Presidential Lies or Presidential Misinterpretations?
Who's accountable for the results?
I've been thinking about the many ways President Trump is using (or abusing) emergency authorities. Contrary to suggestions that these cases require courts to examine the President's factual findings, second-guess his determinations, or artificially limit the discretion those authorities provide, I think most of these cases present questions of ordinary statutory interpretation, which courts routinely decide. Consider the following questions:
Does “regulate importation” encompass the tariff power?
Does “unusual and extraordinary threat” encompass a persistent trade deficit?
Both are plainly questions of statutory interpretation. The factual question would be whether a trade deficit exists, but no one disputes that it does. Understandably, resolving the case on question (1) rather than (2) might appear more neutral, but that's a pragmatic distinction, not a legal one.
Consider further:
Is illegal immigration an “invasion” or a “predatory incursion”?
Are protests a “rebellion against the authority of the Government of the United States”?
These, too, are simply questions of statutory interpretation. The President can, of course, lie -- for example, by claiming that a foreign navy is about to bomb the United States, which would clearly satisfy the statutory predicates for invoking emergency laws -- but that would raise a different issue than the cases we are currently dealing with. These aren't “lies” but absurd, bad-faith interpretations of the law that no sane judge would uphold without invoking deference or the political-question doctrine as a pretext to abdicate responsibility.
Who's accountable for the results?
I've been thinking about the many ways President Trump is using (or abusing) emergency authorities. Contrary to suggestions that these cases require courts to examine the President's factual findings, second-guess his determinations, or artificially limit the discretion those authorities provide, I think most of these cases present questions of ordinary statutory interpretation, which courts routinely decide. Consider the following questions:
Does “regulate importation” encompass the tariff power?
Does “unusual and extraordinary threat” encompass a persistent trade deficit?
Both are plainly questions of statutory interpretation. The factual question would be whether a trade deficit exists, but no one disputes that it does. Understandably, resolving the case on question (1) rather than (2) might appear more neutral, but that's a pragmatic distinction, not a legal one.
Consider further:
Is illegal immigration an “invasion” or a “predatory incursion”?
Are protests a “rebellion against the authority of the Government of the United States”?
These, too, are simply questions of statutory interpretation. The President can, of course, lie -- for example, by claiming that a foreign navy is about to bomb the United States, which would clearly satisfy the statutory predicates for invoking emergency laws -- but that would raise a different issue than the cases we are currently dealing with. These aren't “lies” but absurd, bad-faith interpretations of the law that no sane judge would uphold without invoking deference or the political-question doctrine as a pretext to abdicate responsibility.
Presidential Lies or Presidential Misinterpretations?
Who's accountable for the results?
I've been thinking about the many ways President Trump is using (or abusing) emergency authorities. Contrary to suggestions that these cases require courts to examine the President's factual findings, second-guess his determinations, or artificially limit the discretion those authorities provide, I think most of these cases present questions of ordinary statutory interpretation, which courts routinely decide. Consider the following questions:
Does “regulate importation” encompass the tariff power?
Does “unusual and extraordinary threat” encompass a persistent trade deficit?
Both are plainly questions of statutory interpretation. The factual question would be whether a trade deficit exists, but no one disputes that it does. Understandably, resolving the case on question (1) rather than (2) might appear more neutral, but that's a pragmatic distinction, not a legal one.
Consider further:
Is illegal immigration an “invasion” or a “predatory incursion”?
Are protests a “rebellion against the authority of the Government of the United States”?
These, too, are simply questions of statutory interpretation. The President can, of course, lie -- for example, by claiming that a foreign navy is about to bomb the United States, which would clearly satisfy the statutory predicates for invoking emergency laws -- but that would raise a different issue than the cases we are currently dealing with. These aren't “lies” but absurd, bad-faith interpretations of the law that no sane judge would uphold without invoking deference or the political-question doctrine as a pretext to abdicate responsibility.
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