Latest news with #AntoninScalia
Yahoo
3 days ago
- General
- Yahoo
The Unconstitutional Conservatives
Not too long ago, many Republicans proudly referred to themselves as 'constitutional conservatives.' They believed in the rule of law; in limiting the power of government, especially the federal government; in protecting individual liberty; and in checks and balances and the separation of powers. They opposed central planning and warned about emotions stirred up by the mob and the moment, believing, as the Founders did, that the role of government was to mediate rather than mirror popular passions. They recognized the importance of self-restraint and the need to cultivate public and private virtues. And they had reverence for the Constitution, less as a philosophical document than a procedural one, which articulated the rules of the road for American democracy. When it came to judicial philosophy, 'constitutional conservatism' meant textualism, which prioritizes the plain meaning of the text in statutes and the Constitution. Justice Antonin Scalia excoriated outcome-based jurisprudence; judges should never prioritize their own desired outcomes, he warned, but should instead apply the text of the Constitution fairly. 'The main danger in judicial interpretation of the Constitution—or, for that matter, in judicial interpretation of any law,' he said in 1988, 'is that the judges will mistake their own predilections for the law.' One of the reasons Roe v. Wade was viewed as a travesty by conservatives is that they believed the 1973 Supreme Court decision twisted the Constitution to invent a 'right to privacy' in order to legalize abortion. The decision, they felt, was driven by a desired outcome rather than a rigorous analysis of legal precedent or constitutional text. WHICH IS WHY it's hard to think of a more anti-conservative figure than President Donald Trump or a more anti-conservative movement than MAGA. Trump and his supporters evince a disdain for laws, procedures, and the Constitution. They want to empower the federal government in order to turn it into an instrument of brute force that can be used to reward allies and destroy opponents. [Read: In Trump immigration cases, it's one thing in public, another in court] Trump and his administration have abolished agencies and imposed sweeping tariffs even when they don't have the legal authority to do so. They are deporting people without due process. Top aides are floating the idea of suspending the writ of habeas corpus, one of the most important constitutional protections against unlawful detention. Judges, who are the target of threats from the president, fear for their safety. So do the very few Republicans who are willing to assert their independence from Trump. In one of his first official acts, Trump granted clemency to more than 1,500 people charged in connection with the violent attack on the Capitol on January 6, 2021, including those convicted of seditious conspiracy. The president and his family are engaging in a level of corruption that was previously unfathomable. And he and his administration have shown no qualms about using the federal government to target private companies, law firms, and universities; suing news organizations for baseless reasons; and ordering criminal probes into former administration officials who criticized Trump. The Trump administration is a thugocracy, and the Republican Party he controls supports him each step of the way. Almost every principle to which Republicans once professed fealty has been jettisoned. The party is now devoted to the abuse of power and to vengeance. POLITICAL THEORISTS recognize that the governing approach of Trump and the GOP embodies the philosophy of Nietzsche and Machiavelli. It's all about the world of 'Anything goes' and 'Might makes right.' Laws and the Constitution are as malleable as hot wax; they can be reshaped as needed. Limited government has been traded for the Leviathan, and there are no constraints. The state has become a blunt-force instrument. The significance of this shift can hardly be overstated. A party that formerly proclaimed allegiance to the Constitution and the rule of law, warned about the concentration and abuse of power, and championed virtue, restraint, and moral formation has been transmogrified. The Republican Party now stands for everything it once loathed. [Peter Wehner: America's Mad King] If this rot was confined to the GOP, it would be tragic but manageable. But Trump and the Republican Party control the levers of federal power. As a result, less than five months into Trump's second term, America is heading toward a form of authoritarianism. We are still mid-story. The outcome is not ordained, and the courts are turning out to be, for the most part, a vital bulwark against Trumpism. The clashes will surely intensify as Trump rages against the storm. But as he does so, the resistance to him will grow and intensify too, and it will find expression in many different ways. The flame of liberty hasn't been extinguished quite yet. Love of country is, as the historian Gertrude Himmelfarb said, an ennobling sentiment, worthy of our affections. And love of country demands that those who love America and her ideals stand up against a man and a party intent on destroying them. *Illustration by Akshita Chandra / The Atlantic. Sources: The Nature Notes / Alamy; Getty Article originally published at The Atlantic
