Citizen Cartwright

Both sides find good news in Supreme Court ruling on deportations

The Monday ruling means the Trump administration can try to resume deportations under the rarely used 1798 Alien Enemies Act, as long as detainees are given due process, says NBC News.

The ruling is 5-4, with Justice Amy Coney Barrett dissenting in part with the three liberal justices.

The ruling doesn’t address the constitutionality of using the Alien Enemies Act to send the migrants to a prison in El Salvador. The justices instead have issued a narrow procedural ruling, saying that the migrants’ lawyers filed their lawsuit in the wrong court, says The New York Times.

The justices say it should have been filed in Texas, where Venezuelans are being held, rather than in Washington.

The court's unsigned majority opinion says, “AEA detainees must receive notice after the date of this order that they are subject to removal under the Act. The notice must be afforded within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs.” 

The decision lifts orders issued by Washington-based U.S. District Judge James Boasberg. The original lawsuit was filed by five Venezuelans, with Boasberg provisionally certifying it as a class action that applies to all Venezuelans in U.S. custody who aren't U.S. citizens.

A habeas proceeding ordinarily can only be used by a single individual to challenge their detention by the government. That means judges only can bar detention on a person-by-person basis, says Vox.

Justice Sonia Sotomayor says in a 17-page dissent that “individuals who are unable to secure counsel, or who cannot timely appeal an adverse judgment rendered by a habeas court, face the prospect of removal directly into the perilous conditions of El Salvador’s [Center for Terrorism Confinement], where detainees suffer egregious human rights abuses.”

Habeas proceedings have to be brought in the place where the person seeking relief is detained, says Vox. So far, the Trump administration has transferred prisoners it intends to deport under the Alien Enemies Act to Texas, which is under the jurisdiction of the U.S. Court of Appeals for the Fifth Circuit.

“The Fifth Circuit is the most right-wing court in the federal appellate system. If someone brings a habeas suit in its jurisdiction, and the decision is appealed to the Fifth Circuit, the court could hand down a precedent that means any habeas proceedings challenging these deportations would fail,” Vox says.

In the likely event that the Fifth Circuit denies relief to the people Trump seeks to deport, one of them is likely to seek Supreme Court review of whether the Alien Enemies Act can be used by Trump to deport people, Vox says.

As far as reactions, Attorney General Pam Bondi says on X: “An activist judge in Washington, D.C. does not have the jurisdiction to seize control of President Trump’s authority to conduct foreign policy and keep the American people safe.”

Lee Gelernt, lead attorney for the American Civil Liberties Union who argued on behalf of the plaintiffs who were deported, says that, overall, the group is pleased with the court's ruling.

“We are disappointed that we will need to start the court process over again in a different venue, but the critical point is that the court rejected the government’s remarkable position that it does not even have to give individuals meaningful advance notice to challenge their removal under the Alien Enemies Act. That is a big victory.”

Trump’s legislative branch majority moves to shrink power of judicial branch

Angry about court rulings against the Trump administration, Republicans in Congress are proposing to limit the reach of the federal judiciary's rulings, cut funding and even impeach judges, tightening the GOP’s grip on government, says The Associated Press.

 

House Speaker Mike Johnson, R-La., said on Tuesday that “desperate times call for desperate measures,” without mentioning impeachment. 

 

“We do have authority over the federal courts,” Johnson said. “We can eliminate an entire district court. We have power of funding over the courts, and all these other things.”

 

House GOP leaders met Tuesday with Rep. Jim Jordan, R-Ohio, chairman of the House Judiciary Committee, which is to hold a hearing on the issue next week. 

 

The House also is expected to vote next week on a bill by Rep. Darrell Issa, R-Calif., that would limit the geographic reach of certain federal rulings, to prevent temporary restraining orders from being enacted nationwide. 

 

Passing Issa’s legislation on the House floor would be a less severe response than pursuing impeachment of Judge James Boasberg, a move called for by right-wing lawmakers and President Trump over the judge's rulings on the deportation of Venezuelan migrants to El Salvador.

