Fire Hydrant of Freedom
Politics, Religion, Science, Culture and Humanities => Science, Culture, & Humanities => Topic started by: Crafty_Dog on February 08, 2025, 05:15:36 AM
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The initiation of this thread is prompted by BBG's find of the following fine and serious article, originally posted in the Trump Administration 2.0 thread:
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The Trump Executive Orders as “Radical Constitutionalism”
Much more than “test cases” may be at stake in Trump's aggressive claims of presidential authority
BOB BAUER AND JACK GOLDSMITH
FEB 03, 2025
President Trump looks at Russell Vought, who delivers remarks at the White House in 2019. (Official White House photo by Shealah Craighead)
Why do so many of President Trump’s multitudinous executive orders fly in the face of extant legal principles? Are they the result of incompetence? Is the administration laying the groundwork for test cases in an effort to expand executive power in the Supreme Court?
Below we assess a third possibility: the administration doesn’t care about compliance with current law, might not care about what the Supreme Court thinks either, and is seeking to effectuate radical constitutional change.
The third possibility sounds histrionic, which is not our usual posture. But it appears to be the view of Trump’s nominee to head the Office of Management and Budget, Russell Vought, who is one of Trump’s “most influential advisers,” who will be voted on for confirmation in the Senate soon, and who will play a central role in Trump’s executive orders, if he hasn’t already.
This post assesses Vought’s views on executive branch law compliance, examines how his views fit with the Trump approach to executive orders to date, and asks what administration lawyers might be doing in all of this.
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Vought’s Views
In May 2023, Vought complained at a talk at the pro-Trump think tank, the Center for Renewing America, that Trump’s policies in the first administration were thwarted because “the lawyers come in and say it’s not legal, you can’t do that, that would overturn this precedent, there’s a state law against that.”
Vought added that legal objections to presidential policies are where “so much of things break down in our country.” He provided a specific example: “a future president says, ‘What legal authorities do I need to shut down the riots,’ we want to be able to shut down the riots and not have the legal community . . . to come in and say ‘that’s an inappropriate use of what you’re trying to do.’” Vought added: “I don’t want President Trump having to lose a moment of time having fights in the Oval Office about whether something is legal . . . .”
We cannot know if, or the degree to which, Vought’s theory of governmental legal advice is guiding the Trump administration’s executive orders. Yet Vought’s theory fits many of the known facts. And the OMB, as we will explain below, has a vital role in executive orders.
Executive Orders and Legal Process
President John F. Kennedy’s Executive Order 11030, today embodied in a regulation, governs the process for executive orders inside the executive branch. For our purposes, two components of the process are important. First, the executive branch entity that proposes an executive branch order must submit it to the Director of the OMB (i.e. Vought, if confirmed), together with a letter from the originator of the EO “explaining the nature, purpose, background, and effect of the proposed Executive order or proclamation and its relationship, if any, to pertinent laws and other Executive orders or proclamations.”
If the Director of OMB approves the order, “he shall transmit it to the Attorney General for his consideration as to both form and legality.” The Attorney General has assigned this function, like many legal interpretation functions, to the Office of Legal Counsel. Career OLC attorneys expert in executive orders review the orders. These lawyers do not typically do full-blown legal analyses of the orders, as they would with a legal question for which OLC writes formal legal opinions. But they typically do a serious legal chop on the EO to ensure its legality, and with any EO of substance there is normally a great deal of back and forth to ensure that the facts in the EO are accurate and that the order is lawful. If the proposed order passes OLC muster, the Attorney General approves and transmits it “to the Director of the Office of the Federal Register, National Archives and Records Administration.”
The bottom line: By Executive Order and regulation, both still in force, the Justice Department must review the legality of the EO, and the Attorney General must approve it.
What’s Going On Inside the Trump Administration?
We do not know what legal process the New Trump administration is using to vet the legality of executive orders. But it does not appear that the executive order or regulation are being followed, or that DOJ or OLC is fully in the loop. Four pieces of evidence support this view.
First, many executive branch orders have serious legal problems that OLC typically would have raised legal doubts about. Jack listed just a few last week:
The TikTok ban delay reflects a controversial and not-obviously-lawful conception of presidential enforcement discretion. The withdrawal from the Paris agreement is contrary to prior executive branch views of presidential agreement-termination authority. Yesterday’s freeze of nearly all grants and federal loans, though nominally limited “to the extent permissible under applicable law,” foreshadows the much-telegraphed and almost-certainly-unconstitutional Trumpian Article II impoundment theory. Trump’s gambit to fire career civil servants rests on a conception of Article II that goes beyond the Supreme Court’s already-generous removal precedents. There are other examples of Article II overreach. And relatedly, several of Trump’s actions violate other provisions of the Constitution, such as the birthright citizenship order.
These examples are notable because one (birthright citizenship) defies an OLC opinion, another (constitutional impoundment) is contrary to another OLC opinion, a third (the Paris agreement withdrawal) reflects a view that OLC has found problematic (see pp. 8-9), and the others are in tension with or contrary to extant Supreme Court jurisprudence. And there are many other examples of EOs contrary to or in tension with governing law. It doesn’t appear as if these orders received OLC approval for form and legality. And if they did, the pattern raises questions about how OLC will function in this administration. OLC normally adheres to Supreme Court precedent, and though it sometimes reverses itself, it typically explains reversals in published opinions.
Second, Vought stated last May that his think tank, the Center for Renewing America, was “trying to build a shadow Office of Legal Counsel” to enable the president to avoid legal objections to his policies.
Third, the Trump 2.0 transition, unlike the Trump 1.0 transition, did not vet EOs with the Justice Department, but rather relied on “a team of lawyers from outside the Justice Department” in a “sign of Trump aides’ general distrust of the Justice Department,” according to the New York Times.
Fourth, at a January 29 White House press briefing, Press Secretary Karoline Leavitt was asked “who advised the president on the legality of telling government agencies that they don’t have to spend money that was already appropriated by Congress?” Leavitt’s answer was revealing: “The White House Counsel’s Office believes that this is within the president’s power to do it, and therefore, he’s doing it.”