Atlantic
3 days ago
- Politics
- Atlantic
The Unconstitutional Conservatives
Not too long ago, many Republicans proudly referred to themselves as 'constitutional conservatives.' They believed in the rule of law; in limiting the power of government, especially the federal government; in protecting individual liberty; and in checks and balances and the separation of powers. They opposed central planning and warned about emotions stirred up by the mob and the moment, believing, as the Founders did, that the role of government was to mediate rather than mirror popular passions. They recognized the importance of self-restraint and the need to cultivate public and private virtues. And they had reverence for the Constitution, less as a philosophical document than a procedural one, which articulated the rules of the road for American democracy. When it came to judicial philosophy, 'constitutional conservatism' meant textualism, which prioritizes the plain meaning of the text in statutes and the Constitution. Justice Antonin Scalia excoriated outcome-based jurisprudence; judges should never prioritize their own desired outcomes, he warned, but should instead apply the text of the Constitution fairly. 'The main danger in judicial interpretation of the Constitution—or, for that matter, in judicial interpretation of any law,' he said in 1988, 'is that the judges will mistake their own predilections for the law.' One of the reasons Roe v. Wade was viewed as a travesty by conservatives is that they believed the 1973 Supreme Court decision twisted the Constitution to invent a 'right to privacy' in order to legalize abortion. The decision, they felt, was driven by a desired outcome rather than a rigorous analysis of legal precedent or constitutional text. WHICH IS WHY it's hard to think of a more anti-conservative figure than President Donald Trump or a more anti-conservative movement than MAGA. Trump and his supporters evince a disdain for laws, procedures, and the Constitution. They want to empower the federal government in order to turn it into an instrument of brute force that can be used to reward allies and destroy opponents. Trump and his administration have abolished agencies and imposed sweeping tariffs even when they don't have the legal authority to do so. They are deporting people without due process. Top aides are floating the idea of suspending the writ of habeas corpus, one of the most important constitutional protections against unlawful detention. Judges, who are the target of threats from the president, fear for their safety. So do the very few Republicans who are willing to assert their independence from Trump. In one of his first official acts, Trump granted clemency to more than 1,500 people charged in connection with the violent attack on the Capitol on January 6, 2021, including those convicted of seditious conspiracy. The president and his family are engaging in a level of corruption that was previously unfathomable. And he and his administration have shown no qualms about using the federal government to target private companies, law firms, and universities; suing news organizations for baseless reasons; and ordering criminal probes into former administration officials who criticized Trump. The Trump administration is a thugocracy, and the Republican Party he controls supports him each step of the way. Almost every principle to which Republicans once professed fealty has been jettisoned. The party is now devoted to the abuse of power and to vengeance. POLITICAL THEORISTS recognize that the governing approach of Trump and the GOP embodies the philosophy of Nietzsche and Machiavelli. It's all about the world of 'Anything goes' and 'Might makes right.' Laws and the Constitution are as malleable as hot wax; they can be reshaped as needed. Limited government has been traded for the Leviathan, and there are no constraints. The state has become a blunt-force instrument. The significance of this shift can hardly be overstated. A party that formerly proclaimed allegiance to the Constitution and the rule of law, warned about the concentration and abuse of power, and championed virtue, restraint, and moral formation has been transmogrified. The Republican Party now stands for everything it once loathed. Peter Wehner: America's Mad King If this rot was confined to the GOP, it would be tragic but manageable. But Trump and the Republican Party control the levers of federal power. As a result, less than five months into Trump's second term, America is heading toward a form of authoritarianism. We are still mid-story. The outcome is not ordained, and the courts are turning out to be, for the most part, a vital bulwark against Trumpism. The clashes will surely intensify as Trump rages against the storm. But as he does so, the resistance to him will grow and intensify too, and it will find expression in many different ways. The flame of liberty hasn't been extinguished quite yet. Love of country is, as the historian Gertrude Himmelfarb said, an ennobling sentiment, worthy of our affections. And love of country demands that those who love America and her ideals stand up against a man and a party intent on destroying them.
