The Wall Street Journal explains why Donald Trump is going to have trouble carrying out his immigration agenda and then tells us what he plans to do about it:
Trump’s advisers have said that he hopes to test the limits of the law by issuing policies he knows to be unlawful, or even unconstitutional, in a bid to persuade the Supreme Court, which is dominated by conservatives, to come to different decisions.
Republicans relentlessly referred to both Obama and Biden as lawbreakers because they enacted policies that were in gray areas and ended up being adjudicated in court. It was always ridiculous because every president does this.
But Trump isn't going after gray areas. If the Journal is right, he plans to enact policies that he flat out knows to be illegal. He's just hoping that his hand-picked Supreme Court will let him do it.
I wonder if Republicans will call this out and demand Trump's impeachment?
Hasn't SCOTUS already decided that anything the President does "in the course of his official duties" is not illegal? Sounds like Trump already pretty much has carte blanche to do whatever the fuck he wants, knowing full well that there's also virtually no chance he gets impeached for any of it either.
Should be a fun four years.
Hasn't SCOTUS already decided that anything the President does "in the course of his official duties" is not illegal?
No. They said nothing at all about what is or isn't legal. They declared that the president cannot be criminally prosecuted for any actions conducted in the course of his official duties, even if it is illegal. The underlying action can still be criminal. This means both that anyone other than the president specifically can be prosecuted for engaging in an illegal action, barring a pardon at the appropriate level of government, and that the courts can order the executive to stop engaging in an illegal action.
There are some cases in which presidential action may be illegal and consequently a nullity which can just be ignored. To take an extreme example, if Trump purported to pardon a person for crimes under state law, the relevant state could simply ignore him; no court action needed.
Actually, the pardoned person would presumably try to get a court to recognize this and end his prosecution or release him. The courts would almost certainly refuse - the president's pardon power is specifically limited to offenses against the United States, not the individual states.
So it would go to court and there would be a ruling.
“This means both that anyone other than the president specifically can be prosecuted for engaging in an illegal action, barring a pardon at the appropriate level of government…”
If I knew for a fact that I would be pardoned, I’d commit several crimes and not even worry about the trial because, hey, I just don’t want to go to jail. I’m sure I’m not the only one in a country of 330m. This distinction that you’re trying to make isn’t going to matter much to the more ethically challenged amongst us.
“… and that the courts can order the executive to stop engaging in an illegal action.”
Did the courts get their own armed forces this year? Cause without them, who exactly is going to arrest the executive if he ignores the order?
I think this is right. But I think the original question maybe overlooks the distinction between performing a criminal act on the one hand, and performing an official act in a way that doesn't square with existing law on the other.
The first violates specifically-defined prohibitions on personal behavior and carries specified penalties. In the second case there usually isn't a penalty. For example, Biden wasn't prosecuted and thrown in jail for trying to forgive student loans even though the court said he couldn't. It just wasn't a criminal violation, no matter how often trump rages that everybody in the world who does something he doesn't like at that moment oughta be in jail.
The difference between the two reflects the baseline position that the executive is acting more or less in good faith when it does things that courts decide aren't permissible. This is where trump really is pushing all the boundaries-- he wants to do whatever the hell he wants to do no matter what the laws say, and he'll do it and dare anyone and everyone to take him to court and be damned.
What this article tells us is something we knew-- that we're headed into a buccaneer presidency that ought to be sailing under the Jolly Roger.
I'm curious, as a non law talkin' guy, how you might go about establishing standing in order to get legal precedent overturned in altered in ways that don't involve violating the law and/or Constitution?
Like... our legal system doesn't have preclearance, and it doesn't permit people to just rock up to the Supreme Court and ask them for an opinion on something. You need standing, it has to be germane to you somehow.
This is how Roe vs. Wade was overturned; the state of Mississippi wrote a flagrantly unconstitutional law, deliberately and knowingly, because they thought "hey, we think the courts want to change the law, but the only way to find out is to get in front of them and see, and the only way to do that is to break the law."
But if they hadn't wanted to do that, how WOULD they establish standing to get in front of the court?
My assumption is that they'll just wait for someone with standing to sue over whatever it is Trump does -- say having active duty military round up civilians in violation of the Posse Comitatus Act -- and then hope that SCOTUS overturns it and lets Trump do whatever he wants.
I'm certain this is how Trump would try to get rid of birthright citizenship. He'll issue an order saying babies born from non-citizens are not citizens. He'll wait for the lawsuit against it, and then he'll fight it all the way to the Supreme Court with the expectation that they'll reinterpret the 14th Amendment to apply only to descendants of slaves and not anyone else.
" .... the expectation that they'll reinterpret the 14th Amendment to apply only to descendants of slaves and not anyone else."
Wouldn't that impact practically all native born individuals other than descendants of slaves?
