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Yahoo
5 days ago
- Politics
- Yahoo
How Some Very Bad Luck Has Made It Even Harder To Rein In Trump
A lot of things happened. Here are some of the things. This is TPM's Morning Memo. Sign up for the email version. In a deeply unfortunate roll of the dice, the only three Trump appointees on the 16-judge D.C. Circuit Court of Appeals ended up being randomly selected for June's three-judge motion panel. That means they get the first bite at the apple on various emergency motions that come to the court and a chance to shape dramatically the procedural posture of some of the most important cases against the lawlessness of the Trump administration. Yesterday, the three judges – Gregory Katsas, Neomi Rao, and Justin Walker – issued an administrative stay blocking a major order from U.S. District Judge James Boasberg in the original Alien Enemies Case. The stay came as the Trump administration faced a deadline of today to propose to Boasberg how it would provide the due process that the Alien Enemies Act detainees at CECOT had been denied when they were removed in March. If you want to get a little deeper into the history and procedure of the appeals court move, Chris Geidner has you covered. But one point he makes that I want to highlight is the administration's foot-dragging for almost a week since Boasberg's ruling, and then rushing to the appeals court at the last-minute while concurrently asking Boasberg to stay his own order. It looks like a tactic designed to add as much delay as possible into the calendar. The temporary administrative stay won't be the last word from the three-judge panel. They still must decide whether to freeze the order while the entire appeal proceeds, but the odds aren't good. For what it's worth, there's no reason to believe the selection of the three Trump appointees for this month's motion panel was anything more than random chance. The D.C. Circuit Court of Appeals is still blocking Judge Boasberg's contempt of court proceedings in the original Alien Enemies Act case. Because the appeals court entered what was supposed to be a temporary administrative stay, Boasberg has been unable to move forward since April 18, a 'temporary' delay of almost two months now. The Trump administration is trying to bring a swift end to the contempt of court proceeding in the Maryland case of the wrongfully deported Kilmar Abrego Garcia, arguing that the case is moot now that he has been returned to the United States. In a new filing yesterday, the Trump DOJ didn't just ignore the history of administration's repeated brazen defiance of court orders in the case. It pretended none of that never happened: 'In the face of Abrego Garcia's return to the United States, [plaintiffs] baselessly accuse Defendants of 'foot-dragging and 'intentionally disregard[ing] this Court's and the Supreme Court's orders,' when just the opposite is true.' Abrego Garcia's lawyers are fiercely resisting the case being dismissed, urging Judge Paula Xinis to continue her inquiry into whether the administration was in contempt of court. Given her prior dismayed reactions in-court to the government's misconduct, I would expect her to continue her inquiry if she finds a legal basis for doing so. Still no word on the court-ordered return of Cristian from El Salvador in the other Maryland 'facilitate' case. The Trump administration filed an update Friday that for the first time confirmed that Cristian remains at CECOT. But the administration has erected a fictional wall between DHS and State, with DHS (a party to the case) responding to the court that it's up to the State Department (which is not a party) to negotiate Cristian's return. I would anticipate the court or plaintiff counsel making moves at some point to get answers directly from State. TPM continues to run a liveblog with the major developments on President Trump's military escalation in Los Angeles. The Trump administration could resume sending undocumented immigrants to Guantanamo Bay as soon as today. The planned operation, reported by Politico and the WaPo, would be dramatically larger than the short-lived effort a few months ago to use Gitmo as a detention facility for migrants. The migrants targeted for transfer to the base in Cuba come from a range of countries that includes U.S. allies in Europe. The home countries of the foreign nationals are reportedly not being notified of the transfers to Gitmo. I keep going back to the Trump memo calling up the National Guard equating protests – even absent violence – with rebellion. It wasn't an accident or one-off, as this threat towards any protestors of his military parade this coming weekend in DC shows: ABC News, which kicked off the spate of dubious post-election settlement agreements with Donald Trump, has sent 28-year network veteran Terry Moran packing over his social media post critical of White House Deputy Chief of Staff Stephen Miller. Moran's contract was reportedly set to expire Friday and will not be renewed. Here's the key thing to note about President Trump's decision to revert to the Confederate names of U.S. military installations: He's re-naming the bases ostensibly in honor of people with the same names and initials as the original Confederate honorees in order to get around the law mandating the removal of Confederate symbols from the military. So it's a squirrelly way to have all the racism without having to repeal the law. In an Orwellian irony, the board of the Smithsonian Institute has bowed to political influence from President Trump and ordered a full review of its public-facing content to make sure it contains no … political influence. The Trump EPA is poised to announce the easing of a Biden-era regulation limiting mercury emissions from power plants and the elimination entirely of the limits on greenhouse gas emissions from power plants In 2022-23, DOJ and DHS were sufficiently concerned that Elon Musk was a vector for malign foreign influence that they were actively tracking the foreign nationals coming and going to his properties, the WSJ reports. 