Yet, again, the pearl-clutching normiecons and Trump-deranged media are screeching that President Donald Trump is steering the ship of American state into uncharted waters. In this case, it’s the showdown between the executive and an increasingly activist judiciary.
As if this is anything new. The most radical president to challenge the reach of courts is also the most universally revered: Abraham Lincoln went so far as to suspend habeas corpus altogether during the Civil War. Long before that, Thomas Jefferson frequently clashed with Chief Justice John Marshall. Two decades later, Andrew Jackson famously said of Marshall, “John Marshall has made his decision, now let him enforce it.”
Old Hickory is surely smiling with approval as he watches The Donald stare down the activist judges trying to stop him doing what he was elected to do.
Trump now appears locked in an arm-wrestle with the legal system over the basis of his mass deportation plan. But the key question is whether his administration recognises the arm-wrestle is legitimate at all, with experts warning of a potential constitutional crisis if the president implements his political agenda in defiance of the courts.
Spare us the fainting fits. The real issue here is unelected judges taking the side of violent criminal non-citizens against law-abiding American citizens.
On Saturday, the top federal judge in Washington told the administration that any in-progress international flights deporting non-citizens under the 1798 law needed to be “returned to the United States’’.
Yet, this did not happen. Instead, 261 non citizens were deported by plane to El Salvador, swiftly raising questions about whether the administration had defied the court.
Au contraire, the court defied not just the elected executive but the clearly expressed will of the American people. Instead, it chose to defend the ‘rights’ of violent non-citizens.
Senior adviser to the President, Stephen Miller, said that a district court had “no ability to in any way restrain the President’s authority under the Alien Enemies Act.” The administration’s “Border Tsar” Tom Homan also told Fox News that “I don’t care what the judges think. I don’t care.”
It may ultimately fall to the US Supreme Court to determine the merits of the administration’s application of the Alien Enemies Act to transnational criminals and its claim that a district court has no jurisdiction to block foreign policy and immigration actions taken by the US President.
But this is a fight relished by the Trump administration for practical and political reasons.
In practical terms it wants to expand executive power at the expense of the judiciary.
No, it wants to curtail the expansion of judicial power at the expense of the democratically elected executive and legislative branches.
Cue the attacks of the vapours from the normiecons.
Patrick Eddington, a senior fellow at the classical liberal Cato Institute in Washington, warned the expansion of executive power came with major risks and argued the nation was witnessing an “assault on the entire constitutional order in America”.
Tell that to Abraham Lincoln’s ghost.
He said that, when the founding fathers wrote the US constitution, they “believed that institutional rivalry between the three branches would be an adequate check on potential executive branch overreach”.
And judicial branch overreach? For too long, the judiciary has laboured under the conceit that it somehow has the right to make policy, not just interpret the law. Roe v Wade is the classic example: nothing in the Constitution even remotely touched on the topic of abortion. The 1973 court simply made it up. As they did more recently with Obergefell v Hodges, the ‘gay marriage’ ruling. The court simply made up the policy it wanted to foist on the American people.
What America is rapidly succumbing to is, as Elon Musk correctly identified, a ‘tyranny of the judiciary’.
White House Press Secretary Karoline Leavitt has also weighed in.
“The real constitutional crisis is taking place within our judicial branch,” Leavitt said, accusing judges in “liberal districts” of “abusing their power to unilaterally block President Trump’s basic executive authority” […]
Carl Tobias, a law professor at the University of Richmond, said a constitutional crisis occurs when one of the three co-equal branches of government – the legislature, the executive and the judiciary – attempts to exercise the power of another branch.
Constitutional crisis? America has been in one for years, with the judiciary attempting to usurp the power of the other two branches. But everyone was expected to politely ignore that.
One thing you can say about Trump: politely ignoring is not his style.
At the end of the day, however, “the courts rely on the good-faith compliance of other constitutional actors with the rule of law,” Schwinn said.
“If there’s no such good-faith compliance, there’s little the courts can do.”
Federal judge James Boasberg can order planes turned back all he wants: let’s see him force the pilots to obey.
