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.

Comments

[cannpro]

Oh my god! Josh Blackman is so retarded it hurts. Trump indefinitely imprisoning people and ignoring due process, which is a constitutional violation under the fifth amendment, is defensible because making campaign promises to violate the constitution excuses it. Meanwhile Biden, who was also elected, and made a campaign promise to forgive student is unconscionable, even though it’s a mere statutory interpretation and the consequences aren’t permanent, and were reversible.

I feel second hand embarrassment for Josh, being unaware of the depths of his own stupidity, he’s neither capable of tricking anyone into taking his silly arguments seriously, nor realizing his incompetence is immediately apparent to everyone. Truly a clown with delusions of grandeur.

[Stupid Government Tricks]

IANAL but I've been around humans long enough to recognize your childish language as childish. Why not address Josh's main argument, that the President is accountable by elections, while Supreme Court justices are not?

An unaccountable office has far more potential to do wrong than an accountable one. Just because the accountable one has done something you don't like is no reason to pretend your brain hurts from Josh being retarded.

Grow up. Respond like an adult.

It's really funny watching you idiots lose it over Josh. I learn more from him, and the few commenters who actually respond to him, than all you Josh haters combined, because you are so blinded that you refuse to address his points, just call him retarded and a fifth rate professor from a sixth rate school. Maybe lawyers think that is clever, but humans don't.

[SRG2]

Well, Blackman is wrong that the American people voted for Trump - 49.5% of the electorate did. And further, if so many people vote for a president who will act illegally as the law stands, change the law first.

[Roger S]

Trump got a majority of the electoral college, and that is what matters. He also got a majority of votes counted on Election Day.

[Stupid Government Tricks]

No Trump did NOT get a majority of the popular vote. He got 49.5%. Harris only got 48%. Neither got a majority.

[Roger S]

That is only if you count the late votes.

[Stupid Government Tricks]

No doubt your definition of "late" means "after Trump won".

[Frank Drackman]

That's why she lost, not enough "Late" voters voted this time.

[SRG2]

Electoral college votes count for electing the president. They don't count when you're making a claim about voters. (One of the signs of a cultist moron is when they claim that Trump won by a landslide. The EC is irrelevant to such a claim.)

Did he get a majority of lawful votes? Nope. That he got a majority on election day is the kind of argument that only a Trump-besotted imbecile could make.

[Brett Bellmore]

I think there IS a fair argument to be made that you've got a real problem when some of the states are still counting votes weeks after the election. It didn't really have any significance in 2024, but in the occasional election it can lead to the nation not knowing who won for a long while after the election, and really incentivize dubious counting practices once people on the ground know that they're deciding the election.

I mean, fortunately California is not likely to ever be close in a Presidential election where their EC votes will decide the matter, the way Florida was in 2000. But as a general principle, if a state is still counting votes 3 weeks after an election, something is deeply wrong with their election administration, and needs to be fixed.

[Riva]

Electoral votes reflect the state. President Trump won a vast majority of states. We don’t have a parliamentary system here.

[Stupid Government Tricks]

I know all that. I've ranted about that elsewhere. He beat the worst candidate in my memory by only 1.5%, and he's throwing away all the political capital he's built up on fighting courts over stupid illegal deportations.

But that's not my point. My point was that the Josh bashers are irrational idiots whose primary goal when they see a post by him seems to be to act like petulant little children instead of addressing his main point, such as here, where he says Presidents are at least accountable to the public, but Supreme Court justices are not.

And you are wrong that the American people did not vote for Trump. He won the Presidency in both the fictitious national popular vote and the real Electoral College vote. Harris did not.

[Brett Bellmore]

"and he's throwing away all the political capital he's built up on fighting courts over stupid illegal deportations."

Pisses me off, too. The most on target headline Reason has run in living memory was "Trump Is Giving Everyone What They Want In the Dumbest Way Possible. Man, is that ever true.

The only thing that's keeping him from dropping like a lead balloon is the novelty of a Republican President who IS visibly trying to fulfil his campaign promises.

You know who *I* blame most? The Republican Congress. They, too, ran on this platform, and they haven't lifted a finger to help Trump fulfill it. As a result he's fighting dirty because it's the only way he CAN fight given his lack of legislative backup.

