President Trump's latest emergency application rests on a contrived procedural emergency and a forfeited substantive claim—apparently banking on the view that the Court doesn't mind being played.
What remains to be seen is who's playing whom. If the majority on the Supreme Court is willing to play along with Trump's contrived emergencies and to green light his actions based on them, then isn't it fair to conclude that they share Trump's fascist agenda for the country and will interpret and apply the Constitution through that lens?
If not, then I would argue that the only reasonable alternative conclusion would be that the 6 conservative justices are woefully naive as to the fragility of SCOTUS’ legitimacy in the minds of the American people.
Disconcertingly, this legitimacy, once destroyed, is not easily restored; without federal & state court systems that are regarded as legitimate by a substantial majority of Americans, stable democratic governance has little chance of surviving.
I have lost all faith in the Roberts court. He doesn't call balls and strikes. He makes up stuff, ignores precedent and settled law (and that is just a start). His court has allowed Trump to walk over our government. The court needs serious reforms ASAP
"The harder question is whether, in a case in which the government’s cynical attempt to so obviously manipulate the emergency docket is happening in plain sight, the justices will still indulge it."
I would bet the farm on the SCOTUS conservatives indulging it.
Absolutely. As with the Constitution and the laws, the words of civil procedure mean exactly what they want them to mean, nothing more and nothing less. At the very least, you don't need to know anything about the law to know how Alito and Thomas will rule.
I wonder at SCOTUS's end game. Do they think that by allowing a dictatorship to overwhelm our country they will always have a free slide, unchecked toward self-enrichment? Maybe they think that as long as they allow a lawless administration, that their partisan and corrupt behaviors will be overlooked in perpetuity, or at least as long as their life-long terms exist. The phrase "follow the money" might be in play, unchecked by a feckless administration. Is it that simple?
Your explanations are certainly plausible. Another plausible explanation is that the 6 conservative justices are—as a consequence of living for too long atop their very high pedestals—woefully naive as to the fragility of SCOTUS’ legitimacy in the minds of the American people.
Disconcertingly, this legitimacy, once destroyed, is never easily restored… and, without federal & state court systems that are regarded as legitimate by a substantial majority of Americans, stable democratic governance has little chance of surviving. 😞
I agree with you that the naïveté of the 6 conservative justices is part of the problem here, but not just for legitimacy purposes. It’s like in their impatience to deregulate and impose their Federalist Society agenda, they have failed to even ask themselves the question of whether or not doing this while Trump is the President is really in the best interest of the wealthy conservatives who have been pushing this agenda for decades.
Like we have seen how the first question of their analysis for both the Unitary Executive Theory and the Major Questions Doctrine is “what party controls the White House?” If GOP proceed with the former and if Democrats proceed with the latter. The slight modification in the Trump administration seem to be the same formula, unless there could be catastrophic economic consequences, in which case they will make up some bullshit distinction about the Fed in the Cook case (not to say I think Trump should fire Cook, just that the Fed is not structurally or legally distinct from other multimember bodies like the FTC) or potentially go full MQD as I think they might do in the tariffs case.
At a certain point, these outcome determinative exceptions to these “rules” when it suits them just serve to undermine their legitimacy and authority, along with the rule of law. They can’t make these exceptions too often without weakening their conservative legal objectives, and eventually all of the times they refuse to make an exception will just swallow them and Congress whole.
This does seem like a new playbook within the old playbook's cover. I mean, yes--if the SCOTUS Six, or even 5/6 of them, grant emergency relief based on a contrived and incomplete appeal, they out loud know they are dancing to the executive's tune, approve of being used as a judicial sanction of the government's carelessly articulated authoritarian whims, and are signaling to the lower courts that they may as well not bother. I sincerely hope the lower courts continue to uphold expectations of regularity if for no other reason than it gives the resistance time to organize.
Yeah they are basically saying that authoritarian lawlessness is fine if that authoritarian is a Republican, except if it might lead to severe economic consequences. That is no way to rule and so far removed from any notion of “originalism” that it’s laughable.
One additional point on DOJ’s disingenuous tactics here: It maintains that the APA does not provide a remedy since the exclusive judicial recourse for illegal impoundments is suit by the Comptroller General under the ICA, However, if the CG actually brought such a suit, DOJ would surely argue that it was unconstitutional since the CG as a legislative branch official can’t perform the executive function of suing to enforce a law. (See the 1986 SCOTUS decision in Bowsher v. Synar.) Moreover, the Trump administration maintains that the entire ICA is unconstitutional. The SG’s submission to the Supreme Court here hints several times that a suit by the CG under the ICA would be nonjusticiable but stops short of saying so explicitly. In other words, DOJ’s real position is that NOBODY can sue to challenge executive branch impoundments.
