This Is What It Looks Like When Courts Don’t Trust the Commander in Chief

At the heart of the relationship between the federal judiciary and the president lies the principle of deference. Courts have long recognized that they lack the knowledge and standing to decide some political issues on their own. When cases present themselves that raise these issues, the courts tread carefully, showing deference to the determinations of the other branches. Nowhere is this deference more powerful than in cases of national security.

Yet last week, the courts once again suspended a policy that the president claims is essential to national security. In the process, they questioned, and indeed dismissed, President Donald Trump’s security determinations. With regard to these travel bans, judicial deference is dying, if not already dead. The question now is why exactly the courts killed it.

Until recently, the judiciary’s deference to executive determinations on national security matters had seemed deeply ingrained. Consider, for instance, the Supreme Court’s decision in Holder v. Humanitarian Law Project. In the 2010 case, the court ruled that Americans could be prosecuted simply for providing advice about political advocacy to a terrorist group. The court explained that despite the clear First Amendment interest at stake, this was a case where free speech principles needed to yield before “an urgent objective of the highest order,” namely combating terrorism.

But how did the court determine that the prosecution of these advice-givers was necessary for combating terrorism? In short: deference. “We have before us an affidavit stating the Executive Branch’s conclusion on that question,” the court explained. Because that question turned on “sensitive and weighty interests of national security and foreign affairs,” the affidavit was “entitled to deference.”

Civil liberties lawyers were livid. In a scathing review of the decision, the now-legal director of the American Civil Liberties Union (and the attorney for the losing side in Holder) flayed the court for trampling the First Amendment in favor of a national security rationale where “the only evidence the government offered was a single affidavit from a State Department official … which combined conclusory assertions … with hearsay allegations.”

But the Holder decision’s deferential approach is no outlier. The Supreme Court has invoked the principle in cases as diverse as the necessity of testing underwater sonar and the maintenance of an Army dress code. In those rare cases where the court has overruled the president’s national security determinations, it does so hesitantly, taking care to affirm, as in Boumediene v. Bush, that “proper deference must be accorded to the political branches. Unlike the President and some designated Members of Congress, neither the Members of this Court nor most federal judges begin the day with briefings that may describe new and serious threats to our Nation and its people.”

But in the travel ban cases, the principle of deference has evaporated. In Wednesday’s ruling blocking the travel ban nationwide, Judge Derrick Watson of the District of Hawaii gave the president’s national security determination the back of his hand. Without waiting to hear evidence, he accepted the plaintiff’s label of the ban’s national security rationale as “pretextual.” When weighing the balance of harms — a necessary step before issuing an emergency “temporary restraining order” — Watson never paused to discuss how the executive claims of national security might stack up against the delay in a mother-in-law’s trip to the United States. This is a far cry from the court’s posture in Holder.

In part, the disappearance of deference is the product of general judicial distrust of Trump’s honesty and integrity. Despite the executive order’s stated purpose — “to protect its citizens from terrorist attacks” — and enumeration of the governance and terrorism problems in the affected countries, some judges are skeptical that the president means what he says. Or as Lawfare’s Benjamin Wittes and Quinta Jurecic put it, we inhabit “a world in which other actors have no expectation of civic virtue from the President … a world in which the words of the President are not presumed to carry any weight.”

But there is something more specific operating as well. The Trump administration’s credibility aside, this travel ban is uniquely vulnerable to judges’ withholding national security deference. Consider again the court’s statement in the Boumediene case that “unlike the President … most federal judges [do not] begin the day with briefings that may describe new and serious threats to our Nation and its people.” Or consider Justice Stephen Breyer’s colloquy in another national security case, Winter v. Natural Resources Defense Council: “I don’t know anything about this. I’m not a naval officer. But if I see an admiral come along with an affidavit … and he swears that under oath. And I see on the other side a district judge who just says, you’re wrong, I then have to look to see what the basis is, because I know that district judge doesn’t know about it, either … the basis so far I’m thinking on this one is zero.”

The primary rationale for the courts’ deferential posture in national security cases is expertise. Congress and the executive are the branches that employ experts with deep regional, strategic, and military knowledge. They have the experience associated with the day-to-day work of diplomacy and statecraft, and they receive regular access to classified information. It is only fitting that the courts tread carefully when second-guessing their determinations.

None of this applies to the travel ban. Because of Trump’s statements on the campaign trail, we are in the unusual position of knowing that this major national security determination was made well before he took office. Of course, this was also well before he received classified briefings or the insight of the executive branch’s national security apparatus. The expertise that went into the travel ban was that of a layman. Federal judges feel no need to defer to the instincts of a New York real estate mogul.

Moreover, the judgment of national security professionals — precisely the folks to whom courts generally defer — seems to be contrary to the determination of the president. Regular leaks have indicated that intelligence professionals were resisting White House pressure to produce reports supporting the travel ban. In an astonishing display of bipartisan national security star power, 35 leading former government officials, including former CIA and National Security Agency Director Michael Hayden and former Secretary of Defense Leon Panetta, signed an amicus brief declaring that the ban “serves no rational national security or foreign policy purpose.” Perhaps most damning are the signatures of more recent officials, including former Deputy National Security Advisor Avril Haines, former Director of National Intelligence James Clapper, and former Deputy CIA Director David Cohen. Having left office just two months ago, these officials were receiving classified briefings when candidate Trump was promising his travel ban.

Traditionally, the executive branch marches into court bearing affidavits and the president demands that judges defer to the executive’s national security expertise, experience, and classified information. But with the travel ban, the tables have turned. This policy developed on the campaign trail based on politics, not technical expertise. The litigation is just beginning, and the ban may yet be reinstated. For example, if the courts decide that the ban’s challengers lack legal “standing,” the courts would never reach the underlying question of the ban’s security effectiveness. But when the courts meet the core issue directly, skepticism rather than deference will be the order of the day.

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