New York Times
4 days ago
- Business
- New York Times
Trump Administration Live Updates: President Praises Musk, Who Will Stay a ‘Friend and Adviser'
News Analysis Justice Neil Gorsuch with former Justice Stephen Breyer at a memorial event for Antonin Scalia last year during a Federalist Society convention in Washington. President Trump appears to be declaring independence from outside constraints on how he nominates judges, signaling that he is looking for loyalists who will uphold his agenda and denouncing the conservative legal network that helped him remake the federal judiciary in his first term. Late Thursday, after a ruling struck down his tariffs on most imported goods, Mr. Trump attacked the Federalist Society, leaders of which heavily influenced his selection of judges during his first presidency. 'I am so disappointed in The Federalist Society because of the bad advice they gave me on numerous Judicial Nominations,' Mr. Trump asserted on social media. 'This is something that cannot be forgotten!' Hours earlier Thursday, the Justice Department severely undercut the traditional role of the American Bar Association in vetting judicial nominees. A day before, Mr. Trump picked a loyalist who has no deep ties to the conservative legal movement for a life-tenured appeals court seat, explaining that his pick could be counted on to rule in ways aligned with his agenda. Together, the moves suggest that Mr. Trump may be pivoting toward greater personal involvement and a more idiosyncratic process for selecting future nominees. Such a shift would fit with his second-term pattern of steamrolling the guardrails that sometimes constrained how he exercised power during his first presidency. But it could also give pause to judges who may be weighing taking senior status, giving Mr. Trump an opportunity to fill their seats. Conservatives have been eyeing in particular the seats of the Supreme Court justices Clarence Thomas, who will turn 77 next month, and Samuel A. Alito, 75. Image Conservatives are eyeing the seats of Justices Clarence Thomas and Samuel Alito, both in their 70s. Credit... Erin Schaff/The New York Times 'Conservative judges are going to be much more open to stepping down if they're confident that their replacements will be high quality,' said Ed Whelan, a conservative legal commentator and former lawyer for the Bush administration. 'Trump's bizarre attack on his judicial appointments in his first term doesn't inspire confidence.' Mr. Trump and his allies have expressed increasing anger at the federal judiciary as courts have blocked his actions, including his aggressive claim to wartime powers to deport migrants without due process and his efforts to freeze grants and dismantle agencies without going through Congress. On Thursday, the U.S. Court of International Trade handed Mr. Trump his latest defeat. A three-judge panel unanimously struck down his invocation of emergency powers to impose import taxes on goods imported from nearly every country in the world. Two of the three judges were Republican appointees, one named to the bench by Mr. Trump. (A higher court has temporarily paused the ruling.) Notably, the Trump appointee on the trade court was not a Federalist Society archetype. Congress structured the court to require a partisan balance, so presidents make sets of nominees from both parties. The judge had worked for a Democratic lawmaker before becoming an aide to one of Mr. Trump's first-term trade officials. Yet Mr. Trump lashed out at the Federalist Society, blaming it for bad advice on whom to appoint to judgeships. He singled out Leonard Leo, a former longtime leader of the Federalist Society who helped recommend his first-term nominees and who exemplifies the conservative legal movement. 'I was new to Washington, and it was suggested that I use the Federalist Society as a recommending source on judges,' the president wrote. 