By Jonah Goldberg
Wednesday, May 10, 2017
A great deal has been said about Donald Trump’s
violations of “democratic norms.” I agree with much of it.
But the big problem with violating democratic norms — the
unwritten customs and practices even political opponents traditionally abide by
— is that once you’ve done it, everybody else wants to do it, too. This makes
everything worse, because when the people most offended by Trump’s violations
respond in kind, they not only contribute to the problem, they create
incentives for Trump and his biggest supporters to keep doing it.
For example, the outgoing Obama administration was
horrified by the prospect of being replaced by the Trump administration. The
exact details have yet to be revealed, but it seems that some in the old guard
may have violated norms about “unmasking” the identities of certain
individuals, and they certainly violated norms by leaking various highly
classified details to the press. In response, Trump claimed vindication in his
claims that he was wiretapped.
A better example might be Stephen Colbert, host of The Late Show on CBS. He has found a
sweet spot in the ratings as a leading voice of the anti-Trump “resistance.”
That’s fine. TV is a niche business these days, even at the broadcast networks.
But last week, Colbert’s animus toward Trump’s crudeness got the better of him.
Suffice it to say that if you want to condemn a president for his incivility,
you squander some credibility when you describe the president of the United
States in a lewd act with a foreign dictator.
The most acute example of the problem, however, is
working its way through the courts. During the campaign, Trump outrageously and
ridiculously called for a “total and complete shutdown” of Muslims entering the
United States. He justified the ban on the campaign trail with lots of
incendiary statements.
One of his first acts as president was to sign an
executive order suspending entry into the U.S. by residents of seven countries
for 90 days. It empowered government agencies to allow for exceptions on a
case-by-case basis.
The order, which was immediately blocked by federal
courts and ultimately rescinded, was a sloppy piece of work. But it wasn’t a
Muslim ban. The vast majority of Muslims live outside of those seven countries
and were unaffected by it.
In March, Trump issued a second “travel ban” executive
order to take into account some of the legal and political objections to the
first. Iraq was dropped from the list, for example.
That order, too, was blocked by judges. The Fourth
Circuit in Virginia heard arguments in the case Monday.
Reasonable people can disagree with the policy merits of
the ban, legally, morally, politically, and strategically. But what I find
troubling is the way various judges have taken to acting like pundits weighing
in on Trump’s campaign rhetoric. For instance, Hawaii judge Derrick Watson of
the Ninth Circuit responded to the idea that Trump’s past utterances are
irrelevant with this preening statement: “The court will not crawl into a
corner, pull the shutters closed, and pretend it has not seen what it has.”
Historically, paying such deference to political rhetoric
is highly irregular. The motivations of politicians, real or perceived, are not
normally given any weight and virtually never disqualify legal language
“between the four corners of the page” — the text of the executive order
itself, in this case.
If you’re a student of history, you might have noticed
that even before Trump, candidates often promised grandiose, irresponsible, or
silly things on the campaign trail. Once elected, they discover they can’t
deliver.
And that’s a good thing. This is how democratic norms,
formal and informal, are supposed to work.
Barack Obama was once a vocal fan of single-payer health
care. Imagine the outrage if judges ignored the text of Obamacare and
invalidated it on the grounds that his campaign rhetoric proved his real
intent.
In Monday’s hearing, a lawyer for the ACLU conceded that
if a hypothetical president — Hillary Clinton or someone else — had issued the
same executive order, it could be constitutional. But Trump makes it
unconstitutional. That’s nuts.
I don’t blame judges or anyone else for being disgusted
with Trump’s rhetoric. But judges aren’t comedians or pundits. Their job is to
follow the law.
Trump doesn’t help by referring to his executive orders
as a “ban” (so as to pretend he’s fulfilled a promise he could never keep). But
the reality is that he abandoned the ban from the get-go. When judges pretend
otherwise to prove their “wokeness,” they undermine democratic norms even
further. And they give Trump and his boosters one more reason to screech that
the courts are biased against him.
No comments:
Post a Comment