By now Congress should have funded enough immigration judges to run a decent deportation program by the book. But they haven't done squat. I assume because they're still thinking they can continue the bait and switch which has characterized the federal GOP for decades.

[Brett Bellmore]

" He beat the worst candidate in my memory by only 1.5%"

He beat Hillary in the EC, he would have beaten Biden if not for the Covid lockdown recession and dubious election procedure changes, and he beat Harris in both the popular and EC.

Granted they were all close races, and he wouldn't have done nearly so well against even a halfway decent Democratic candidate, but the Democrats have puked up an awful nominee three times in a row now. I'm not at all sure they have it in them to break that streak.

Every time the Democrats attack Trump as awful, they need to reflect on why they keep nominating candidates who are so bad that they could only barely beat the likes of Trump by using a pandemic as an excuse to engineer a recession and make ad hoc changes to election administration. Because that's not a card they can exactly pull out on demand.

I'm expecting the Republicans do do badly in the midterms, because the Republican Congress isn't exactly giving their voters any reason to turn out for them. They might hold onto the Senate, they WILL lose the House.

And then the Democrats will devote themselves to reminding everybody why they vote Republican; It's not because Republicans do anything worthwhile, it's because Democrats do things that need to be blocked. And we'll go into 2028 with a candidate who isn't Trump, probably DeSantis, and what will the Democrats do? Nominate Newsom? Too white and straight, I expect. Probably AOC.

I don't think Republicans need to be too worried about that matchup.

[A Woman of No Importance]

OK, a clarification is urgently needed here. Trump was the better candidate in terms of selling himself to the American people. He is better at marketing himself than Harris is, I'll give him that.

But as to which of them would actually have been the better president, Harris would have been a mainstream president who governed from the center, maybe slightly left of center. (She is far too conservative to have been elected in most other Western democracies.) We would not have these potentially ruinous trade wars with nonsensical tariffs, she would not have destroyed relations with our allies that took decades to build, we wouldn't have had the utter chaos Elon Musk generated, she wouldn't have exacerbated the national deficit and debt with her billionaire tax cuts, and she wouldn't be trying to bully the entire rest of the world to do it her way. In other words, whatever marketing faults she may have, she would have been a sane, rational grownup.

Oh, and just wait until harvest time when all the produce is rotting in the field and lettuce is $5 a head because Trump deported all the migrant workers.

So yeah, he was the better snake oil salesman during the campaign.

[Joe_dallas]

Like most leftists, your definition of governing from the center is governing from the center of the left.

[A Woman of No Importance]

That's only because American politics skews so far to the right that what is considered the left here is the center in most of the rest of the world. We're an outlier. And you don't define terms based on outliers.

[Stupid Government Tricks]

"Harris would have been a mainstream president who governed from the center, maybe slightly left of center."

Yeah, right. The candidate who was so unpopular in 2020 that she dropped out before getting a single primary vote. The candidate who was so devoid of ideas that she had to copy several of Trump's ideas and spoke word salad so much she gave new meaning to "vegetarian".

She would have done whatever her woke puppetmasters wanted.

[A Woman of No Importance]

Harris would not have done all the boneheaded things I listed in my previous response. That aside, no one is denying she was a bad candidate, and a better candidate could have beaten Trump. But that's not the same as saying he's a better president than she would have been.

And she didn't *copy* Trump's ideas. Those were her positions, demonstrating she's far from the leftist the right makes her out to be.

[Riva]

“Mainstream”? WHAT?????? She would have taxed us back to the Stone Age. And deficit spending, it would be the current budget on steroids who are on steroids. Her regulatory and green agenda would decimate industry. Prosecutorial abuses? The Biden regime would look like amateur hour. And foreign policy? We’d be a few steps closer to WWIII. So, I think we could do without that kind of “moderate” for a while.

[Riva]

President Trump won a majority of states. Ask your AI tool to explain the electoral college if you don’t understand. As for the symbolic popular vote, he won that too.

So what we have here is an election denier. Good thing for you the repulsive Biden regime is out of power and Harris lost. They tended to take harsh actions against anyone who challenged them.

