[UPDATE: Chief justice John Roberts has lifted the midnight deadline today and asked lawyers to present written arguments by 5:00pm tomorrow (Tuesday).
The Supreme Court on Monday temporarily paused a court-imposed midnight deadline to return to the US a Maryland man who was mistakenly deported to El Salvador, agreeing to a request from President Donald Trump that will give the justices more time to consider the case.
Chief Justice John Roberts granted the “administrative stay,” a move that will extend the deadline until the court hands down a more fulsome decision in the case of Kilmar Armando Abrego Garcia, who was deported on March 15.
]
It is clear that Trump thinks that the president can do anything they want, the laws and norms of democracy be damned. He takes any action that he likes and then fights any challenges vigorously in the courts. He has been sued many times and lost in the lower courts but refuses to reverse the action, instead taking it to the next level of the Appeals Courts. So far, none of these cases have made it to the Supreme Court. The key question is what he will do if even that body, so friendly to him, rules against him.
Today we are going to see what happens in the case of a Kilmar Abrego Garcia who was deported to El Salvador and is being held there in a maximum security prison.
The Trump administration is asking the Supreme Court to lift a judge’s order requiring officials to bring an illegally deported Maryland man back from a high-security prison in El Salvador.
In an emergency appeal filed Monday morning, Solicitor General John Sauer asked the justices to suspend a midnight deadline a federal judge in Maryland set for the return of Kilmar Abrego Garcia, who was deported last month to his home country of El Salvador despite an immigration judge’s 2019 order that he not be sent there because he could face persecution.
Sauer called U.S. District Judge Paula Xinis’ order “unprecedented and indefensible.” He argued that forcing the administration to demand Abrego Garcia’s return from another government exceeded the judicial branch’s power.
The Trump administration has described Abrego Garcia’s deportation both as an “administrative error” and a “clerical error.” But officials also claim that he is a member of the violent MS-13 gang, which the U.S. government has declared to be a terrorist group.
Xinis, however, wrote that the government has “offered no evidence linking Abrego Garcia to MS-13 or to any terrorist activity.”
…With the clock ticking toward Xinis’ deadline of 11:59 p.m. on Monday, emergency intervention by the Supreme Court is the last hope for the Trump administration. Also on Monday morning, a federal appeals court denied the administration’s request to put Xinis’ order on hold.
In a unanimous ruling, a three-judge panel of the 4th Circuit Court of Appeals resoundingly rejected the claim that the administration has no power to seek Abrego Garcia’s return — and that Xinis’ order violates the separation of powers.
Trump thinks that any action by the courts that restricts him in any way is a violation of the separation of powers, an extraordinary doctrine that says that the courts cannot thwart him at all. I am sure that some members of the Supreme Court, especially Sam Alito, Clarence Thomas, and Neil Gorsuch, would like to accommodate Trump in some way. Butt how they can do that without effectively nullifying their own historic role as an equal branch of government that serves as a check and balance on executive and congressional power will be an exercise in great sophistry.
They do not have much time to do this. What they might do is punt to gain time by granting a temporary injunction preventing the lower court decision against Trump from being implemented until the case gets a full hearing before them.
It’s honestly interesting watching something that claimed to be a democracy getting dismantled publicly. And so quickly too.
Traditionally impatient pundits with
papers to sellclicks to farm like to judge whether an elected head of government has achieved anything within their first hundred days of power. The answer is usually “not much”, because governing responsibly in a civilised democracy is slow and difficult work.The USA under Trump, however, doesn’t do difficult, or slow, or work… or responsible, or governing, or civilised. Or democracy.
Trump’s 100th day will be the END of this month, April 30th, and amongst…[waves hands round vaguely] everything else… we’re already on the page of “is the Supreme Court going to rule that he’s immune from restriction by the judicial branch? Possibly…”. The rate at which he’s irrevocably destroying the USA is kind of impressive, if you can think of it in the abstract. Abstract thinking is, however, a luxury most won’t be able to afford, and in any case well beyond the capabilities of most of the people responsible for him being where he is.
What a time to be alive.
The even bigger test is if the Supreme Court rules against him, will he just ignore it? If he does, that marks the time of death for American democracy and the rule of law.
The name of the theory Trump is using for this grasp for power is “unitary executive”. It’s a fringe idea with multiple versions that don’t work the same way but the idea is that the executive branch should have more power.
The radical version that Trump is using comes comes from Project 2025. It holds that the President alone has power over the executive branch. That Congress can not pass any laws that regulate or restrict this power, that Congress would set an overall executive branch budget but the President decides how to spend it. The court would have limited or no ability to review executive branch action. This would be a huge transfer of power to the President.
I think it’s reasonable to assume he will. Not ignoring it would mean acknowledging that there are people in the USA with power over him. He surely can’t have that.
But what then? Serious question. He can’t be impeached -- they’ve already tried that twice, and it didn’t take. What actual power do the courts have, really? They can presumably order some branch of law enforcement to enforce… something… but how, exactly? Would his Secret Service (SS?) security detail permit a cop or marshal or whatever to lay hands on him? I can’t see that. The courts, even the Supreme Court, can talk up a storm, but their power, like all power, ultimately derives from the fact that rough men with guns will do their bidding. If rough men with guns WON’T (or can’t) do their bidding, then they’re just a bunch of chatterers in long black dresses, no more of a limit on Presidential power than comments on this blog.
