Trump senior adviser: His powers are “substantial” & “will not be questioned.”

o one doubts that pres­i­dents have author­i­ty in nation­al secu­ri­ty mat­ters. But their pow­er is not, nev­er has been, and must nev­er be, unlim­it­ed and immune from ques­tion or check. That is not the way of the Unit­ed States.

For exam­ple, Arti­cle I of the Con­sti­tu­tion gives the Con­gress the pow­er to declare war. War is a nation­al secu­ri­ty ques­tion too, but the pres­i­dent can not declare a war on who­ev­er he likes.

The pres­i­dent has lim­it­ed pow­ers. But who keeps him in check? The Con­gress can do so for one; in cas­es of high crimes and mis­de­meanors, the Con­gress can impeach and remove the pres­i­dent. And if there is a dis­pute about whether or not the pres­i­dent had the author­i­ty to take Action X, or whether Action X is con­sis­tent with the law, who decides that ques­tion?

That would be the courts.

Now, we may not always agree with the deci­sions that courts make. We don’t have to. But with­out them, who will arbi­trate legal dis­putes? Who will deter­mine whether or not some­thing the pres­i­dent did was actu­al­ly in his pow­er to do? The Con­sti­tu­tion gives those pow­ers to the judi­cial branch (Arti­cle III).

(Con­gress, or a state leg­is­la­ture, can impeach judges; so judi­cial pow­er is sub­ject to checks as well.)

But now Stephen Miller, a senior advis­er to Pres­i­dent Trump (read more love­ly things about him here), comes along and utters words that—to my knowledge—have nev­er been dared spo­ken about a pres­i­dent of the Unit­ed States before, unless Mr. Trump imag­ines that he is about to sus­pend habeas cor­pus.

The sub­ject was the trav­el ban, and the venue was an inter­view on “Face the Nation.” Now, lest some­one claim that I have cher­ry-picked quo­ta­tions or took them out of con­text, you can check the tran­script. There you will read Mr. Miller’s com­plete words, which are:

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.

Let us pick this apart.

It may be true—I will not dis­pute it—that Courts have usurped far too much pow­er unto them­selves. This is a stan­dard con­ser­v­a­tive cri­tique of the courts. I agree with it.

But that does not mean that pres­i­dents may just ignore deci­sions they think are wrong, or that are an incon­ve­nience to some­thing they want to do. If a court has over­stepped its pow­er, a pres­i­dent may not over­step his in response. In this case, there’s not even a ratio­nal rea­son for Mr. Trump to do so. He can appeal the deci­sion to the Supreme Court. Per­haps the Supreme Court will see things his way.

Sec­ond, the Ninth Cir­cuit in this case is not act­ing as though it is a “supreme branch of gov­ern­ment.” A plain­tiff asked it to make a legal deci­sion. It did so. It did not meet in the dead of the night, on its own, just because, and say, “We don’t like this trav­el ban. We over­turn it.” Courts do not do that.

And if Courts do not have supreme pow­er, pres­i­dents do not have supreme pow­er either. One does not cor­rect judi­cial over­reach by estab­lish­ing pres­i­den­tial over­reach.

Third, the fact that vot­ers do not elect judges has noth­ing to do with this what­so­ev­er. Mr. Miller brings up the word to bias the pub­lic against judges. He brings up the word to ques­tion the judge’s legit­i­ma­cy. The founders want­ed the exec­u­tive to appoint judges. Judges are not behold­en to a con­stituen­cy or pub­lic pas­sions when they don’t have to cam­paign for office. The idea of the founders was to keep them inde­pen­dent of the chang­ing whims or fan­cies of the peo­ple. They are bet­ter able to ren­der just judg­ment that way.

Fourth, the Court is not “remak­ing” a law. What is in ques­tion is not a law in the first place, but an exec­u­tive order. If it were actu­al­ly a law, Con­gress would have passed it and the pres­i­dent would have signed it. This is not what hap­pened with the exec­u­tive order. What the Court is decid­ing is whether or not the order is con­sis­tent with laws that have already been passed, includ­ing the Con­sti­tu­tion.

The pres­i­dent does not just make laws on his own. Mr. Miller does not know this? Some­one, please, hand him a copy of the Con­sti­tu­tion. He needs to read it.

But then Mr. Miller fol­lows up all that dubi­ous­ness with this tru­ly awful state­ment. I quote it again.

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 pow­ers of the pres­i­dent … will not be ques­tioned?

Can you say “Sieg Heil”?

No, I do ques­tion. I have always ques­tioned, and I always will ques­tion.

And one of those ques­tions is how Trump apol­o­gists will try to defend this. Rick Rice post­ed the fol­low­ing on his Face­book page:

Imag­ine for a moment, those of you who are Trump sup­port­ers but also claim to be con­ser­v­a­tive, what the reac­tion would be if a Demo­c­rat were to have said what is quot­ed above.

Imag­ine it.

But a Trump spokesman, high­ly praised by Trump over the week­end, says it and… nada, noth­ing, zilch.

Where has con­ser­vatism gone? Any­one seen it?

He is right. If a senior White House advis­er had said some­thing like, “Peo­ple all over the world will see that Mr. Oba­ma’s pow­ers are sub­stan­tial and not to be ques­tioned,” con­ser­v­a­tive heads every­where would have right­ly explod­ed. There would have been talk of impeach­ment. “Oba­ma is not a king! Who does he think he is?” they would have shout­ed from the rooftops.

Where are they now?

I will say this: Any Trump apol­o­gist who does not imme­di­ate­ly, unequiv­o­cal­ly, and with­out equiv­o­ca­tion con­demn these words and slap down this despo­tism right away will be com­plic­it in every­thing that hap­pens from this point on. Don’t claim igno­rance.

As for me, I state clear­ly to Mr. Trump: Non servi­am.