Judges must address Trump's radical constitutional refashioning

The administration isn’t playing on the terrain of the existing Constitution.

There have been too many instances to count of a Trump administration policy rightly being called unusual or unprecedented. That is because the regime has a thorough plan to refashion the Constitution into an authoritarian document.

The plan does not depend on the formal process of ratification or even a popular groundswell of demand for reform. Instead, it is being transformed through a series of executive actions that are clearly unconstitutional under any reasonable interpretation of the document.

But the administration isn’t playing on the terrain of the existing document. That is why courts are in a terrible bind when someone sues it, citing some provision of that document.

When a court refers solely to constitutional provisions in rendering a decision against a Trump policy, it is as if we are watching a game with the contestants playing different games, but one doesn’t even know it or, if it does, has any idea what to do about it.

For the sake of the nation, this has to change.

Going forward, judges must not only hold the administration to account under the Constitution, but they also must address the radical constitutional refashioning that is going on. They need to explain clearly why that is immoral and undesirable, even if in so doing they push beyond the conventional understanding of the judicial role.

That was the thought I had when I read U.S. District Judge Thomas Cullen’s admirable decision dismissing the bizarre lawsuit brought by the Trump administration against all federal judges in Maryland. In June, the administration sued the federal court in Maryland and all 15 of its judges over a standing order that blocked for two business days the deportation of any migrant in the state who filed a lawsuit challenging detention.

The administration called the standing order an "egregious example of judicial overreach." It claimed that courts do not have the authority to issue such orders and that doing so interfered with the presidential prerogatives.

And it made clear that it was not just targeting a group of supposedly activist judges in Maryland.

“District courts,” the administration observed, “have used and abused their equitable powers to interfere with the prerogatives of the Executive Branch to an unprecedented degree. In the first 100 days of President Trump’s current Term, district courts have entered more nationwide injunctions than in the 100 years from 1900 to 2000, requiring the Supreme Court to intervene again and again in recent weeks to pause the unlawful restraint of the President’s exercise of core Article II powers.”

While invoking several Supreme Court precedents, the suit appealed to a source of authority beyond them or the Constitution itself. “Every unlawful order entered by the district courts,” it asserted, “robs the Executive Branch of its most scarce resource: time to put its policies into effect. In the process, such orders diminish the votes of the citizens who elected the head of the Executive Branch. Defendants’ lawless standing orders are … undermining the democratic process.” C

Strong rule in the name of the people is the rhetorical touchstone of the administration’s claims to legitimacy.

When the Trump administration filed its suit, Reuters reported that “Legal experts called the Justice Department's lawsuit surprising. Normally, to challenge a trial court's order, a litigant would do so in a case in which it arose or by asking an appeals court to set the order aside.”

Reuters quoted Duke University professor Marin Levy, who said, "’It is a shocking move by the Justice Department that is simply unprecedented…. And it seems like part of a strategic attempt to attack the courts rather than any sort of good faith litigation.’"

There it is again: “Unprecedented.”

But Levy is right to see the administration’s suit as a moment of constitutional refashioning, designed to diminish the role of a supposedly coequal branch of government. Cullen saw that threat to the judiciary clearly.

He noted that the administration had a well-laid path to challenge the standing order issued by the Maryland federal district court, namely, an appeal to the Fourth Circuit Court of Appeals. As Cullen explained, “Instead of appealing any of the affected habeas cases or filing a rules challenge with the Judicial Council, the executive decided to sue—and in a big way…. In casting its wide net, the executive ensnared an entire judicial body—a vital part of this coordinate branch of government—and its principal officers in novel and potentially calamitous litigation.”

Cullen insisted that disputes about the authority of the judiciary “must be resolved within the constitutional structure and with due respect for the judiciary's co-equal standing with the executive branch.”

“Regrettably,” he said, “this lawsuit effectively pits two of those branches against one another. But it is important to remember that at bottom, all branches and the public officials who serve in them have the same core sovereign interest: To support and defend the constitution.”

Here’s where I think Cullen fails.

That is not the Trump administration’s “core sovereign interest.” In almost every action, it has shown its interest in turning the Constitution on its head, not in supporting and defending it.

Among other things, this refashioning of the Constitution involves rule by decree, suspension of the law, an extended understanding of the president’s emergency powers, relegation of the legislative branch to a kind of second-class status, and creation of an armed militia with primary loyalty to the president. The list could go on.

The United States is in the midst of a profound constitutional transformation, and the judiciary is having trouble keeping up with it. As Yale Law Professor Bruce Ackerman pointed out 25 years ago, over the course of American history, the Constitution has been changed in many ways other than through the amendment process.

He referred to those events as “constitutional moments.” They are, by definition, rare.

They are characterized as moments of mass mobilization and popular engagement with fundamental questions about the proper role of government and the nature of individual rights. As Ackerman imagined them, they would happen when there was a “hyperconsensus” among the people about the need to adapt the Constitution to changed circumstances.

In previous constitutional moments, Ackerman argued, political leaders have not shown “deep respect for established modes of constitutional revision. They changed them in the very process of changing the substance of fundamental values….”

Not showing deep respect for existing modes of constitutional revision seems quite a suitable description of our current president. But unlike earlier moments of constitutional change, this president is trying to forge one from above, in the absence of a consensus of any kind.

Recall his claim that in the face of American carnage: “I alone can fix it.”

In the president’s view, law, courts, and judges are good only if they “establish social control and sideline political opponents,” bolster his “claim to ‘legal’ legitimacy,” enforce his efforts to secure “compliance within the state’s own bureaucratic machinery,” or help “ implement controversial policies.”

When federal district judges in Maryland did not do that, the president turned to another court to bring them to heel. Cullen refused to go along.

However, he played within the lines.

He recognized that “these are not normal times” and that the president was seeking “Unconstitutional leverage over its equal branches of government.” He suggested that allowing that would “eviscerat(e) the principles of checks and balances that are hallmark of our constitutional order.” But all he could offer was 37 pages of conventional legal analysis.

We need more.

In this moment, as Justice Ketanji Brown Jackson put it earlier this year, judges should not get caught up “in minutiae” and miss the “plot.” I think Cullen knows the plot.

But in the moment, he and every other judge must use every decision to expose that plot for what it is, an effort to make Americans (judges included) more fearful and less free.

Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College.

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