 

“No federal judge has been impeached strictly for the outcome of a case,” says longtime New York Times congressional reporter Carl Hulse. “And even if the House were to summon the necessary majority to impeach a judge, persuading the required 67 senators to convict and remove a judge over a ruling would be highly unlikely.”

 

Fifteen federal judges have been impeached in the United States, and eight have been convicted and removed, mainly for criminal acts like bribery and conflicts of interest, Hulse says.

 

As far as cutting funding for the courts, the appropriations subcommittee that oversees that spending bill is chaired by Rep. Dave Joyce, R-Ohio, a former prosecutor, self-described pragmatist and one of the more moderate members of the House GOP conference, says NBC News.

 

And even if House Republicans managed to pass a defunding bill, the Senate almost certainly would reject it, NBC News says.

Why ‘Trump voters love him more than before’

This is the online headline of a New York Times opinion article involving four of its conservative columnists — David Brooks, Ross Douthat, David French and Bret Stephens.

 

They were asked why more registered voters think America is on the right track than at any point since 2004, according to a recent NBC News poll (90 percent of Republicans like his performance; 4 percent of Democrats do).

 

Here are some excerpts:

 

David Brooks says: “Sixty percent believe ‘the system is broken.’ Sixty-nine percent believe the ‘political and economic elite don’t care about hard-working people.’… They get this from media consumption. ... If those are your priors, then you’re going to be happy with a president who wields a wrecking ball.”

 

“Trump policies are not 100 percent wrong; they are just overreactions. Destroying an agency rather than fixing what is wrong and saving what is right.”

 

“As a matter of principle, Democrats should be screaming bloody murder about Trump’s threat to the Constitution. As a matter of political tactics, I think they’re better off emphasizing Trumpian incompetence. Determining the constitutionality of some act requires a law degree, but incompetence is something we all recognize — and there is a lot of it.”

 

Bret Stephens: “The sort of inside-the-Beltway moves that feel like political earthquakes to a certain kind of Washington insider leave Trump voters somewhere between indifferent and pleased.”

 

Ross Douthat: “This sense of things may change as Trump pushes the envelope of presidential power or as the right embraces its own forms of censoriousness. Indeed, already you can see some factions that aligned with Trump because they were anti-woke start to break away or critique MAGA excesses.”

 

David French: “There’s a strong undercurrent of raw animosity in our politics. Republicans and Democrats have very negative views of each other, and many Republicans (sadly!) want their opponents to suffer. They’re actually happy to see people lose their jobs or to see nonprofits lose funding if those people are perceived as part of the ‘deep state’ or RINOs.”

 

“Many Republicans dislike foreign aid. Or loathe elite universities. Or hate big liberal law firms.”

 

“If you’re watching Fox News or other right-wing outlets, you’re hearing a lot of stories about strange, ‘woke’ programs funded by USAID. They don’t know about the lives that are saved or the lives that are at risk.”

 

“I sincerely doubt that most Republicans think or believe that Trump has done anything illegal so far. Right-wing media is full of legal talking heads telling their loyal audiences that the various district judges are lawless. The right is even attacking Amy Coney Barrett, calling her a grifter or a RINO for exercising her independent judgment.”

“That means they won’t know, much less care, about any given political controversy until it affects them personally.”

 

“If the economy tanks, MAGA will stay with Trump, but we know from the 2020 election that enough voters will step off the Trump train to swing the balance of power back to the Democrats.”

Legal scholars on whether there’s a constitutional crisis or not

After the Trump administration ignored a federal judge’s order not to deport a group of Venezuelan men, longtime New York Times legal reporter Adam Liptak contacted legal scholars on whether the clash between President Trump and the judiciary amounts to a constitutional crisis.

