Shortly after being sworn into office in 2017, President Trump dispatched his press secretary to announce to the gathered press, and the world, that the crowd in attendance at his inauguration had been larger than the crowds at any previous inauguration.

The media quickly produced photographic evidence that proved this boast to be false. The President’s response, delivered by a close aide the next day, was that, in making the claim, the President was simply relying on “alternative facts”.

This creative view of reality seems now to be a central feature in appeals of several lawsuits involving the President’s deployment of National Guard troops into Los Angeles, Portland and Chicago in response to protests of ICE immigration tactics.

In each of these cases, the President has relied on a law that allows him to deploy the National Guard where one of three circumstances exists: invasion by a foreign nation; rebellion against the authority of the federal government; or an inability with regular forces to execute the laws of the United States. In each case, the President has alleged the existence of facts which, he says, justify his actions. In each case, the trial court has determined that the “facts” which the President relies on are not supported by evidence.

Now the Supreme Court has accepted the Chicago case which raises this question: What standards should the courts use to judge the truthfulness of the President’s determination that the extreme circumstances he alleges as the basis for his actions actually exist? The case has been put on a fast track and a decision appears to be imminent.

There appear to be three possible decisions that the Supreme Court could make on this issue. It would be possible for the Supreme Court to simply consider the evidence presented in court without affording the President’s determination any special weight. That seems unlikely, given the fact that the President is a wholly separate and co-equal branch of government entitled to respect by the judiciary. At the opposite extreme, the President maintains that his determination is not subject to review by the courts at all, but must simply be accepted as true.

Such a holding would seem to undermine the fundamental judicial power assigned to the Supreme Court by the Constitution.

There is a middle ground between these two extremes, which was adopted by the federal district court in the Chicago case and the Portland case. Under that approach, the President’s determination would be entitled to “a great level of deference”, but it must be grounded in actual facts supported by evidence produced in court, and must be made in good faith within a range of honest judgment. In simple terms, it must be based on the truth and not on “alternative facts”.

The importance of the Supreme Court’s decision in this case can hardly be overstated.

Should the Supreme Court hold that the President’s determination may not be reviewed at all, or should it adopt a deference standard so broad as to effectively eliminate proven facts and good faith from the equation, the ramifications would be frightening. It would effectively obliterate the distinction between true facts and “alternative facts” as a justification for Presidential actions that are not within the powers given to the President by the Constitution or laws enacted by Congress.

What would then prevent the President from declaring –based on “alternative facts” which cannot be questioned –that other emergencies exist which justify new presidential orders restricting other freedoms guaranteed by the Constitution?

- Alan Cooper, Rochelle