of decree? Finally, a branch of the United States government that recognizes its junior status and accedes to the supreme authority of the executive branch. The travel ban ruling is a parsed argument that effectively states the president of the United States has the authority to proclaim that his national security policies are overarching and that his being is infallible.
A malleable, rubber-stamping Congress and a freshly quiescent Judiciary have now fully abdicated their roles as a check on presidential power and collectively put a bow around a now fully-evolved imperial presidency. They just packaged and presented this generous gift to President Donald J. Trump.
Yes, the travel ban ruling is a reasoned and narrow decision that focuses on the executive’s authority over immigration. But the effect of the ruling ignores the express intention of the president’s ban. It also fails to acknowledge that the current Oval Office occupant defies reason, while, ignores previously limiting checks, and takes every opportunity to expand the powers of his office. Justice may be blind, but it is not supposed to be deaf and dumb, too.
Pretending that President Trump will merely take this limited win and not articulate it as a full-throated argument and justification for his absolute rule is to turn a blind eye to how this White House will interpret, articulate, and execute this ruling. Trump will take this judicial win and turn it into a broad and universal judgment over presidential authority to do whatever he feels like doing, whenever he feels like doing it.
Chief Justice John Roberts wrote the majority opinion, stating “we express no view on the soundness of the policy,” but Roberts also avoided expressing any view on the soundness of the president. Further, he did not judge the soundness of the president’s approach to democracy, separation of powers, emoluments, or any other norm or legal constraint on the president’s already considerable decision-making authority. Are we far from a pre-conviction presidential blanket pardon over everything said or done by anyone with whom he has associated, spoken to, invested beside, paid off, or slept with previously, now, and in perpetuity?
Let’s just admit it, America, our institutions, representatives, judges, and a vast number of voters have decided to just hand over the republic’s keys to the guy who said that he, alone, is the only one who can provide us with salvation and security. We had a good run as a revolutionary democracy these last 241 years. This year’s Independence Day parade will be replete with tattered flags, frayed bunting, and tarnished brass marching bands. The pre-November election military parade will be symbolically built to consolidate the president’s executive authority and elevate his role from merely civilian president to dominantly commander-in-chief.
Oddly, President Trump is not the problem here. He is doing what anyone with authoritarian tendencies and an aversion to democracy’s messiness is inclined to do. He takes whatever power he can get. And then he takes some more. He asserts that his power is absolute and relies on the rough-and-tumble democratic process, competitive social institutions, private interests, and citizen groups to cancel each other out and favor the loudest and least constitutionally respectful to curry favor and gain the upper hand. He plays us all against each other and he comes out the winner. He is all about winning.
For years, a Congress whose power has been usurped by extreme minority caucuses have prevented clear actions on immigration, budgets, the declaration of war, or constraining presidential power. These caucuses have paralyzed lawmaking and government in general, instead forcing congressional incumbents to focus on their own district well-being, personal job security and with an eye on two-to-six-year reelection cycles rather than the hard, compromise-demanding, comity-compelling work on the legislatively-challenging and constitutional-threatening issues of the day.
All too often, Congress has decided to punt on difficult questions. Weak-kneed House Speakers throw in the towel rather than fight the good fight and figure out how to corral their caucuses. The result: Unchecked and accreting presidential power that gives any future executive – Democrat, Republican or Bernie Sanders – carte blanche. It’s easy to concede power when national security is the justification for an executive action – whether it is steel imports or migrant children. The national security card has been overplayed by the president, but the Supreme Court just folded instead of raising or calling the president’s bluff.
It’s been an odd week. On Sunday, Turkish President Recep Tayyip Erdogan was handed a pre-ordained electoral victory that has assured him of total and absolute power over everything that lives, eats or breathes in his country. He has been winning elections, building coalitions, cajoling allies, purging the military, jailing journalists, threatening teachers, and retaliating against any resistance – foreign and domestic – over many years since the early 2000s. His domestic power is unbounded and his regional ambitions have only just begun.
Remarkably, Trump has shortcut Erdogan’s process. To quote a tweet, “Wow!” Trump only had to win one election, turn a Republican Congress into poodles, cow a court, and defang the press in order to be handed perfect power. He really is the king of dealmakers. Long hail the King!