 

“If anyone is being detained or removed based on the administration’s assertion that it can do so without judicial review or due process,” says Jamal Greene, a law professor at Columbia, “the president is asserting dictatorial power and ‘constitutional crisis’ doesn’t capture the gravity of the situation.”

 

Trump raised the stakes Tuesday by calling for the impeachment of the judge who issued the order, James Boasberg of the Federal District Court in Washington, describing him on social media as a “Radical Left Lunatic.”

 

An Associated Press profile of Boasberg says his reputation among colleagues is “as a principled jurist with bipartisan respect — he was appointed to the federal bench in 2011 by President Barack Obama but was named a decade earlier to a seat on the D.C. Superior Court by President George W. Bush.”

 

A few hours after Trump’s statement, Supreme Court Chief Justice John Roberts issued a statement saying, “For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision. The normal appellate review process exists for that purpose.”

 

Aziz Huq, a law professor at the University of Chicago, says assessing whether a given development is a constitutional crisis is “generally unhelpful.”

“I think it’s more useful to say that this is moving us into a completely different kind of constitutional order, one that’s no longer characterized by laws that bind officials and that can be enforced,” Huq says. “The law, in other words, becomes a tool to harm enemies, but not to bind those who govern. That is a quite different constitutional order from the one that we’ve had for a long time.”

 

Andrew McCarthy, a former federal prosecutor, wrote in the right-leaning National Review, “It’s all right to complain bitterly about court orders, but they are not to be ignored, much less knowingly flouted.”

The administration has chosen a different path, McCarthy wrote: “The government seems to be intentionally instigating fireworks. That seems like a terrible legal strategy, but it may be winning politics ... at least for a little while.”

 

Asked whether the United States has reached a tipping point plunging it into a constitutional crisis, Pamela Karlan, a law professor at Stanford, questioned the premise. “‘Tipping point’ suggests a world in which things are fine until suddenly they’re not,” she says. “But we’re past the first point already.”

 

Greene, the Columbia professor, says, “An executive branch that operates without internal legal constraint but solely on the basis of its ability to get away with things, whether politically or legally, is itself sufficient to produce a constitutional crisis. A president who does whatever he wants until someone stops him is a constitutional crisis whether or not he is sometimes stopped.”

Trump wrote on social media last month: “He who saves his Country does not violate any Law.”

Valentines to Danielle Sassoon, others pursuing impartial justice

It’s good-news Friday, but our friends at Australia’s Fix the News will be happy for us to focus on this instead:

 

Manhattan’s top federal prosecutor, Danielle Sassoon, was followed by five high-ranking Justice Department officials in resigning on Thursday after she refused an order to drop corruption charges against New York City Mayor Eric Adams.

 

“The serial resignations represent the most high-profile public opposition so far to President Trump’s tightening control over the Justice Department,” says The New York Times.

 

They’re “a stunning escalation in a dayslong standoff over the Trump administration prioritizing political aims over criminal culpability,” says The Associated Press.

 

Sassoon, a Republican who was interim U.S. attorney for the Southern District of New York, accused the department of acceding to a “quid pro quo” — dropping the case to ensure Adams’ help with Trump’s immigration agenda — and said she was “confident” the Democratic mayor committed the crimes detailed in his indictment, and even more.

 

Sassoon had “shot like a laser through the Manhattan U.S. attorney’s office, with stints fighting violent crime and securities fraud as well as handling appeals before she was elevated, at age 38, to be its interim head,” says a separate Times article.

 

“Before the Adams case vaulted her into the spotlight, Ms. Sassoon’s life had been characterized by achievement that was noteworthy even in environments where achievement is the norm,” the Times says.

 

After graduating from Harvard magna cum laude and Yale Law school, Sassoon served in consecutive clerkships for conservative judges, including Supreme Court Justice Antonin Scalia. 

 

Until now, Sassoon was best-known for her “withering” cross-examination of Sam Bankman-Fried, the former cryptocurrency executive who took the stand to testify in his own defense against charges he stole $8 billion from his customers, says Reuters. Bankman-Fried was convicted of fraud and sentenced to 25 years in prison. 