'I did so, openly and freely, but then realized that they were under the thumb of a real 'sleazebag' named Leonard Leo, a bad person who, in his own way, probably hates America, and obviously has his own separate ambitions.' Image Leonard Leo of the Federalist Society at the Capitol in 2018. Credit... Erin Schaff for The New York Times Mr. Leo and Mr. Trump had a falling out in 2020, but the personal attack was a sharp escalation. In a statement, Mr. Leo said, 'I'm very grateful for President Trump transforming the federal courts, and it was a privilege being involved.' Still, Mr. Trump's tirade strained an already uneasy relationship with traditional legal conservatives. Many share the president's goals of strengthening border security, curbing the administrative state and ending 'diversity, equity and inclusion' programs, said John Yoo, a conservative law professor. But, he added, they dislike some of Mr. Trump's methods, whether that is prolifically invoking emergency powers or insulting judges who rule against his administration. And Professor Yoo, who wrote memos advancing sweeping theories of presidential power as a Bush administration lawyer, said Mr. Trump's attacks on Mr. Leo were 'outrageous.' 'Calling for the impeachment of judges, attacking Leonard Leo personally and basically calling him as traitor as far as I can tell — Trump is basically turning his back on one of his biggest achievements of his first term,' he added, referring to the reshaping of the federal judiciary. Earlier on Thursday, Attorney General Pam Bondi notified the American Bar Association that the administration would impede its traditional role in vetting judicial nominees. That work involves interviewing their colleagues, reviewing their cases and writings, and rating them for integrity, professional competence and judicial temperament. The bar group says it does not consider politics in such vetting, but conservatives have long accused it of liberal bias. (It rated all three of Mr. Trump's Supreme Court nominees as well qualified, and deemed only three of his 54 appeals court nominees to be not qualified for the positions.) Image Attorney General Pam Bondi at the White House last month. Credit... Haiyun Jiang for The New York Times In 2017, the first Trump administration stopped the bar group from assessing potential nominees before any final decision. But it permitted the group to vet them after their names went to the Senate. Nominees signed waivers so the group could have access to nonpublic bar information, filled out A.B.A. questionnaires and sat for interviews. In a significant escalation, Ms. Bondi said in her letter that Mr. Trump's second-term nominees would not be instructed to sign waivers, nor would they fill out questionnaires or sit for interviews. The A.B.A. declined to comment on the move. While Mr. Trump was out of power, a schism emerged between traditional legal conservatives and MAGA-style lawyers. The latter decided that politically appointed executive branch lawyers had constrained Mr. Trump in his first term, and began making plans to appoint a more aggressive breed of lawyer. But that conversation was largely about selecting executive branch lawyers, not judges. During the 2016 campaign, Mr. Trump had essentially made a deal with the conservative legal movement. In exchange for its support, he would outsource his judicial selections, like the Supreme Court seat left vacant by the death of Justice Antonin Scalia, to movement adherents. Throughout his first term, Mr. Trump nominated appellate judges and Supreme Court justices cut from the mold of the conservative legal movement. He accepted the recommendations of his first White House counsel, Donald F. McGahn II, a Federalist Society stalwart, with significant input from Mr. Leo. This month, Mr. Trump announced the first appellate nomination of his second term, Whitney Hermandorfer, a lawyer in the Tennessee attorney general's office, for the U.S. Court of Appeals for the Sixth Circuit. A former Supreme Court clerk to Justices Alito and Amy Coney Barrett, she appeared cut from the same cloth as his first-term selections. According to people briefed on the selection process, Trump officials including Stephen Kenny, a lawyer working for the White House counsel; Stephen Miller, Mr. Trump's deputy chief of staff; and Sergio Gor, the director of the White House personnel office, were involved in those deliberations. Mr. McGahn, now in private practice, is also said to have weighed in on Ms. Hermandorfer. But Mr. Trump's second appellate pick, announced on Wednesday as the nominee to the U.S. Court of Appeals for the Third Circuit, was different: Emil Bove III, a Justice Department official and former criminal defense lawyer for Mr. Trump. Mr. Bove does not fit the mold of the sort of lawyer who has spent years frequenting Federalist Society conventions to discuss judicial restraint and originalism. But he has shown a willingness to aggressively