'A federal appeals court on Tuesday granted the Trump administration's request to keep the president's far-reaching tariffs in effect for now but agreed to fast track its consideration of the case this summer,' the WSJ reports. 'It is clear that the bureau's current leadership has no intention to enforce the law in any meaningful way. While I wish you all the best, I worry for American consumers.'–Cara Petersen, the acting head of enforcement for the Consumer Financial Protection Bureau, in a fiery farewell email after she resigned her position
USA Today
17-05-2025
- Politics
- USA Today
'Spaghetti against the wall?' Trump tests legal strategies as judges block his policies
'Spaghetti against the wall?' Trump tests legal strategies as judges block his policies The Trump administration is fighting to kill 40 court orders blocking its new policies. Show Caption Hide Caption Supreme Court hears arguments on judges' block on Trump birthright EO The justices heard arguments on whether its ok for judges to universally block President Donald Trump's birthright citizenship executive order. Solicitor General John Sauer urged the Supreme Court to halt nationwide injunctions against Trump policies but said if class-action lawsuits took their place, he would oppose them too. Legal experts said if the Supreme Court abolishes nationwide injunctions, Trump could cut his losses by limiting the reach of court rulings that go against him. WASHINGTON – As the Trump administration fights to kill 40 court orders blocking policies nationwide, legal experts say the government's strategy is to break the cases apart, into individual disputes, to delay an eventual reckoning at the Supreme Court. One called President Donald Trump's legal strategy a 'shell game.' Another said government lawyers were 'throwing spaghetti against the wall' to see what sticks. 'Their bottom line is that they don't think these cases should be in court in the first place,' said Luke McCloud, a lawyer at Williams and Connolly who clerked for Supreme Court Justice Sonia Sotomayor and Justice Brett Kavanaugh when he was on the D.C. Circuit Court of Appeals. 'They are looking for a procedural mechanism that will make it the most challenging to bring these sorts of cases.' Related: Supreme Court deals blow to Trump, says in emergency order he can't deport Venezuelan migrants Presidents of both parties have opposed nationwide injunctions Trump policies blocked by federal court judges cover a broad swath of issues, including restrictions on immigration, a ban on transgender troops in the military and drastic funding cuts to marquee U.S. agencies such as the Department of Health and Human Services. The common element is that a single federal judge in one of 94 regional districts paused a policy for the entire country while the case is being litigated. Presidents of both parties have opposed these kinds of policy blocks. Barack Obama faced injunctions against Obamacare and Joe Biden's plan to forgive student loans was blocked. Supreme Court justices have also voiced concerns about district courts setting national policy before the high court gets a chance to weigh in. 'As the brief and furious history of the regulation before us illustrates, the routine issuance of universal injunctions is patently unworkable, sowing chaos for litigants, the government, courts, and all those affected by these conflicting decisions,' Justice Neil Gorsuch wrote in a 2020 opinion. Could class-action lawsuits replace nationwide injunctions? The unresolved question is how − or whether − presidential policies could be blocked if the Supreme Court limits or abolishes nationwide injunctions. A district judge's ruling's impact would extend to the geographical boundaries of where the judge presides. If the case is appealed to a circuit court of appeals, that could broaden the impact because circuits span multiple states. But Solicitor General John Sauer, who represents the administration, refused to commit, during a Supreme Court argument on May 15 that the administration would obey circuit decisions. If the justices rule against nationwide injunctions, one option for expanding the reach of specific cases would be for litigants to join together in class-action lawsuits. But certifying who gets to participate in the lawsuit can take months or years, while a policy and its arguable harms would survive. 'The Trump administration wants to win by losing,' said Amanda Frost, a law professor at the University of Virginia who specializes in immigration. 'Even if it loses case after case after case, it wins in the sense of implementing his policies nationwide for years.' Trump supported and opposed class-action lawsuits As Trump seeks to abolish nationwide injunctions, government lawyers have argued for and against the cases becoming class actions. 'I think the government is basically throwing spaghetti at the wall and looking for any excuse and any case to kick it out of court,' said Alan Trammell, an associate law professor at Washington and Lee University who is an expert on nationwide injunctions. A trio of cases at the Supreme Court oppose Trump's order limiting birthright citizenship to children with at least one parent who is a citizen or legal permanent resident. Sauer, the solicitor general, urged the justices on May 15 to lift all further nationwide injunctions on the policy and argued a class action was the legitimate way to challenge the citizenship order. But Sauer also said he would oppose certifying a class action. After the blockbuster hearing, Trump urged the court not to be swayed by Democratic pressure. Trump stated in a social media post on May 16 that 'THE SUPREME COURT IS BEING PLAYED BY THE RADICAL LEFT LOSERS.' In another set of cases, hundreds of Venezuelan immigrants are fighting deportation under Trump's invocation of the Alien Enemies Act. The high court ruled in April that each immigrant had to file a separate lawsuit in the region where they are detained, rather than join a class action. In a separate case involving Venezuelan immigrants, the Supreme Court has blocked their removal from the United States until the justices can decide whether the Alien Enemies Act, which has only been invoked during a declared war, applies to them. The Trump administration contends that the immigrants are enemy combatants because they allegedly belong to a criminal organization. Following the ruling, said in a social media post on May 16: "THE SUPREME COURT WON'T ALLOW US TO GET CRIMINALS OUT OF OUR COUNTRY!" The Venezuelans, accused of being members of the gang Tren de Aragua, could also potentially be recognized as a class of detainees in Texas, the court said. Requiring individual lawsuits or forcing people to prove they belong in class-action lawsuits would splinter the litigation and delay the eventual results when appeals are exhausted, experts said. 'The courts don't want that. They're overwhelmed as it is,' said Frost, the professor specializing in immigration. 'But, of course, the Trump administration would like that. It's trying to flood the zone and overwhelm the institutions.' Justices rule out class action in immigrant detention cases The Supreme Court has been scrutinizing the strategy of class actions in Trump cases. A federal judge was considering a class action for Venezuelan immigrants fighting deportation under the Alien Enemies Act (AEA). But the Supreme Court ruled on April 7 that the immigrants must file individual lawsuits to force the government to justify their detention. Sotomayor, who dissented, called the decision 'suspect' and 'dubious.' She accused the government of trying to hustle immigrants onto deportation flights without offering them a chance to contest the allegations, including whether they are gang members, in court. 'The Government's conduct in this litigation poses an extraordinary threat to the rule of law,' Sotomayor wrote. Forcing immigrants to wage their own legal battles could delay the eventual resolution of the cases at the Supreme Court. 'That kicks the can down the road and it has the added benefit, from the government's perspective, of preventing a class action and enforcing this piecemeal litigation,' Trammell, the injunction expert, said. 'What it effectively amounts to is this drip, drip, drip approach.' Trump plays 'shell game' with immigration cases: expert Steven Vladeck, a law professor at Georgetown University, noted that in a bevy of recent court rulings, the Trump administration tried to slow down or defeat immigration cases by moving 2nd U.S. Circuit Court of Appeals ruled that the case of a Tufts student named Rumeysa Ozturk should continue to be heard in Vermont, where it began, despite federal authorities moving her to a Louisiana detention facility. A federal judge in Virginia ruled that a Georgetown postdoctoral fellow, Badar Suri, could bring his lawsuit in that state rather than transferring it to Texas, where he is now detained. And a federal judge in New Jersey continues to preside over the case of Mahmoud Khalil, a Columbia University graduate student activist, despite his transfer to Louisiana. 'The good news in all of these developments is that the shell games failed, at least in these high-profile individualized immigration detention contexts,' Vladeck wrote in his newsletter on developments in federal law. Justices weigh class-action lawsuits for birthright cases Justices questioned the lawyers on May 15 about how class-action lawsuits would work in birthright citizenship cases. Gorsuch and Justice Brett Kavanaugh separately asked the lawyers for both sides whether the strategy would provide a remedy if nationwide injunctions no longer existed. 