The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Is POTUS Or SCOTUS More To Blame In A "Clash Of Illegalities"?
Our expectations must be much higher for the unaccountable Supreme Court than the popularly-elected President.
Today, Ed Whelan wrote a post about A.A.R.P. v. Trump II. For argument's sake, Ed assumes that Justice Alito is correct that the majority "acted wrongly in enjoining action that is probably, or even certainly, illegal." If Alito is right, how would Ed assign blame?
I am not going to argue that two wrongs make a right. That is, if we continue to assume for the sake of argument that Alito's dissent is right, I am not going to argue that the blatant illegality of the Trump administration's actions would justify or excuse the majority's injunction. But if we are going to assign relative blame, I would place much more blame on the Trump administration for its entire Alien Enemies Act folly, which quite predictably triggered an unnecessary and unproductive clash with the courts. Others might well disagree.
I disagree. I think Ed gets things 100% backwards.
Donald Trump is who he is. On the campaign trial, Trump said he would invoke the Alien Enemies Act to effect mass removals, including of foreign gang members. The American people knew this, and still voted for him. As soon as Trump came into office, he kept this campaign promise, and invoked the AEA. These are statutes with very little judicial precedent. His order, even if contrary to how judges now read the Alien Enemies Act, was not foreclosed by any binding precedent when signed.
I think his actions are far more legally defensible than Biden's policies concerning student loans and the eviction moratorium. If Trump ultimately loses this litigation--and I suspect he will--he has stated many times that he will abide by the Supreme Court's judgment. But above all else, Trump is accountable. He has suffered political losses for removing aliens under the AEA, and these actions will likely help Democrats take the House in the midterm elections. Once that happens, we will be see non-stop hearings, subpoenas, investigations, and likely another impeachment for abuse of power.
But what are the consequences when the Supreme Court abuses its power? Chief Justice Roberts has lectured us that judges cannot be impeached for their decisions. The only remedy is the "normal appellate process" to the Supreme Court. But what happens when the Supreme Court is at fault? To quote Justice Alito's flag, does the only appeal go to heaven? Brutus, the Anti-Federalist, warned that Supreme Court Justices who were "independent of the people, of the legislature, and of every power under heaven" would "generally soon feel themselves independent of heaven itself." Brutus was right.
In John Roberts's world, he is the alpha and omega: he determines what is legal, and his determinations are therefore legal. L'État, c'est moi. The standard for the Supreme Court must be much higher. The Supreme Court should avoid even the slightest hint of impropriety. Yet the Court's decision in A.A.R.P. v. Trump blatantly misstated the facts, slandered the good name of Judge James Wesley Hendrix, manufactured a new legal principle by citing a conclusory legal treatise, permanently curtailed the President's executive powers, and expanded the Court's original jurisdiction (Justice Alito's dissent picked up on this point). And all of this was done to halt a policy that invoked a two-hundred year old authority, that was the centerpiece of Trump's presidential campaign.
Only Justices Alito and Thomas had the fortitude to call out the majority. At least Justice Kavanaugh--who has really been distinguishing himself of late--would have pushed through to decide the case.
Going back to Ed's post, if we are to assign relative blame, the unaccountable Supreme Court warrants far more blame than the accountable President. I don't think this comparison is even remotely close.
On Friday, I dashed off a quick post about A.A.R.P. v. Trump II. I read the decision, and wrote the post on my phone while waiting on the three-hour queue for the new Harry Potter ride at Epic Universe. (I did a TV interview with a view of the park.) I will have much more to say about this case in due course.