use power in ways that Mr. Trump likes, including carrying out politically charged purges. Mr. Bove also forced out an interim U.S. attorney after she balked at his demand to drop a corruption case against New York's mayor, Eric Adams, when the administration wanted his help for mass deportations. The prosecutor, Danielle Sassoon, a Federalist Society member who had clerked for Justice Scalia, portrayed the request as unethical. In naming Mr. Bove, the president put forward an openly politicized and outcome-based rationale. His nominee, he said on social media, would 'do anything else that is necessary to, MAKE AMERICA GREAT AGAIN. Emil Bove will never let you down!' The choice has set off a debate among conservative legal circles. Mr. Whelan said a 'very conservative appellate judge' had told him that he would not retire because of concerns over whom Mr. Trump would pick as a successor. In National Review, he warned of the 'danger that Bove, if confirmed, would leap to the top of Trump's list for the next Supreme Court vacancy.' But Mike Davis, a former Republican nominations counsel for the Senate Judiciary Committee, predicted and welcomed similar picks ahead. 'President Trump will pick even more bold and fearless judges in his second term,' he wrote on social media. 'And Emil Bove is one of the most bold and fearless of them all.' Michael A. Fragoso, a former nominations counsel to Senator Mitch McConnell, defended Mr. Bove's credentials. But he also said that 'regardless of what Mr. Trump is saying, the pool of candidates that he is picking from, and should be picking from, is still Federalist Society people.' Professor Yoo said the purpose of the conservative legal movement was to get presidents to stop treating judicial appointments as patronage and instead advance ideological goals. If Mr. Trump deviated from that path, he cautioned, the president risked the revolt President George W. Bush faced when he tried to appoint his friend and the White House counsel Harriet Miers to the Supreme Court two decades ago. Mr. Bush ultimately backed down. No matter the shared goals of the conservative legal movement, Professor Yoo added, its members had a limit. He said they would not support 'him calling for the impeachment of judges or wanting to appoint judges who are not the best and the brightest, but instead are people getting personal rewards from the president — which is how it was before the Federalist Society.'
Yahoo
23-05-2025
- Politics
- Yahoo
The Supreme Court is putting Venezuelan child killers ahead of the law
President Donald Trump shocked and awed three cartels when he invoked the Alien Enemies Act to expedite the removal of alleged Tren de Aragua criminals: the narco-human traffickers, the deep state, and – sadly – the Supreme Court of the United States. In temporarily blocking the president from proceeding with deportations under the Act, our brave justices should have known better. Not merely because the vicious Venezuelan gang Tren de Aragua murders children, seizes property, and terrorises communities in (primarily) Democrat-run jurisdictions. But because the justices, and the judges on the inferior federal courts, are supposed to interpret laws according to their plain, historically-grounded meaning. If words mean something, but the justices surrender to a politicised redefinition, then America ceases to be a nation of laws. Apparently, that's a hard task for Supreme Court justices educated at Harvard Law School and Yale Law School. After decades of intellectual exertion, the late Justice Antonin Scalia might well have thought he had won the fundamental argument for constitutional originalism: that words must mean now what they meant at the time of any given law's enactment. But many judges don't like that. They want words to mean what their elite friends say they mean. That's perhaps understandable for a Harvard-educated 'institutionalist' like Chief Justice John Roberts, who seems to think that the opinions of the Harvard faculty lounge still ought to govern America. Few others have any excuse – sorry, 'excuse'. Our justices and judges have one job: to understand words. Sure, it can be a difficult job. But they know how to do it well enough. As Justice Elena Kagan once famously said: 'We're all textualists now.' To understand the meaning and modern application of words written before yesterday, judges are trained to look back at 'text, history, and