Trust the Process

Sports fans know that this is a slogan of the Philadelphia 76ers, as they rebuilt from last place to playoff contender. This argument also could have been the slogan of the Solicitor General in the travel ban case. He repeatedly stressed that the President’s Executive Order was the product of “Cabinet-level” input (in other words, from some Cabinet officials and their departments). The implication was that there could not have been discriminatory intent no matter what the President may have said or may think, because the same view could not have been held by all of the “Cabinet-level” people who were involved. Another consequence of this argument is that many “experts” were involved, which provides a reason for the Court to defer to their views.

I find this fascinating because I’ve long wondered about how the Cabinet gets used in constitutional law. The Cabinet is one of the many unwritten British concepts that America absorbed, though by implication the 25th Amendment gives the Cabinet some recognition. Now there are two ways of understanding the Cabinet. One is the classic British version (which does not exist anymore) whereby there was collective decision making by the parliamentary leaders of the majority party in the House of Commons. Some US presidents have gone with a model like on some occasions. The more prevalent model, though, is exemplified by Lincoln’s view during the Civil War when he polled the Cabinet, was the lone vote in favor of his proposal, and allegedly said “the ayes have it.”

Which model describes the current Administration or the process that led to the Executive Order? Is this an issue where the Court can look behind the forms to examine the substance? Perhaps that’s the real point, rather than whether the Court should defer to the substantive judgment of an Administration.

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1 Response

  1. Joe says:

    Discriminatory intent is not the only way the travel ban can be struck [see, e.g.. Marty Lederman at Balkanization on statutory grounds] & even on the Establishment Clause, there is a possible primary effect judgment call that would cause it to be unconstitutional. The overall test is “purpose and effect” and all relevant things should be used there — “look behind the forms to examine the substance” is appropriate. As to the Cabinet, the net value there given the characters there is of questionable added value.