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Trump Advisor: There’s No Such Thing as Judicial Supremacy

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Trump advisor Stephen Miller, author of the incredibly-poorly-crafted Executive Order seeking to ban immigrants from seven countries from coming to the United States, made the rounds on the Sunday shows arguing that the judicial orders staying the implementation were an abuse of power.

WaPo (“Stephen Miller says White House will fight for travel ban, advances false voter fraud claims“):

The White House is pursuing several options to reinstate President Trump’s travel ban on all refugees and travelers from seven majority-Muslim nations, fighting back against what one top adviser on Sunday called “judicial usurpation of power.”

White House senior policy adviser Stephen Miller, the author of the controversial executive order, said the administration was weighing several legal options after the 9th Circuit Court of Appeals ruled unanimously on Thursday against reinstating the travel ban, which had been blocked temporarily by a federal judge in Washington state.

Miller said that officials are considering appealing with the 9th Circuit and having an emergency hearing “en banc,” or before all judges on the court; seeking an emergency stay at the Supreme Court; taking the case to trial at the district level; or writing a new executive order for Trump to sign that would withstand legal scrutiny.

In unusually combative interviews on the Sunday morning television shows, Miller also refused to say whether Trump still has confidence in his national security adviser amid controversy over his communications with Russian officials. Miller also advanced false claims that widespread voter fraud undermined Trump’s performance in November’s election.

“I want to say something very clearly, and this is going to be very disappointing to the people protesting the president and the people in Congress, like [Senate Democratic Leader Charles E.] Schumer, who have attacked the president for his lawful and necessary action: The president’s powers here are beyond question,” Miller said on Fox News.

Appearing also on ABC News, Miller said, “A district judge in Seattle cannot force the president of the United States to change our laws and our Constitution because of their own personal views. The president has the power … to suspend the entry of aliens when it’s in the national interest.

“One unelected judge in Seattle cannot make laws for the entire country,” Miller told anchor John Dickerson. “I mean, this is just crazy, John. The idea that you’re going to have a judge in Seattle say that a foreign national living in Libya has an effective right to enter the United States is beyond anything we’ve ever seen before.”

Miller also suggested that the legal debate was not over the constitutionality of Trump’s action, but rather over ideology.

“There is no constitutional right for a citizen in a foreign country, who has no status in America, to demand entry into our country,” the adviser said on ABC. “Such a right cannot exist. Such a right will never exist. This is an ideological disagreement between those who believe we should have borders and should have controls and those who believe there should be no borders and no controls.” [emphases mine-jhj]

The Washington Times and other sympathetic outlets are reporting the quotes almost exactly the same. Frankly, while I abhor the order as a matter of policy, I agree with Miller on the substance: not only has Congress explicitly delegated this power to the president but over a century of judicial precedent supports Trump’s exercise of it. Further, while courts certainly have the power to stay Executive Orders, it’s highly unusual for a district court to issue a nation-wide ban. And there are real questions as to whether the State of Washington even had standing to sue here.  Miller’s language here was a touch hyperbolic but he’s right. And, certainly, he’s not articulating a viewpoint that any presidential spokesman in recent decades—and especially one for a Republican president—would have objected to.

Miller, however, crossed a line with his “Meet the Press” appearance. Breitbart:

MILLER: We are considering all of our options right now, Chuck. That includes you can continue the appeal on the 9th and seek an emergency stay in the Supreme Court, and you can have a trial hearing on the merits at the district level or a hearing also at the 9th circuit and pursue additional executive actions. The bottom line is we are pursuing every single possible action to keep our country safe from terrorism. I want to be clear. We heard talk about how all of the branches of government are equal. That’s the point. They are equal. There’s no such thing as judicial supremacy. What the judges did is take power away that belongs squarely in the hands of the president of the United States.

Stripped of context, the phrase “There’s no such thing as judicial supremacy” certainly comes across as a statement of defiance of the rule of law.  Now, in context, he doesn’t seem to be saying anything different here: he’s simply reiterating that the judiciary is a co-equal branch and that, in this particular instance, they’ve overreached by ruling on an issue where the president has near-plenary power.  The White House needs to quickly correct the record on this, given not unreasonable fears of indifference for the norms.