Without reading the entirety of the post (yet), the answer to the question of whether the justices will indulge the Trump's administration's effort to use the court to slap down lower court impediments, the short is "yes." The justices, namely Gorsuch, Kavanaugh, Alito and Thomas have nothing less than total contempt for the lower courts' effort to apply the rule of law.
Thank you once again for taking the time to so clearly delineate the issues with this filing. Your explanation is invaluable. I still have some hope . . .
Shouldn’t we try to make the foot soldiers of this authoritarian movement pay a price? Like filing a bar complaint against those that are clearly misrepresenting facts and misleading the Court?
I've done that in California and the bar replied that the DOJ attorney who was lying to Judge Xinis was simply advocating for his client. Lots of institutional complicity in the fascist attempts to undermine the rule of law. I've heard other folks have challenged Bondi and Rubio with the Florida bar, with similar results.
Such complaints have been filed, and some have resulted in disciplinary actions. The accused attorneys all have a right to due process, so it will take some time before the outcomes are decided.
I am not a lawyer and I’m slowly getting a legal education through your posts, which are quite riveting. As you describe it, the government is playing the system and blasé about any sense of responsibility for their behavior. Seems to be matched by a parallel sense of entitlement by some members of the Supreme Court.. if this weren’t such a tragedy for our country, it would be a comedy!
I hope the justices have spent the summer clearing their minds and gaining some perspective on the situation and their role in it. I hope they've been having conversations with "real" people in the real world, and have expanded their horizons beyond their own little lives. Is that too much to ask?
If SCOTUS grants this, if there are any doubters still out there, this would show that SCOTUS is a purely partisan body ruling not on the law but to advance their partisan anti-liberal, right wing authoritarian sympathies
Can state governors recall their state guards from national service?
Can those states that principally fund the national government impose an intermediate trust of federal taxes and create an effective economic secession?
Certainly not, but power is in play as the 2nd Amendment originally was understood. Liberals and "conservatives" reverse their states' rights roles. A founders nightmare redux. Very sad.
What remains to be seen is who's playing whom. If the majority on the Supreme Court is willing to play along with Trump's contrived emergencies and to green light his actions based on them, then isn't it fair to conclude that they share Trump's fascist agenda for the country and will interpret and apply the Constitution through that lens?
If not, then I would argue that the only reasonable alternative conclusion would be that the 6 conservative justices are woefully naive as to the fragility of SCOTUS’ legitimacy in the minds of the American people.
Disconcertingly, this legitimacy, once destroyed, is not easily restored; without federal & state court systems that are regarded as legitimate by a substantial majority of Americans, stable democratic governance has little chance of surviving.
I have lost all faith in the Roberts court. He doesn't call balls and strikes. He makes up stuff, ignores precedent and settled law (and that is just a start). His court has allowed Trump to walk over our government. The court needs serious reforms ASAP
"The harder question is whether, in a case in which the government’s cynical attempt to so obviously manipulate the emergency docket is happening in plain sight, the justices will still indulge it."
I would bet the farm on the SCOTUS conservatives indulging it.
Absolutely. As with the Constitution and the laws, the words of civil procedure mean exactly what they want them to mean, nothing more and nothing less. At the very least, you don't need to know anything about the law to know how Alito and Thomas will rule.
😞 Sadly, I can’t disagree.
Another timely and urgent update on the latest shenanigans . Thanks
I wonder at SCOTUS's end game. Do they think that by allowing a dictatorship to overwhelm our country they will always have a free slide, unchecked toward self-enrichment? Maybe they think that as long as they allow a lawless administration, that their partisan and corrupt behaviors will be overlooked in perpetuity, or at least as long as their life-long terms exist. The phrase "follow the money" might be in play, unchecked by a feckless administration. Is it that simple?
Your explanations are certainly plausible. Another plausible explanation is that the 6 conservative justices are—as a consequence of living for too long atop their very high pedestals—woefully naive as to the fragility of SCOTUS’ legitimacy in the minds of the American people.
Disconcertingly, this legitimacy, once destroyed, is never easily restored… and, without federal & state court systems that are regarded as legitimate by a substantial majority of Americans, stable democratic governance has little chance of surviving. 😞
I agree with you that the naïveté of the 6 conservative justices is part of the problem here, but not just for legitimacy purposes. It’s like in their impatience to deregulate and impose their Federalist Society agenda, they have failed to even ask themselves the question of whether or not doing this while Trump is the President is really in the best interest of the wealthy conservatives who have been pushing this agenda for decades.