This question was nominally directed at the OMB spending freeze memo. But the question of the president’s constitutional power to order spending freezes lurks behind other executive orders as well and is a theory we know the Trump administration is interested in pushing. This is an issue that OLC normally would have opined on, especially since the issue is of such momentous constitutional significance and because OLC (in a William Rehnquist opinion) has previously ruled on the matter. Leavitt, however, made no mention of DOJ or OLC. Her disclosure that the White House Counsel, David Warrington, delivered the decisive advice suggests that his office may have supplanted the Justice Department’s legal advisory function, at least on some major presidential initiatives in the EOs.
In sum, the plethora of legal problems in the EOs, the Vought shadow OLC idea, the reliance on outside lawyers instead of DOJ during the transition, and the Leavitt statement are four pieces of evidence that OLC, and the Justice Department more generally, are being sidelined in the legal review process for at least some executive orders, and for presidential actions more generally. It is evidence that would make sense of the apparent indifference to legal compliance in so many of the Executive orders.
We should note that if OLC and DOJ are being cut out or overruled in favor of a president-centered or White House-centered legal interpretation and review process, that is the president’s prerogative under Article II, though the process would defy EO 11030 and the regulation. Such an arrangement would be an extreme change of process from past administrations and would demand explanation beyond non-compliance with EO 11030.
Radical Constitutionalism
One way to look at the administration’s assault on legal barriers is that it is seeking to establish “test cases” to litigate and win favorable Supreme Court decisions.
But the typical test case is a carefully developed, discrete challenge to statutory or judge-made law with some good faith basis. The challenge may be based on changes that have occurred over time in the law, in the background facts, or in large changes in politics, which support a claim that the law should now be modified or reversed. And it is often an incremental program—one of test cases building on test cases.
The Trump executive orders might have some of these features, but in the aggregate they seem more like pieces of a program, in the form of law defiance, for a mini-constitutional convention to “amend” Article II across a broad front.
This pattern echoes a philosophy—“radical constitutionalis[m]”—that Vought laid out in a 2022 essay. The essence of radical constitutionalism is that “[t]he Right needs to throw off the precedents and legal paradigms that have wrongly developed over the last two hundred years and to study carefully the words of the Constitution and how the Founders would have responded in modern situations to the encroachments of other branches.”
Vought strongly implied that an element of radical constitutionalism is to instill fear in the Supreme Court that the presidency is prepared to resort to outright defiance of its decisions.
Vought interpreted Madison’s famous “ambition must be made to counteract ambition” idea to mean that the branches would have “a healthy fear of each other” that would “cause[] them to pause before encroaching” on another branch. He gave as an example John Marshall’s refusal in Marbury v. Madison to order Secretary of State James Madison to deliver William Marbury’s commission “ecause he was afraid Jefferson would order [Madison] not to and show the Supreme Court to be toothless.” Vought then noted that “Jefferson . . . gave us a glimpse of the posture that prevents encroaching powers.”
If this is the theory behind the executive orders—and again, we are speculating here based on the views of one hugely influential Trump advisor—then the orders are not merely setting up Supreme Court test cases. They are, rather, bombarding the Court with a wave of legal challenges about the proper scope of Article II (among many legal issues) with the aim of provoking a confrontation over the legitimacy of the existing legal order, at least with regard to Article II, and perhaps more broadly. And the administration might be planning to dare the Court to say “no” with threats of noncompliance.
The administration’s TikTok executive order can be seen as an early gambit in this direction. The Supreme Court unanimously upheld Congress’s ban on TikTok, and the ban came into effect before Trump became president. A day after the law came into effect, Trump became president and issued an Executive Order in which he instructed his Attorney General to not enforce the act for 75 days based on the flimsiest of justifications that the already-in-effect law denied him an opportunity to review it for national security concerns or negotiate a deal. More remarkably, the president ordered the Attorney General to inform the relevant private firms that “there has been no violation of the statute and that there is no liability for any conduct” in violation of the statute during the 75-day period (or after the effective date of the act and before the EO).
The TikTok EO is not a direct defiance of a Supreme Court judgment, but it is close. And it could be signaling things to come. Whether the administration would threaten defiance because it actually intended to ignore a Supreme Court judgment, or because it simply wanted to pressure the Court into favorable decisions, no one can know.
Where are Administration Lawyers?
All of which raises the question: Is Trump getting legal advice, and, if so, from whom?
It is noteworthy that while the administration has announced nominees for most top spots at the Justice Department, it has not yet nominated anyone for OLC. Former Florida Solicitor General Henry Whitaker was the acting head of OLC for at least the first few days of the administration. But it is not clear if he is still at OLC (his name was briefly on the OLC website but no longer is), or who is in charge there. Is OLC in the loop on the Trump executive orders? Is it signing off on the ones with obvious legal problems? Under what legal theories?
Similar questions arise about the role of the White House Counsel. Did Leavitt’s disclosure of the White House Counsel’s advice about the OMB freeze memorandum foreshadow a commanding role for this office and a marginalized OLC? We (and others) have written about the risks that the White House Counsel, even more than the Justice Department, may be expected to wear the “team jersey” and conform his or her legal advice to meet the president’s preferences or demands. Will this administration more directly and openly empower the White House Counsel’s Office to assume the role traditionally performed by OLC? Will the White House find a pliant OLC head to dissipate this potential conflict?
In the days, weeks, and months ahead, the White House Counsel and his staff, the Attorney General, the head of OLC and his or her team, and many other lawyers in this administration will have choices to make in meeting the president’s expectations and demands. They all understand that they have professional ethical obligations independent of whatever loyalty they owe to the president and the administration. They have also pledged a constitutional oath as well as an oath to conduct themselves “uprightly and according to the law” if they are members of the Supreme Court bar. And they have duties of loyalty to the institutions they are serving.
We have been in the legal hot seat in the White House and Justice Department, respectively. We understand the hard and often intractable choices that high-stakes governmental legal advice entails, and we do not envy the difficulties that lawyers advising this president face. It is also true that administrations sometimes legitimately test the validity of accepted legal principles in court to seek a new legal understanding. And the White House Counsel inevitably has an elevated role in the legal advisory process, often in tension with OLC, on issues the president cares about. All of this is “normal science” in the executive branch legal process.