[SRG2]

Nobody denies that Trump won the majority of states, nor that he won the EC. But that is not the same as saying that the American people voted for him - Josh's claim, nor that he won the majority of the votes - he didn't. (Two out of three times he comprehensively lost the popular vote.) Winning the EC entitles you to the office of president. It does not in itself entitle you to claim a mandate for all your policies - disclosed or not. For that you require something more. Trump never got that.,

[Riva]

Yeah, it actually does mean he has a mandate. First he won. He’s the president and sets executive policy. Second, he won the popular vote. Third, he won a vast majority of states. It’s called federalism. Again, look it up. You claim to understand how presidents are elected but you really don’t.

[cannpro]

First, winning is not a mandate. Mandate means you are so overwhelmingly popular voters are endorsing all your ideas, and Trump is as popular as raw sewage. Second, Trump is exceeding his executive powers. Winning an election doesn’t give you the right to violate the constitutional constraints. Third he did now win a vast majority of States, nor does it matter. You have to win the electoral college no states. Carter won only 23 in 1976.

[cannpro]

Trump is a lunatic with severe pathological disorders including malignant narcissism and lack of grasp on reality. He’s not accountable to anyone because he’s psychologically divorced from reality with no feelings of political pressure. Trump is unaccountable and dangerous because he’s a belligerent nut job in need of serious medication.

[Stupid Government Tricks]

Ooooh, Mr Shrink with his diploma on the wall, proudly pulled from a box of corn flakes no doubt.

[Michael P]

We know you are, but what about Trump?

[Brett Bellmore]

Another example of the spastic ultra-Hitler genre.

[Speaking for normal people]

You are only insulting 80 million voters and proclaiming yourself and extraordinary human being whose mere word must be accepted.
In other words, you are a loon

[santamonica811]

Stupid,
To be fair, Josh, does make more dumb posts (and more dumb arguments in his various OPs) than all other VCers combined. So there's that. People give lots and lots of substantive responses to Josh's OPs.

There are VC members who do have the integrity to read the posts on their own OPs (including Orin, Eugene, Bernstein, and probably others) and often respond. This invites some measure of civility. Josh never does this. Due to fear or cowardice? Due to a lack of respect for his readers? Due to some other reason? Who knows the actual reason(s) why . . . Josh has never explained. So we gentle readers are left to speculate.

I will say that Josh obviously has a real intellect on him. Given that; I believe that the only explanation for many of his posts is absolute bad faith . . . that some of the arguments he has made in the past are so full of shit [a] that no one (who is not mentally deranged/retarded) could be making them in good faith, [b] that Josh is not, in fact, mentally enfeebled; and therefore [c] that he is indeed posting in bad faith, to [d] troll us, or [e] raise his profile to get some sort of appointment from Trump, or [f] some South Park gnome-profit of some sort.

[Stupid Government Tricks]

Look at the responses here.

cannpro: childish, not responsive. Twice.
SRG2: not responsive.
Roger S: wrong and not responsive. Three times.
santamonica811: again with the insults.
Kazinski: not responsive. But at least not childish.
Lathrop: off in the weeds someplace.
Botaglove: political rant.
MaddogEngineer: political rant, not responsive.
Josh R: barely on a subtopic, ignores the main topic.
Vryedni: pulls in impeachment contrary to what Roberts said; not responsive and apparently can't read.

Here's what Josh said which no one has discussed:

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 short: Presidents are accountable. Supreme Court justices are not; Chief Justice Roberts says it's not fair to impeach judges for their decisions, only, presumably for corruption or fraud or some other high misdemeanor. No one has addressed that. Not one single commenter.

That's why I call all you clowns Josh bashers.

[Darwinnie]

I know you ANAL. Blackman’s premise would undermine if not overrule 200+ years of precedent regarding judicial review. That’s a cornerstone of our constitutional order. Yes, judges are not “accountable” to voters, and that’s by design. So they’re independent of shifting political whims. And Blackman only cares when they don’t get what HE thinks is the correct ruling. Where was his disdain when they overruled Roe v Wade?

It’s fine to complain about the rulings. But Blackman is laying a foundation for Trump to ignore the courts entirely. That’s what the people like Blackman and Trump are going for. And that’s awful for everyone.

[Stupid Government Tricks]

And yet something soooo obvious wasn't brought up by any body here except you, and then only because I ranted about no one bringing it up.

This is why I have no respect for Josh bashers.

[Sarcastr0]

If your argument is 'that's a good point, but because no one else has made it I will ignore it' you are more interested in Internet fight club than discussion.

