bY Robert Robb, Nov. 18, 2018

Federal judges refuse to let Trump exercise the same powers as past presidents — not because he's flouting the law, but because they don't like him, writes a columnist for the Arizona Republic.

There has been a lot of careless commentary about the alleged threat that President Donald Trump poses to the constitutional order, that he is a budding despot.

During his nearly two years in office, Trump has occasionally attempted to stretch presidential powers, such as his promised executive order to abolish birthright citizenship. However, no more so than did President Barack Obama, and arguably considerably less so.

So far, however, Trump has accepted the checks on his ability to act imposed by Congress and the courts. He has operated within the constitutional order.

In fact, the greatest threat to the constitutional order during his tenure has actually come from the federal bench. Judges have relegated Trump to being a second-class president. Because the judges disapprove of Trump’s character and behavior, they hold that he cannot exercise the authority that the constitution and federal law grant to his office.

What Obama can do, Trump can't undo

A federal appeals court ruled against President Trump's administration's effort to end DACA, which protects undocumented immigrants brought to the U.S. as children. USA TODAY

The latest example is the decision by the Ninth Circuit Court of Appeals regarding the Deferred Action for Childhood Arrivals policy.

That’s the Obama administration’s program to allow some young adults brought here illegally as children to obtain what amounts to legal status and a work permit.

Let me say that I believe that such young adults should receive permanent legal status and a path to citizenship independent of any other policy consideration, such as beefed up border security. And the clemency should be universal, not limited as DACA provided. The young adult who drops out of high school to support a family merits legalization as fully as one pursuing a college education.

The Trump administration rescinded DACA. The Ninth Circuit found that what Obama could create by executive action Trump cannot undo by executive action.

Court's rationale: A bigot can't do that

The decision is pained to claim that it is not in fact so holding. That it is merely finding that the way in which the Trump administration went about abolishing the program, and the reasons that it gave, were defective.

The pettifogging in which the decision engages to erect this façade is almost laughable. The policy wasn’t issued pursuant to the Administrative Procedures Act, but it can be challenged under it. Litigation risk from a challenge to DACA couldn’t be considered a grounds for the action since it wasn’t explicitly stated as such — although such a challenge was pending, was cited in advice given by the attorney general, and was included in a background section in the policy declaration itself.

The decision ponders deeply the difference between citing “discretion” in taking action, compared to citing “authority” to do so. The Sophists had nothing on federal judges.

The game, however, is given away at the end. A concurring opinion, by Judge John Owens, agrees that the Trump administration is barred from rescinding DACA, but not for the pettifogging reasons. According to him, Trump and his administration have exhibited “racial animus” and thus cannot take this action.



In a footnote, the other two judges on the panel write: “We do not disagree with the reasoning of Judge Owen’s concurring opinion.”

In other words, it would not matter what process the Trump administration used or what reasons it cited. According to the judges, Trump is a bigot and therefore cannot be permitted to take action another president would be permitted to take.

They've used that on Trump before

WASHINGTON (Reuters) - The U.S. Supreme Court on Tuesday handed Donald Trump one of the biggest victories of his presidency, upholding his travel ban targeting several Muslim-majority countries.

This is the same rationale federal judges used to strike down Trump’s travel bans on immigration from some countries.

In this case, there is an explicit statute granting the president, any president, the authority to ban any foreigner, or any group or class of foreigners, from entry to the United States for whatever reason the president deems it advisable.

The judges again found that Trump could not be permitted to do what any other president could do because they determined that he was a bigot. The U.S. Supreme Court put an end to such psychoanalysis from the bench and let most of the travel ban go into effect.

Authority shouldn't depend on character
The American people elected Donald Trump president. The Trump presidency grows more tiresome every day.

But he is the president. Under our constitutional order, he has the right to exercise the same authority over the same things as anyone else whom the American people choose to entrust with that position.

In our constitutional order, the power of the president is circumscribed by the constitution and federal law, not the opinion of judges about the character and behavior of the present occupant.

https://www.usatoday.com/story/opinion/n...gn=news-opinion