But the theory and process of “radical constitutionalism” that Vought has floated go very far beyond these typical tensions and conundrums in the roles contemplated for senior government lawyers. If something approaching the Vought theory defines the new Trump administration’s legal process—and there are clues that it does—then no senior government lawyer with integrity should countenance or participate in it.
https://executivefunctions.substack.com/p/the-trump-executive-orders-as-radical
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Doubling BBG's post here as well because:
"The suspension marks the latest Trump administration move to freeze funds already approved by Congress, which Democratic lawmakers have repeatedly pointed out is forbidden under the 1974 Impoundment Control Act.
"Newly confirmed White House budget director Russell Vought said during his confirmation hearing that he believes the law to be unconstitutional."
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I suspect this is the same $5 billion that only managed to get a half dozen or so charging stations built in several years. Could be telling to see how hard this is fought as some may not want to much digging to occur where $5 billion that sat around in concerned:
Transportation Department suspends $5 billion EV charger program
Transportation Department suspends EV program
•The Hill News / by Zack Budryk / Feb 7, 2025 at 11:28 AM
The Federal Highway Administration (FHA) on Thursday announced the suspension of a Biden-era electric vehicle (EV) charging network, the latest in a series of moves by the Trump administration to gut its predecessors’ energy and environmental moves.
In an FHA letter to state transportation directors, the administration said the Department of Transportation (DOT) is rescinding all guidance related to the National Electric Vehicle Infrastructure (NEVI) program and updating the guidance to “align with current U.S. DOT policy and priorities.”
The FHA said new guidance will be published for public comment in the spring but that “no new obligations may occur” under the existing program.
The $5 billion NEVI program was funded by already-allocated and approved Bipartisan Infrastructure Law funds, with a goal of filling holes in EV charging infrastructure around the country. More than $3 billion has already been disbursed to states under the program.
The suspension marks the latest Trump administration move to freeze funds already approved by Congress, which Democratic lawmakers have repeatedly pointed out is forbidden under the 1974 Impoundment Control Act.
Newly confirmed White House budget director Russell Vought said during his confirmation hearing that he believes the law to be unconstitutional.
The Environmental Protection Agency (EPA) similarly issued a freeze on disbursement of climate and EV-related funds from the Inflation Reduction Act during Trump’s first week in office. Both the EPA and the Justice Department also made moves to shut down their offices of environmental justice this week.
The Sierra Club blasted the announcement in a statement Friday morning.
“Freezing these EV charging funds is yet another one of the Trump administration’s unsound and illegal moves. This is an attack on bipartisan funding that Congress approved years ago and is driving investment and innovation in every state, with Texas as the largest beneficiary,” Sierra Club Clean Transportation for All Director Katherine García said in a statement. “Throwing out states’ plans, which were carefully built together with business, utilities, and communities, only hurts America’s growing clean energy economy.”
https://thehill.com/policy/energy-environment/5132717-trump-administration-suspends-electric-vehicle-charging-network/
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With everything that is swirling around in the courts as the Congress/Deep State/Dems/Progs fight being audited and to compel the President to spend money, this thread is worth keeping in mind.
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(1) D.C. JUDGE: TRUMP NOT COMPLYING WITH USAID SPENDING ORDER: Washington, D.C. District Court Judge Amir Ali said the Trump administration is not complying with his order to unfreeze U.S. Agency for International Development (USAID) spending, but declined to hold the Trump administration in contempt.
The Department of Justice told the court the Trump administration was in compliance, and the order allowed the Trump administration to enforce its rights on USAID contracts including terminating the contracts.
Why It Matters: The Trump administration appears to be engaging in malicious compliance, and pushing the boundaries with the lower federal courts in a bid to continue Trump’s agenda without openly defying the courts. The Trump administration moving quickly to take control of federal agencies and payment systems, combined with tight control over information about the administration’s activities, is hindering the effectiveness of the Trump Resistance’s lawfare strategy. The Trump DOJ also appears to be going on the offensive, and is asking the federal courts to force groups suing the Trump administration over federal spending freezes to put up a cash bond to continue their lawsuit. - R.C.
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(3) TRUMP DOJ: ADMIN LAW JUDGE PROTECTIONS UNCONSTITUTIONAL: The Department of Justice (DOJ) said that statutory protections that shield the President from removing administrative law judges are unconstitutional, and the DOJ will no longer defend those protections in court.
“Unelected and constitutionally unaccountable administrative law judges have exercised immense power for far too long,” and the Trump administration is restoring constitutional accountability, the DOJ added.
Why It Matters: The Trump administration appears to be setting the stage to clear out the administrative law courts, which includes the DOJ immigration courts. - R.C.
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https://www.msn.com/en-us/news/politics/immediately-cease-trump-administration-gets-stern-warning-from-judge/ar-AA1zu1Av?ocid=msedgntp&pc=DCTS&cvid=5349f472f0fe4935aef3870dee5c401b&ei=12
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HT BBG
Taking a broadsword to the administrative state:
🔥 Yesterday, Politico reported another Trump masterstroke in a story headlined, “Trump executive order requires sweeping review of federal regulations.” Wait till you hear about this one. It’s about to replace the 4-D chessboard with a new 5-D one.
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The newest executive order is titled, “Ensuring Lawful Governance and Implementing the President's "Department of Government Efficiency" Regulatory Initiative.” They had no idea this was coming. It stacked on several previous EOs and relies on last year’s terrific Supreme Court decisions about agency powers. We will need to peek inside it to find all the presents.
First, the order began with the shot-heard-round-the-Swamp. The war on the Deep State has entered its public phase. Trump’s forces fired on Fort Sumter. It was an open declaration of war:
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Boom. “It is the policy of my Administration … to commence the deconstruction of the overbearing and burdensome administrative state.”
The “overbearing and burdensome administrative state?” That’s a synonym for the Swamp, the Deep State. Trump is commencing its deconstruction.
Section two begins the order. “Agency heads shall, in coordination with their DOGE Team Leads and the Director of the Office of Management and Budget, initiate a process to review all regulations … for consistency with law and Administration policy.”
They are going to review all the regulations. All of them.
During that comprehensive review, seven categories of regulations must be identified for the chopping block. I couldn’t pick a favorite example, so here they all are:
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In the meantime, Agency heads are ordered to “de-prioritize enforcement” of any regulations that exceed constitutional or statutory authority —based on the Supreme Court’s latest trimming of agency authority— or that do not comply with Administration policy.
If the progressive left thought it already had its hands full firefighting employment lawsuits, that was nothing. This order lights fires all over the national regulatory landscape.
