Legal Challenges To Trump's Actions Highlight Limits Of Presidential Power
ROBERT SIEGEL, HOST:
Last week at the hearing that led Judge James Robart to place a stay on President Trump's executive order, there was an exchange about national security, presidential authority and facts. Judge Robart asked the lawyer arguing the government's case, Michelle Bennett, about the lack of terror attacks committed here by people from the identified countries, and she said that's not a question for the court.
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MICHELLE BENNETT: Because this is a question of foreign affairs because this is an area where Congress has delegated authority to the president to make these determinations. It's the president that gets to make the determinations, and the court doesn't have authority to look behind those determinations.
SIEGEL: But in the hearing, Judge Robart added an additional standard to be met before he would OK the executive order.
(SOUNDBITE OF ARCHIVED RECORDING)
JAMES ROBART: I'm also asked to look and determine if the executive order is rationally based, and rationally based to me implies that I - to some extent, I have to find it grounded in facts as opposed to fiction.
SIEGEL: Which raises this question - can the courts override an executive order because it's based on erroneous claims of fact and it doesn't meet a standard of rationality? Well, Jeffrey Rosen is president and CEO of the National Constitution Center in Philadelphia, where he joins us now. Welcome to the program once again.
JEFFREY ROSEN: Thank you so much.
SIEGEL: Is the president constitutionally obliged to only issue orders that pass Judge Robart's fact-or-fiction test?
ROSEN: Yes, the Constitution requires that all laws be rational. And even in the most dramatic challenges of national security, including those involving the Japanese internment, the courts, both the majority and the dissenting justices, did ask whether military orders were reasonable.
SIEGEL: How much deference, though, do the courts typically give the president in national security measures, and could you imagine the courts today limiting that deference?
ROSEN: Courts are deferential when national security is asserted. In the now-infamous Korematsu case, a majority of the Supreme Court held that the military's judgment that Japanese-American citizens posed a threat to the U.S. - had to be deferred, too. Although, there's a fiery dissenting opinion by Justice Murphy looking at the facts and saying, this is absolutely irrational. The actual evidence suggests that these are made up justifications. And Justice Robert Jackson said that for the court to sustain unconstitutional orders under the guise of assuming that they're reasonable is like a loaded gun that legitimizes racial discrimination.
SIEGEL: And in that case which upheld the internment of Japanese-Americans during World War II, the government failed to disclose a naval intelligence assessment it had which said there was minimal risk posed by Japanese-Americans, and it could be dealt with individually, not by dealing with Japanese-Americans as a group. In that case, the facts were not presented properly.
ROSEN: That's exactly right. And even so, Justice Murphy in his dissenting opinion was able to say that the reasons presented appear to be largely an accumulation of much of the misinformation, half-truths and insinuations that for years had been directed against Japanese-Americans.
SIEGEL: You know, Jeffrey, I've been thinking back on national security claims made by the government that have not held up to factual scrutiny and - you know, going back to the blowing up of the battleship Maine in Havana to the Gulf of Tonkin incident to the nuclear weapons that Saddam Hussein was developing. If the court were to enter into this, it could assume control over foreign policy.
ROSEN: Well, that was the concern that Justice Robert Jackson gave in his dissenting opinion in the Korematsu case. And he said rather than really closely second-guessing the reasonableness of military orders, courts should simply ask, are they constitutional? But a key test of constitutionality is, is there some basis for them in fact?
And that was the court's holding in the Pentagon Papers case, which is the closest analogy here. The court said, if there's any threshold the government can satisfy for a prior restraint on the press, it cannot be satisfied by the mere telesmatic (ph) invocation of national security. Some particularized showing must be made.
SIEGEL: Can you imagine the present Supreme Court looking at this order and saying, not enough facts - can't have it?
ROSEN: Yes, I can. Rational basis review, as the lawyers call it, is the lowest standard of scrutiny. Even a Supreme Court that didn't want to second guess the order as a form of religious discrimination or discrimination on the basis of alienage would insist that there's some basis in fact for the order. And if the justices concluded there was no rational reason for choosing these seven countries, then I could imagine both the liberal and conservative justices on this court striking the order down.
SIEGEL: Jeffrey Rosen, president and CEO of the National Constitution Center, thanks for talking with us.
ROSEN: Thank you.
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