[Stupid Government Tricks]

No, dummy, try reading in chronological order. My complaint BEFORE his post was that NOBODY was answering Josh's main point. Then he brought it up, AFTER my complaint.

[mike petrik]

You are missing the point. The problem is not that judges are not accountable to voters. That is by design. The problems is that they are not accountable to anyone, and whether this is by design is highly debatable. The three checks against the judicial branch are (i) court-packing, (ii) impeachment, and (iii) circumscription of jurisdiction. History reveals that all three are very clunky to implement. While judicial review is most certainly baked into the constitution's framework, and the evidence is that most of the Framers understood this, it is less clear that most understood the implications as well as Brutus. The lack of practical accountability means that it is essential that the Court exercise self-restraint. Blackman is correct.

[Stupid Government Tricks]

I am missing what point? Yours?

My complaint is that none of you Josh bashers answer his point. I could give a rat's ass what point all you Josh bashers want to throw into the kettle.

[Riva]

They’re trolls. It’s what they do. I’d suspect some lucrative “nonprofit” was paying them given the volume of comments but I thought President Trump shut that down. I guess there could be a few hiding in the shadows.

[SRG2]

SRG2: not responsive.

How not? I: didn't argue against everything but I made one correct point against him.

You also forget, many posters here have seen Josh posting for years and years and after originally posting responsively, are probably tired of doing so when the same meta-argument keeps getting presented. If someone were to post that the earth is flat, how long before people would stop addressing his argument and merely respond, you're a fuckwit, or words to that effect. So it is with Josh.

[cannpro]

“ some of the arguments he has made in the past are so full of shit [a] that no one (who is not mentally deranged/retarded) could be making them in good faith.”

But this is fully consistent with bad faith and stupidity not being mutually exclusive. If Blackman weren’t a complete moron I’d expect him to come up with at least a halfway convincing argument from time to time. He engages in bad faith because he’s incapable of keeping his arguments consistent from one O0 to the next and he is an imbecile because each made up argument is so transparently stupid.

[Dr. Ed 2]

The three things you fail to understand is that these decisions will be the political converse of the Dobbs decision -- that core Dem voting blocks -- Blacks and *legal* Hispanics -- want the Illegals gone. Particularly the drug dealing gang members.

We are going to see a lot of "Willie Horton" ads about how Trump tried to make your neighborhood safe, but the evil Supreme Court prevented him -- so help him by voting for a Congress that will let him do it.

And Herr Roberts is wrong -- Judges can be impeached for political views, and (unlike Sameul Chase) they also can be convicted. Gerald Ford put it best -- "an impeachable offense is whatever the majority of the House says it is."

And the true wild card is a replacement for Sotomayer. Her health isn't the best, and if Jesus calls her home next Tuesday, things will get interesting...

[Heedless]

Because if the President spent the campaign promising that he would invoke the Alien Enemies Act to impale his political opponents on the White House Lawn, the fact that the American people elected him on that promise would neither expand the Act to authorize those impalements, nor make them less of a violation of the 8th Amendment. The Supreme Court would tell him to knock it off, and they wold be right.

Elections don't confer divine right. They give the President limited powers within the existing Constitutional and legal framework. If he oversteps, it is the courts' job to rein him back in.

[Riva]

In light of recent judicial abuses, perhaps time to take seriously impeachment. Judges, including S.Ct. Justices, only hold their office during good behavior. They haven’t been too good lately.

[Speaking for normal people]

NO, you don't even understand due process !!!!

Since the latter part of the nineteenth century, however, the original understanding of the due process clause, including the meaning of “liberty,” has changed enormously...Towards the end of the nineteenth and into the twentieth century, the courts used the due process clause to review state regulation of businesses, industries, and utilities in the area of economics to see if such regulations were “fair” and “reasonable” or whether they violated the “property” rights or “liberty” of the proprietors.

[Frank Drackman]

Josh is "retarded"?? are you sure he's not a big Poo-Poo head with stupid hair?? and speaking of being "retarded" maybe I am to, because for the life of me, I don't understand your
"...and made a campaign promise to forgive student..."
One thing I do know, you're an ugly chick,
like Clint Eastwood in "The Line of Fire"
"I know things about people, it's my job"

Frank

[Armchair]

"Trump indefinitely imprisoning people and ignoring due process, which is a constitutional violation under the fifth amendment, "

Now tell us how you feel about Obama ordering the assassination of US Citizens without a trial. That's (D)ifferent.

