SCOTUS Launches Itself Into The Worst Of The Trump Cases
INSIDE: Pam Bondi ... Ed Martin ... Michael Gableman
A lot of things happened. Here are some of the things. This is TPM’s Morning Memo.
Where Does This Leave Us?
A rapid-fire series of Supreme Court interventions in two of the most pressing early Trump II cases has slowed down for now the prospect of a direct confrontation between President Trump and the judicial branch.
In the most urgent case, Chief Justice John Roberts issued an administrative stay that lifted the deadline of midnight last night for the Trump administration to facilitate the return of Kilmar Abrego Garcia, the man mistakenly deported to an El Salvadoran prison despite a court order explicitly barring his removal. Roberts’ move came as the 4th Circuit Court of Appeals sided with Abrego Garcia and set the Trump administration on a collision course with the judiciary. Still, Roberts set a tight briefing schedule (Abrego Garcia’s lawyers immediately filed their response), and the Supreme Court could rule at any moment.
Later in the day, the Supreme Court issued a very muddled and confusing decision in the adjacent Alien Enemies Act case – the other case that seems most likely to provoke Trump into an extra-constitutional showdown with the courts. By a 5-4 margin, with Justice Amy Coney Barrett joining the three liberal justices, the court threw U.S. District Judge James Boasberg under the bus with a hasty, procedurally irregular decision that brought withering retorts from the dissenters.
The particulars gets weedy pretty quick, but the high court said no one should be removed under the Aliens Enemies Act without notice and the opportunity for a hearing. Judging the justices on a curve, it’s hard not to feel some relief that the Supreme Court still finds value in notice and hearing as the bedrock of due process. That was the big takeaway from the decision, even if it carried all sorts of caveats and practical limitations.
Left undecided: the fate of the Venezuelan nationals already deported to the El Salvadoran prisons, whether the Alien Enemies Act properly applies to a criminal gang in peacetime, and whether those swept up in the deportations actually meet the requirements for removal. Those decisions will be left to individual judges to decide case by case, in Texas (in the most conservative federal circuit), where most of the habeas cases will have to be brought.
The high agitation of the dissenters suggests, however, that the way the majority got there had the effect of throwing open the barn door to further Trump depredations even as it overlooked the government’s egregious conduct in the case to this point.
I couldn’t help but wonder if the dissenting justices had already gotten a taste of what the majority has in store for the wrongfully deported Abrego Garcia. The two cases aren’t directly related, but they each overshadow the other in ways that put a finer point on the underlying legal and moral issues.
For more analysis:
Steve Vladeck: “But the more I read the Court’s Monday night ruling in Trump v. J.G.G., in which a 5-4 majority vacated a pair of temporary restraining orders entered by Chief Judge Boasberg in the Alien Enemy Act case, the more I think that this ruling really is a harbinger, and a profoundly alarming one, at that.”
Lee Kovarsky: “THE SUPREME COURT’S TdA OPINION IS TERRIFYING. Not because it’s wrong, although it is, but because of how comfortable the Court seems in abusing authority to get to what it must see as an institutionally desirable outcome.”
What About Boasberg’s Contempt Proceeding?
The Justice Department filed a snotty notice of the Supreme Court’s ruling on the Alien Enemies Act to Judge Boasberg and asked him to end his inquiry into whether the Trump administration violated his order blocking the deportations and should be held in contempt. Boasberg’s initial response did not tip his hand on the contempt proceedings. The Supreme Court did Boasberg no favors in depriving him of jurisdiction, but that alone should not be enough – in theory – to end the contempt proceeding.
DOJ Is Now Trump’s Personal Law Firm
The NYT has a pretty good rundown on how President Trump via Attorney General Pam Bondi is grinding down Justice Department attorneys. It’s written from the point of view of DOJ lawyers caught in the squeeze between their ethical obligations and threats to their careers.
‘I Will Not Be Bullied’
Fired U.S. pardon attorney Liz Oyer testified Monday at a shadow hearing held by congressional Democrats – but only after DOJ warned her not to testify and dispatched armed U.S. special marshals to her home to deliver the message.
Photo Of The Day
In case you missed it, acting D.C. U.S. Attorney Ed Martin gave the keynote address last month at an event attended by some of Jan. 6 seditionists who are appealing their convictions, Mother Jones reports:
ONGOING: Trump’s Attack On Big Law
NYT: “One of Mr. Trump’s advisers has been in touch with [Cadwalader, Wickersham & Taft] to suggest that it sign a deal in which it would offer tens of millions of dollars in pro bono legal services to causes that the Trump administration supports.
DC Circuit: We Can’t Overturn SCOTUS Precedent
More on yesterday’s big decision by the D.C. Circuit Court of Appeals to reinstate the fired members of two independent agencies: Cathy Harris of the Merit Systems Protection Board and Gwynne Wilcox of the National Labor Relations Board.
Maine Is On The Frontline Of Trump’s Blue State Jihad
In the Trump administration’s ongoing bullying of Maine over trans athletes, the state is now suing the federal government over the Department of Agriculture’s move to freeze funding for the state, threatening the provision of school lunches.
The Destruction: Refugees And Fluoride Edition
Citing “drastic” government funding cuts, the U.S. Conference of Catholic Bishops’ Migration and Refugee Services, the largest refugee resettlement agency in the world, is ending its century-old program of resettling refugees fleeing war or persecution, the WaPo reports.
RFK Jr. is directing the CDC to change its recommendation supporting fluoride in drinking water.
REVERSAL: The National Park Service restored its original webpage on the Underground Railroad that included a previously deleted photo of Harriet Tubman.
DOGE Watch
DOGE will be able to access personal information of millions of union workers at the Education Department and OPM under a new order from the 4th Circuit Court of Appeals.
N.C. Supreme Court Intervenes In Election Case
The North Carolina Supreme Court paused a lower court order that would has the potential to reverse the outcome of the closely-watched and still unresolved 2024 election to the high court. Justice Allison Riggs and the State Election Board had filed an appeal seeking the stay.
Couldn’t Happen To A Nicer Guy
Former Wisconsin Supreme Court Justice Michael Gableman has agreed to give up his law license for three years over his repeated misconduct during his Big Lie-adjacent review of the state’s 2020 election for GOP lawmakers eager to find election fraud.
In Defense of Temporary Obsessions
From a delightful little essay by Ankita Shah: “In a world that wants mastery or monetisation as the outcome of every fleeting interest, temporary obsessions are little rebellions. Their purpose is to restore order in the playground that is your life.”
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What the Supremes in effect told tRump to do was run all the deportations out of the 5th CA jurisdiction in order to ensure that a right-wing judicial majority will oversee AEA disappearing of immigrants, and where habeas claims will have a less than sympathetic hearing. Oh, sure, give them a hearing, but don't mention the AEA as the primary vehicle for deportation orders.
How disgracefully cynical a ploy, and here's CJ Roberts again siding with tRump, anything to stop his attacks on the US federal court system.
We should all pray to whatever gods we worship that Humphreys Executor is never overturned. It's the only ruling that impedes the Executive to reducing the independent agencies to lackeys. Trump's invocation of the Aliens act is facially absurd and it's horrifying the Roberts court didn't find it so. Hurrah for ACB. She's conservative, but she reminds one a little of Felix Frankfurter who became a great force for good.