The Limits of Deference

Today, the American Civil Liberties Union filed a lawsuit against the Trump administration in an effort to challenge the now-officially-ordered ban on the recruitment of transgender soldiers into the American military. The suit is grounded in the Equal Protection Clause of the 14th Amendment, claiming that “the ban is unconstitutional because it discriminates against transgender people and treats them unequally.” While there is much to say about the legal merits of the case, I’ll leave those arguments to people with more expertise than I in such matters. However, the case is interesting to me because it, along with several other lawsuits already in progress, might help us determine the limits of executive authority and judicial deference to the president.

Judicial deference is the practice in which courts are reluctant to issue rulings in areas for which legal findings aren’t well suited or might not appropriately overrule policy decisions. In US constitutional law, this often occurs in the realm of foreign policy and national security law, areas in which the courts often lack expertise and in which the urgency and the needs for security and secrecy are often understood to trump narrow legal rulings. Famous examples include the unwillingness of the courts to reach decisions that could, even by inference, imply recognition of Taiwan as a state or the interpretation of rules concerning the procedures by which one applies for asylum. Perhaps the most infamous and important instance of deference occurred during World War II when the Supreme Court refused to overturn the Executive Order interning Japanese-Americans. Deference is not absolute and there are times when the courts most definitely do not defer to the president, and the ACLU’s suit touches on one such time. Courts generally do not defer to the president on the meaning of the Constitution, but as Korematsu demonstrates, when the Constitution butts up against a presidential claim of national security, all bets are off.

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Giving Credit Where Credit (Might Be) Due

Last week, it was reported that, after months of considering the issue, President Trump was preparing to initiate a Section 301 investigation into accusation of Chinese violations of US intellectual property rights. Getting “tough on trade” and renegotiating all of the US’s “unfair” trade deals were some of the clearest policy promises of the Trump candidacy, and it seemed that the president was making ready to deliver on his promises. Interestingly, the issue was, perhaps, one where the president might have actually been able to deliver a “win” of sorts, as getting tough with China was one of the few issues on which Democrats see eye to eye with the president. An event to announce the investigation was scheduled for Friday, August 4.

The event was, however, cancelled and the White House has not provided any information as to when it might be rescheduled or even if the administration plans on opening the investigation at all. What could explain this delay of an issue that plays both to Trump’s base and offers the promise of Democratic cooperation?

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