[Kazinski]

I think Trump* should be able to use the AEA for what he characterized as a foreign incursion.

With two caveats:
1) he should not be able to use the AEA on people Biden paroled into the US, that's not what a foreign incursion looks like.

2) he should give them meaningful opportunity to file habeas petitions as SCOTUS ordered, meaningful to me means about a week.

He got one bite at the apple with Boasberg, and got a win. He tried to play it too cute with the 5th circuit case and got rightly called on it.

And unlike Roberts characterization of the judges as refs, some of them clearly see themselves as players, and they have picked a side.

* I don't think Trump is actually directing the tactical strategy, he gave Hohman, Noem, and the lawyers their marching orders to get the illegals out and they are doing their best to comply despite skating very close to or over the line with the Courts.

[Brett Bellmore]

"1) he should not be able to use the AEA on people Biden paroled into the US, that's not what a foreign incursion looks like."

That's what a foreign incursion aided and abetted by a President looks like.

"2) he should give them meaningful opportunity to file habeas petitions as SCOTUS ordered, meaningful to me means about a week."

This I'll agree with. They have to be given due process, and in the end that's not a lot of process, really.

[Sarcastr0]

a foreign incursion aided and abetted by a President

This is your political thriller, with your own conspiracy and your own definition of words.

Not even the Administration is making this argument.

[Brett Bellmore]

Yeah, right. You're still pretending that illegal immigration didn't shoot up the moment Biden took office as a matter of deliberate policy. Despite the fact that Trump has twice now demonstrated that it's possible to secure the border with the same resources Biden had.

Biden didn't WANT the border secure. He literally had the border patrol going around ripping out barbed wire, instead of laying it down!

High levels of illegal immigration were a policy objective under Biden. You can deny that all you want, you just look silly.

[Stephen Lathrop]

The party to blame is mostly the party which acts, not the party which reacts. But probably cases differ. Which party threatens greater harm is a point worth consideration.

[Joe_dallas]

Stephen Lathrop 10 hours ago
Flag Comment
Mute User
The party to blame is mostly the party which acts

Correct - the whole problem stems from the democrat party's activism in promoting the illegal immigration at the start of the Biden administration and continues today.

Coupled of course with the denial of the democrat party's behavior

[Botaglove]

https://x.com/JoshEakle/status/1924600067249344578

Joshua Reed Eakle
@JoshEakle
These people entered the US legally and ended up with a life sentence in a foreign concentration camp.

Unthinkable evil.

There are no other words to describe it.

[Roger S]

No, they did not enter the country legally. That article only calls it legal if they can make an asylum claim.

[Krayt]

Maybe he forgot the 'i'. Enter the country illegally, and ended up with a life sentence in a foreign concentration camp.

Better?

[Speaking for normal people]

This is the classic fake distinction.
You say they entered illegally and then you say it shouldn't matter because they shouldn't end up in a foreign concentration camp. but you were utterly blind as milliions poured in. Really that 10 million illegals later you are surprised ????? While criticizing Trump you are bashing Biden AND DON"T EVEN KNOW IT

[Kazinski]

The only safe option is to self deport now.

[Sarcastr0]

Evil.

[Frank Drackman]

They are, aren't they? that's why they should self deport. They can come back when a DemoKKKrat wins in 2032 or 2036. (actually they won't, because only way the DemoKKKrat's become competitive in Presidential erections is to take more main stream positions)

[Mr. Bumble]

...or really, really fortify the election.

[MaddogEngineer]

Sorry, no. Campaigning on doing something of questionable legality does not make that illegal thinglmagically legal. It doesn't matter whether the thing is forgiving student loan debt or invoking the AEA. That's the opposite of the rule of law.

Only a partisan hack would suggest otherwise. Because I'm pretty sure you always thought forgiving student loan debt (absent congressional action) was illegal.

[Roger S]

We have 10-20 million illegal aliens. No one knows exactly. Trump was elected to do something about them.

[Stephen Lathrop]

Roger S, I have been lax on site maintenance. Thanks for the reminder. Muted.

A note to others, once again. If you hesitate to mute the least reasonable commenters, you miss a double benefit. First, it improves your experience on this blog to do it, and, second, you have a chance to discourage crap commentary.