The implications are staggering. The regulatory state is vast, far bigger even than actual laws passed by Congress, which is saying a lot. I’ve suggested before in C&C that if Trump really wanted to kick off an economic renaissance in this country, he should prune a lot of regulation that stifles innovation and small business development.
I was thinking way too small.
He’s going to prune the whole thing.
And he put DOGE in charge. Forget Elon Musk. DOGE is just another name for an existing agency —the repurposed Digital Services Agency, whose charter is increasing efficiency— and which reports directly to the White House. In other words, Trump has a monitoring team in every important government agency watching like hawks to ensure the order gets carried out.
This order just made DOGE’s cost-cutting efforts look like a local comedian putting on a warmup act while the band was running late. Now the band has taken the stage to a sold-out arena. Regular readers know that I wondered whether the whole cost-cutting binge, welcome as it was, was just a distraction or decoy while the DOGE team gathered data. But for what?
This order is the political equivalent of the Moon falling out of orbit and smashing into the Earth.
Suddenly the Golden Age looks a lot less like a typical oversold campaign promise and more like a potential reality. There is no way to estimate the potentially explosive effect cutting massive red tape could produce for the economy, technological innovation, and small business creation. It’s potentially infinite.
And politically? It’s another masterstroke. Every single person outside government is going to be thinking hard about how de-regulation could affect their industry and their prospects. Democrats will be forced to defend the indefensible regulatory behemoth. It will unwind decades of governmental picking of winners and losers.
https://www.coffeeandcovid.com/p/feeling-the-heat-friday-february
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https://www.msn.com/en-us/news/world/judge-dissolves-order-preventing-trump-administration-from-overhauling-usaid/ar-AA1zxTWk?ocid=msedgntp&pc=DCTS&cvid=6943410ec11541a4bac0808ab505b072&ei=10
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HT to CCP
https://www.yahoo.com/news/arbitrary-discriminatory-judge-blocks-trump-003835865.html
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Isn't DEI arbitary and discriminatory?
In Yiddish, very appropriate here - I call this judge a schmuck.
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:-D :-D :-D
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HT BBG
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A good survey of how “independent agencies,” AKA the Deep State, came to be and the constitutional questions in general:
Elections Have to Matter: "Independent" Agencies Are Grossly Unconstitutional
If Presidents can't control the Executive Branch, elections don't really matter. The Administrative State exists to perpetuate unelected Democrat control, no matter who wins or loses. It has to end.
ROD D. MARTIN
FEB 24, 2025
Trump's war on the “deep state” - New Statesman
by Rod D. Martin
February 24, 2025
Ninety years ago, Franklin Roosevelt’s New Deal created a constitutional obscenity: agencies of government that violated separation of powers and that were not accountable to the elected President.
You might find it odd that as dynamic a President as FDR would want this, but oh dear reader, you are missing the point. The agencies were staffed almost entirely by Democrats, who were happy to do Roosevelt’s bidding. It’s after Roosevelt, when Democrats lost elections to Eisenhower, Nixon, Reagan, both Bushes and Trump that the brilliance of FDR’s plan kicked in. Because a permanent bureaucracy permanently staffed by Democrats will perpetuate Democrat rule no matter who wins a mere election.
The New Deal was, in short, a stealth, slow-motion coup. We’re still living under the new regime it created, keeping the forms but not the substance of the old Republic.
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To achieve these ends, Roosevelt’s Democrats had to do two things.
First, the new agencies had to violate separation of powers, creating hosts of siloed subject-matter dictatorships. The EPA makes laws (and no, Congress may not delegate its lawmaking powers). It also administers those laws and prosecutes violations. But it prosecutes in front of its own “Administrative Law Judges”, who report to the same agency that made, administered, and prosecuted the laws “violated”. Under the Supreme Court’s landmark Chevron case (overturned last summer), you didn’t even have a right to appeal to a real Article 3 court; and if somehow you got there, the Senate-confirmed judge was required to defer to the agency’s interpretation of, well, pretty much everything.
Did I mention this was and is obscene?
Chevron Attacked the Very Idea of America
Chevron Attacked the Very Idea of America
ROD D. MARTIN
·
JULY 4, 2024
Read full story
But second, Democrats had to make all these agencies “independent”: not accountable, and certainly not fireable, by the elected President. The arrogance that’s bred has metastasized to absurd extremes. This weekend, the Executive Office of the President sent out an all-staff email requiring every Federal employee to submit a short list of their accomplishments for the week. State Department Under Secretary for Management Tibor Nagy directed the Department’s employees to “resist”:
Seriously? Who the heck elected Tibor Nagy?
And that’s exactly the point. An “independent” agency, staffed almost entirely with unfireable unionized Democrats, is completely impervious to elections and beyond the power of voters to demand change. That’s a feature, not a bug: it’s the deliberate design. And it goes far beyond “resisting” performance reviews.
It’s also completely unconstitutional. And I don’t just mean that it violates Article 2, Section 1, which states in part that “The executive power shall be vested in a President of the United States”. I mean that the Founders’ reasoning was that a free people should be able to peacefully overthrow its government every four years.
But the regime FDR created has ruled us for most of a century, without the slightest concern for who won an election or who didn’t. Does nothing ever seem to change in Washington, no matter who’s “in power”? This is why. The Democrats (and their RINO allies) are permanently in power.
After having faced this Deep State’s full onslaught in his first term, and having just spent four years thinking about it along with the smartest conservatives around, Donald Trump is waging a direct assault on this bloated, unconstitutional regime. He’s using his constitutional powers to dismantle that regime and restore the system the Founders created. In the process, he’s forcing the courts — and the American public — to confront the reality of this structural corruption head-on.
Restoring the Constitution: Nondelegation Doctrine
Trump’s administration has ordered agencies to scrutinize every rule, regulation, and policy that exceeds Congressional authority, violates the Constitution, or undermines national interests. The goal? To declare these unlawful edicts null and void. This isn’t just a deregulatory push — it’s a frontal legal challenge to the Administrative State itself.
Ultimately, this involves nondelegation doctrine, the historic legal view that Congress may not delegate its lawmaking powers to anyone else. The Supreme Court abandoned nondelegation doctrine in the 1930s, and it was considered a dead letter until very recently. But the Fifth Circuit upheld it in its Jarkessy v. SEC ruling, and while the Supreme Court declined last summer to address nondelegation directly, it upheld Jarkessy as a whole. Expect more soon.