Like we have seen how the first question of their analysis for both the Unitary Executive Theory and the Major Questions Doctrine is “what party controls the White House?” If GOP proceed with the former and if Democrats proceed with the latter. The slight modification in the Trump administration seem to be the same formula, unless there could be catastrophic economic consequences, in which case they will make up some bullshit distinction about the Fed in the Cook case (not to say I think Trump should fire Cook, just that the Fed is not structurally or legally distinct from other multimember bodies like the FTC) or potentially go full MQD as I think they might do in the tariffs case.
At a certain point, these outcome determinative exceptions to these “rules” when it suits them just serve to undermine their legitimacy and authority, along with the rule of law. They can’t make these exceptions too often without weakening their conservative legal objectives, and eventually all of the times they refuse to make an exception will just swallow them and Congress whole.
I agree. Well said!
"Don't tell me what the law is. Tell me who the judge is." -- Roy Cohn
This does seem like a new playbook within the old playbook's cover. I mean, yes--if the SCOTUS Six, or even 5/6 of them, grant emergency relief based on a contrived and incomplete appeal, they out loud know they are dancing to the executive's tune, approve of being used as a judicial sanction of the government's carelessly articulated authoritarian whims, and are signaling to the lower courts that they may as well not bother. I sincerely hope the lower courts continue to uphold expectations of regularity if for no other reason than it gives the resistance time to organize.
Yeah they are basically saying that authoritarian lawlessness is fine if that authoritarian is a Republican, except if it might lead to severe economic consequences. That is no way to rule and so far removed from any notion of “originalism” that it’s laughable.
One additional point on DOJ’s disingenuous tactics here: It maintains that the APA does not provide a remedy since the exclusive judicial recourse for illegal impoundments is suit by the Comptroller General under the ICA, However, if the CG actually brought such a suit, DOJ would surely argue that it was unconstitutional since the CG as a legislative branch official can’t perform the executive function of suing to enforce a law. (See the 1986 SCOTUS decision in Bowsher v. Synar.) Moreover, the Trump administration maintains that the entire ICA is unconstitutional. The SG’s submission to the Supreme Court here hints several times that a suit by the CG under the ICA would be nonjusticiable but stops short of saying so explicitly. In other words, DOJ’s real position is that NOBODY can sue to challenge executive branch impoundments.
Without reading the entirety of the post (yet), the answer to the question of whether the justices will indulge the Trump's administration's effort to use the court to slap down lower court impediments, the short is "yes." The justices, namely Gorsuch, Kavanaugh, Alito and Thomas have nothing less than total contempt for the lower courts' effort to apply the rule of law.
Thank you once again for taking the time to so clearly delineate the issues with this filing. Your explanation is invaluable. I still have some hope . . .
Shouldn’t we try to make the foot soldiers of this authoritarian movement pay a price? Like filing a bar complaint against those that are clearly misrepresenting facts and misleading the Court?
I've done that in California and the bar replied that the DOJ attorney who was lying to Judge Xinis was simply advocating for his client. Lots of institutional complicity in the fascist attempts to undermine the rule of law. I've heard other folks have challenged Bondi and Rubio with the Florida bar, with similar results.
Such complaints have been filed, and some have resulted in disciplinary actions. The accused attorneys all have a right to due process, so it will take some time before the outcomes are decided.
thank you - tracking the detail to grasp the importance. A president that constantly cries wolf
I am not a lawyer and I’m slowly getting a legal education through your posts, which are quite riveting. As you describe it, the government is playing the system and blasé about any sense of responsibility for their behavior. Seems to be matched by a parallel sense of entitlement by some members of the Supreme Court.. if this weren’t such a tragedy for our country, it would be a comedy!
I hope the justices have spent the summer clearing their minds and gaining some perspective on the situation and their role in it. I hope they've been having conversations with "real" people in the real world, and have expanded their horizons beyond their own little lives. Is that too much to ask?
If SCOTUS grants this, if there are any doubters still out there, this would show that SCOTUS is a purely partisan body ruling not on the law but to advance their partisan anti-liberal, right wing authoritarian sympathies
Can state governors recall their state guards from national service?
Can those states that principally fund the national government impose an intermediate trust of federal taxes and create an effective economic secession?
Certainly not, but power is in play as the 2nd Amendment originally was understood. Liberals and "conservatives" reverse their states' rights roles. A founders nightmare redux. Very sad.