A new amicus brief dropped today in the case filed by Perkins Coie challenging the Executive Order issued by Donald Trump targeting the firm. While lots of folks are getting into the amicus game in this case, this one has a bipartisan group of former senior national security, foreign policy, intelligence, and other public officials signing on “to express their shared view that the President’s unprecedented executive orders against Perkins Coie and other law firms are ultra vires because they are based on no valid national security concern, were issued without any colorable legal authority, and unconstitutionally interfere with the separation of powers.”
The brief, filed by the Peter Gruber Rule of Law Clinic at Yale Law School and Susman Godfrey, takes particular aim at “the President’s attempt to invoke national security to justify this punitive, retributive, ad hominem Order.”
The Constitution did not make the President a king empowered to punish subjects arbitrarily based on animus or whim. Even setting aside the many constitutional rights violated by his Order, the President possesses no general national security power that empowers him to sanction U.S. citizens simply because they disagree with him. Nor does any Supreme Court decision or historical practice authorize the President to unilaterally issue punitive bills of attainder targeting American citizens against whom he holds discriminatory animus. If national security considerations can justify this Order, then national security could be invoked to justify any arbitrary executive act. Left undisturbed, this Order will jeopardize the executive’s ability to call for judicial deference in those cases where national security is genuinely implicated.
The brief goes on to make two primary arguments. One, that the order levied against Perkins Coie (and other firms) isn’t supported by congressional action and the president does not have the inherent powers to issue it. And two, that the order usurps power from the judiciary, violating the separation of powers.
But for my $.02, the best bit is at the end when these public servants from both Republican and Democratic administrations make it clear just how norm-shattering the Trump II reign has become:
When amici served in the United States government, executive orders of this nature would have been viewed as unthinkable violations of their constitutional oath. Yet the repeated issuance in recent weeks of punitive executive orders against specific lawyers and law firms, with perhaps more to come, makes clear that this Administration will continue to levy such sanctions unless enjoined by the courts.
Read the full brief, and list of amici, below.
Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Mastodon @[email protected].
