Senator warns of US getting ‘closer to a constitutional crisis’ as Samuel Alito’s dissent signals deference to Trump
Minnesota senator Amy Klobuchar warned on Sunday that the US is “getting closer and closer to a constitutional crisis”, but the courts, growing Republican disquiet at Trump administration policies, and public protest were holding it off.
“I believe as long as these courts hold, and the constituents hold, and the congress starts standing up, our democracy will hold,” Klobuchar told CNN’s State of the Union, adding “but Donald Trump is trying to pull us down into the sewer of a crisis.”
Klobuchar said the US supreme court should hold Trump administration officials in contempt if they continue to ignore a court order to facilitate the return of Kilmar Ábrego García from El Salvador, the Maryland resident the government admitted in court it had deported by mistake.
Why stop at the lieutenants?
Because the court made him immune
The courts made him immune for official acts, but there is an interesting and relevant legal question of whether his actions here qualify as official. There’s a reasonable argument that kidnapping people in direct violation of a court order is not an official act.
If you look at absolute immunity as it applies to judges, you do find edge cases that are somewhat similar to this one. Absolute immunity doesn’t cover everything, and the only way to find out what it covers is to go to court.
And the SC determines what’s an official act
The infamous immunity ruling gives the President a lot of immunity from criminal prosecution.
But besides that, there’s an older precedent in civil litigation that no judge can write an injunction directly against the President in the performance of his official duties. So all of these TROs and injunctions, including the Friday SC order, either do not apply to the President himself, or they are illegally broad*.
Under this theory of law, the President could theoretically arrest and deport all the people he wants with no judicial intervention – just as long he does all the arrests by himself, and flies the planes by himself, etc. In reality, the fat man is always going to have underlings doing the stuff for him, and they do not have this immunity from civil injunctions.
*This is one of the points raised in Alito’s dissent: the SC order applies to “the Government”, without saying whether the President is included or not.
They are the supreme court. They can change precedent for presidents for reasons.
There’s also not much point in going after the lieutenants. As long as it’s a federal court holding them in contempt, Trump can just pardon them. It’s happened before with Joe Arpaio. State level contempt would work if they could find a way to make that happen.
The only thing I can think of that SCOTUS to do right now to try and head this off would be to make a ruling defining what is or isn’t an official act. SCOTUS needs to sack up rule solidly against Trump. They need to state that, per the Constitution, only congress can declare war. The President has no authority to declare war and no other nations are invading the USA. Therefore, all deportations under the Alien Enemies Act are NOT official acts and therefore they are high crimes and misdemeanors.
This alone would not solve the problem if Trump continues to flip them off and ignore them which seems likely. It would however put the issue squarely in the House’s hands. If this conservative court plainly states that the president’s actions are illegal, the pressure on the House to impeach and the Senate to convict would be huge. With the houses nearly evenly split, an impeachment in the house would only take a few Republicans to cross over. The Senate would be tougher but not impossible. It would take something like 20 Republican Senators to vote with the Dems to convict him.
If that fails to happen, if the House or Senate fails in their duty after such a court ruling, I think we might finally see enough impetus to get major resistance among the people; even more massive protests than we’ve already seen, a general strike, work slow downs, maybe even blue states taking steps to secede.
Criminal contempt has this problem, but civil contempt is not pardonable, because there is no crime to pardon.
Judge Boasberg is trying to proceed with criminal contempt on the “turn the planes around” order. Whatever happens there, it is unlikely to end in convictions that stick.
Judge Xinis is proceeding towards civil contempt. If she finds someone in willful contempt, she can imprison them until they choose to comply. And the evidence standard in civil contempt is “clear and convincing,” not “beyond a reasonable doubt.”
I did not know this. I hope that works.
Couldn’t they reverse the ruling on his immunity? They reversed Roe v Wade with the flimsiest of justification. They could do the same here. I realize I’m being hopeful.
I guess so. I just don’t see them doing that. They will want the next Republican President to benefit from it.