'Is there a practical problem?' Kavanaugh asked. New Jersey Solicitor General Jeremey Feigenbaum, who represents 22 states in the case, said yes, because states can't file class actions. Certifying a class is challenging and time-consuming because participants must show they have common interests. For example, immigrant parents who arrived days before the birth of a child might not be considered in the same class as those who arrived 10 years earlier. If the high court doesn't allow birthright injunctions to all states, it would create a patchwork of disparate legal practices. Without a nationwide pause on Trump's order, Kavanaugh posed, the federal government would refuse to recognize the citizenship of babies born in a state that isn't participating in the lawsuit. Children of undocumented immigrants or tourists would be citizens in some states and not in others. 'What do hospitals do with a newborn?' Kavanaugh asked. 'What do states do with a newborn?' Justices Samuel Alito and Amy Coney Barrett asked why Sauer sought to abolish nationwide injunctions if class-action lawsuits would accomplish the same thing. 'What is the point of this argument about universal injunctions?' Alito asked. Sauer said injunctions encourage litigants to shop for favorable judges and prevent courts from "percolating" over complex issues, or considering them thoroughly before they arrive before the high court. Justice Elena Kagan and Barrett pressed the government's lawyer about whether the Trump administration would obey temporary circuit rulings blocking its policies until the Supreme Court issued final decisions. 'Generally, our practice is to respect circuit precedent within the circuit," Sauer said. "But there are exceptions to that."
USA Today
17-05-2025
- Politics
- USA Today
As judges block policies nationwide, Trump tests legal strategies to keep them alive
As judges block policies nationwide, Trump tests legal strategies to keep them alive Trump lawyers are 'throwing spaghetti against the wall' or are playing a 'shell game' to see what legal strategies work to defend his policies in court battles, experts say. Show Caption Hide Caption Supreme Court hears arguments on judges' block on Trump birthright EO The justices heard arguments on whether its ok for judges to universally block President Donald Trump's birthright citizenship executive order. Solicitor General John Sauer urged the Supreme Court to halt nationwide injunctions against Trump policies but said if class-action lawsuits took their place, he would oppose them too. Legal experts said if the Supreme Court abolishes nationwide injunctions, Trump could cut his losses by limiting the reach of court rulings that go against him. WASHINGTON – As the Trump administration fights to kill 40 court orders blocking policies nationwide, legal experts say the government's strategy is to break the cases apart, into individual disputes, to delay an eventual reckoning at the Supreme Court. One expert called President Donald Trump's legal strategy a 'shell game.' Another said government lawyers were 'throwing spaghetti against the wall' to see what sticks. 'Their bottom line is that they don't think these cases should be in court in the first place,' said Luke McCloud, a lawyer at Williams and Connolly who clerked for Supreme Court Justice Sonia Sotomayor and Justice Brett Kavanaugh when he was on the D.C. Circuit Court of Appeals. 'They are looking for a procedural mechanism that will make it the most challenging to bring these sorts of cases.' Presidents of both parties have opposed nationwide injunctions Trump policies blocked by federal court judges cover a broad swath of issues, including restrictions on immigration, a ban on transgender troops in the military and drastic funding cuts to marquee U.S. agencies such as the Department of Health and Human Services. The common element is that a single federal judge in one of 94 regional districts paused a policy for the entire country while the case is being litigated. Presidents of both parties have opposed these kinds of policy blocks. Barack Obama faced injunctions against Obamacare and Joe Biden's plan to forgive student loans was blocked. Supreme Court justices have also voiced concerns about district courts setting national policy before the high court gets a chance to weigh in. 'As the brief and furious history of the regulation before us illustrates, the routine issuance of universal injunctions is patently unworkable, sowing chaos for litigants, the government, courts, and all those affected by these conflicting decisions,' Justice Neil Gorsuch wrote in a 2020 opinion. Could class-action lawsuits replace nationwide injunctions? The unresolved question is how − or whether − presidential policies could be blocked if the Supreme Court limits or abolishes nationwide injunctions. A district judge's ruling's impact would extend to the geographical boundaries of where the judge presides. If the case is appealed to a circuit court of appeals, that could broaden the impact because circuits span multiple states. But Solicitor General John Sauer, who represents the administration, refused to commit, during a Supreme Court argument on May 15 that the administration would obey circuit decisions. If the justices rule against nationwide injunctions, one option for expanding the reach of specific cases would be for litigants to join together in class-action lawsuits. But certifying who gets to participate in the lawsuit can take months or years, while a policy and its arguable harms would survive. 'The Trump administration wants to win by losing,' said Amanda Frost, a law professor at the University of Virginia who specializes in immigration. 'Even if it loses case after case after case, it wins in the sense of implementing his policies nationwide for years.' Trump supported and opposed class-action lawsuits As Trump seeks to abolish nationwide injunctions, government lawyers have argued for and against the cases becoming class actions. 'I think the government is basically throwing spaghetti at the wall and looking for any excuse and any case to kick it out of court,' said Alan Trammell, an associate law professor at Washington and Lee University who is an expert on nationwide injunctions. A trio of cases at the Supreme Court oppose Trump's order limiting birthright citizenship to children with at least one parent who is a citizen or legal permanent resident. Sauer, the solicitor general, urged the justices on May 15 to lift all further nationwide injunctions on the policy and argued a class action was the legitimate way to challenge the citizenship order. But Sauer also said he would oppose certifying a class action. After the blockbuster hearing, Trump urged the court not to be swayed by Democratic pressure. Trump stated in a social media post on May 16 that 'THE SUPREME COURT IS BEING PLAYED BY THE RADICAL LEFT LOSERS.' In another set of cases, hundreds of Venezuelan immigrants are fighting deportation under Trump's invocation of the Alien Enemies Act. The high court ruled in April that each immigrant had to file a separate lawsuit in the region where they are detained, rather than join a class action. In a separate case involving Venezuelan immigrants, the Supreme Court has blocked their removal from the United States until the justices can decide whether the Alien Enemies Act, which has only been invoked during a declared war, applies to them. The Trump administration contends that the immigrants are enemy combatants because they allegedly belong to a criminal organization. Following the ruling, said in a social media post on May 16: "THE SUPREME COURT WON'T ALLOW US TO GET CRIMINALS OUT OF OUR COUNTRY!" The Venezuelans, accused of being members of the gang Tren de Aragua, could also potentially be recognized as a class of detainees in Texas, the court said. Requiring individual lawsuits or forcing people to prove they belong in class-action lawsuits would splinter the litigation and delay the eventual results when appeals are exhausted, experts said. 'The courts don't want that. They're overwhelmed as it is,' said Frost, the professor specializing in immigration. 'But, of course, the Trump administration would like that. It's trying to flood the zone and overwhelm the institutions.' Justices rule out class action in immigrant detention cases The Supreme Court has been scrutinizing the strategy of class actions in Trump cases. A federal judge was considering a class action for Venezuelan immigrants fighting deportation under the Alien Enemies Act (AEA). But the Supreme Court ruled on April 7 that the immigrants must file individual lawsuits to force the government to justify their detention. Sotomayor, who dissented, called the decision 'suspect' and 'dubious.' She accused the government of trying to hustle immigrants onto deportation flights without offering them a chance to contest the allegations, including whether they are gang members, in court. 'The Government's conduct in this litigation poses an extraordinary threat to the rule of law,' Sotomayor wrote. Forcing immigrants to wage their own legal battles could delay the eventual resolution of the cases at the Supreme Court. 'That kicks the can down the road and it has the added benefit, from the government's perspective, of preventing a class action and enforcing this piecemeal litigation,' Trammell, the injunction expert, said. 'What it effectively amounts to is this drip, drip, drip approach.' Trump plays 'shell game' with immigration cases: expert Steven Vladeck, a law professor at Georgetown University, noted that in a bevy of recent court rulings, the Trump administration tried to slow down or defeat immigration cases by moving 2nd U.S. Circuit Court of Appeals ruled that the case of a Tufts student named Rumeysa Ozturk should continue to be heard in Vermont, where it began, despite federal authorities moving her to a Louisiana detention facility. A federal judge in Virginia ruled that a Georgetown postdoctoral fellow, Badar Suri, could bring his lawsuit in that state rather than transferring it to Texas, where he is now detained. And a federal judge in New Jersey continues to preside over the case of Mahmoud Khalil, a Columbia University graduate student activist, despite his transfer to Louisiana. 'The good news in all of these developments is that the shell games failed, at least in these high-profile individualized immigration detention contexts,' Vladeck wrote in his newsletter on developments in federal law. Justices weigh class-action lawsuits for birthright cases Justices questioned the lawyers on May 15 about how class-action lawsuits would work in birthright citizenship cases. Gorsuch and Justice Brett Kavanaugh separately asked the lawyers for both sides whether the strategy would provide a remedy if nationwide injunctions no longer existed. 