tradition'. But history is hard. And the Supreme Court doesn't necessarily have a grand tradition of understanding it particularly well. If it did, then the justices wouldn't have put off on process grounds ruling on the president's invocation of the Alien Enemies Act. They wouldn't be setting up a waiting-forever game while barbarian cartels terrorise American citizens. They wouldn't be letting more children get murdered by turning our nation of laws into an unsovereign territory of Waiting for Godot. When the Alien Enemies Act was passed in 1798, America was a young country looking back at a Europe ruled by kingdoms. Just south of those European kingdoms, on the other side of the Mediterranean, were the Barbary states. The Barbary states weren't legitimate nation-states. They were failed, amoral, slave-trading, kleptocratic, human- and drug-trafficking states. They only existed because many Europeans were too lazy to attend to their own defence. After the Declaration of Independence of 1776, the British Empire was naturally disinclined to protect American merchant vessels. And Americans, in turn, were disinclined to just let their ships get destroyed and their people enslaved by pirates. So, we did something about it. We took it to them. As the US Marine Corps' official hymn famously goes, we took it 'to the shores of Tripoli' during the First Barbary War, which took place just a few years after the Alien Enemies Act was passed. And that's exactly what America is also doing right now. The more things change, the more they stay the same. When the Iran-backed Houthis try to disrupt international trade in the Red Sea, the US bombs them. In Yemen, Trump was doing more or less what Thomas Jefferson did two-plus centuries ago. But what would the early-republic American presidents have done if the Barbary pirates had set up shop on American soil? Just let them have their way in Boston or Philadelphia? No; they probably would have raised a militia to kill them all. Or, if it was easier, they would have arranged for them to quickly and efficiently get out of our country post-haste. They would have made use of the provisions of the Alien Enemies Act. Would Chief Justice John Marshall have effectively taken the side of these hypothetical Barbarian corsair occupiers by saying, 'Dear Mr President, not sure if you can deport these rapists, plunderers, and pillagers; did you check all your paperwork boxes regarding these illegal enemy aliens?' To ask such a rhetorical question is to answer it. The very notion that the Supreme Court might have had any place at all in the debate would have struck everyone alive as absurd. The American president at the time of the passage of the Alien Enemies Act was John Adams. Around the time, American citizens were being attacked and enslaved by Barbarian pirates. And that, mutatis mutandis, is what's happening now, too. Venezuela is a failed communist state. And confirmed Tren de Argua gangbangers are effectively Venezuelan, barbarian corsair pirates. The only difference is that they've set up shop in the American homeland. John Marshall would be appalled by John Roberts, who has taken and twisted the precedents of the Supreme Court to such a radical degree that he has essentially concluded: 'A constitutional republic? Well, maybe it can be invaded by barbarians. Maybe our women can get raped by them, our apartment buildings plundered. We're trying to figure it out!' Unfortunately for the integrity of the United States Constitution, Harvard Law School has not been sending its best. But some federal judges, we must assume, are still good people. To a Harvard-trained mind, Roberts and his colleagues are defending the Constitution as they fiddle around trying to figure out whether words mean what they say, while President Trump is the dangerous radical. To anyone who understands text, history, and tradition, though, the president has exercised the precise opposite of power-hungry arrogation: extreme restraint. Josh Hammer is Newsweek senior editor-at-large, host of The Josh Hammer Show, senior counsel for the Article III Project, and author of the new book, 'Israel and Civilization: The Fate of the Jewish Nation and the Destiny of the West' (Radius Book Group) Broaden your horizons with award-winning British journalism. Try The Telegraph free for 1 month with unlimited access to our award-winning website, exclusive app, money-saving offers and more.