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Trump’s move also brings into question Congress’s unconstitutional restriction of the President’s executive authority, as upheld in New Deal-era judicial precedents like Humphrey’s Executor v. United States (1935). Humphrey’s Executor upheld Congress’s restrictions on the President’s ability to remove independent agency heads. The Supreme Court’s 2020 Seila Law v. CFPB and 2021 Collins v. Yellen rulings chipped away at this by declaring Congress’s “for cause” removal restrictions on agency heads unconstitutional. But obviously, for “all executive power to be vested in the President”, the President must have power to fire any government employee for any reason.
In the meantime, President Trump isn’t waiting for the courts, understanding perfectly well what Democrat pundits have long denied: that all three branches have equal power and duty to enforce the Constitution.
Consider his executive order requiring independent agencies to submit all proposed regulations to the White House for review. Agencies like the Securities and Exchange Commission (SEC), the Federal Communications Commission (FCC), and the Federal Trade Commission (FTC) have long functioned as quasi-legislative bodies with executive power, yet without accountability to the President and thus to the voters.
Trump’s move strips away the fiction of their independence and forces them back under presidential authority. The resulting lawsuits will likely set the stage for the Supreme Court to reexamine the constitutionality of these agencies’ — and countless others’ — very existence.
The President’s order also exposes the myth that these so-called independent agencies were ever truly “nonpartisan”. When Barack Obama pushed for net neutrality, his FCC chair Tom Wheeler dutifully complied. When Joe Biden nudged the FTC to consider banning non-compete agreements, it jumped to attention. These agencies have always been political instruments for exactly one party. They only “resist” Republicans, which is another way of saying that they exist to resist elections.
The Impoundment Challenge
Trump’s next battle is likely to be over presidential impoundment — the ability to decline to spend Congress’s full appropriations. Though he has so far merely paused Biden-era spending, he has signaled that he may challenge the constitutionality of laws restricting this power. The Impoundment Control Act of 1974 — an effort by Democrats to thwart a weakend Richard Nixon — was designed to neuter the executive branch’s ability to resist congressional overspending.
A successful challenge to the Impoundment Control Act could fundamentally alter the balance of power in Washington and dramatically reduce the national debt. Congress has long relied on its ability to dictate spending through massive omnibus bills and earmarks, tying the hands of presidents who might otherwise choose to rein in unnecessary expenditures. By reviving impoundment authority, Trump could restore an essential tool for fiscal discipline and executive discretion.
Elon Musk’s “deletion” of fraudulent spending and DEI budgets is sure to provoke the legal challenges needed to put the Impoundment Control Act on the ash heap of history. In this as in so many other areas, Trump is forcing Democrats to defend the indefensible.
Constitutional Reckoning
But it all comes back accountability: can voters make meaningful changes, and do elections matter? Bureaucrats who dictate economic and social policy should not be shielded from the elected executive. Congress still holds the power of the purse, oversight authority, and the ability to confirm nominees. Trump’s consolidation of executive power will help force Congress to actually legislate, instead of ducking its own accountability by delegating vast authority to unelected agencies. The Supreme Court could see to that once-and-for-all, by re-establishing nondelegation doctrine.
Ultimately, Trump’s “constitutional cleanup” (as Kim Strassel put it last week) is forcing long-dormant questions back into the national conversation. Can Congress create agencies that exercise executive power but are free from executive oversight? Can the Administrative State continue to operate as an unchecked fourth branch of government? Can the courts continue to ignore the fundamental separation of powers violations that define modern governance?
If so, you don’t live in a Republic. Trump’s counterrevolution is about ending that unconstitutional regime, and restoring both the Constitution and the vision of the Founders.
If he succeeds, the result will be a leaner, more accountable government, one that operates within the confines of the Constitution and responds to the will of the voters at every election. If he loses, it will be because the Democrats’ entrenched bureaucracy, Enemedia, academic indoctrination camps, and judicial allies have once again suppressed the plain text of the Constitution.
When asked what kind of government the Founding Fathers had created at the Constitutional Convention, Benjamin Franklin replied, “A republic, ma’am, if you can keep it.” America has not kept it for a century. It’s long past time to restore what’s been lost.
https://www.rodmartin.org/p/elections-have-to-matter-independent
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second
https://www.msn.com/en-us/news/politics/scotus-folds-on-first-appeal-of-new-term-doesn-t-support-trump-s-effort-to-clean-house/ar-AA1zG9ke?ocid=msedgntp&pc=DCTS&cvid=dc3d8e9826f64d67bbc118ba8cab33b7&ei=13
https://www.msn.com/en-us/money/other/elon-musk-rages-as-workers-are-told-they-don-t-have-to-comply-with-email/ar-AA1zIslU?ocid=msedgntp&pc=DCTS&cvid=dc3d8e9826f64d67bbc118ba8cab33b7&ei=36
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HT BBG
https://johnalucas6.substack.com/p/restricting-judge-shopping-in-cases?r=2k0c5&triedRedirect=true
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second
https://www.msn.com/en-us/news/politics/trump-s-pick-for-top-supreme-court-lawyer-can-t-rule-out-defying-courts/ar-AA1zRoP9?ocid=msedgntp&pc=DCTS&cvid=376ed591a1c1444698419872b4ba8a4c&ei=80
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https://www.the-express.com/news/us-news/164870/supreme-court-temporarily-blocks-order
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https://www.msn.com/en-us/news/world/judge-rules-trump-admin-does-not-have-any-authority-whatsoever-to-carry-out-mass-firings/ar-AA1zWMs5?ocid=msedgntp&pc=DCTS&cvid=7ee476de943949038d0549d451ab1439&ei=13
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second
https://www.msn.com/en-us/news/politics/that-was-really-disgusting-federal-judge-gives-trump-and-cia-free-rein-to-fire-intelligence-workers-in-dei-roles-who-can-t-appeal-or-change-agencies/ar-AA1zW9Vf?ocid=msedgntp&pc=DCTS&cvid=7ee476de943949038d0549d451ab1439&ei=70
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https://www.foxnews.com/opinion/jonathan-turley-judges-special-counsel-ruling-may-setback-trump-admin-looking
(Doug) what's wrong with this picture? President Biden who has a 4-year term appointed him to a 5-year term.