'Is there a practical problem?' Kavanaugh asked. New Jersey Solicitor General Jeremey Feigenbaum, who represents 22 states in the case, said yes, because states can't file class actions. Certifying a class is challenging and time-consuming because participants must show they have common interests. For example, immigrant parents who arrived days before the birth of a child might not be considered in the same class as those who arrived 10 years earlier. If the high court doesn't allow birthright injunctions to all states, it would create a patchwork of disparate legal practices. Without a nationwide pause on Trump's order, Kavanaugh posed, the federal government would refuse to recognize the citizenship of babies born in a state that isn't participating in the lawsuit. Children of undocumented immigrants or tourists would be citizens in some states and not in others. 'What do hospitals do with a newborn?' Kavanaugh asked. 'What do states do with a newborn?' Justices Samuel Alito and Amy Coney Barrett asked why Sauer sought to abolish nationwide injunctions if class-action lawsuits would accomplish the same thing. 'What is the point of this argument about universal injunctions?' Alito asked. Sauer said injunctions encourage litigants to shop for favorable judges and prevent courts from "percolating" over complex issues, or considering them thoroughly before they arrive before the high court. Justice Elena Kagan and Barrett pressed the government's lawyer about whether the Trump administration would obey temporary circuit rulings blocking its policies until the Supreme Court issued final decisions. 'Generally, our practice is to respect circuit precedent within the circuit," Sauer said. "But there are exceptions to that."
Fox News
28-04-2025
- Politics
- Fox News
The White House and the courts must come to a common sense understanding of their obligations
Some federal trial judges have thrown opposition to President Donald Trump's immigration agenda into high gear. They seek to trigger a confrontation between the president and the Supreme Court despite efforts by both to compromise. Worse yet, they are drawing the federal courts beyond their areas of competence and interfering with the president's authority in foreign affairs and national security. The justices should step in to make clear that federal courts must pay due deference to the executive's constitutional responsibilities, while President Trump should re-affirm that even illegal aliens receive due – albeit limited – process. The latest salvo came this week from Maryland federal Judge Paula Xinis, who is hearing the case of Kilmar Abrego Garcia, an illegal alien whom the Trump administration mistakenly sent to El Salvador. Earlier this month, Xinis had commanded the Trump administration to immediately produce Garcia in court, even though he was no longer under the control of the United States. Her rash order prompted the Supreme Court to intercede. The justices called upon the Trump administration to "facilitate" Garcia's return, and to inform the trial court of its efforts, but also cautioned Xinis to pay "due regard for the deference owed to the Executive Branch in the conduct of foreign affairs." The Supreme Court's order should have headed off a crisis between the President and Judge Xinis. It followed a similar move by the justices in reviewing Judge James Boasberg's ruling that the Trump administration had no authority to send 137 suspected Venezuelan gang members to El Salvador under the Alien Enemies Act of 1798. That laws allows the president to detain and expel citizens of a country with which we are at war or which launches an invasion or "predatory incursion" of the United States. Even though Boasberg and the D.C. Circuit Court of Appeals rushed to find that no declared war or invasion by Venezuela had occurred, the justices found that those courts had jurisdiction over the case, and held that the illegal aliens' due process rights would have to be vindicated by federal judges in Texas or Louisiana, where they last had been present in the United States. The Supreme Court's caution that lower court judges respect the president's responsibility to conduct foreign affairs made for common sense. Federal courts cannot order the president to send special forces abroad to seize Garcia or anyone else held in El Salvador's terrorist jails, nor can it dictate to the president how to conduct diplomacy. Nevertheless, Judge Xinis directed this week that the Trump administration "take all available steps" to return Garcia "as soon as possible." On appeal, Judge J. Harvie Wilkins of the Fourth Circuit Court of Appeals excoriated the Trump administration for not cooperating with Judge Xinis and raised the possibility that the Trump administration could deport even U.S. citizens, claim error, but then do nothing to seek their return. Despite Judge Wilkinson's advice to both branches to reach a compromise, Judge Xinis has proceeded to command the Trump administration to explain, under oath, its diplomatic efforts to free Garcia. This shows little respect for the caution, urged by the Supreme Court, not to intrude into the executive branch's authority over foreign affairs. Will Xinis next demand that communications between the State Department and El Salvador be produced in open court? Will she sanction the government unless U.S. embassy staff travel to her Maryland courtroom and testify about their meetings with El Salvadorean officials? Perhaps she