Walter Olson

When a dispute comes to court, it’s routine for judges to issue short-term orders aimed at freezing existing conditions long enough for the court to determine whether it has authority to hear the case and make sure its jurisdiction is not defeated by the removal or destruction of some relevant piece of property or person in custody. After the Supreme Court ruled this spring that aliens challenging their removal from the country would have to bring their claims as habeas petitions, federal district courts saw a predictable influx of such petitions, and many responded by adopting orders directing that the petitioner be kept within the court’s jurisdiction at least briefly so as to examine whether there was any real claim to be heard. In Maryland, the federal judges together adopted standing orders permitting a hold lasting “until 4:00 p.m. on the second business day after” an alien files a habeas petition—in lay terms, providing that the federal government has to wait about two days so that the judges can take a look before they deport a petitioner. This brief delay does not in any way depend on an early estimate of the merits of the claim; in other words, it’s an outgrowth of efficient court administration rather than any species of injunction.

Claiming to find this trivial impediment an unacceptable restraint on its power to deport, the Trump administration took the extraordinary step of suing all the judges personally in one stroke—requiring them to retain personal counsel and also forcing a mass recusal, the result of which is that the dispute is being heard by a federal judge from another state. On July 21, a team led by renowned lawyer Paul Clement filed a memorandum of law on behalf of the judges explaining why their standing order was perfectly sound as a legal matter; why any challenge should have been brought through other channels involving a lower volume of drama; and in short why the federal action should be dismissed. I highly recommend reading the whole document, most of which is devoted to refuting (effectively, so far as I can see) various arguments the federal government has advanced for its position. 

Those other arguments deserve their own look at some point, but right now I want to focus on one particular proposition advanced by the Trump administration that would have, as the Clement memorandum observes, “very serious consequences for the rule of law and the separation of powers.” In its own motion and legal memorandum against the judges, the administration argues that it suffers “harm” and even “irreparable injury” from being delayed in “exercising its sovereign prerogative to enforce immigration law” by whisking the petitioner out of the country at once. (In other legal disputes, it’s quite common for the federal government to be either the target or the requester/​beneficiary of courts’ transitory freeze orders.)

Quoting a 1926 case, the administration goes on to argue that “because the President is ‘a representative of the people’ and holds ‘the mandate of the people to exercise his executive power,’ the Orders also diminish the votes of the citizens who elected him.”

Whoa. So legal checks that slow down a president’s use of power, even briefly, “diminish the votes of the citizens who elected him”? That’s quite a theory and leads all sorts of places.

One might start by noting, as many Cato writers have over the years, that the concept of a presidential mandate is almost completely notional, even in landslide elections, let alone the sort won by Trump against Kamala Harris, in which the popular vote margin was 1.5 percent. Some of Trump’s voters, for sure, did back his position favoring mass deportations; others warmed instead to his talk on tax cuts, energy development, and staying out of overseas wars. Does he have a mandate for every issue he spoke about, for only some, or what? The divination of mandates inevitably depends on the discretion of each interpreter. 

Clement’s memorandum takes a different approach:

In reality, it is the enduring text of the Constitution, not the preference of voters at a moment in time, that establishes the powers of the three branches of the federal government. That text gives the Judiciary a critical role in ensuring that the Executive acts within the bounds of the statutes duly enacted by Congress.

Not only does the public have an interest in “seeing its governmental institutions follow the law,” but in fact the executive’s own interest is more complicated than the administration seems willing to let on. “The Executive certainly has an interest in enforcing the Nation’s immigration laws. But that is not the Executive’s paramount interest. The Executive’s paramount interest is the same as the Judiciary’s: that justice shall be done.” 

If elections do generate some sort of mandate, there is every reason to think that part of that mandate in many voters’ eyes is that the officials they elect will operate within the bounds of the law and the Constitution. The laws themselves, after all, were adopted by way of a legislative process that resulted from voters’ will; the same is true of the process that elevated the judges to the bench. Part of respecting democracy in a constitutional republic is to respect choices made by earlier sets of voters in other moods. 

Requiring that a president conduct himself within the bounds of the law does not somehow “diminish the votes of the citizens who elected him.” The contrary theory is open-ended, dangerous—and wrong.