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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Shirking the Responsibilities of Leadership

In the aftermath of the SEAL raid into Yemen, which has prompted the father of the dead soldier to refuse to meet with President Trump, multiple investigations into the planning and execution of the raid, and the unsightly blaming of his generals for what is ultimately his decision, Donald Trump may have found a way to avoid taking responsibility for future military operations. The Daily Beast is reporting that Trump is considering taking himself out of the decision loop for military raids by allowing Secretary of Defense Mattis and other relevant military officials to authorize the raids on their own without presidential approval. As the Beast notes, “in declared war zones, U.S. commanders have the authority to make such calls, but outside such war zones, in ungoverned or unstable places like Somalia, Libya, or Yemen, it can take permissions all the way up to the Oval Office to launch a drone strike or a special-operations team.”

It’s not inherently a bad idea to loosen the reins on approving military operations, and it’s a complicated calculation about which kind of operations should and which should not require presidential approval.

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Dangers of Un-Leadership

It is still early in the administration of Donald Trump (has it really only been a month?) and fortunately there haven’t been any serious foreign policy crises yet. But that is not to say that all is well in the national security offices of the executive branch. Disturbing and dangerous signs are visible that President Trump has no idea what he is doing, makes up policy on the fly, likely based on whatever cable news show he last watched, and ignores his cabinet and policy advisers, forcing them to either contort policy around Trump’s tweets and outbursts or to clean up the mess from what he has unwittingly done. Meanwhile, Trump spends much of his time on the links and trying to hide his golf outings from the press.

This is an echo of the offer that was allegedly made to John Kasich during the campaign that if he became vice president he would be in charge of making policy and running the country while the president focused on “making America great again.” But it is, in fact, much much worse.

Everything that the president says matters. His words are parsed and scrutinized by everyone from friends to allies to enemies. When the president does not, will not, and cannot lead effectively and efficiently it causes chaos and uncertainty, neither of which are desirable in foreign policy. While surprise is good on the battlefield, it is bad in geopolitics, where wars can erupt over misunderstandings and where delicate policy negotiations can be undone by one errant remark. Trump’s “un-leadership” is endangering not just US national security but the peace and stability that the international system has long enjoyed.

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The Canary in Trump’s Coal Mine

In May of 2016, the New York Times reported that one of John Kasich’s senior advisers was contacted by the Trump campaign, which offered Kasich the vice presidency, claiming that he could be “the most powerful vice president in history.” When the adviser asked how that would happen, the Times reported that the Trump staffer responded that the vice president would be in charge of domestic and foreign policy while President Trump would focus on “making America great again.” For many people on both sides of the political aisle, such a distribution of responsibilities would be the best case scenario in a Trump administration. President Trump can spend his time tweeting and speechifying, while leaving the hard work of policy making to the experienced, more traditional politicians.

The recent hearings for Trump’s Cabinet appointees lend some credence to the argument that this is, in fact, how President Trump intends to govern. Many of his nominees, especially for the national security-related positions, expressed policy preferences that diverged significantly from Trump’s campaign promises. But perhaps the most important Cabinet member in this context is the new Secretary of Defense, retired U.S. Marine General James Mattis.

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