WASHINGTON – If Donald Trump declared tomorrow that the sky is green, does that mean it actually is green?
How about if he decrees that raw lemons taste sweet, would they in reality no longer be sour?
Unfortunately for the future of American democracy, the answer could well be that, yes, as a matter of law, Trump’s factual assertions cannot be challenged and must therefore be presumed correct.
The concept is known as the “political question doctrine,” and whether and to what extent the U.S. Supreme Court applies it in major cases coming before it could determine whether the republic survives a president openly bent on autocracy.
Trump has already announced that the United States is in an “energy emergency” requiring that environmental laws be waived to speed up more oil drilling. He has declared a trade emergency that permits him to raise taxes on imports as he sees fit, without any input from Congress. He declared a “Southern border” emergency, which in his view justifies deploying active duty troops for civilian law enforcement, despite a law prohibiting that. He has decreed that the presence of foreign criminals in the United States constitutes an ”invasion” that allows him to capture suspected illegal migrants and send them to an active war zone in Africa or a Central American prison as he sees fit.
Not one of his justifications is accurate. The United States was producing more fossil fuels than ever before when Trump retook office in January. The country’s balance of trade in goods has been negative for decades, even as the gross domestic product has continued to rise. By Trump’s inauguration, illegal border crossings were at a four-year low. And to suggest that criminals committing crimes is the same thing as a foreign army attacking and seizing American territory is absurd on its face.
Except, of course, in court, where his declarations are not viewed as absurd at all. Rather, just the opposite. The way the separation of powers has evolved over two centuries, the courts have the ability to rule on presidents’ interpretations of the Constitution and laws, but not on their assertions of fact.
Underlying this is the admittedly defensible theory that judges who do not have access to the information that a president does by dint of his office should not be second-guessing a president’s decisions based on that information.
(Like so many things in the federal government, this theory was not designed with an amoral, enthusiastic liar who appears determined to grab unlimited power in mind.)
So even as judges across the country block Trump’s executive orders, they feel obliged to point out that they are not disputing his assertions that the sky is green and lemons are sweet, but are merely ruling that the law does not permit him the actions he seeks based on those assertions.
“The political question doctrine prohibits the court from weighing the truth of those factual statements,” U.S. District Judge Fernando Rodriguez, Jr., who was appointed by Trump, wrote in a May 1 ruling blocking deportations under Trump’s emergency order. “Instead, the court determines whether the factual statements in the proclamation, taken as true, describe an ‘invasion’ or ‘predatory incursion.’”
The Court of International Trade judges who struck down most of Trump’s tariffs in his trade war against the world spent a full six pages of their 49-page ruling on the topic. “This reliance on the political question doctrine is misplaced,” the three judges, one of them appointed by Trump, wrote in late May.
After months of Trump issuing one dictatorial executive order after another, it is heartening for rule-of-law advocates that federal judges from across the country and across the political spectrum are reining him in. That doesn’t mean, though, that democracy is out of the woods yet.
Ultimately, the U.S. Supreme Court will get these cases and will be forced to decide if Trump’s decreeing that the sky is green or that Venezuela is invading the United States via a gang of criminals are “non-justiciable” issues, as Trump’s Department of Justice lawyers and outside allies have been arguing.
Yes, that would be the same U.S. Supreme Court that a year ago dramatically broadened the immunity a former president has from criminal prosecution for actions taken in office. The decision helped Trump avoid a trial on charges related to his Jan. 6, 2021, attempted self-coup to remain in power after losing the 2020 election.
Still, even lawyers who are vocal critics of Trump’s disdain for rules and laws say they are hopeful that the high court will uphold the lower court rulings that find Trump’s various orders illegal.
“Since the Supreme Court lives on the same planet as the rest of us, and not Planet Trump, and has already shown a propensity by at least seven of the judges to deny Trump’s extreme positions, I expect him to flop there,” said Norm Eisen, who served as the top ethics lawyer in the Obama White House.
The 7-2 ruling Eisen referenced was the extraordinary, middle-of-the-night order blocking the deportation of Venezuelans whom Trump officials were trying to spirit out of the country before judges could act. Justices, including all three appointed by Trump, seemed bothered that his administration was not dealing in good faith with the courts and understood that failing to act meant consigning a group of migrants to what could well be life sentences in an El Salvador prison infamous for torture.
Yet even the follow-up, eight-page ruling elided the fundamental question of whether it was appropriate for Trump to declare an “emergency” based on the criminal activity of some Venezuelans and to invoke the 227-year-old Alien Enemies Act – which requires an “invasion” or a “predatory incursion” – to deport them. “We did not on April 19 ― and do not now ― address the underlying merits of the parties’ claims regarding the legality of removals under the AEA,” the seven justices in the majority wrote.
If the justices decide that they must limit their review to legal questions and continue their deference toward the president’s version of the underlying facts, that will likely be seen as an invitation for even worse abuses – perhaps even those that most Americans would consider unthinkable.
Imagine, for example, if Trump issues an order in the late summer of 2028 finding that Venezuela or China or Canada or whichever country he is most angry at that day has been meddling in the presidential campaign and that he is therefore declaring an emergency and postponing the scheduled election until such time as he can ensure its security. What’s more, he will not reveal the evidence behind this claim because it is classified.
Under the political question doctrine, the courts have no business trying to ascertain the facts backing his assertions. What happens then?
“That is why it is essential the court draw some lines,” said Ty Cobb, a lawyer in Trump’s first-term White House who is now a strident critic.
Yes, the idea of Trump trying to cancel an election at first hearing seems conspiracy-theory-level far-fetched. Then again, so did the idea that a sitting president, having lost re-election, would sic a violent, armed mob on his own vice president and Congress in a last-ditch attempt to cling to power.
Eisen said justices are certainly aware of Trump’s autocratic impulses and that he is optimistic that the knowledge will inform their decisions.
“If they give him unchecked power,” Eisen said, “he’ll come for them next.”