will want to set the United States negotiating positions and offers. The deeper concern behind this single judge's interference with the president's conduct of foreign relations is the threat that wayward trial courts will begin to interfere with fundamental national security decisions that the Constitution vests in the presidency. A federal court has never before overruled the decision of a president or Congress that the United States has suffered an attack or invasion, and the Supreme Court wisely rejected the D.C. courts' efforts to do so. Admittedly, the Trump administration is making the unprecedented claim that a gang has risen to the level of a foreign government that is conducting an invasion or predatory incursion into the United States. I have argued elsewhere that this would be a difficult showing to make and would depend on the facts of the Venezuelan government's control over TdA and on whether international criminal activities can constitute a military threat to the national security. But that is an entirely different question from whether the federal courts are the proper institution to make that judgment. The Supreme Court itself has long recognized that there are certain "political questions," which the Constitution itself has committed to the final decision of the elected branches of government, such as impeachment or war. In Marbury v. Madison, which established the Court's right of judicial review, Chief Justice John Marshall also declared that "the President is invested with certain important political powers, in the exercise of which he is to use his own discretion." For his decisions, "he is accountable only to his country in his political character, and to his own conscience." These issues "respect the nation, not individual rights, and being entrusted to the executive, the decision of the executive is conclusive." Courts have never second-guessed what is the most political of questions: whether the nation is at war. Federal judges have refused to rule on the constitutionality of not just the Iraq and Afghanistan wars, but also every war in American history. Courts do not have the ability, understanding, or expertise to make sensitive decisions on national security threats, nor can they judge the costs and benefits of different foreign policies. Courts decide cases and controversies in formalized legal settings driven by the parties; they should hesitate to make decisions involving the difficult probabilities and risks of war and national security. What courts can do is provide a measure of due process to aliens before their deportation. The Trump Justice Department acknowledged this very principle before the Supreme Court in conceding that the Venezuelans had a right to due process before their deportation under the Alien Enemies Act as well as under the regular immigration laws. While the Supreme Court can force the lower courts to pay greater respect to the president's authority in national security, the White House can also bring the controversy to a close by respecting the judiciary's reading of the Due Process Clause to provide a hearing even to illegal aliens accused of serious criminal violence. Both branches owe it to the Constitution, and the American people, to come to a common sense understanding of the obligations imposed on the other to protect the national security while respecting due process.
Yahoo
19-04-2025
- Politics
- Yahoo
Trump-Appointed Judges Clear Path for Deportation Flights to Take Off
Deportation flights have been cleared for takeoff as two Trump-appointed judges blocked attempts to pause proceedings over the use of an obscure wartime law. James Boasberg, chief judge of the Washington D.C. district court, has been attempting to pursue contempt proceedings against the Trump administration over its defiance of court orders to halt mass deportation flights, including Boasberg's order to turn back planeloads of migrants being deported to El Salvador's notorious CECOT prison last month. In a 2-1 decision, the D.C. Circuit Court of Appeals issued an administrative stay on Friday, pausing those contempt proceedings. Judges Gregory Katsas and Neomi Rao, both Trump appointees, sided with the administration while Judge Nina Pillard, who was appointed by Obama, voted against. The pause on the lower court's effort to hold the government accountable for potentially violating prior rulings prevents Boasberg from intervening in the attempted deportation of two Venezuelan men detained in Texas. The men are slated for rapid removal under the Alien Enemies Act—a 1798 law last used widely during World War II to expel nationals of enemy states. On Friday, Boasberg said that a recent Supreme Court decision had stripped him of jurisdiction to intervene. 'I am sympathetic to everything you're saying, I just don't think I have the power to do anything,' he said at an emergency hearing on Friday regarding the matter. The migrants are being held in Texas, which has been ruled to be outside of his court's authority. The Department of Homeland Security has said that no deportation flights are currently scheduled, but that it maintains the right to carry them out at any time. Migrants' lawyers, watching how the deportation of Kilmar Abrego Garcia was carried out, are warning their clients that removals could happen imminently without recourse or review.
