Senior White House policy adviser Stephen Miller made the rounds on the Sunday talk shows over the weekend, and his comments about voter fraud have earned him justifiably dim reviews. The Washington Post's Philip Bump and Fact Checker Glenn Kessler dealt with those claims in depth.
Here's the key exchange, with "Face the Nation's" John Dickerson (emphasis added):
DICKERSON: 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 cases, 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.
"Will not be questioned." That is an incredible claim to executive authority -- and one we can expect to hear 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 such as 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 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."
Complaints about judges overstepping their bounds are nothing new. Anytime a judge does something a politician doesn't like, he or she is accused of being an "activist judge" and venturing beyond merely interpreting the law and into making the law. This is an especially popular complaint of conservatives.
And it's important to emphasize here that Miller was speaking specifically about national security concerns, not all executive actions -- "the powers of the president to protect our country."
As The Post's Robert Barnes has written, judges do generally defer to the executive branch on immigration and national security. But there's a but:
Congress in 1952 said the president “may by proclamation and for such period as he shall deem necessary, suspend the entry of all aliens and any class of aliens as immigrants or non-immigrants” whenever he thinks it “would be detrimental to the interests of the United States.”But those battling Trump’s executive order also point out that the law has been amended to ensure that “no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of race, nationality, place of birth, or place of residence.”
The big hurdle to Trump's total control over national security and immigration matters is the Establishment Clause, "the clearest command" of which the Supreme Court ruled in 1982 was "that one religious denomination cannot be officially preferred over another.”
Given all of this, there can be no certainty about what the courts will eventually rule. But the Trump administration is taking things further than merely saying a few judges have overstepped their bounds in this one case. Miller seemed to be serving notice Sunday that the administration thinks the courts should play no role in reviewing any of Trump's decisions related to national security.
That makes even some Republicans uneasy.
"I mean, obviously, the president wants to keep the country safe. I recognize that. I think everybody does, and I applaud him for trying to do so," Sen. Jeff Flake (R-Ariz.) said on "Face the Nation" after Miller's appearance. "But, obviously, it needs to be constitutional, and it needs to be wise."
Miller is basically arguing that it doesn't need to be constitutional -- or, more specifically, that anything Trump decides to do when it comes to national security is inherently constitutional, regardless of whether it targets a specific religion or anything else.
That is a massive claim to power. And it apparently won't be the last time Trump's White House attempts to claim it.