I comment on this blog to test my own views against opposition. Hence, to mute quality commentary for reason of viewpoint discrimination is the last thing I want to do. But I do want better comments, across the political spectrum. So I encourage good commenters to mute bad ones.

Let's try to do together a task the proprietors maybe ought to be doing, but have chosen not to.

[Mr. Bumble]

Capt. Dan smiles.

[Speaking for normal people]

This is bad lawyer strategy because it is illogical and self-refuting.
Rule of law is not YOU deciding that invoking AEA must be wrong.
There is an AEA ergo there must be a legal invocation that exists.Secondly,
Supreme Court allows Trump to strip legal protections from 350,000 Venezuelans who risk deportation --- so your assumption that legal protections are inseparable from just having your physical asss here can't be right

[Brett Bellmore]

Notice that you jumped from "questionable legality" to "illegal". If something is of "questionable" legality that means there are arguments for it being legal.

Invoking the Alien Enemies act is definitely in the "questionable" zone, in that there are arguments both ways. It's not a slam dunk in EITHER direction.

Are they necessarily great arguments for it being applicable? No, not really. But after 3/4 of a century of constitutional Calvinball, it's pretty clear that arguments don't have to be great in order to prevail. Our constitutional jurisprudence would look wildly different by now if only good arguments won before the Supreme court.

[Stephen Lathrop]

Bellmore, maybe rethink that last paragraph. It sounds too aspirational, in a bad way.

[Brett Bellmore]

It's not an aspiration, it's an observation. I'd love it if only reasonable arguments could prevail at the Supreme court, but that would make a hash of a great deal of current precedent, so it's simply not happening.

[Sarcastr0]

It's nihilism.

The Court doesn't agree with your take, so bad faith by the admin is fine.

[Josh R]

Sure, invoking the AEA is fine. But, shipping people out in the middle of night when a judge said stop and almost shipping them out when SCOTUS said stop is far, far worse than the blame SCOTUS gets.

[Vryedni]

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.

Baloney. SCOTUS justices can be impeached as surely as POTUS can. I wonder if Josh really believes his own bullshit.

[Stupid Government Tricks]

And you can't read.

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?

Trump has never claimed he can't be impeached. Roberts has. Which one has more potential to be a tyrant?

[Brett Bellmore]

Well, Trump, obviously. Because Trump has an actual army.

Roberts can say that he can't be impeached for his decisions all he likes. If Congress does it anyway, fat lot of luck he's going to have putting up a fight about it.

I mean, neither of them has a lot of potential to be a tyrant, but when the rubber hits the road, Trump has more.

[Speaking for normal people]

Wow, now there is an uninformed statement.
If anyting the Army is pro-Trump mainly because it HATED the Biden picks so disgusting to our troops

LIke this MAN
https://upload.wikimedia.org/wikipedia/commons/thumb/2/28/Admiral_Rachel_L._Levine.jpg/1200px-Admiral_Rachel_L._Levine.jpg

[Brett Bellmore]

Huh? That wasn't any sort of slam against Trump at all. I was just addressing the question of who had more 'tyrant potential', a President or the Chief Justice.

And obviously it's the former. The latter can only act like a tyrant so long as the elected branches feel like tolerating it. Presidents have actual power they can deploy.

Roberts needs to get it through his head that he has absolutely no say whatsoever about on what basis he might be impeached, if Congress feels like doing it.

[Sarcastr0]

Why do you bother talking to people when you can just shoot them?

[Frank Drackman]

"When you have to shoot, shoot, don't talk" (HT Tuco Benedicto Pacifico Juan Maria Ramirez (AKA "the Rat")

[Dr. Ed 2]

Ok Brett, the adjective should have been "likelyhood" rather than "potential", but -- in common usage -- the meaning is the same.

And you assume the military would obey Trump -- I don't. It didn't the last time, remember General Milley?

[Gregory]

Josh, your only hope of becoming a Trump appointee is a wizard or skilled surgeon making you a blonde woman. You need to find a backup plan and soon

[Kazinski]

I guess you missed it, Josh got an appointment.

https://www.whitehouse.gov/briefings-statements/2025/05/president-donald-trump-names-advisory-board-members-to-the-religious-liverty-commission/

[Frank Drackman]

Ooohhh what a burn on Gregory!!, I'm guessing you're a Pusher of the Wood Kaz? (for the culturally illiterate that means "Chess Player")
Lenin and Stalin were bad Dudes, but brilliant in requiring every Russian to learn the basics of Chess (and Hockey, they'd have chosen Baseball, but Spring practice in Murmansk? (May 20, and the high is 43). Chess requires anal-yzing your every possible move, and more importantly, your opponents responses to your move. It's why there hasn't been a Non-Russian men's champion since Bobby Fischer won in 1972

Frank "P-K4"

[Sarcastr0]

Pretty sure that's not the one he wants.

