The President And The Rule Of Law

Bill Belichick
What a game! Congratulations to the world champion Patriots.

In 1977, journalist David Frost asked Richard Nixon about his approval of a plan to use “dirty tricks” (burglaries, wiretaps, etc.) against groups opposed to him. It was clear that the plan was illegal, and in fact it was one of the acts that led to Nixon’s resignation to avoid impeachment. Here was the exchange:

Frost: Would you say that there are certain situations—and the Huston Plan was one of them—where the president can decide that it’s in the best interests of the nation, and do something illegal?

Richard Nixon: Well, when the president does it, that means it is not illegal.

Frost: By definition.

Nixon: Exactly, exactly. If the president, for example, approves something because of the national security, or in this case because of a threat to internal peace and order of significant magnitude, then the president’s decision in that instance is one that enables those who carry it out, to carry it out without violating a law. Otherwise they’re in an impossible position.


We had echoes of Nixon this week in President Trump’s reaction to the temporary restraining order issued by Judge James L. Robart in Seattle, enjoining enforcement of much of Executive Order 13769, the order on immigration of Syrian refugees and nationals of seven Muslim countries. The President’s comments are, to my mind, maybe the most distressing thing he’s said so far:

“So-called judge?” This is dangerous language that encourages Mr. Trump’s supporters to be as casual and dismissive of judicial review of executive action as he is. And Mr. Trump wasn’t done:

If this tweet is an honest expression of the President’s views, then we are in trouble. If it’s not an honest expression of his views but rather an effort to pressure the courts or to rile up his supporters, then we are also in trouble. Trump’s statements are worse than Nixon’s, because Nixon is making an argument about what the law is, not threatening to disregard decisions of the branch of government who “emphatically” have the “province and duty … to say what the law is,” Marbury v. Madison, 5 U.S. 137 (1803).

My concern here is not the substance of the executive order. As I’ve said previously, I think the order is un-American, unwise, unjust, and immoral, but I’m not sure that much of it is actually illegal in light of developments in the last week. Once the administration made it clear that the order did not apply to lawful permanent residents, and once the State Department canceled the visas of many of the people the order affected, I think many of the legal problems with the order were resolved. I do think that the executive has and should have basically unreviewable power, or power reviewable only on the most narrow grounds, to deny visas or to revoke visas of most aliens outside of the United States.

But that’s no longer the issue. The issue now is whether the executive must obey injunctions even if it thinks they are incorrect and likely to be overturned on appeal. This was true for Martin Luther King just as it’s true for the President. There has been some Republican criticism of the President’s comments but not nearly enough. There is nothing more critical to our system of government than the separation of powers and respect for the decisions of the courts.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. Folkman also serves as an arbitrator and is a member of the Commercial and Consumer Panels of the American Arbitration Association. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's treatise on International Aspects of US Litigation (J. Berger, ed. 2017), and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012 and 2014 - 2016.

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