If this position is in the executive branch, then who runs that now?
Seems like an easy case for a supreme court rooted in constitutional principles.
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My compliments to Turley for articulate analysis of a deep issue in complex posture here.
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https://www.foxnews.com/politics/scotus-rules-nearly-2-billion-frozen-usaid-payments?fbclid=IwY2xjawI2qApleHRuA2FlbQIxMAABHaiTkPGmAtkdZJwYXB-gXhlj0XsYwyF2m7txBJRyd885ojOuDBsfkHjNLQ_aem_ldf0H5_Us-JOSkSBe-0ORw
======================
The observation about reigning in TROs makes sense to me.
FO:
(1) SCOTUS KICKS TRUMP APPEAL BACK TO LOWER COURT: The Supreme Court of the U.S. (SCOTUS) rejected the Trump administration’s request to block a district court order reinstating $2 billion in U.S. Agency for International Development (USAID) spending.
Justices Thomas, Alito, Gorsuch, and Kavanaugh dissented, saying a single district court judge should not have the jurisdiction or power to compel the federal government to spend the money.
Why It Matters: The Supreme Court is attempting to reign in the district courts’ expansion of temporary restraining orders, and trying to avoid setting a precedent for emergency appeals of the restraining orders that would flood the court. The dissenting opinion seems to provide a political opening for Trump to openly defy the courts. Legal analysts say Chief Justice Roberts is primarily concerned with keeping the regular order of the courts, and this is not necessarily a sign that the Supreme Court will ultimately side against Trump. - R.C.
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(2) JUDGE BLOCKS TRUMP ORDER ON LAW FIRMS: A Seattle, WA federal judge blocked the Trump administration from enforcing an executive order blocking law firm Perkins Coie from interacting with federal agencies or entering federal buildings. Perkins Coie said the executive order will put the law firm out of business.
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EDUCATION
State AGs sue over plans to gut the Education Department
By Valerie Richardson THE WASHINGTON TIMES
A coalition of 21 Democratic attorneys general sued Thursday to block the Trump administration from gutting the Department of Education, arguing that Congress created the Cabinet-level agency and only Congress may abolish it.
The lawsuit filed in U.S. District Court for the District of Massachusetts came two days after Education Secretary Linda McMahon announced that the department’s staff would be cut by about 2,183 employees for a 50% reduction in force.
New York Attorney General Letitia James called the staffing cuts “reckless and illegal.”
“Today I am taking action to stop the madness and protect our schools and the students who depend on them,” she said in a Thursday press release.
President Trump campaigned on a promise to eliminate the department, calling it “a big con job.” The attorneys general accused him of exceeding his authority.
“The Department is an executive agency authorized by Congress, with numerous different laws creating its various programs and funding streams,” said the release. “The coalition’s lawsuit asserts that the executive branch does not have the legal authority to unilaterally incapacitate or dismantle it without an act of Congress.”
The department began operations in 1980 after President Carter signed into law the Department of Education Organization Act. Critics blasted the moveas a sop by the president to the National Education Association in exchange for its campaign endorsement.
Republicans have sought to eliminate the department since President Reagan took office in 1981, but Mr. Trump’s 50% reduction in force represents the most dramatic step in that direction.
Republicans argue that the $268 billion department is inefficient, bloated and unnecessary, given that states and local governments are in charge of building and funding schools. Democrats counter that the department provides critical resources.
“This administration may claim to be stopping waste and fraud, but it is clear that their only mission is to take away the necessary services, resources, and funding that students and their families need,” Ms. James said in a Thursday statement. “Firing half of the Department of Education’s workforce will hurt students throughout New York and the nation, especially lowincome students and those with disabilities who rely on federal funding.”
Programs run by the department serve “nearly 18,200 school districts and over 50 million K-12 students attending roughly 98,000 public schools and 32,000 private schools,” said the Democrats in a statement.
School districts in New York received $6.17 billion, or $2,438 per student, from the department in Fiscal Year 2024. Republicans argue that the funding comes with strings, such as requiring schools to adopt diversity, equity and inclusion initiatives.
The department said Tuesday that it will continue to fulfill its statutory obligations despite the staffing cuts, including student loans, Pell Grants, funding for special-needs students, grantmaking and formula funding, but the Democrats were leery.
“The administration’s layoff is so massive that ED will be incapacitated and unable to perform essential functions,” said the Democratic attorneys general in a press release.
The Democratic attorneys general joining Ms. James represent the states of Arizona, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, Oregon, Rhode Island, Vermont, Washington, Wisconsin, and the District of Columbia
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https://dailycaller.com/2025/03/13/trump-admin-asks-scotus-judges-govern-whole-nation-universal-injunctions/
https://babylonbee.com/news/federal-judge-appoints-himself-president
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(1) JUDGES ORDER FIRED PROBATIONARY FEDS REINSTATED: Federal judges in California and Maryland ordered the Trump administration to reinstate probationary federal employees who were subject to mass layoffs from 19 federal agencies.
Why It Matters: The Trump administration and the courts are heading toward a confrontation over the lower federal courts’ attempts to assert authority over the executive branch. The courts appear to be pushing the Trump administration to defy court orders by issuing expansive temporary restraining orders, to manufacture a constitutional crisis Democrats could exploit ahead of the midterm elections. The Trump administration is attempting to force groups suing Trump to put up cash bonds for injunctions, a legal strategy outlined by former White House lawyer Dan Huff to deter lawsuits and avoid a crisis. - R.C.
=========
(3) TRUMP TO INVOKE ENEMY ALIENS ACT: A U.S. official said President Donald Trump is planning to invoke the 1798 Enemy Aliens Act as soon as today. The official said the Trump administration hopes invoking the act will unlock broad powers to arrest and deport illegal immigrants while bypassing immigration courts.
(4) FEMA PROBES AID ORGS FOR ILLEGAL ALIEN SMUGGLING: The Federal Emergency Management Agency (FEMA) said it is investigating organizations that received grants through FEMA’s Shelter and Services Program to provide temporary housing and aid to illegal immigrants. FEMA Acting Director Cameron Hamilton said the Department of Homeland Security (DHS) is concerned the federal money was used for illegal activities, and the organizations may have violated federal laws against smuggling or transporting illegal immigrants.