[Though I'm not sure I buy the instrumental thesis for they Blackman's posts are so bad; tribalism and slight increases in fame combine into a helluva drug.]

[decius]

“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.”

They’ve already been ordered to facilitate the return of a detainee, and that detainee has not been returned. They are not respecting the Supreme Court’s judgment, right now. Its just as simple as that.

[Dirtman]

Article III court's have no authority to order the excutive branch's exercise of its discretionary diplomatic powers. In other words, courts have no jurisdiction over Garcia, a El Salvador citizen in the custody of the El Salvador government. Garcia's fear claim is moot. The Barrio 18 have been either locked up or fled the country. Harmless error. Garcia recieved all the process he is due. Most people are tired of hearing about it.

[decius]

Josh thinks that the Trump admin will respect the rulings of SCOTUS, but I think their views are closer to yours. They do not care.

I have two points to make though.

First, Garcia did not receive all the process he is due. The Writ of Habeas Corpus is one of our oldest Constitutional principles and he was denied the hearing it demands.

Second, I'm sorry that you're tired of hearing about it, but I have really bad news on that front. You are going to be hearing about these people for the rest of your life.

We know that a bunch of these people are totally innocent, and we know that they are never coming back. As time moves forward, the permanence of this and the evil of it will be more and more clear. People who DO care about our Constitution will never allow you to forget it.

[Martinned]

Article III court's have no authority to order the excutive branch's exercise of its discretionary diplomatic powers.

Where does it say that?

[Frank Drackman]

It doesn't say they can't order the summary executions of Ill-legal Aliens either, so would that be Kosher?

[Commenter_XY]

St. Abrego ain't coming back.

[decius]

I agree. None of these people are coming back, despite clear court orders to the contrary.

The Trump Administration does not care about SCOTUS or ancient Constitutional principles like the "Great Writ." They want to look like tough guys on Fox News. There is no way they can bring any of these people back while looking tough.

[Stephen Lathrop]

There are ways to make Trump look less tough, if he refuses to comply with Court orders. Problem is, they require a Court motivated to make Trump look less tough, which seems not to be this one. Like Congress, the Roberts Court ought to defend its own powers before it even considers other issues. Neither branch seems wise enough to understand that.

The nation is living out a Founders' nightmare. All 3 branches lapsed into fecklessness together.

[Frank Drackman]

Kill-more Garcias is in El Salvador, you know how those Salvadoras are, they don't exactly do things with alacrity, and maybe he doesn't even want to come back, he looked pretty happy drinking Margarita's with that Congressman.

[Heedless]

And that right there is the problem.

When you make this argument, it sounds like Frank doing his regular round of trolling. Fits perfectly between "Ear-aq" and the V occasional fancy about having people you don't like murdered.

When Trump makes this argument, he sounds like, well, you. The President responding to the Supreme Court shouldn't sound like a smirking, mid-rent internet troll.

[Frank Drackman]

This Country was founded by "smirking, mid-rent internet trolls" (OK, AlGore hadn't invented it yet, but Benny Franklin's Almanacs were the 18th Century version of "Blogs)
and you want to see the very definition of a "Smirking Troll" just look at any random photo of the "Wise (Ass) Latina" Sonia Sotomajor

Frank

[Krayt]

The People, when creating their constitution, set limits on themselves and the politicians they may hire. They were well aware of the gift of gab, and abuses of "emergency! Gimme power to deal with it!" in the downfall of historical democracies, or hell, things remotely like it.

Not making stuff up.

[Speaking for normal people]

You are compoletely fabricating a clash. The Executive does not take an oath to uphold the Constitution as the SCOTUS sees it. With that attitude Lincoln would have let Dred Scott unchallenged. I know you think this is a cutting edge question but it is a non-question in traditional Constitutional law
Pesident Reagan : “[T]he framers knew unless judges are bound by the text of the Constitution, we will, in fact, no longer have a government of laws, but of men and women who are judges.”
So now Brown and Sotomayor , as unhinged as can be

Thomas Jefferson warned that "if the Constitution means whatever judges want, it would be like “a mere thing of wax, that they could twist and shape it into any form they please.”

