A Psychiatrist Wades into Constitutional Law

Eminent psychiatrist Allen Frances has attacked his colleagues for diagnosing President Trump. See my previous post. By his lights anyone who says that Trump is mentally ill is insulting people who really are mentally ill.

According to the psychiatrist, Trump is a nightmare, a threat to democracy, a threat to the constitution and a threat to everything that he believes in.

One wonders on what ground Frances speaks so definitively. He is certainly not an expert on constitutional law. Yet, he believes that a handful of judges has offered the last word on the Trump immigration order. He does not mention that at least one other federal judge upheld the Trump order. He is not an expert on politics or anything resembling it. And yet, he speaks with complete confidence and unquestioned authority.

Explain to me why such palaver contributes to the debate. Explain why a man of science presumes to offer definitive judgments about matters in which he has no expertise. Does he expect that people will see that he is a mental health professional and will automatically grant credence to his opinionated views on matters he knows nothing about? One of the great problems with our culture is that men and women of science pretend to offer up the last word on matters they do not understand, in a game they do not know how to play.

Frances is merely showing us that people who do not know how to play the game end up being played by those who do. Frances is correct to denounce the “amateur diagnosticians” who pretend to understand Trump’s psyche. But, he is insufficiently self-aware to see that he himself is offering amateur political and judicial analysis. Who does he think he is?

I myself have offered several posts about the Trump immigration order. When offering an analysis of legal opinions, like those of the 9th circuit, I had enough humility to present the views of experts in constitutional law.  Like Harvard professor Alan Dershowitz. I also added the views of Jeffrey Toobin, a journalist who has a law degree and who was, by the by, an editor of the Harvard Law Review.

Readers of this blog deserve better than the opinionated rants of someone who does not know the law.

By now you are curious to know what Frances actually said. Your long wait is over:

Within a week of taking office, Trump declared war on our Constitution and also on the courts charged with defending it. He claimed that, based on his evaluation of risks to national security, he could arbitrarily exclude travelers from selected Muslim countries, without any judicial review of the legality of his executive order.

His claim is unprecedented and has been twice rejected by the court: "There is no precedent to support this unreviewability, which runs contrary to the fundamental structure of our democracy". 

Trump ridiculed the four judges who ruled against him and claimed that they were acting politically- despite the fact that two had been appointed by Republican presidents and two by Democratic presidents. No president in our long history has ever shown such disrespect for the judiciary or willingness to defy the necessary checks and balances restraining presidential power. 

Obviously, these are left-wing talking points. Perhaps Frances is vying for a job in the Hillary Clinton administration, but his legal analysis falls far short of what a Dershowitz or Toobin presented. It is good to judge Trump by his actions, but the man has been president for four weeks now. Perhaps it is best not to rush to judgment and to indulge the worst hysterical impulses of large swaths of the American public. After all, Frances is a psychiatrist. Ought he not to be showing a path to rational thought, not sliding into a swamp of uninformed emotion?

If he had managed to look at the analysis offered by legal scholars he would have known that the court decision did not even address the issue of the president’s power, enshrined in law, to control immigration. Frances mentions that the countries are Muslim, as though to suggest that Trump has targeted Muslims, in particular. The fact that the countries were selected by the Obama administration because then do not have real governments and cannot screen travelers themselves gives the lie to his assertion.

As for whether any president has shown such disrespect for the judiciary, clearly Frances got carried away with his own hyperbole. Being uninformed and ignorant Frances can only traffic in talking points. Has he forgotten Franklin Roosevelt’s efforts to pack the Supreme Court? Or did he never know about it. And then there was the view of President Andrew Jackson when confronted with a Supreme Court decision. You all recall that Jackson said: “Mr. Marshall has made his decision. Now let him enforce it.”

Again, how can Frances claim to have complete and utter certainty about constitutional law? Because he is a psychiatrist? What gives him the authority to say the following:

Impending court decisions in this case may constitute a key turning point in United States history. Should the judges accept Trump's "national security" excuse for unconstitutional acts, it will embolden him to push for a much greater power grab. He can create a de facto dictatorship, eroding our precious civil rights, based only on his arbitrary interpretation of "national security."

The courts must establish that Trump's "national security" excuse is not a blank check, allowing for serial violations of the Constitution. Court decisions have always been heavily influenced by politics. The question now is whether judges will have the courage to support our Constitution in the face of Trump's determined bullying.

And if the judges’ final decision contradicts Frances’s uninformed views of what the law does or does not say, what would he conclude?

Anyway, Frances is having nightmares about Trump’s efforts to destroy the Constitution and to destroy a fragile American democracy. He speaks like a Democratic Party hack. If Alan Dershowitz considered the court decisions to be questionable and eminent psychiatrist Frances believed them to be totally correct, who would you believe? Frances would have done better to keep his ignorance to himself.