 

 

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About James Joyner
James Joyner is the publisher of Outside the Beltway, an associate professor of security studies at the Marine Corps Command and Staff College, and a nonresident senior fellow at the Atlantic Council. He's a former Army officer and Desert Storm vet. He earned a PhD in political science from The University of Alabama. Views expressed here are his own. Follow James on Twitter.

Comments

  1. Argon says:

    James, in your opinion, what group or part of the government would have standing to contest this executive order?

    I certainly grant that non-citizens might not be able to demand that the US allow them to pass the border. However, given that there is a law that prevents discriminating against religion in the entry process how should one square that with the executive order and the complete lack of defense presented by the DOJ?

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  2. This is yet another version of an argument that is often made by people on the losing side of highly contentious legal matter, although it has been most prevalent on the right. It has its roots in the attempted defiance of Court rulings regarding civil rights starting with Brown v. Board of Education, but historically we have also seen evidence of it at other times in American history. The Jeffersonians reacted in a similar manner to Marbury v. Madison, but ultimately the Court’s assertion of the power of judicial review in that case, which while not mentioned in the Constitution had been an inherent authority of courts under British Common Law (from which our legal system is derived) going back centuries. Similarly, there was a highly negative reaction to the Dred Scott decision, but that was all part of the nationwide debate on slavery that eventually led to civil war. The most famous example, of course, comes from the Jacksonian Era and the rulings against President Jackson’s efforts to remove Native Americans from their native lands, decisions that Jackson simply refused to honor.

    In a simplistic way they are correct in that the Judicial Branch is, as you say, not superior to either the Executive or Legislative Branches of government. However, the Judicial Branch plays the unique role of interpreting the laws and the Constitution and issuing rulings that need to be complied with. If the Executive or the Legislature start saying that they won’t comply with those orders, it would be the equivalent of the courts saying that it would ignore something the other branches did that was properly within their authority. That would be a Constitutional crisis.

    Conservatives like to point out the fact that the Obama Administration was found to have acted outside the law or the Constitution many times. However, there are two important points. First, many of these cases involved issues such as the Recess Appointment power that were unclear and which hadn’t been dealt with by the courts before. Second, the Obama Administration complied with those rulings even when it disagreed with them. The system worked. In Trump’s case, I fear we may be dealing with a man who is more like Jackson than Obama and that we may once again see a Constitutional crisis if and when he is faced with a ruling that he disagrees with.

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  3. James Joyner says:

    @Doug Mataconis: I’m actually making a limited argument in this case.

    1. With the exception of the poorly-chosen words on MTP, Miller said nothing particularly unusual, much less authoritarian.

    2. I think Miller and the administration are likely right on the ultimate disposition of this, in that Trump was clearly acting within the scope of Executive power, in both a Constitutional and statutory sense. (The “Muslim Ban” language that Giuliani and others used is problematic but the EO doesn’t actually ban Muslims.)

    3. I question in particular the Seattle ruling, in that I’m dubious of the standing claims of the State of Washington and of a nation-wide order coming from a district level judge. Historically, at least in my understanding, even Court of Appeals rulings only apply within the circuit in question.

    I fully agree with you that it would be a grave constitutional crisis for the administration to ignore judicial orders and I’ve criticized Trump even for his juvenile tweets like “so-called judge” that give a hint of that.

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  4. JOHN JOHNSON says:

    This is breathtaking. Never in my life have I seen a presidency (including the Nixon administration) that is so focused on deceiving the public and expanding its power. I have seen many references to Orwell’s 1984, but this is real life. This is OUR liberty being taken from us in rapid fire fashion. It is leaving almost the entire profession of journalism (FOX and a couple of far right outlets partially excepted) doing all they can to fight for their very right to exist. Anyone who is not terrified is either not paying attention or does not care about freedom.

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  5. RonPet says:

    Our fathers warned of judicial tyranny, which we have been living under. For example, a federal judge recently ordered this to a civil litigant:

    “You are a fool, a fool, a fool, a fool to screw with a federal judge, and if you don’t understand that, I can make you understand it … I have the full force of the Navy, Army, Marines and Navy behind me. . . My orders are enforceable by large fines, imprisonment, and death”

    http://dailycaller.com/2016/08/12/california-attorney-dallas-judges-shred-constitution-steal-millions/

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  6. Circuit Court opinions are only considered legally binding precedent within the Circuit in which they are made.