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https://www.msn.com/en-us/news/us/simply-not-conceivable-judge-says-trump-admin-lied-to-court-engaged-in-illegal-scheme-to-fire-broad-swaths-of-the-federal-workforce/ar-AA1AWRpm?ocid=msedgntp&pc=HCTS&cvid=b77553a1f43b4b2bb49f829bf38773f3&ei=23
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(1) JUDGE BLOCKS TRUMP ENEMY ALIENS ACT ORDER: Federal District Judge James Boasberg issued a temporary restraining order against the Trump administration conducting deportations under the Enemy Aliens Act, after President Trump issued an order invoking the act.
The Trump administration filed an emergency appeal to the Supreme Court last week, asking the court to rein in nationwide injunctions issued by the lower federal courts.
Election lawyer Mark Zaid said the Trump administration defying Boasberg’s order to return deportees en route to El Salvador was the start of a “true constitutional crisis,” and will lead to an impeachment attempt against Trump.
Why It Matters: The Trump Resistance is attempting to manufacture a constitutional crisis through lawfare, pushing lower federal courts to expand the use of temporary restraining orders. The Trump administration is also pushing to assert Article II executive powers. Trump officials said White House advisor Stephen Miller and Homeland Security Secretary Kristi Noem raced to get deportations underway before Boasberg could block Trump’s order. Some in the Trump administration including Miller may be trying to speed up the Supreme Court taking up a case that would strengthen Executive Branch powers. - R.C.
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https://en.wikipedia.org/wiki/Mark_Zaid
only surprise is he is not an Ivy grad.
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https://x.com/RapidResponse47/status/1901741630618489054
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Fantastic Steve Miller has genius level articulation and argumentative skills.
We are doing a much better job on these overt enemy cable stations of arguing out position.
Our side is much better prepped when going on their shows to fight back at the endless verbal assaults of these DNC anchors.
CNN made one good move by adding Scott Jennings to their line up. He is the ONLY reason I watch Abby Phillip's show. I would love for him to be made an anchor :-D
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During Trump 45 I saw the intelligence and the spine in Miller, but he lacked the technique to handle the vitriol aimed at him. He became the thermometer instead of the temperature. Just as Trump deepened during the Biden interregnum, so too Miller, he now comes from more centered place and has the technigue to operate from there.
JD Vance has this in spades.
Anyway, here is this from FO:
(1) FED JUDGE ORDERS TRUMP ADMIN RESPONSE TODAY: Washington, D.C. District Judge James Boasberg ordered Department of Justice (DOJ) lawyers to provide information about deportation flights under the Enemy Aliens Act by noon today.
The DOJ asked the Washington, D.C. Circuit Court of Appeals to reassign the case to a different district court judge, due to “highly unusual and improper procedures” employed by Judge Boasberg over the weekend.
Why It Matters: This lawsuit could be the case that pushes the Trump administration to openly defy the courts if other off ramps are closed, including the Trump administration’s emergency appeal to the Supreme Court to curtail nationwide injunctions. Legal analysts say the birthright citizenship lawsuit is the best case for the Trump admin to get a favorable decision from the Supreme Court on nationwide injunctions. - R.C
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:-o :-o :-o
https://freerepublic.com/focus/f-news/4305173/posts
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HT BBG
https://instapundit.substack.com/p/trump-and-the-lower-courts?r=1qo1e&utm_campaign=post&utm_medium=web&triedRedirect=true
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second
https://spectator.org/this-mess-is-your-own-making-chief-justice-roberts/?fbclid=IwY2xjawJJDshleHRuA2FlbQIxMQABHR3pue29PTrEAosJD2kMt9K9D_PQjCTzIz6wY59q9UPbML-rqHG1_i3pgQ_aem_GlVmwagtGxX-slPJ0e0oDg
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Third
Donald Trump For President
March 17 at 5:47 PM ·
🚨 𝗕𝗥𝗘𝗔𝗞𝗜𝗡𝗚: The DOJ responds to Judge Boasberg: Bondi highlights immediately "the Court lacks the jurisdiction" to interfere with Trump's national security and foreign affairs authority.
They also say Trump's role as Commander in Chief is "not subject to judicial review or intervention."
In a significant legal response filed recently, the United States government firmly asserted its constitutional authority in matters of national security, particularly regarding presidential actions involving foreign terrorist threats. In a response to a lawsuit challenging President Donald J. Trump's national security proclamation, the Department of Justice argued persuasively that judicial interference with presidential powers in military and diplomatic matters poses significant constitutional problems.
The government's filing emphasizes that actions involving the removal of individuals deemed threats to national security fall squarely within the President's inherent Article II powers. It underscores established legal precedent, noting that judicial oversight in military or diplomatic operations abroad is both unprecedented and inappropriate. Quoting multiple Supreme Court rulings, the DOJ states clearly that presidential actions in such matters are constitutionally protected from judicial review.
Furthermore, the response clarifies misunderstandings related to the timing of recent flights involving removed individuals, pointing out that all actions took place before the court's injunction was officially issued. The government stresses the careful compliance with judicial orders while underscoring that ongoing operations and diplomatic efforts overseas remain beyond the purview of judicial restraint.
Ultimately, the DOJ's stance is a strong reminder that the separation of powers requires courts to avoid encroaching upon critical executive functions, especially during sensitive national security and foreign policy operations. Upholding the government's position here ensures not only the effective operation of executive authority but the broader integrity and safety of the nation.
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Truth slips out. Schumer on defense because of his vote to fund the government, tells what he is doing to stop Trump.
Excuse me but don't they normally deny that they are putting biased, partisan, activist judges on the bench?
Chuck Schumer Says the Quiet Part Out Loud: ‘We Did Put 235 Progressive Judges – on the Bench and They Are Ruling Against Trump Time After Time After Time’
https://www.thegatewaypundit.com/2025/03/chuck-schumer-says-quiet-part-loud-we-did/#comments
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"Chuck Schumer Says the Quiet Part Out Loud: ‘We Did Put 235 Progressive Judges – on the Bench and They Are Ruling Against Trump Time After Time After Time’"
and most seem to be from Harvard and a few from other IVYs and much less not IVY trained.
Anyone know if it has always been this way the lower level judges stop or delay a President? I recall reading when FDR tried to pack the Court , Congress voted against him.