Yes but they might issue a “this doesn’t apply to current US residents with any kind of citizenship document like a passport because they’ve come to rely on past government decisions and blah blah Reasons we only understand” disclaimer, like they did when they didn’t want Bush v Gore to create unwanted consequences. (And it’s what I expect Thomas to insist on adding if/when he gets to overturn Loving, so his own marriage remains ok.)
Didn’t stop some of those unwanted consequences from happening anyway. But it did mean that they covered their asses so the press and public opinion doesn’t turn on them. And it would probably mitigate most of the problems of suddenly invalidating citizenship for millions of white people who had non-US born parents. The brown people though, the ones most likely to not have a passport, would be shit out of luck.
Wouldn't that impact practically all native born individuals other than descendants of slaves?
It wouldn’t impact people who were naturalized, or their descendants, but would still seem to apply to very many. Neither of my grandmothers had been naturalized when my parents were born. But if they weren’t citizens, and since I haven’t been naturalized, wouldn’t that imply that I’m not a citizen either? And my children? And theirs?
I think the way the majority is most likely to get to the result they want is the kind of history-and-traditions exegesis Scalia did in Heller (about as complete a pile of BS as I've ever read-- my copy that I printed out around that time is still steaming), and that Thomas did in Bruen, to say that the 14th amendment is obviously meant for a specific situation and a specific generation, and hold that the constitution is otherwise silent about citizenship.
That would mean citizenship can be defined however Congress and/or each state wants to do it. And that would be hands down the single most destructive move this court could make. It would be the perfect engine of despotism. Which would make it irresistible to at least two sitting "justices" and possibly enough to make a majority.
It will be interesting to read that opinion. They can’t base it on the text or on history and tradition. They can only base it on the "subject to the jurisdiction thereof" clause, which would involve seriously twisting both the text and the history. Not that I doubt that they’ll do it…
Oh, hahaha, like the Court can’t just read anything they want into or out of the Constitution! A ‘well-regulated militia’? ‘Absolute immunity’? ‘Presumptive immunity’? “It’s there if we five in black robes say it is, and if not, not.”
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"I wonder if Republicans will call this out and demand Trump's impeachment?"
They won't. Instead, they will blabber on non-stop about how Trump's orders are perfectly legal. Don’t forget, to his supporters, Trump can do no wrong.
"I wonder if Republicans will call this out and demand Trump's impeachment?"
They will, co-terminus with the first verified report of porcine aviation.
+1.
Trump is coming for the courts. Of course, he is. It's in the Fascist/Authoritarian Playbook, the only guide to governance that Trump has ever regarded as an authority.
John Roberts issued his warning about the threats to judicial independence this week (violence, intimidation, disinformation, ignoring court decisions). On one hand, he has a point. We didn't have to issue bullet-proof vests to Scotus justices in the past. On the other hand, Scotus has furnished Trump with immunity and powers never before trusted to a president. Reap what you sow, fool.
Yes. My read of (a summary) of the Roberts Lament was that the Scotus was girding its loins to issue a whole lot of maga-friendly rulings to bolster every last thing their Felon-Gawd planned to do, and they didn't want us lefties to get any ideas.
Only Republicans get to fully implement the First Amendment, including its protection of sacred Hate Speech, incitement, and bribery. Only Republicans get to use "Second Amendment Solutions." Only Republican presidents are Above the Law. And, no doubt, more. Lots more.
10+
They all know that the January 6 mob is ready to storm the Supreme Court if Big Baby doesn't get his way.
Sadly, you've nit a nail on the head there. The threat of violence hangs over everything from here on in. We're about to underscore the ugly in Ugly American.
Oh no. We're not falling for that a second time. As soon as Trump or his allies assemble so much as a coffee klatch, we're calling out the Guard.
Uh did you know that the DC National Guard can only be called out by the President? Would Maryland Governor Wes Moore invade DC to rescue it from a Trumpist Mod?
I wonder if pigs will fly into a thunderstorm and it will rain delicious barbecued ribs.
It's a good time to remember that everything that Hitler did was legal - due to the laws that had been created specifically to remove the rights of all of the people targeted for elimination from the Third Reich.
Except that many of those laws were passed illegally.
It's not illegal if SCOTUS changes its mind.
You see, the Fascist Justices have three absolute values:
1) Rule of law justifies all responses to violations of law.
2) But only our laws are legitimate, insofar that we have reviewed the law and placed our stamp of approval on it.
3) We get to change our mind if the law is used against our intentions.
His t-Rumpiness will do as he wishes and the law will never reach him, as it takes too long, and His t-Rumpiness won’t be around long enough to face the consequences of his dastardly plans.
You know, I certainly hope he breaks all kinds of laws and the entire court system too. Fire civil servants, ignore court orders, refuse to spend money on stuff he doesn't like, etc. If he does some half assed governance and let's the courts get in the way, he'll be a loser.
Of course, I don't want anything bad to happen to me or my friends and family, but sometimes you have to take one for the team. Good luck.