Generally, that famous phrase—a government of laws not men—is taken as naming a prophylactic against capricious or arbitrary rule by individuals. Even the sovereign, it was said, is subject to the law. Recognition of that fact was at the center of what made Magna Carta “magna.” But the response to Trump’s travel bans—as indeed, several other responses to his election—reminded me that there is another, just as important side to the desideratum “a government of laws not men.”
What does it mean that several hundred thousand females converge on Washington, D.C., in pink hats and vagina costumes to whine that Donald Trump is “not our president”? What does it mean that on college campuses across the country, students, often abetted by faculty and the occasional outside agitator, protest that Trump is “illegitimate”? That various pundits, some on the Right as well as the Left, warn against “normalizing” Donald Trump? And, perhaps most worrisome, what does it mean that a smattering of judges across the country argue that the president’s executive orders are illegitimate, unconstitutional because (cutting to the chase) they are this president’s orders?
As Josh Blackman has pointed out in a series of essays at the Lawfare weblog, the basic legal arguments made against Trump’s travel bans turn as much on their being promulgated by Donald Trump as on any constitutional objections. In “The Legality of the 3/6/17 Executive Order, Part III: The Establishment Clause,” for example, he shows how Judge Leonie Brinkema, writing in February in Aziz v. Trump, made Donald Trump, not the legality of his actions, the main issue.