    However, Federal Judges effectively have nationwide jurisdiction, which is why they can issue warrants covering something or someone located anywhere else in the country .With the proper findings, they can most certainly issue a ruling that stays activity outside of the boundaries of the district in which they are located.

    As for the standing issue, I agree that it’s controversial but given the rulings out of the Fifth Circuit it does appear that the Courts are becoming increasingly willing to find that states have standing to challenge certain Federal Government acts if they can allege the facts to show that they would be adversely impacted by the Federal action .SCOTUS’s position is unclear since they split 4-4 and did not issue any written opinion on the standing issue (although they presumably would have if there were five votes on the issue, although it’s possible they just chose to ignore it). It is worth noting though that in recent years both conservative and liberal Justices have opined that previous standing rules may have been too narrowly defined.

    As for the merits of the EO opinion, it’s not entirely clear to me that the Administration’s position is supportable, especially since the 1952 law upon which they rely appears to have been superseded by the immigration reforms passed in 1965 that generally prohibit blanket discrimination based on, among other factors, national origin.

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  7. gVOR08 says:

    I agree with Miller on the substance: not only has Congress explicitly delegated this power to the president but over a century of judicial precedent supports Trump’s exercise of it.

    As far as I’m aware, no one has yet ruled on the legality of the Order. Are you saying the President has been delegated authority to overturn a temporary stay? And is the question of whether Congress has explicitly delegated unlimited power over immigration a question for the Courts to decide? Wasn’t that the point to this post?

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  8. gVOR08 says:

    I happened to catch a few minutes of Chuck Todd “interviewing” Miller on Meet the Press this morning. Does it matter to you, James, that Miller is a lying sac of pus?

    And Chuck Todd must be a brilliant self promoter and master of corporate politics, ’cause he sure ain’t any good at his job.

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  9. @James Joyner:

    much less authoritarian.

    I think on that count, things like tone, intent, and intensity matter. This administration is flirting with autocratic, if not authoritarian, approaches to governance.

    The argument they are making, as augmented by the President’s own words, goes beyond just a run of the mill struggle between branches. They appear to believe that they should be able to do whatever they want without review or interference. That is authoritarian by definition.

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  10. “A district judge in Seattle cannot force the president of the United States to change our laws and our Constitution because of their own personal views. The president has the power … to suspend the entry of aliens when it’s in the national interest.”

    A few things:

    1) No judge has done any of those things, so far the courts have said the order needs review, which actually hasn’t happened yet.

    2) To reverse the formulation: the POTUS does not have the power to execute policy however he choose, based on his own personal views.

    3) While the president has broad powers in terms of preventing entry of persons into the country, those powers are not unlimited.

    4) To further point #3: when an EO runs afoul of other laws and policies (like how Green Card holders are treated) then it is incumbent on the courts to sort out the contradictory imperatives under the law.

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  11. Slugger says:

    I do get a kick out of the characterization of federal court judges as “unelected.” Our Constitution was clearly constructed to avoid popular elections as qualifications for many important offices which includes judges, Senators (for many years), and the President. Is it okay to call Mr. Trump “the unelected President ” in Mr. Miller’s opinion?

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  12. bookdragon says:

    Quite apart from debate on legal merits, and frankly I think the courts do have the right to review executive orders that conflict with fundamental American values like freedom of religion, Miller came across very badly.

    He shouted. He appeared to be reading from a teleprompter rather than laying out a case. He asserted that some questions could not be asked, or falsely asserted that they had already been answered. And what Sean Spicer says is “always 100% correct”??? How is anyone supposed to believe anything he says after that one?

    Overall he made me think of Pee-Wee Herman cosplaying a Nazi propagandist. Not a good look and certainly not persuasive. Which may be why the reaction this morning is running the way the it is.

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  13. Terrye Cravens says:

    If the EO had been drawn up properly the Trump administration would not be in this position. Miller is just blaming the courts to cover his own incompetence.

    I tried to watch him today and just could not do it. Had to mute the TV. The claims about voter fraud are irresponsible and just plain ridiculous. They keep saying there is evidence, but they never actually produce any.

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  14. @Terrye Cravens:

    If the EO had been drawn up properly the Trump administration would not be in this position. Miller is just blaming the courts to cover his own incompetence.

    I think this is correct. There was a version of that EO that could have accomplished it goals (for good or ill) without having created the chaos linked to its roll-out nor the judicial scrutiny it now will enjoy.

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  15. Pch101 says:

    @Terrye Cravens:

    I suspect that the voter fraud talking point is mandated by Trump. It has a good beat and the faux-president in the empty suit can dance to it.

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  16. Gustopher says:

    @James Joyner:

    2. I think Miller and the administration are likely right on the ultimate disposition of this, in that Trump was clearly acting within the scope of Executive power, in both a Constitutional and statutory sense. (The “Muslim Ban” language that Giuliani and others used is problematic but the EO doesn’t actually ban Muslims.

    Among the “others” who have used that language is the President himself, on the campaign trail. And the EO makes a point of excluding those of minority religions in the affected countries — i.e., it only affects the Muslims.

    Is your position that the statements of lawmakers and executives cannot be considered when reviewing their laws and executive orders? It certainly illuminates the intent here.

    Should each law and executive order be considered as if it fell from the heavens, untouched by human hands, or should the motivations and intent of those who crafted it be considered?

    In the case where there is a disparate impact on a class of people, and where the authors had previously been trumpeting their intent to discriminate against those people, I find it hard to not consider the motivations.

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  17. Lounsbury says:

    Regardless of right or wrong on the actual legal question, one has to say that the Trump Administration’s communication strategy rather looks perfectly designed to put the judiciary in a rather negative frame of mind in re interpreting the Adminstration’s actions.

    Unhelpful and rather incompetent – although from a fascistic anti-rule of law rile-up-the-rubes PoV likely useful.

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  18. Guarneri says:

    Super. So we’ve learned that the issue has in fact been delegated to the executive, that a judge can make an unwarranted decision, or if the order was poorly crafted it may require review, and in the case of the former will get kicked up to the Supremes. You don’t say.

    But then we get wild eyed speculation about a 3 week old Administration – 3 weeks old – being authoritarian blah blah blah and a threat to civilization itself, plus comments from the peanut gallery as to how it should have been drafted.

    Oh, and that a representative of the Administration is lying pus.

    If I was a cynic I’d suspect there are no limits to the bending of every day events into faux crises by opponents of the winning candidate. You nervous nellies have a case of the vapors.

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  19. Scott F. says:

    @James Joyner:

    When arguing that Miller is correct on the merits, I believe you are giving short shrift to a very important point – a point that was important in the 9th circuit hearing. Namely: evidence.

    You bold this quote from Miller:

    “A district judge in Seattle cannot force the president of the United States to change our laws and our Constitution because of their own personal views. The president has the power … to suspend the entry of aliens when it’s in the national interest.”

    “…when it’s in the national interest” is a critical qualifier to the president’s power. The judges address this in their ruling in the section on Public Interest. Both the district court and the appellate requested explanation of the need for this ban – any proof that someone from the seven ban countries posed any kind of threat to our citizenry – and repeatedly no evidence was given whatsoever.

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  20. Terrye Cravens says:

    @Pch101: I am sure Trump is insisting on the voter fraud nonsense and the last I heard the FEC commissioner is demanding evidence. Maybe he should quit while he is ahead.

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  21. Joe says:

    @James Joyner:

    Now, in context, he doesn’t seem to be saying anything different here: he’s simply reiterating that the judiciary is a co-equal branch and that, in this particular instance, they’ve overreached by ruling on an issue where the president has near-plenary power.

    “Near” plenary power – that’s the question, isn’t it. Not full-plenary and not second-guessable. How much review does it get? Miller, by his tone and argument, appears to me to be saying, “certainly not reviewable by a mere federal district court judge” (who applies his own “personal views” cause he probably hasn’t got a law license and did nothing in his legal career to warrant his 99-0 confirmation vote in the U.S. Senate, and that’s probably generally the case with mere district court judges, especially the ones in podunk places like Seattle). But district court is where any such review starts. That’s how the system works.

    And you are right, James, that there are some close issues here about the propriety of this review or even the States’ standing to bring it, which is why we have appellate and Supreme Court review and the Administration is entitled – really, obligated – to pursue review with of such a wide-ranging and impactful decision, so, right or wrong, it does not remain the provenance of a single decisionmaker who is not individually responsible for national security.