 

Daniel Richman, a Columbia University law professor and former federal prosecutor, says about Sassoon:

 
“That the resignation should be by someone with sterling Federalist Society credentials only highlights the difference between the Trump administration and serious conservatives with integrity and respect for the criminal process.”

 

Here are the letters exchanged by Sassoon and Justice Department officials, from Lawfare.

Many legal scholars say we’re in a constitutional crisis

A constitutional crisis generally means a president is defying laws and judicial rulings, says Adam Liptak, a longtime legal reporter for The New York Times who’s also a lawyer.

 

“We are in the midst of a constitutional crisis right now,” says Erwin Chemerinsky, dean of the law school at the University of California, Berkeley. “We never have seen anything like this.”

 

Chemerinsky cites examples of what he calls President Trump’s lawless conduct: revoking birthright citizenship, freezing federal spending, shutting down an agency, removing leaders of other agencies, firing government employees subject to civil service protections, threatening to deport people based on their political views.

 

It will take some time, though maybe only weeks, for a challenge to one of Trump’s actions to reach the Supreme Court, Liptak says. 

 

So far, Trump hasn't openly flouted lower court rulings temporarily halting some of his initiatives, Liptak says. And it remains to be seen whether he'd defy a ruling against him by the justices.

 

“It’s an open question whether the administration will be as contemptuous of courts as it has been of Congress and the Constitution,” says Kate Shaw, a law professor at the University of Pennsylvania. “At least so far, it hasn’t been.”

 

“It’s a constitutional crisis when the president of the United States doesn’t care what the Constitution says regardless whether Congress or the courts resist a particular unconstitutional action,” says Pamela Karlan, a law professor at Stanford. “Up until now, while presidents might engage in particular acts that were unconstitutional, I never had the sense that there was a president for whom the Constitution was essentially meaningless.”

 

“The Supreme Court may find it hard to defend the laws Congress enacted against executive usurpation when the Republican-controlled Congress refuses to do the same,” says Amanda Frost, a law professor at the University of Virginia.

 

Here is a Roll Call article on the so-far-successful pressure campaign to get Senate Republicans to confirm Trump nominees.

 

And here is a ProPublica article titled “The courts blocked Trump’s federal funding freeze. Agencies are withholding money anyway.”

 

And here is an opinion article from former Treasury secretaries Robert Rubin, Lawrence Summers, Timothy Geithner, Jacob Lew and Janet Yellen. They say:

 

“We were fortunate that during our tenures in office no effort was made to unlawfully undermine the nation’s financial commitments. Regrettably, recent reporting gives substantial cause for concern that such efforts are underway today.

 

“While [the] significant data privacy, cybersecurity and national security threats are gravely concerning, the constitutional issues are perhaps even more alarming. We take the extraordinary step of writing this piece because we are alarmed about the risks of arbitrary and capricious political control of federal payments, which would be unlawful and corrosive to our democracy.”

 

The former Treasury chiefs continue: “The role of the Treasury Department — and of the executive branch more broadly — is not to make determinations about which promises of federal funding made by Congress it will keep, and which it will not. As Justice Brett Kavanaugh of the Supreme Court previously wrote, ‘Even the president does not have unilateral authority to refuse to spend the funds.’ Chief Justice John Roberts agrees: He wrote that ‘no area seems more clearly the province of Congress than the power of the purse.’”

 

In his article, Liptak cites what Roberts said in his year-end report in December:

 

“Within the past few years … elected officials from across the political spectrum have raised the specter of open disregard for federal court rulings. These dangerous suggestions, however sporadic, must be soundly rejected.”

What Vance comments on judicial rulings actually mean

“Vice President JD Vance declared on Sunday that 'judges aren’t allowed to control the executive’s legitimate power,’ delivering a warning shot to the federal judiciary in the face of court rulings that have, for now, stymied aspects of President Trump’s agenda,” says The New York Times.