You won't deny first principles to save face will you ??????
"“Nowhere in Article III does it say that the judges have the same legislative power as Congress or the same executive authority of the president. They can’t enter a judgment that’s comparable to the laws created by Congress and enforced by the president"

Normal folk see this clearly and know that objections are in the main just ideological

[Speaking for normal people]

There is a management principle here that everybody misses. You can see it Drucker and Deming clearly.

Supreme Court AVOIDS a stand
Divide responsibility and nobody is responsible.

W. Edwards Deming

So much of what we call management consists in making it difficult for people to work. Drucker

And about legal BULLSHIT ,which is the main SCOTUS output lately, esp Kagan, Sotomayor, and Brown
“No institution can possibly survive if it needs geniuses or supermen to manage it. It must be organized in such a way as to be able to get along under a leadership composed of average human beings.” ~Peter Drucker

About Kamala and Joe and the upset of the election
[A] dissatisfied customer does not complain: he just switches.

All that we have has come from people that are responsible only to themselves, only themselves to satisfy.

ON stupid judicial precedence
Experience teaches nothing. In fact there is no experience to record without theory… Without theory there is no learning… And that is their downfall. People copy examples and then they wonder what is the trouble. They look at examples and without theory they learn nothing.

[Krayt]

In other news, apparently New Orleans has been running a facial recognition system on 200 cameras, automatically sending text messages to nearby officers when it registered suspects.

Yeah...panopticon.

Do not build tools of tyranny. Then they cannot be abused.

[Frank Drackman]

Maybe they should try hiring some competent jail guards.

[Stephen Lathrop]

Krayt and me, and we agree. Rare moment.

[JamesMarkels]

Prof. Blackman does not really set up the comparison, which is between (1) the President issuing an illegal executive order that immediately affects the constitutional rights of thousands of people, and (2) an order of the Supreme Court TEMPORARILY enjoining the enforcement of that executive order to allow the courts to adjudicate the legality of that order before its effects are imposed.

Obviously, if it comes to blame, the movant causing the problem is the obvious one, and that's the President. But if we also consider the scope of harm, it is clear that temporarily halting an illegal act in order to properly adjudicate its legality is preferable to the Court simply throwing up its hands and doing nothing (or only doing piecemeal acts). If the rule of law is to mean anything, it must be able to minimize illegality. Temporary injunctive relief is available in those narrow circumstances where irreparable harm is imminent from an act or law that appears on its face to conflict with established law.

Perhaps Blackman can explain what wonderful things are being lost by having a President temporarily restrained from enforcing an illegal executive order. We can then compare that to the alternative. If, for hypo's sake, the SCOTUS is "abusing its power" by issuing the temporary injunction, okay: tell us how that act is harming the country MORE.

Sadly, Blackman's post needed more thought before it was published.

[JamesMarkels]

I will add that if the problem is "unelected justices get to decide matters of law and that's worse if the SCOTUS is wrong on the law," the answer to that is what it always has been: SCOTUS can correct itself later on. SCOTUS has reversed itself on a number of precedents. If you consider Roe v. Wade to have been "illegal," in that it created law that should not have been created, we've all seen how that got reversed. But that problem is not evident here. SCOTUS has not yet ruled on the merits. Blackman assumes that SCOTUS will rule against the administration, yet he claims Trump's position is "far more legally defensible" than Biden actions SCOTUS struck down (student loans and the eviction moratorium). Is he going to claim that any loss by Trump here means that the Court is abusing its powers? Really? Because that would be a truly interesting argument to hear more about -- and right in line with Trump's habit of accusing any court that rules against him as abusing its powers.

I'll also note that Blackman does not try to argue that the SCOTUS has handled such injunctions differently against Trump than against other presidents.

And finally, boy is it funny to hear someone claim that Chief Justice Roberts is acting all "alpha and omega" when Trump is the one claiming that he runs the world, that America is like a big store that he alone controls, that he is the only one that can solve whatever problems beset us, and so forth. Meanwhile, the Chief is one vote out of nine. Jesus, have some awareness.