Trump is working overtime to restore the rule of law

In the matter of Donald Trump v. Leviathan, let me begin by stipulating that Sir Thomas More was right in A Man for All Seasons when he remonstrated with his future son-in-law William Roper.  Roper was urging More to arrest the scheming Richard Rich, whose machinations would eventually lead to More’s execution. But, More points out, Rich had broken no law.  

William Roper: So, now you give the Devil the benefit of law!

Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?

William Roper: Yes, I’d cut down every law in England to do that!

Sir Thomas More: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!

There is a lot of wisdom in More’s remarks, as there is in this exchange with his daughter.

Margaret More: Father, that man’s bad.

Sir Thomas More: There’s no law against that.

William Roper: There is: God’s law.

Sir Thomas More: Then God can arrest him.

Watching the excitable anti-Trump lilliputians of the media running around shouting that the President is “defying court orders” reminded me of More’s eloquent defense of the law.  

Not, I hasten to add, because I believe Trump is acting as William Roper would have More act.  

On the contrary, I believe that Trump is working overtime to restore the rule of law. 

Restore it from what? Essentially from two things: first, Trump is acting to restore the law from the depredations of lawless, indeed un-constitutional, arrangements whereby the core powers of the presidency and of Congress are undermined by unaccountable bureaucrats. 

Second, he is acting to rescue the executive powers of the presidency from the un-Constitutional interference of district court judges. It is the latter that has focused everyone’s attention these last weeks as various judges have issued orders to say that the President of the United States may not fire people who work for him, that he must spend money controlled by agencies of the executive branch, and that he may not deport certain illegal aliens. Here I remind my readers of the first sentence of Article II of the Constitution: “The executive Power shall be vested in a President of the United States of America.” 

At least, that’s how it reads in my copy of the Constitution. Some of the nearly 700 District Court judges throughout the fruited plain seem to have a different text. Theirs reads, “The executive Power shall be vested, sort of, in a President of the United States of America along with an indeterminate number of district court judges whenever they disagree with said President’s actions.”  

It’s been a breathtaking performance by these local judges. I think that Nayib Bukele, the President of El Salvador, was right when he remarked that: “The US is facing a judicial coup.” What will be done about it?  “Oh,” you say,  “the Supreme Court will weight in to put a stop to this untoward arrogation of executive power by the judiciary.”  

Will they? Many think so. I hope they will. I think they will.  

But remember that just a couple of weeks ago the Court decided, five (and thank you, John “finger-in-the-air” Roberts and your epigone, Amy Coney Barrett) to four, that Donald Trump had to disburse $2 billion in foreign-aid reimbursements. Associate Justice Samuel Alito responded with condign tartness: “Does a single district-court judge who likely lacks jurisdiction have the unchecked power to compel the Government of the United States to pay out (and probably lose forever) 2 billion taxpayer dollars?” Alito wrote. “The answer to that question should be an emphatic ‘No,’ but a majority of this Court apparently thinks otherwise. I am stunned.”

I would say that I, too, am stunned, except that by now I am used to it. Remember that the fraternal (and sororal) order of district judges previewed the same wheeze during Trump’s first term. The President seeks to restrict immigration from a bunch of countries identified as terrorist hotspots. Bam! The usual suspects start shouting about a ban on “Muslim immigration” and, right on cue, some hapless judge called James Robart from – wait for it! – Seattle emits an order calling for “declaratory and injunctive relief,” to be applied immediately and on a “nationwide basis” (my emphases). Seattle has spoken, comrades! Judge Robarts finds (where? how?) that his court has jurisdiction over… well, over just about everything: the president and the head of the Department of Homeland Security, for starters, but also “the United States of America (collectively).”

“Jurisdiction.” That’s one of the two most important words in this controversy. Ask yourself this: do the approximately 700 district judges have “jurisdiction,” which means — authority, control, power, dominion — over the executive actions of the President of the United States?  The answer, in case you were on tenterhooks about this, is “No, they do not.” The entertainment committee never sleeps, so I offer free and for no extra charge this amusing and definitive explanation of this point by Trump’s aide Stephen Miller, who undertakes a rudimentary civics lesson with a (pardon the redundancy) silly anchor from CNN. Ordering the president to refrain from deporting terrorists is not, Miller explained, “something a district court judge has any authority whatsoever to interfere with, to enjoin, to restrict or to restrain in any way.”

The other important word is “deterrence.” We’re used to seeing that word when people discuss the metabolism of power politics. A shorthand version is contained in nuce in Reagan’s (and now Trump’s) phrase, “Peace through strength.” The Roman military historian had a kindred pithy slogan: si vis pacem, para bellum: “If you want peace, prepare for war.” 

The regime party has spent the last eight years attempting to destroy Donald Trump. But forget about that single individual. Their actions, directed incidentally at Trump, have actually been focused on undermining the very things they claim to be supporting, democracy and the rule of law. The Trump administration’s efforts to restore fiscal sanity, accountability and common sense to the workings of government will seem like retaliation or or retribution only to those who have betrayed those values. For them, the closure of redundant or malevolent agencies, the exposure of financial wrongdoing and incompetence, the revocation of tolerance for illegal migrants who prey on US citizens will seem simply punitive. It is punitive, because it is in response to egregious wrongdoing. But in the long term, such masculine policies will function less as a punitive expedient than as a deterrent. Which is the point and the glory of deterrence.