    All those factors make bringing the case and having a mere district court judge start by issuing a preliminary decision exactly what is supposed to happen for the system to work. Perhaps the details work for you, James, but the tenor of Miller’s response amounts to “how dare you, judiciary!” and that is disturbing.

    Although this is a common litigant ploy, it is also annoying to have a high federal official misrepresent the court holdings when he asserts that no alien who has not step foot in America has legal rights here. He is correct, but that is clearly not what the lawsuit is addressing and is not the theory of Constitutionality the Ninth Circuit articulated.

    You also raise interesting questions about whether a religious animus must appear on the face of the EO, but the Ninth Circuit addresses that and concludes that Supreme Court precedent allows a court to look at the intent behind a facially neutral action.

    Unless the Trump Administration substitutes a different EO, this one will eventually get a hearing from the Supreme Court and they will do what they do. I understand the comments that this EO is probably within the president’s authority, but a widely dispersed group of judges – geographically and politically – have almost unanimously said the EO is probably unconstitutional. They may be mostly just district court judges and all, but that kind of uniformity is unusual in cases that are close calls. At the end of the day, judicial review is part of the Constitutional checks and balances and the Administration’s attempt to undermine the system rather than fighting for its interpretation of the law is not heartening.

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  22. Barry says:

    James: “Further, while courts certainly have the power to stay Executive Orders, it’s highly unusual for a district court to issue a nation-wide ban.”

    IIRC a Texan (10th District) court overturned an Obama-era policy on immigration, issuing a nation-wide order. It stuck.

    Or course we’ll now see a lot of Republicans howling about [insert name of tactic they looooved from 2009-2016].

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  23. Scott O says:

    @Guarneri: How many weeks would you like us to wait before we express concern that the president acts like a spoiled toddler?

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  24. @Scott O: Not to mention having had aides provide false information to the public in an attempt to deceive (“the Bowling Green Massacre”) and clearly violating ethics (the whole Ivanka business), just to name a couple of serious issues.

    And, of course, the President himself making wild claims about voter fraud of historic proportions and about the lack of coverage of terrorism in the media.

    We could also note alienating allies as well…

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  25. HarvardLaw92 says:

    @Joe:

    Correct. Miller is not, nor has he ever been, an attorney. He holds a BA from Duke in political science.

    This is what happens when laymen think they’re qualified to write legal documents.

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  26. Pch101 says:

    @Scott O:

    How many weeks would you like us to wait before we express concern that the president acts like a spoiled toddler?

    He’s awaiting instructions from the Kremlin.

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  27. An Interested Party says:

    If I was a cynic I’d suspect there are no limits to the bending of every day events into faux crises by opponents of the winning candidate. You nervous nellies have a case of the vapors.

    Oh I see…so than it should just be perfectly normal for a president and his minions to constantly push outright lies about alleged voter fraud, among many other vile falsehoods…no undermining of our democracy there…nothing to see people, move along…

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  28. Sandra Morton-McCann says:

    @James Joyner: You don’t seem to grasp the most basic functions if the court. The court rules on matters of constitutionality and legality.Trump has the power to regulate under various laws. This Trump exec order is lawful as a regulation within a law that gives the president the power to regulate. But, just as laws must be constitutional, regulations must be both lawful and constitutional. The order is not constitutional as it impacts people not subject to the law. Thus it must be repealed and replaced. Not all that hard unless you let your ego get in the way as Trump has. And before you go there, no, his just saying we won’t apply it to those people isn’t good enough. The order needs to be constitutional on it’s face.

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  29. steve says:

    Slightly OT, but isn’t it concerning that the chief policy adviser is a 31 y/o with a BA from Duke? What 31 y/o should ever hold an important policy position?

    Steve

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  30. @steve: Indeed.

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  31. al-Ameda says:

    MILLER: We are considering all of our options right now, Chuck. That includes you can continue the appeal on the 9th and seek an emergency stay in the Supreme Court, and you can have a trial hearing on the merits at the district level or a hearing also at the 9th circuit and pursue additional executive actions. The bottom line is we are pursuing every single possible action to keep our country safe from terrorism. I want to be clear. We heard talk about how all of the branches of government are equal. That’s the point. They are equal. There’s no such thing as judicial supremacy. What the judges did is take power away that belongs squarely in the hands of the president of the United States.