Telegraph
23-05-2025
- Politics
- Telegraph
The Supreme Court is putting Venezuelan child killers ahead of the law
President Donald Trump shocked and awed three cartels when he invoked the Alien Enemies Act to expedite the removal of alleged Tren de Aragua criminals: the narco-human traffickers, the deep state, and – sadly – the Supreme Court of the United States. In temporarily blocking the president from proceeding with deportations under the Act, our brave justices should have known better. Not merely because the vicious Venezuelan gang Tren de Aragua murders children, seizes property, and terrorises communities in (primarily) Democrat-run jurisdictions. But because the justices, and the judges on the inferior federal courts, are supposed to interpret laws according to their plain, historically-grounded meaning. If words mean something, but the justices surrender to a politicised redefinition, then America ceases to be a nation of laws. Apparently, that's a hard task for Supreme Court justices educated at Harvard Law School and Yale Law School. After decades of intellectual exertion, the late Justice Antonin Scalia might well have thought he had won the fundamental argument for constitutional originalism: that words must mean now what they meant at the time of any given law's enactment. But many judges don't like that. They want words to mean what their elite friends say they mean. That's perhaps understandable for a Harvard-educated 'institutionalist' like Chief Justice John Roberts, who seems to think that the opinions of the Harvard faculty lounge still ought to govern America. Few others have any excuse – sorry, 'excuse'. Our justices and judges have one job: to understand words. Sure, it can be a difficult job. But they know how to do it well enough. As Justice Elena Kagan once famously said: 'We're all textualists now.' To understand the meaning and modern application of words written before yesterday, judges are trained to look back at 'text, history, and tradition'. But history is hard. And the Supreme Court doesn't necessarily have a grand tradition of understanding it particularly well. If it did, then the justices wouldn't have put off on process grounds ruling on the president's invocation of the Alien Enemies Act. They wouldn't be setting up a waiting-forever game while barbarian cartels terrorise American citizens. They wouldn't be letting more children get murdered by turning our nation of laws into an unsovereign territory of Waiting for Godot. When the Alien Enemies Act was passed in 1798, America was a young country looking back at a Europe ruled by kingdoms. Just south of those European kingdoms, on the other side of the Mediterranean, were the Barbary states. The Barbary states weren't legitimate nation-states. They were failed, amoral, slave-trading, kleptocratic, human- and drug-trafficking states. They only existed because many Europeans were too lazy to attend to their own defence. After the Declaration of Independence of 1776, the British Empire was naturally disinclined to protect American merchant vessels. And Americans, in turn, were disinclined to just let their ships get destroyed and their people enslaved by pirates. So, we did something about it. We took it to them. As the US Marine Corps' official hymn famously goes, we took it 'to the shores of Tripoli' during the First Barbary War, which took place just a few years after the Alien Enemies Act was passed. And that's exactly what America is also doing right now. The more things change, the more they stay the same. When the Iran-backed Houthis try to disrupt international trade in the Red Sea, the US bombs them. In Yemen, Trump was doing more or less what Thomas Jefferson did two-plus centuries ago. But what would the early-republic American presidents have done if the Barbary pirates had set up shop on American soil? Just let them have their way in Boston or Philadelphia? No; they probably would have raised a militia to kill them all. Or, if it was easier, they would have arranged for them to quickly and efficiently get out of our country post-haste. They would have made use of the provisions of the Alien Enemies Act. Would Chief Justice John Marshall have effectively taken the side of these hypothetical Barbarian corsair occupiers by saying, 'Dear Mr President, not sure if you can deport these rapists, plunderers, and pillagers; did you check all your paperwork boxes regarding these illegal enemy aliens?' To ask such a rhetorical question is to answer it. The very notion that the Supreme Court might have had any place at all in the debate would have struck everyone alive as absurd. The American president at the time of the passage of the Alien Enemies Act was John Adams. Around the time, American citizens were being attacked and enslaved by Barbarian pirates. And that, mutatis mutandis, is what's happening now, too. Venezuela is a failed communist state. And confirmed Tren de Argua gangbangers are effectively Venezuelan, barbarian corsair pirates. The only difference is that they've set up shop in the American homeland. John Marshall would be appalled by John Roberts, who has taken and twisted the precedents of the Supreme Court to such a radical degree that he has essentially concluded: 'A constitutional republic? Well, maybe it can be invaded by barbarians. Maybe our women can get raped by them, our apartment buildings plundered. We're trying to figure it out!' Unfortunately for the integrity of the United States Constitution, Harvard Law School has not been sending its best. But some federal judges, we must assume, are still good people. To a Harvard-trained mind, Roberts and his colleagues are defending the Constitution as they fiddle around trying to figure out whether words mean what they say, while President Trump is the dangerous radical. To anyone who understands text, history, and tradition, though, the president has exercised the precise opposite of power-hungry arrogation: extreme restraint.
