Aziz Huq: "Supreme Court Can Second-Guess Trump Without Weakening Executive Power"

“Unprecedented” is an adjective that’s used with usual frequency about presidential action these days. Take President Trump’s early morning sniper-attack on his own lawyers’ efforts to defend the March 6 executive order targeting seven Muslim-majority countries’ nationals. In the immediate term, the tweets reinforce the argument of those challenging the ban in federal court that the national-security justification is vanishingly thin, whereas evidence of unconstitutional motive is intolerably weighty.

Less remarked so far, the tweets also support the challengers’ argument based on the federal statute on which the President relies: That the executive order is not premised on the necessary factual finding about an “alien or group or aliens” presenting an actual risk, and is thus unlawful.

But would the ensuing judicial invalidation of a presidential action — as some commentators have worried — inflict lasting damage to the presidency as an institution? There is clear precedent for courts’ reliance on presidential public statements and a long history of courts invalidating executive actions related to national security. These past precedent have not prevented the secular rise of executive authority. 

Even if the present situation may indeed be unprecedented in some ways ways, a judicial check on wartime presidential authority would hardly be novel. And especially given Monday’s tweets, it is becoming easier for a court to craft an opinion that invalidates this one action without inflicting any lasting dent to presidential power--simply by relying on the president’s own words.

The judiciary