    I watched the Todd and Miller exchange, and it was depressing. Scott Miller is in way over his head, and a seasoned guy like Chuck Todd can’t break Miller down? As soon as Miller said, “keep our country safe from terrorism” it was on, Todd should have been ready to take Miller on. Maybe my expectations of the press are too high, but the press constantly rolls over for conservatives. They’re intimidated by conservative accusations of media bias.

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  32. Dazedandconfused says:

    @JOHN JOHNSON:

    This is breathtaking.

    It is, but I for the moment remain unclear if it is a breathtaking attack on our system of government or if it is but a breathtaking display of incompetence and ignorance. Trump has no experience in government and is currently surrounded by ideologues and people with no more experience than he has. They are proceeding in what appears to be learning by trial and error.

    I suspect Miller was sent out because he is the guy who wrote the order and is being given an opportunity to defend it before being fired. I expect Trump, or perhaps more precisely a person of Trump’s make up, to dump the people who cause him trouble. Kellyanne not being dispatched to defend the ridiculous thing is an indication he’s thinking of distancing himself from it.

    In general he would attempt to modify the powers of his new office to match his current skill-set, that of a CEO, who is all but a dictator. It seems unlikely to me he will achieve that. He was the least popular incoming POTUS of modern times at inauguration and his popularity has gone down faster than a Russian hooker from there. Congress will take the measure of that unpopularity and will not fear him.

    Trump must either adapt or become a joke. If the later expect him to quit.

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  33. James Joyner says:

    @steve: @Steven L. Taylor: Actually, it’s not at all unusual for 31-year-olds to hold important policy positions. There is a whole class of career officials, most of whom start out as Presidential Management Fellows, who move into Senior Executive positions by the time they’re 30. For that matter, look at the folks who had senior policy roles in the Clinton and Obama administrations; a lot of them were that age. I’m not a fan of the practice but it’s actually shockingly common.

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  34. @James Joyner: This is true, and I realize a lot of 30 year-olds are in significant positions. I suppose in Miller’s case it just struck me that he seems to have a very senior role in a WH that lacks experience in general.

    After having watched his performance on both MTP and This Week, it just underscores that feeling.

    Good Lord, he was terrible.

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  35. LaMont says:

    @James Joyner: True. However, publicly, in my opinion these 30-something year olds were meant to be seen and not heard!

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  36. Jen says:

    @Terrye Cravens: As a resident of the state of NH, I can tell you that I am really, really tired of the allegations being made about voter fraud in this state (including a very ill-advised statement from our governor on the day of the election). I’m not the only one–we have seen all kinds of current and former state officials come out of the woodwork over the last 24+ hours to say the same. Anyone alleging the wide-scale voter fraud the administration is suggesting needs to put forward clear, solid evidence of it, or stop. Enough already.

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  37. James Joyner says:

    @Steven L. Taylor: @LaMont: I haven’t watched any of Miller’s or even Spicer’s television antics. Aside from a few “Morning Joe” clips, I haven’t watched any of this since the Inaugural speech. I’m just reading a lot and trying to separate the truly scary from the mildly incompetent to the overreaction to things which are perfectly normal. it’s challenging.

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  38. @James Joyner: After reading your post, I clicked through and ended up watching the segments from both shows. They are quite strange, as it looks like he is reading prepared responses as if on a prompter, but doing so as if he was giving spontaneous responses. Either he was reading or he has a very strange tic wherein his eyes track back and forth while he talks. Even if he wasn’t reading he was very stilted.

    I concur that the fact that he is young is not sufficiently unusual to warrant it being alarming. It is just the general level of amateurism on display from this group highlights his age and short cv.

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  39. A lot of this feels like a bunch of drinking buddies who have all the answers late at night over beer and pizza actually getting allowed to run government, only to find that it is, in fact, one whole hell of a lot more complicated that it sounds three beers in.

    Or, to use another analogy: it is like a bunch of fantasy football players actually getting to run an NFL franchise.

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  40. reid says:

    @Steven L. Taylor: Well stated. That’s my impression of how most of the GOP thinks. From invading Iraq to thinking that cutting taxes is always good, it’s governing via shallow thinking and simple-minded ideologies.

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