The moment of truth case
The Trump administration last week asked the Supreme Court to lift a district judge’s order and allow it to use the Aliens Enemies Act (AEA), an 18th-century wartime law, to deport people to a Salvadoran hard labor prison without due process.
It marked the eighth time Trump appealed to the Supreme Court’s emergency — or “shadow” — docket to intervene and stay lower-court orders blocking various aspects of his agenda. SCOTUS punted on one of the president’s requests and denied another, leaving six pending.
SCOTUS could grant or deny Trump’s stay application in the AEA lawsuit any day now. Just how justices handle the case will not only give us more insight into how receptive the court’s Republican-appointed majority is to Trump’s sweeping assertions of presidential power. It will also show how willing the court is to protect the judicial branch and the rule of law.
How the Trump administration reacts should the Supreme Court uphold the lower court’s ruling will also be telling. Considering the many attacks Trump and his allies have launched on lower-court judges, including threatening impeachment, there’s a significant risk that Trump and his allies will do the same toward conservative Supreme Court justices if they rule against the government.
It’s worth remembering that Justice Amy Coney Barrett was already the target of MAGA’s outrage earlier this year after siding with Chief Justice John Roberts and the court’s liberal justices in denying one of Trump’s emergency applications and for apparently looking at the president incorrectly. Roberts, too, faced pushback from Trump allies and MAGA figures after mildly rebuking the use of impeachment threats for judicial decisions.
There’s of course the looming possibility of Trump ignoring the Supreme Court, which would definitively plunge the country into a constitutional crisis. Ominously, prominent Trump officials — including the vice president — have openly questioned the judiciary’s authority and floated the prospect of defying the courts in recent weeks. And in the AEA case, it appears that the government may have been doing just that.
A reality check to the GOP’s ‘activist judges’ claims
In its most recent application to the Supreme Court, the Department of Justice insinuated that lower courts are ruling against the government because they are prejudiced against Trump.
“In the two months since Inauguration Day, district courts have issued more than 40 injunctions or TROs against the Executive Branch,” acting Solicitor General Sarah Harris claimed. She noted that district courts issued 14 national injunctions against the federal government during the first three years of former President Joe Biden’s term but issued 15 similar orders against Trump in February alone.
The DOJ’s bias allegations — which Republicans regurgitated in a House Judiciary committee hearing on “judicial overreach” earlier this week — are comically weak.
Yes, lower courts have issued dozens of orders declaring Trump policies illegal or unconstitutional. That’s because the president has issued dozens of dubious orders and is testing legal norms on a daily basis.
Also missing from DOJ’s analysis are the ideological leanings of the judges ruling against Trump. Adam Bonica, a professor of political science at Stanford, recently found that liberal, conservative and centrist judges appear to be ruling against the administration’s policies at similar rates.
The cross-ideological rulings suggest that Trump’s actions may raise legal issues that transcend partisan divides and concern core questions about the country’s constitutional order, Bonica noted.
To do list
Millions of people across the country may attend protests against the Trump administration’s power grab this Saturday, April 5. Coordinated by the consumer advocacy nonprofit Public Citizen and other groups, there will be demonstrations in almost every state. You can find a rally near you with this map.
The federal judge overseeing the AEA lawsuit will hold a hearing at 3 p.m. today over whether the Trump administration violated his order halting deportations under the act. You can listen in by calling 833-990-9400 and entering this meeting ID number: 049550816.
Quote of the week
In each issue, I’ll share an important quote that I came across during the week. Our first comes from a statement signed by 1,300 former Department of Justice officials from both Republican and Democratic administrations condemning Trump’s retribution campaign against major law firms:
