When 99% of your decisions are final because they never get appealed, the mindset that can develop looks past the question of whether you should be making the decision at all.
Not a single district court judge managed to raise any objection to the depredations of public health in March/April 2020 nor the years following. Basic constitutional rights of American citizens were violated on a daily basis, businesses and jobs were destroyed, children’s educations were destroyed, and societal damage is still ongoing. Public health/media/government/judiciary arrogated basic human rights to themselves. The ACLU did nothing. The legal system did nothing.
True, but the administration is evidently taking a longer view. Think of how these same people have repeatedly tried to provoke Russia into an escalation that inflames the current conflict into WWIII. One thing about them is that they use the same bag of tricks over and over. Here, it seems safe to assume that they are hoping to provoke the administration into committing a theoretically impeachable offense, which would expand the lawfare arsenal should they reclaim the Senate. Best to take the Russian approach.
These are nonsense concerns. He's gone in 3.5 years, Senate majorities come and go, but no one is getting to 67 and even the dumbest Republican Senator likes his job too much to convict Trump in a Senate trial (and there aren't enough who might be retiring or can get away with a vote to convict). Lawfare isn't going to stop anytime soon regardless of any of this.
There are plenty of concerns re: blowing up judicial supremacy, but lawfare and impeachments and Senate majorities aren't any of them.
The administration invoked the AEA for strategic purposes to achieve statutory clarification through judicial review all the way to the Supreme Court. In a sense this exposed the activist judges, and in the process returns executive power to the executive. That’s the long-term objective behind invoking the AEA for TdA. These illegal aliens can still be deported under immigration laws.
There was a time, not long ago, when the judiciary seemed like the smart ones, the ones who were above the fray of politics and "sides." John Roberts should take a bow in destroying that. He could reign in the district dictators if he wanted, but he obviously doesn't. The entire federal court system needs to be reworked, but that would take an act of Congress and I won't even go there.
District judges should have to be reconfirmed every 6 years. A lifetime appointment, yes, but a serious review that could get rid of the incompetent outliers without the burden of impeachment. This one and done, forever, is BS.
This was difficult to read, not because it’s late but because these Decisions are boring when the Judge is trying to make a case when there isn’t one. Ask any American citizen who reads the news about the facts of the case from invasion to destruction of a towns and people in the CO area. We haven’t forgotten. Thank God the President hasn’t either.
"With regard to President Trump’s invocation of the AEA, the questions would be 1) is the person i a Venezuelan citizen, 2) is the person over 14 years of age, or 3) is the person a member of TdA?"
___
I've mentioned this before but I don't see #3 above, the AEA doesn't appear to provide for a qualified or subset of the AEA passage: "*all natives, citizens, denizens, or subjects of the hostile nation or government, being of the age of fourteen years and upward, who shall be within the United States and not actually naturalized*, shall be liable to be apprehended, restrained, secured, and removed as alien enemies."
So, unless there's a construction or method of modifying the above 'penalty', it would appear to this humble commenter that once the 'declaration' has been made, ALL citizens of the country are eligible for removal, TdA member or not.
It seems a lot of the litigation revolves around the extent a President is allowed to (simply) declare a condition exists (thus allowing him to engage in certain actions).. and what authority courts have to make the President prove his case.
In this case, it seems that both the definition of invasion and whether such an invasion has taken place are at issue. To take (what is to me) a ridiculous extreme, could a President declare that China has invaded the US and thus start deporting Chinese nationals? Does a court have any authority to effectively say “you can’t just say X exists?
And I have the same question with regards to the tariffs, as whether a ‘national emergency’ exists. As with Covid, does a President get to simply state an emergency exists and is thus able to implement X or Y policy?
I agree with Stephen. The lack of good faith by a POTUS in exercising powers under the AEA would be best left to Congress, not individual federal judges.
I don’t mean to be argumentative, but what is it about the AEA (and/or its invocation) that removes the courts from the equation in a way that differs it from, for example, Biden’s attempt to cancel student debts?
(In my mind), both involve some rather contorted definitions and claims of Presidential powers derived from legislation (and not the Constitution itself). Why did the Courts get to rule on (and reject) Biden’s power grab but not in this case?
IMO it's the direct delegation of power by Congress via the AEA to the POTUS, requiring only a "Proclamation." Very few statutes are written in that fashion.
That's why one SCOTUS decision from the era described it "as unlimited" an expression of authority as Congress could confer.
However, considering the current issue at hand, waiting for the electorate or Congress to deal with the potential impediment to the Executive’s authority does little more than ‘kick the can down the road’.
Remember Roberts's Obamacare opinion? The only line in it that was defensible was towards the end. 'In a democracy/constitutional republic (I forget that exact term he used) the people are sovereign.'
There's a lot of truth in that. If that means it takes years or you never quite get to the majorities needed to fix Obamacare that's life in a democracy/constitutional republic.
The problem is the judiciary doesn't really believe the people are sovereign, or that's at best a situational value for the judiciary.
Donald Trump wasn't exactly shy in telling the world he wanted to deport all the illegals when he ran in 2024. If the people had a problem with that they would have voted differently. If they have a problem with it going forward they can vote accordingly in 2026 and 2028.
That's how the system is supposed to work.
A district judge answering every question with NO followed by months and years of appellate navel gazing is many things, but that's not a functioning democracy/constitutional republic.
Why should the judiciary believe or care whether the people are sovereign, when the judiciary is not beholden to the ‘majorities needed in a democracy/constitutional republic?’
The premise behind that question is we live in a bad faith judicial supremacy and things like elections and popular will are little more than cosplay. That brings things back to my question further up above which is why should Trump bother following along in a bad faith judicial supremacy when judicial supremacy depends 100% on Trump (or whoever is the president) following along with and carrying out their nonsense.
I agree completely, the point being despite being contrary to the premise of a judiciary, what we are often currently viewing are ones that are in line with Lawfare and political opinion.
Not a single district court judge managed to raise any objection to the depredations of public health in March/April 2020 nor the years following. Basic constitutional rights of American citizens were violated on a daily basis, businesses and jobs were destroyed, children’s educations were destroyed, and societal damage is still ongoing. Public health/media/government/judiciary arrogated basic human rights to themselves. The ACLU did nothing. The legal system did nothing.
Well written, highly informative.
Thanks Ship
Bill,
All of this analysis presupposes a good faith dispute between the branches or a good faith error by the judiciary
None of what's gone on the last four months is good faith by the judiciary.
Why should trump continue to treat their rulings in a good faith manner?
True, but the administration is evidently taking a longer view. Think of how these same people have repeatedly tried to provoke Russia into an escalation that inflames the current conflict into WWIII. One thing about them is that they use the same bag of tricks over and over. Here, it seems safe to assume that they are hoping to provoke the administration into committing a theoretically impeachable offense, which would expand the lawfare arsenal should they reclaim the Senate. Best to take the Russian approach.
These are nonsense concerns. He's gone in 3.5 years, Senate majorities come and go, but no one is getting to 67 and even the dumbest Republican Senator likes his job too much to convict Trump in a Senate trial (and there aren't enough who might be retiring or can get away with a vote to convict). Lawfare isn't going to stop anytime soon regardless of any of this.
There are plenty of concerns re: blowing up judicial supremacy, but lawfare and impeachments and Senate majorities aren't any of them.
The administration invoked the AEA for strategic purposes to achieve statutory clarification through judicial review all the way to the Supreme Court. In a sense this exposed the activist judges, and in the process returns executive power to the executive. That’s the long-term objective behind invoking the AEA for TdA. These illegal aliens can still be deported under immigration laws.
There was a time, not long ago, when the judiciary seemed like the smart ones, the ones who were above the fray of politics and "sides." John Roberts should take a bow in destroying that. He could reign in the district dictators if he wanted, but he obviously doesn't. The entire federal court system needs to be reworked, but that would take an act of Congress and I won't even go there.
DEI destroyed any chance of the "smart ones" being selected. Intentional, of course. And these dummies are in for a life appointment. We're screwed.
District judges should have to be reconfirmed every 6 years. A lifetime appointment, yes, but a serious review that could get rid of the incompetent outliers without the burden of impeachment. This one and done, forever, is BS.
This was difficult to read, not because it’s late but because these Decisions are boring when the Judge is trying to make a case when there isn’t one. Ask any American citizen who reads the news about the facts of the case from invasion to destruction of a towns and people in the CO area. We haven’t forgotten. Thank God the President hasn’t either.
This judge probably goes to sleep dreaming of pnumbras and emanations which were the basis of Roe.. Just find a way to make it up.
"With regard to President Trump’s invocation of the AEA, the questions would be 1) is the person i a Venezuelan citizen, 2) is the person over 14 years of age, or 3) is the person a member of TdA?"
___
I've mentioned this before but I don't see #3 above, the AEA doesn't appear to provide for a qualified or subset of the AEA passage: "*all natives, citizens, denizens, or subjects of the hostile nation or government, being of the age of fourteen years and upward, who shall be within the United States and not actually naturalized*, shall be liable to be apprehended, restrained, secured, and removed as alien enemies."
So, unless there's a construction or method of modifying the above 'penalty', it would appear to this humble commenter that once the 'declaration' has been made, ALL citizens of the country are eligible for removal, TdA member or not.
Why is this wrong?
The fact they may be eligible does no require that all in the group to be treated the same.
Question for the constitutional lawyers:
It seems a lot of the litigation revolves around the extent a President is allowed to (simply) declare a condition exists (thus allowing him to engage in certain actions).. and what authority courts have to make the President prove his case.
In this case, it seems that both the definition of invasion and whether such an invasion has taken place are at issue. To take (what is to me) a ridiculous extreme, could a President declare that China has invaded the US and thus start deporting Chinese nationals? Does a court have any authority to effectively say “you can’t just say X exists?
And I have the same question with regards to the tariffs, as whether a ‘national emergency’ exists. As with Covid, does a President get to simply state an emergency exists and is thus able to implement X or Y policy?
I agree with Stephen. The lack of good faith by a POTUS in exercising powers under the AEA would be best left to Congress, not individual federal judges.
I don’t mean to be argumentative, but what is it about the AEA (and/or its invocation) that removes the courts from the equation in a way that differs it from, for example, Biden’s attempt to cancel student debts?
(In my mind), both involve some rather contorted definitions and claims of Presidential powers derived from legislation (and not the Constitution itself). Why did the Courts get to rule on (and reject) Biden’s power grab but not in this case?
IMO it's the direct delegation of power by Congress via the AEA to the POTUS, requiring only a "Proclamation." Very few statutes are written in that fashion.
That's why one SCOTUS decision from the era described it "as unlimited" an expression of authority as Congress could confer.
It would seem that these are political questions for the electorate and/or Congress to deal with.
However, considering the current issue at hand, waiting for the electorate or Congress to deal with the potential impediment to the Executive’s authority does little more than ‘kick the can down the road’.
We are out of road and the can is filled with concrete.
So what?
Remember Roberts's Obamacare opinion? The only line in it that was defensible was towards the end. 'In a democracy/constitutional republic (I forget that exact term he used) the people are sovereign.'
There's a lot of truth in that. If that means it takes years or you never quite get to the majorities needed to fix Obamacare that's life in a democracy/constitutional republic.
The problem is the judiciary doesn't really believe the people are sovereign, or that's at best a situational value for the judiciary.
Donald Trump wasn't exactly shy in telling the world he wanted to deport all the illegals when he ran in 2024. If the people had a problem with that they would have voted differently. If they have a problem with it going forward they can vote accordingly in 2026 and 2028.
That's how the system is supposed to work.
A district judge answering every question with NO followed by months and years of appellate navel gazing is many things, but that's not a functioning democracy/constitutional republic.
Why should the judiciary believe or care whether the people are sovereign, when the judiciary is not beholden to the ‘majorities needed in a democracy/constitutional republic?’
The premise behind that question is we live in a bad faith judicial supremacy and things like elections and popular will are little more than cosplay. That brings things back to my question further up above which is why should Trump bother following along in a bad faith judicial supremacy when judicial supremacy depends 100% on Trump (or whoever is the president) following along with and carrying out their nonsense.
I agree completely, the point being despite being contrary to the premise of a judiciary, what we are often currently viewing are ones that are in line with Lawfare and political opinion.