 

Over weekend, “officials ranging from billionaire Elon Musk to Vice President JD Vance have not only criticized a federal judge’s decision early Saturday that blocks Musk’s Department of Government Efficiency from accessing Treasury Department records, but have also attacked the legitimacy of judicial oversight, a fundamental pillar of American democracy, which is based on the separation of powers,” says The Associated Press.

 

Musk called for U.S. District Judge Paul Engelmayer to be impeached after his ruling early Saturday temporarily halting DOGE employees’ access to Treasury Department data. 

“A corrupt judge protecting corruption,” Musk said. “He needs to be impeached NOW!”

 

So how exercised should we be about these comments? I’ve read everything I could find and offer you this:

 

Jamal Greene, a professor at Columbia Law School, says Vance — a Yale-educated lawyer — isn't explicitly saying the Trump administration is ready to ignore court orders.

“I think the tweet, taken on its own terms, is empty because it refers to the 'legitimate powers' of the executive. And the whole question in these cases is whether the executive is acting legitimately or not,” Greene says. “[Vance] has some cover in that sense. He hasn't promised unlawful behavior.” 

Rick Pildes, a professor at New York University’s Law School, also notes Vance’s use of the words “legitimate powers” in his post but points out that the judiciary is the branch with the power to decide what a president can “legitimately” do or not do.

 

“Under the rule of law and the Constitution, it is the courts that determine whether some use of the executive power is lawful or not. That is the critical point,” Pildes says in an email to NBC News.

“The concern is that the vice president’s statement could be taken to suggest that the Executive Branch is prepared to refuse to comply with a court order based on the president’s own view that he has a power that the courts have concluded he does not. A president who orders his officials not to comply with court orders would be creating a constitutional crisis.”

 

Okay. Let’s see whether Trump complies with court orders or not.

 

If you’re interested, here are other articles on this:

 

AP: “Supreme Court that Trump helped shape could have the last word on his aggressive executive orders”

 

Reuters: “Trump's government shakeup may test Supreme Court's role as firewall”

 

The Hill: “Musk calls for annual firing of judges after blocked DOGE access at Treasury”

 

Vox: “Don’t expect the courts to save us from Donald Trump: Courts are inherently reactive institutions. Trump always gets the first move.”

Lawsuits against Trump, Musk purges

Workers from across the federal government set off a legal counteroffensive against the president and Elon Musk on Tuesday, challenging the legality of efforts to raze their agencies, single them out publicly or push them out of their jobs, says The New York Times.

 

The lawsuits, filed by FBI agents, public sector unions, representatives of older Americans and liberal-leaning legal groups, hinge on fine points of law that deal with matters ranging from the privacy of taxpayer data to intricacies of federal rule-making. 

 

"But together, they amount to the opening shots in an emerging legal battle over the constitutional order, checks and balances and the founders’ vision of the separation of powers,” the Times says.

 

Three government unions on Tuesday sued the U.S. Office of Personnel Management — the federal government’s human resources division — to block an effort to convince about two million federal employees to resign from their jobs.

 

Two groups of FBI agents and bureau employees sued to block Trump from releasing the names of agents and staff members who participated in the investigations into the Capitol riot on Jan. 6, 2021.

 

Labor unions and a retirees’ group sued the Treasury Department to restrict access to sensitive Treasury systems that contain the private information of millions of Americans — and that the plaintiffs say may already have been compromised by Musk’s employees through DOGE.

 

A group of transgender plaintiffs led by advocacy organizations and the American Civil Liberties Union sued to block Trump’s order to defund gender-transition treatments for people under age 19. 

 

Two other pending lawsuits seek to block an executive order requiring the Bureau of Prisons to transfer trans female inmates to men’s prisons. On Tuesday evening, one of those suits won a temporary restraining order, signed by Judge Royce Lamberth of the District of Columbia. It bars the Justice Department from transferring trans women to men’s facilities or denying them gender-transition treatments, as mandated by one of Trump’s executive orders.