And if even one of the lickspittle Rep. majority rebelled (on principle? Look at me, ascribing principles to a Republican SC judge) then I’d seriously worry for their continued health after Trump inevitably branded them and enemy of The People.
I can’t see SCOTUS ruling against him, if for no other reason than that he WOULD ignore them, and they know it, and by doing so would expose the fiction of their power. And they can’t have that.
…
I feel like I’m commentating on a badly written, wildly implausible HBO miniseries with rushed plotting, first draft scripts, shit actors and a tin ear for dialogue, not the news.
I heard on BBC World News America that SCOTUS has indeed ruled in favor of Trump. I haven’t verified that from any other source yet.
I’d say that things are looking pretty bad for American democracy and the rule of law either way -- the question is whether the SC wants to maintain at least the appearance of the rule of law. Because if they rule that the POTUS can do whatever he wants, up to and including having people disappeared into foreign slave labour camps without even a pretence of due process, and without regard to their legal status, then that’s all it is.
I don’t recall seeing evidence of this during other presidencies.
It seems (to me) like the SCOTUS is worried that, if it rules against the Trump administration, it will be ignored, so it would be better to rule in favour nearly every single time in order to maintain the pretence that the rule of law still exists.
If so, what snivelling cowards.
@ 7 Holms
Not even remotely to the same extent.
Nixon at least had the decency to be embarassed by his corruption and try to hide it. Reagan tried to be the grandfatherly old guy who didn’t know what was going on.
Trump is just, “Yeah, I’m corrupt. Yeah, I’m an asshole. What are you going to do? Nice democracy you’ve got here. Oops! There is goes. Sucks to be you.”
@EigenSprocketUK:
There was an article on the blog Lawyers, Guns, & Money weeks ago which argued that for Chief Justice Roberts it was almost certainly going to come down to exactly that: Roberts has always been concerned with ‘legacy’ and ‘appearances’ even as he spent years tilting the court system in one direction; he wasn’t as nakedly partisan as Thomas or Alito. (Clarence Thomas is pretty clearly bought and paid for.) But the end result was still going to be that when push came to shove, he was going to rule in Trump’s favour because he knew that if he didn’t and Trump ignored him, the Supreme Court would lose even any appearance of credibility.
@sonofrojblake:
The ‘what can the courts do’ topic has, unsurprisingly, come up in a number of place, and there actually is something the courts can do perfectly within the bounds of the legal system. (I think I heard this on the Legal Eagle Youtube channel.) Basically the courts are allowed to ‘deputize’ someone to enforce their orders, and the law in question does not require that person to be answerable to the executive branch. Sure, usually they are (because they’re easily available), but that’s not a requirement. There’s actually a good bit of precedent for this: at the low level it happens somewhat regularly with ‘bail bondsmen’ who can be part-time private contractors and not need to be part of any existing law enforcement organization, and at the higher level, well, this isn’t the first time that investigations have been done against corrupt executive branch officials. Stuff like this actually came up when dealing with Sheriff Joe Arpaio, for example.
So, yeah, the court can basically hire mercenaries to enforce its orders, pretty much an enforcement version of a ‘special prosecutor’ brought in from outside the system. That’s unlikely to end well, but I think we’re well past the point where any of this can actually ‘end well’.
@11 jenorafeuer: Roberts is playing a difficult game on these cases. He doesn’t want Trump to ignore the court because it reduces their credibility but he also knows that if the court takes too absurd of a position they lose their credibility anyways. At some point Roberts may be backed into a corner and have to take the Andrew Jackson out. Rule against Trump but leave it up to Congress to decide what to do, if they want to impeach and remove Trump. Roberts would know this is incredibly risky though because if Congress does nothing it’s letting Trump ignore the law. Trump isn’t going to slow down, if given a hole he will drive more and more through it until something crashes.
I was aware of that. What I’m getting at is there is a BIG difference between being allowed to do something, and actually getting it done. I’m “allowed” to offer to pay someone to rub baby oil into my ingrown toenail while I beat them about the head and neck with a rolled up copy of Cosmopolitan singing “Mandy” by Barry Manilow, it doesn’t mean I’m going to get any volunteers, regardless, I suspect, of how much I was offering.
Sure it can try, there’s no law against it. But since the job description would by definition involve getting in a firefight with the Secret Service, who would sign up? All the sorts of nutters with guns who’d conceivably be itching for a fight like that are on Trump’s side.
The vaunted “power” of the Supreme Court in this instance isn’t worth shit. As I said -- it is based entirely on the premise that when the court says “do this thing”, rough men with guns stand ready to FORCE you to do the thing. Except… they don’t, do they?
In all seriousness -- can you even picture, in your (or my) most fevered lib snowflake SJW bleeding heart dreams, a situation in which SCOTUS attempts to enforce a ruling on any sitting president, least of all the current one? I wouldn’t put it past the fucker to put a bounty on their heads if they tried, or simply have some goons march in and lock them up. It is left as an exercise for the reader to speculate which agency said goons would be employed by -- Secret Service, FBI, local law enforcement, Army, Marines, or (and this is what my money would be on) a private security firm staffed by vetted veterans of one or more of the above.
Ultimately, this comes down to a test of nerve -- who’ll blink first, the Supreme Court, or Trump? Whatever else you may think of him, in this instance, my money’s on Trump, unfortunately. The Court simply can’t risk being put in the position of being flagrantly ignored, as it will fatally damage their supposed authority permanently. They can’t risk it. Trump, on the other hand, has nothing to lose.
And that’s my three.