As the Supreme Court takes on more cases involving President Trump, it is becoming clearer that he is often benefiting from the Justices’ customary respect for the other two branches of government. Even as the Justices review further the legality of actions by the sitting President, the Court is predictably reluctant to inquire about motives that might well lie behind such actions.
Most of the time, the Court is inclined to show the same reluctance when examining actions of Congress, but, lately, that seems not quite as pronounced as with this President.
That reluctance has a legal phrase that describes it: “a presumption of regularity.” It is also called “comity,” borne of the traditional notion that the three branches of the national government are co-equals, needing to get along, and so needing to show mutual respect.
This usually gives the branch of government being challenged at least an opening advantage: as the Justices start looking into a challenge to what another branch has done, they are likely to act as if that action were valid; in other words, they start with placing the burden of proving misconduct on the challengers.
It is a legal concept, although it often seems rather like the quite generous, non-legal concept of giving the benefit of the doubt.
The presumption has been easily illustrated with President Trump.
One example: In the first truly major case before the Court to challenge this President, involving the constitutionality of his so-called “Muslim ban,” the evidence in that case included a lengthy list of Twitter entries by the President, showing quite clearly that it was, indeed, a “ban” and that he had clearly intended it to be, to target Muslims. But that evidence played no role of significance in the Court ruling that did emerge, upholding his power to have taken that action.
That ruling showed a quite strong “presumption of regularity,” concluding that the Chief Executive’s actions were an entirely valid application of exiting immigration laws.
Another example: When the Court took up the Trump Administration’s attempt to put a citizenship question on this year’s Census questionnaire, there was ample evidence that the real aim was to cut down the numbers of non-resident aliens, living mostly in “blue” states, who would get counted.
Almost all of the lead opinion in that case followed the presumption, accepting that the Administration had done almost everything right. It was only in the last few pages, and seemingly quite belatedly, that the ruling found a flaw that was sufficient to scuttle the effort. In short, that opinion almost invited the Administration to try again, and there have been signs that it would like to do just that, in other policies with the same aim as the proposed Census question.
There is more.
Right now, the Court is weighing the legal fate of nearly 800,000 younger undocumented immigrants under the so-called “DACA” program that originated in the Obama Administration more than seven years ago. As with so many other Obama-era policies, President Trump is seeking to end that one, too. He has made clear that he wishes to end the protection of those young people (called “Dreamers”) from being deported as illegal aliens, no matter how long they have lived in the United States peacefully and, many of them, productively.
The Court hasn’t decided that case yet, but the chances are small, indeed, that the Court will allow itself to judge the anti-DACA policy for what surely motivated it, the Administration’s pervasive desire to rid the country of as many foreign nationals as possible. It would be no surprise if a decision were to emerge that relied on a presumption of presidential power over immigration, as in the “Muslim ban” case.
It was against this background that the Court on Tuesday took up what may be the most important cases to reach the Justices during the Trump Presidency. These are the new cases involving the President’s firm resistance to demands by congressional committees and a New York state prosecutor for access to the President’s tax returns and other private financial records.
Lawyers for the President have made sweeping claims of legal immunity to such demands, asserting theories that the office of the presidency cannot function in the face of such alleged interference by Congress or other investigators. Those arguments find their core in an Administration agenda to build up White House powers by diminishing the authority of both Congress and the courts to second-guess presidential actions.
For three and a half hours on Tuesday, the television listening audience for these “live” audio broadcasts of Supreme Court hearings saw a demonstration of how the presumption of regularity works in cases involving clashes of the two political branches.
There was no mention of the tweets and other public arguments by President Trump, his attempts to denigrate not just congressional motives but the very legitimacy of congressional oversight. True, some Justices questioned the sweep of the legal immunity claims made on the President’s behalf, but even those Justices did not question the President’s own reasons for the resistance.
Almost all of the focus was on “the institution of the presidency,” not on the current occupant of that office or his specific actions toward investigators’ demands. Much concern was expressed over the possibility that Congress might be harassing the President for political gain, and there was a pervasive search for “a limiting principle” to curb Congress’s demands.
Justice after Justice praised the civic virtue of the two other branches working out their differences amicably, but there were at most passing allusions to the President’s publicly declared hostility to accommodating gestures like that.
All of that is, approximately, the norm for the Court. It cannot be faulted for continuing to rely upon the presumption of regularity. It would risk its own legitimacy if it went beyond legal inquiry and started surmising, perhaps even guessing at, presidential motivation.
What does vary, from time to time as America’s constitutional history unfolds, is how strong that presumption is, on the one hand, and, on the other, how heavy the burden is when challengers attempt to overcome the presumption in attacking presidential action in court.
If, in the future, history judges that President Trump did, indeed, seek to destroy or at least seriously comprise governmental norms, it may also be inclined to conclude that he got more in court than the benefit of the doubt.