If you want to grasp the upside-down, inside-out character of the political world in President Trump's America, you could do worse than reflect on the fate of his executive order limiting travel from six majority-Muslim nations (the so-called "travel ban").
I don't support the order, which strikes me as a foolish overreaction almost entirely lacking in justification. Yet if just about any other president had signed such an order, I would have considered illegitimate the efforts of the federal judges to block its implementation. The U.S. Code, enacted by Congress, gives presidents broad powers to adjust immigration in the face of threats to national security (or for any reason at all). The fact that judges disagree with a particular president's assessment of these threats is irrelevant.
Then there are the reasons judges have given in support of their efforts to block the ban or uphold lower court injunctions, which have been … creative. Claiming that individuals residing abroad who are not American citizens can assert that their due process rights under the U.S. Constitution have been violated is one example of such creativity. Another is the claim that Trump's tweets and statements during the presidential campaign prove the travel ban is actually a "Muslim ban," which violates the First Amendment (religious free exercise) rights of Muslim Americans. (The fact that hundreds of millions of Muslims live in countries other than those covered by the executive order and so could still presumably enter the U.S. without restriction would seem to belie that contention.)
If any other administration were defending itself against such fanciful arguments before the Supreme Court, I would expect a unanimous decision in its favor. But of course, this isn't any other administration. That's why, up until the beginning of this week I was expecting something closer to a 5-4 decision in the administration's favor, with the conservative justices siding with the president and the liberals standing against him.
But now, after two days of presidential tweets that both directly undermine the solicitor general's arguments in defense of the ban and seem intended to bully the high court into capitulating to the executive branch — well, now I'm just not sure.
Really, who can be sure of anything in Trump's America?
Trump campaigned like a blustering would-be authoritarian. The opening weeks of his presidency were conducted like a putsch, with sweeping and sloppy executive orders handed down every few days. Apprehensive Americans had every reason to worry about the new president's intentions with respect to liberal democratic norms.
Such worries are still amply justified. But it's a sign of the relative strength of such norms in the United States that Trump so often finds himself hemmed in and thwarted in his goals. Much as a black hole warps the surrounding fabric of space-time, so Trump’s stupefyingly unpresidential temperament, utter cluelessness about policy, and self-defeating behavior consistently result in consequences that are quite different from, and sometimes even the opposite of, what he intends.
The more Trump tries to expand his powers, the more they contract.
Trump said he would Make America Great Again, but his blustering unilateralism and needlessly combative statements have already diminished the country’s stature and standing across the globe.
He promised to improve the lives and economic prospects of the working class, but he seems not to understand that his positions on health care, taxes, and regulation will inflict considerable pain on many working-class families and communities.
And of course he vowed to keep Americans safe by using all the powers of the presidency to defend the country without apology, even though his executive orders on immigration have been imperiled by his administration's sloppiness and his own big mouth.
But what if Trump is playing a longer and more ominous game?
Legal analyst Jack Goldsmith suggested as much in an important February essay that speculated about the president's motives in signing such a flawed executive order in the first place. Maybe Trump actually wants the travel ban to go down in court, Goldsmith speculated, so that, after a subsequent terrorist attack, he would be able to blame the judiciary and try for an extrajudicial power grab in the name of national security.
I think it's a mistake to presume any multi-stage strategic intent on the part of Donald Trump. At every step he seems driven by sub-rational (and often blatantly self-subversive) impulses. Yet Goldsmith's musings might still be an accurate bit of conjecture about how events are likely to play out over the coming months and years:
The travel ban seems poised to be struck down. The president will then rail against the courts (even more than he has in the past). And then, when and if the country endures a major terrorist attack, Trump will immediately direct his wrath toward the judges who blocked the executive order and insist that the nation can no longer afford the luxury of judicial deference. At that point, he might order that a new and even more draconian version of the travel ban be instated immediately — and order that the relevant executive branch agencies and departments ignore any and all legal injunctions against it.
That would plunge the country into the gravest constitutional crisis since the Civil War. How would federal judges respond to the provocation? And would the executive branch defer to the president or court orders? We can't know for certain. But everything we've seen over the first few months of the Trump administration indicates that the president would lose in such a showdown — with his unjustified power grab checked by individuals, norms, and institutions that possess the power to rein in the unruly head of the executive branch.
Once again, Trump's effort to enhance his own power will result in the further miniaturization of the presidency. Or so we must hope.