The Washington Post ran a lengthy, front-page story on July 4 titled, “The Supreme Court and Congress Cede Powers to Trump and the Presidency.” NLPC Counsel Paul Kamenar was the only legal expert quoted who challenged the premise of the article. According to the reporter, Naftali Bendavid:
In a striking dynamic of the Trump era, analysts say, the judicial and legislative branches have been steadily transferring many of their powers to the executive — or at least acquiescing in the transfers. That has shaken up a system that depends on the three branches of government jostling sharply as each jealously guards its own prerogatives, many critics contend.
But:
Some conservatives respond that Trump is only doing what other presidents have done — asserting his powers and leaving it to the courts to decide whether he has exceeded his authority. Many lower courts have done just that, blocking his executive orders, only to see the Supreme Court scale back or lift many of those rulings.
“I think everyone is getting all Sturm und Drang and go-to-your-bomb-shelters-quick about it,” said Paul Kamenar, lead counsel at the conservative National Legal and Policy Center. “But overall, I don’t see that Congress or the courts are ceding too much power to the president, because at the end of the day, the Supreme Court will decide that.”
And:
Kamenar said the Supreme Court is not handing power to Trump, but rather imposing appropriate restraints on itself. He cited a line from Barrett’s opinion that “when a court concludes that the Executive Branch has acted unlawfully, the answer is not for the court to exceed its power, too.” While the opinion effectively strips lower court judges of power, Justice Brett M. Kavanaugh said in a concurring opinion that the Supreme Court would still be “the ultimate decisionmaker” on whether certain executive actions can be blocked or take effect.
Kamenar comments were in contrast to the liberal legal heavyweights quoted in the article, Erwin Chemerinsky, dean of the University of California at Berkeley Law School, and Michael Gerhardt of the University of North Carolina.
Click here to read the article. (Behind paywall.)
