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.
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.
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.
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.
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.
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.
They were trying to run out the clock. Remember the government just shut down today, so I think Congress now has to reauthorize that spending? Maybe I’m wrong here.
If that’s not the reason, then I still think it was trying to drag out the time before SCOTUS would have to reach a merits decision. As Vladeck has noted, on cases where the DOJ/SG think are weaker, they basically let them linger around to slow the process down before they inevitably lose (also they just don’t have enough skilled attorneys to litigate all of the challenges to Trump’s actions in an expedited manner). I don’t think they were expecting to win here until they drew a lucky panel at the DC Circuit, which not only gave them a win, but did so on grounds they hadn’t even been arguing. Once that happened, maintaining the status quo of that decision became prioritized.
So many of your readers like myself, must be greatly encouraged by this latest discussion--as u are finally coming close to saying what is obviously true, that between Sen Mitch McConnell & Trump's machinations & manipulations of the Supreme Court nominating process--this Court is unabashedly corrupt & partisan in an unprecedented way! Like all Trump's appointees, his Justice appointees were chosen for blind loyalty, not jurisprudence excellence or fairness. If we can continue to expect blind obedience to Trump's demands that the Supreme Court uphold his ever more dangerously increasing lawlessness--our 250 year experiment w/a constitutional democratic republic is in dire & immediate danger! Can we realistically expect this partisan & corrupt Supreme Court to stop Trump's march towards autocracy?
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 . . .
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!
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
Another timely and urgent update on the latest shenanigans . Thanks
"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.
"Don't tell me what the law is. Tell me who the judge is." -- Roy Cohn
thank you - tracking the detail to grasp the importance. A president that constantly cries wolf
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.
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!
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.
https://open.substack.com/pub/jodygorran/p/the-democrat-offensive-move-blue?r=68rn&utm_campaign=post&utm_medium=web&showWelcomeOnShare=true
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.
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.
How come DoJ didn't seek a stay earlier? What's the downside? Was it just sloppiness?
They were trying to run out the clock. Remember the government just shut down today, so I think Congress now has to reauthorize that spending? Maybe I’m wrong here.
If that’s not the reason, then I still think it was trying to drag out the time before SCOTUS would have to reach a merits decision. As Vladeck has noted, on cases where the DOJ/SG think are weaker, they basically let them linger around to slow the process down before they inevitably lose (also they just don’t have enough skilled attorneys to litigate all of the challenges to Trump’s actions in an expedited manner). I don’t think they were expecting to win here until they drew a lucky panel at the DC Circuit, which not only gave them a win, but did so on grounds they hadn’t even been arguing. Once that happened, maintaining the status quo of that decision became prioritized.
So many of your readers like myself, must be greatly encouraged by this latest discussion--as u are finally coming close to saying what is obviously true, that between Sen Mitch McConnell & Trump's machinations & manipulations of the Supreme Court nominating process--this Court is unabashedly corrupt & partisan in an unprecedented way! Like all Trump's appointees, his Justice appointees were chosen for blind loyalty, not jurisprudence excellence or fairness. If we can continue to expect blind obedience to Trump's demands that the Supreme Court uphold his ever more dangerously increasing lawlessness--our 250 year experiment w/a constitutional democratic republic is in dire & immediate danger! Can we realistically expect this partisan & corrupt Supreme Court to stop Trump's march towards autocracy?
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 . . .
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!