Did Miller really say the nat-sec powers of the presidency “will not be questioned”?
posted at 12:01 pm on February 13, 2017 by Ed Morrissey
Did White House senior policy adviser Stephen Miller tell Face the Nation host John Dickerson that President Donald Trump’s powers on national security “will not be questioned”? Literally yes, he did, but this part of Miller’s appearance yesterday has received far more hyperbolic attention than it deserves. The exchange came in a discussion of the legal fight over Trump’s immigration executive order, and the jurisdictional dispute between the White House and the judiciary.
The exchange begins at the 1:20 mark, and let’s look at it in full context:
DICKERSON: Let’s move on to the president’s executive order on immigration. The president has said both see you in court and also suggested there might be a new executive order. What’s — which way is he going?
MILLER: It’s a great, great topic because there are so many things we can do. For one thing, we can take the case to the Supreme Court on the emergency stay. We can go back to the district court and we can have a hearing on the merits. We can go to the banc to hear — have it heard en banc. Or, if we want to, we can also continue the appeal with the panel.
Additionally, we’re considering new and further executive actions that will enhance the security posture of the United States. I don’t have any news to date to make on it. But I think the point, John, is that the president has enormous powers, both delegated to him by Congress and under the Constitution, his Article 2 foreign affairs power, to control the entry of aliens into our country and he’s going to use that authority to keep us safe.
DICKERSON: OK, We’ll wait for news on that.
When I talked to Republicans on The Hill, they wonder, what in the White House — what have you all learned from this experience with the executive order?
MILLER: Well, I think that it’s been an important reminder to all Americans that we have a judiciary that has taken far too much power and become in many case a supreme branch of government. One unelected judge in Seattle cannot remake laws for the entire country. I mean this is just crazy, John, the idea that you have a judge in Seattle say that a foreign national living in Libya has an effective right to enter the United States is — is — is beyond anything we’ve ever seen before.
The end result of this, though, is that our opponents, the media and the whole world will soon see as we begin to take further actions, that the powers of the president to protect our country are very substantial and will not be questioned.
The Washington Post’s Aaron Blake sounded the warning bell on Miller’s “audacious” claim to executive authorty, and noted Miller’s responses on the same topic in other venues:
“Will not be questioned.” That is an incredible claim to executive authority — and one we can expect to hear more plenty more about. Trump has beaten around this bush plenty, yes. But Miller just came out and said it: That the White House doesn’t recognize judges’ authority to review things like his travel ban.
It might have been excused as a little over-exuberance, except that Miller said similar things in his other Sunday show appearances.
He said in an interview on “Meet the Press”: “The bottom line is that a district judge — a district judge in Seattle — cannot make immigration law for the United States, cannot give foreign nationals and foreign countries rights they do not have and cannot prevent the president of the United States from suspending the admission of refugees from Syria.”
And on “Fox News Sunday”: “This is a judicial usurpation of the power. It is a violation of judges’ proper roles in litigating disputes. We will fight it. And we will make sure that we take action to keep from happening in the future what’s happened in the past.”
Perhaps people need to take a deep breath, because Miller wasn’t arguing that the judiciary has no role in reviewing executive action. He put it clumsily, without question, but it’s clear from the context that Miller isn’t arguing that judges don’t have the authority to “review things” the Trump administration does.
How do we know that? If Miller meant it that way and it reflected the Trump administration view, the White House wouldn’t bother with appeals within the judiciary, or with the rumored replacement EO that may come as early as today. Instead, Miller argued that the Trump administration would prevail through further judicial review. What Miller clearly meant in all of these instances was that the judiciary overstepped its authority in this case because the EO deals with national-security authority completely within the statutory and constitutional boundaries of the executive branch. With that already established, Miller argued over the weekend, judges can’t just rewrite the statutes and jurisdictions involved because they don’t like policy.
That’s not exactly a novel statement; it’s the core argument in the Trump administration’s appeal of Judge James Robart’s temporary restraining order. The end result of those appeals, Miller is saying, is that the jurisdictional lines will be drawn clearly enough to prevent further confusion.
Miller may not have explained that very well; no matter what any president does, it’s always going to be questioned and second-guessed. However, the notion that he’s advancing a new form of fuehrerprinzip is utterly ludicrous. This isn’t even analogous to Richard Nixon’s “If the president does it, it’s legal” argument, which was also taken out of context at the time (it was an argument that accountability kept presidents from “run[ning] amok and getting away with it” on national security actions).
In fact, Miller’s statement, as clumsy as it was, prompted no reaction from Dickerson, who’s a very capable interviewer and journalist. It seems highly doubtful that Dickerson would have let pass a claim to unfettered and unreviewable presidential authority, and that’s because Dickerson understood the context of the answer rather than pulling out a single clause from it as a broad statement on its own.
The White House had better understand, though, that they’ll be in for this kind of treatment for the next four years. Precision of argument will be key to their success. Everyone else would be well advised to pace themselves.