 

Earlier, two federal employees, using pseudonyms, sued OPM to block the agency’s access to the email address that sent the government-wide resignation offer, which was similar to one Musk had sent to Twitter’s employees after acquiring the company. 

Tools for stressful times: Inauguration

For what it may be worth, I’d like to share with you an experience I had Monday — and to make a request.

 

In order to write my blog, I needed to watch and read about the inauguration. 

 

The timing worked out that before it started, I was able to watch the Beloved Community Commemorative Service for Martin Luther King, Jr.

 

By the time the inauguration started, I’d been soaking for two hours in that bath of common humanity, belonging, caring and compassion.

 

I was grateful to be able to hold on to those feelings as I watched the inauguration (it helped that for most of the time, I also was working on a craft project that gave an outlet to energy generated by watching the inauguration).

 

We know that Donald Trump’s behaviors are the result of his childhood. This seven-minute clip from PBS’ Frontline summarizes it. He wasn’t encouraged to value common humanity and compassion. In fact, he's thrived by collaborating with Fox News in mining fear and anger among his supporters and the Republican Party.

 

But I do believe what former President Jimmy Carter said in his speech in 2002 accepting the Nobel Peace Prize: “The bond of our common humanity is stronger than the divisiveness of our fears and prejudices.”

 

I’m going to be doing my best to hold on to compassion for everyone, no matter what their childhood turned them into, and to try to help those who are suffering because of their policies.

 

My request: When you come across examples of common humanity, compassion and kindness — and any other tools and techniques for responding to stressful times — please send them to me so I can share them here.

Trump is inaugurated, issues promised deluge of executive orders

The president, flanked by his family and tech billionaires, delivered a second inaugural address on Monday that “promised massive national success, pledging an expansion of U.S. territory and an end to foreign wars, with a sweeping indictment of the status quo,” as The Associated Press puts it.

 

Trump’s aides had said the speech would focus on unity.

 

But with his presidential predecessors sitting nearby, by the third paragraph Trump was referring to “the vicious, violent and unfair weaponization of the Justice Department and our government.”

 

In paragraph five: “For many years, the radical and corrupt establishment has extracted power and wealth from our citizens. While the pillars of our society lay broken and seemingly in complete disrepair, we now have a government that cannot manage even a simple crisis at home while at the same time stumbling into a continuing catalog of catastrophic events abroad.”

 

Shortly afterward, Trump spoke to supporters in another area of the Capitol and said he’d toned down his speech at the urging of his wife and his vice president.

 

The first of Trump’s executive orders rescinded 78 Biden actions, on topics including racial equity, gender discrimination, climate change, the federal response to the coronavirus pandemic, additional ethics requirements for political appointees, lowering prescription drug costs, sanctions on Israeli settlers accused of violence against Palestinians in the West Bank, and the withdrawal of offshore drilling from some areas, according to The Washington Post.

 

Other orders include:

 

— Ending birthright citizenship

— Declaring a “national emergency” on the southern border, among other things directing the military to make it priority to “seal the borders”

— Addressing the “cost-of-living crisis”

— Requiring federal workers to return to the office

— Freezing federal hiring

— Establishing the “Department of Government Efficiency”

— Withdrawing from the Paris climate agreement

— Ending the “weaponization” of the federal government

— Delaying the ban on TikTok for 75 days

— Pardoning 1,500 convicted Jan. 6 defendants and commuting the sentences of 14 others

— Officially recognizing two sexes

— Expanding energy production and temporarily stopping wind leasing, ending the “electric vehicle mandate”

— Withdrawing from the World Health Organization

— Starting the process to rename the Gulf of Mexico the Gulf of America

— Declaring drug cartels terrorist organizations

 

Congress and the courts potentially can block executive orders, says a separate AP explainer.

 

Here is a transcript of Trump’s inaugural address, by AP.

 

Here is the text of the executive orders, from the White House.