Two Steps Forward, One Step Back
In the defining legal struggle of our time — whether the federal judiciary will sustain the rule of law long enough to preserve the essential core of a democracy for us to repair, rebuild, and re-enlarge after Trump II — the jury is still out.
Important developments in three different cases yesterday — the Alien Enemies Act, third-country deportations, and Trump’s collusive settlement with the IRS — point in very different directions.
On the face of it, not much unites the cases or offers a common theme or collective takeaway. But in stepping back and reviewing the last 20 months of Trump II legal battles, yesterday’s developments are datapoints in favor of a tentative working theory that appeals courts are slowly coming around to the urgency of the current moment.
In the first six months of Trump II, district judges were on their heels, caught off guard by the ferocity of the rampage against the rule of law and still tethered to old norms and expectations for the Justice Department that no longer held true. It was a brutal stretch of watching the Trump administration seize some key early wins and capture important legal ground.
After being collectively kicked in the teeth, district judges pretty quickly adjusted to the new reality — but appeals courts failed to back district judges in key respects, missed the urgency of the moment, and surrendered more ground to the lawlessness.
More recently, appellate judges have begun to turn, too. Two glimmers of hope yesterday came at the appeals court level, with the en banc D.C. Circuit looking poised to allow U.S. District Judge James Boasberg to resume his contempt of court inquiry in the original Alien Enemies Act case and the 11th Circuit handing Trump a loss in his bogus settlement with the IRS.
That still leaves the Supreme Court, which — with a few notable exceptions — has been Trump’s greatest enabler. It played true to form yesterday with an emergency intervention that will allow the administration’s brutal third-country removals policy to continue past the election and until it rules after oral arguments in December.
Unlike the lower courts, the Supreme Court will not eventually come around. While we’ve already seen examples — most prominently on tariffs, birthright citizenship, and the USPS mail-in ballots rule — of the Roberts Court refusing to endorse some of Trump’s worst excesses, the high court is too deeply compromised and its six-justice right-wing majority too invested in the GOP’s partisan fate to emerge as a reliable bulwark.
But the appeals courts may buy us some additional time by slowing the speed of the descent.
A quick rundown on yesterday’s developments, in turn:
AEA Contempt Inquiry Likely to Resume
The 7-4 Democratic-Republican split on the en banc D.C. Circuit Court of Appeals already boded well for the prospect of Judge Boasberg being able to resume his inquiry into whether Trump administration officials, including DOJ lawyers, should be held in contempt of court for violating his orders to stop and turn around deportation flights under the Alien Enemies Act.
Oral arguments left the strong impression that a majority of the full court will greenlight Boasberg’s inquiry. I’d pay particular attention to Judge Karen Henderson, a Bush I appointee who authored an important ruling on the substance of the Alien Enemies Act last year in the same case.
For more, I wrote at some length about yesterday’s oral arguments here.
Trump Takes a Loss in IRS Case
A unanimous three-judge panel of the 11th Circuit declined to put on hold the sanctions order by U.S. District Judge Kathleen M. Williams in Trump’s collusive lawsuit against the IRS.
The ruling was made on procedural grounds, including that the appeal was premature given Williams hadn’t yet decided on the amount of attorney fees award in the case. But while the appeals court panel — two Obama appointees and one Trump appointee — didn’t reach the merits of Williams’ ruling it did conclude: “Given the record before us, the appellants have not made a strong showing that the district court committed clear error in its collusion and bad faith findings.”
Roberts Courts Does It Again
The Supreme Court intervened on an emergency basis to block lower court orders that had effectively frozen the Trump administration policy of deporting people without notice or hearing to countries they are not from and to which they have no connection.
The three Democratic appointees opposed granting the stay.
The decision by a federal court in Boston, and upheld by the 1st Circuit Court of Appeals, had required giving detainees a chance to voice fear of torture or persecution before being deported to third countries. Now the third-country deportations can resume with abandon.
In what legal experts called an unusual twist, the Supreme Court identified three questions it wants briefed in the case, then gave the Trump administration the chance to identify any other issues it wants addressed: “Such other questions that the Government determines are appropriate for the proper disposition of the case.”
The court fast-tracked oral arguments for December.
Victim of ICE Shooting Charged in Texas
Wilber Rafael Garcés Perez, the Venezuelan national shot by an ICE agent in Austin, Texas 10 days ago, has been charged with assaulting a federal officer during their initial encounter.
Garcés Perez, who was shot in the shoulder and still has a bullet in his back, allegedly hit the ICE agent with his vehicle’s side mirror as he fled the initial traffic stop. That portion of the incident is caught on the body cam of one of the officers, according to a court filing.
Two observations about the filings:
The shooting came a few moments later, after an alleged high-speed chase, when only one officer — without a body cam running — was present.
In the court filing, a Homeland Security Investigations agent said he interviewed Garces Perez and the non-shooting agent after the incident, but gave no indication that he had interviewed the agent who fired his gun.
Stay tuned …
Swimming in Schadenfreude
The only proper way to cover the trio of Jack Smith hearings before Congress over the past year is as perjury trap under a veneer of disinformation — which is what made Sen. Eric Schmitt (R-MO) getting snared in his own perjury trap such a feast of mockery and memes.
If you still haven’t gotten enough:
TPM’s Hunter Walker: New Evidence Shows Just How Badly One Republican Senator Beclowned Himself in the Jack Smith Hearing
TPM’s John Light: 5 Points About a Senator’s Disastrous But Hilarious Attempt to Accuse Jack Smith of Perjury
The full exchange:
CBP Funds Used for Pro-Trump TV Ads
The federal funds used to pay for pro-Trump TV ads airing in the stretch run of the midterm elections came from Customs and Border Protection, the WSJ reports. Outside monitors estimate some $1.4 million has been spent on the ads that have aired so far, but Democratic lawmakers claim allege that $20 million of CBP money has been shifted to the ad campaign.
Pete Hegseth Watch
Two important and deeply corrosive moves by Defense Secretary Pete Hegseth to politicize the military and erode its professionalism:
Hegseth is expected to announce today that he is cutting the number of flag officers by at least 20%. As with other Trump administration purges, the initial purge is usually only half of the equation. It’s who ultimately gets elevated in their place that cements the role of loyalists, hacks, and charlatans.
Hegseth ordered the service academies to stop hiring civilians to tenured faculty positions.
23 Years Later, The U.S. Leaves Iraq
After more than two decades of unimaginable human carnage and sunk costs in toil and treasure, the last remaining U.S. forces in Iraq are departing the country today.
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Re: *DVD et al vs USDHS*...And what happens to perhaps hundreds if not thousands of unfortunate deportees sent to and some then subsequently tortured in detention facilities within those third-country destinations due to this stay? If a Scotus majority, after merits briefing, later decide that third-deportation is illegal without due process, or whatever, will it order repatriation of all immigrants already dispatched abroad? Say "we're sorry" for those who have died as a result of ill treatment? Simply cannot understand the reasoning for issuing stays for actions that later CANNOT BE UNDONE!
That doordash driver in Texas violently assaulted ICE's bullet without justification.