The Dems found their weapon.
What a pain in the a..
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quote author=ccp
"Anyone know if it has always been this way the lower level judges stop or delay a President?
...
The Dems found their weapon."
--------------------
https://thefederalist.com/2025/03/20/the-judicial-insurrection-is-worse-than-you-think/
More nationwide injunctions and restraining orders have been issued against Trump in the past month that were issued against the Biden administration in four years.
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https://patriotpost.us/articles/115491?mailing_id=9091&subscription_uuid=e046cf62-a6a8-4317-a631-0e7db6e8f626&utm_medium=email&utm_source=pp.email.9091&utm_campaign=weekend_snapshot&utm_content=body
Trump v. Roberts: The Case Against Judicial Supremacy
The three branches are supposed to be coequal, but the judiciary has instead become the “despotic branch.”
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Nate Jackson
@NatriotJackson
More by this Author
In 1804, President Thomas Jefferson warned that the judiciary could become “a despotic branch.” He foresaw that this would happen when judges encroached on the legislative and executive spheres by declaring themselves the final — and therefore no longer coequal — arbiters of “what laws are constitutional and what not.”
Jefferson’s prophetic warning is precisely what is playing out in the courts today. Judicial supremacists have indeed created a despotic branch. Chief Justice John Roberts would do well to take note.
Admittedly, President Donald Trump has been unorthodox in both his policies and his approach to enacting them — to say nothing of his communication methods. But he wasn’t elected and sent to Washington, DC, a second time to ensure The Swamp remained intact. His mission was and is to drain it. That’s sometimes an ugly task.
With Democrats in the minority and rudderless, activist judges have taken it upon themselves to block him at every turn. In two short months, Trump has lost court cases regarding firing executive workers, canceling executive expenditures (like funding gender mutilation of children), reworking executive agencies such as USAID, and deciding how executive agencies will enforce laws such as birthright citizenship or deportation of terrorist sympathizers and criminal terrorists. Just yesterday, yet another power-hungry district judge blocked the commander-in-chief’s order determining criteria for serving in the Armed Forces, saying he must allow “transgender” people to enlist and remain in the military. By the way, when appointed in 2023, that judge became the “first LGBT person” to serve as a district court judge in DC.
Do you notice a pattern here? Judges (mostly at the district level) are telling the president how to run his own branch of government.
Political analyst Gary Bauer also noted something mind-blowing: “[Barack] Obama only faced 12 nationwide injunctions during his 8 years in office. [Joe] Biden faced 14 in four years. But the first Trump term saw 64 judicial injunctions issued against his agenda. And the left’s lawfare against Trump’s second term is off to a blistering start. More than 120 lawsuits have been filed against the administration, and at least 15 nationwide injunctions were issued against Trump’s orders last month alone!”
Former House Speaker Newt Gingrich called it an “emerging dictatorship” of district judges.
Yet Democrats and the Leftmedia blame Trump for igniting a “constitutional crisis.” I think they have the wrong suspect.
You see, it says right there in Article II, “The executive Power shall be vested in a President of the United States of America.” District judges do not have executive power.
On Monday, I wrote that DC District Court Judge James Boasberg was micromanaging immigration policy, blocking Trump’s use of the Alien Enemies Act of 1798 for deportations and even going so far as to (ludicrously) demand that airplanes loaded with illegal alien criminal terrorists turn around and fly back to the United States. They didn’t because they were no longer in U.S. airspace, much less under his jurisdiction.
Trump responded with his typical flare, posting a Truth Social missive that included this line: “This judge, like many of the Crooked Judges’ I am forced to appear before, should be IMPEACHED!!!”
Trump was impeached twice, of course, so he likely meant this more seriously than literally. Boasberg did grossly overstep his authority, though, and Congressman Brandon Gill filed articles of impeachment.
I’ll grant that this is largely political posturing that won’t (and probably shouldn’t) go anywhere. Like the “constitutional crisis,” however, don’t blame Trump for being the first one to politicize the judiciary. Democrats have spent decades doing that.
Still, Trump’s comment prompted John Roberts to issue a rare public statement circling the wagons for his branch of government: “For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision. The normal appellate review process exists for that purpose.”
Roberts is correct that not liking a ruling isn’t sufficient for impeachment. However, he is wrong to suggest that this case is merely about “disagreement concerning a judicial decision.” It concerns the argument that the judge was completely out of line and usurped authority.
Maybe Roberts could muster the energy for a statement instructing judges on their proper constitutional role and authority.
Then again, Roberts is the guy who engaged in legal contortions to save ObamaCare in 2012. Democrats repeatedly insisted that the individual mandate was not a tax, going to great lengths to legislate it as a “penalty” so as to avoid being accused of raising taxes. When the mandate was challenged in court as an unconstitutional infringement of individual liberty, Roberts decided (i.e., legislated) that it was, in fact, a tax so that he could justify it under Congress’s power to levy taxes.
I’ll strain to avoid hyperbole here, but on numerous occasions since then, Roberts has seemingly been more interested in asserting judicial authority and preserving precedents and “norms” than in faithfully interpreting the Constitution or the laws.
There may also be a personal element here. The Federalist’s Sean Davis notes that Roberts put Boasberg “on the FISA court that rubber-stamped illegal spy warrants against Donald Trump,” adding, “In case you’re wondering why he’s setting his own credibility on fire to defend Boasberg from impeachment investigations.”
In the specific case at hand, Trump is perhaps stretching the law beyond its original intent, but not incontrovertibly so. He undoubtedly prefers hyperbole in making his arguments. Regardless, Roberts should stay in his lane and oversee his own branch rather than continue to allow district judges to run roughshod over the executive branch.
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Second
https://www.msn.com/en-us/news/politics/disdain-for-president-trump-doj-demands-removal-of-federal-judge-from-case-by-hillary-clinton-linked-law-firm/ar-AA1BrYvb?ocid=msedgntp&pc=HCTS&cvid=5ee7c2fa37f94ad9a475f9e8b22a83f7&ei=9
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https://www.breitbart.com/politics/2025/03/20/report-judge-who-blocked-trump-deportations-played-key-role-in-russia-collusion-hoax/
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https://simonmercieca.com/2025/03/20/scrutiny-intensifies-over-judge-boasbergs-impartiality-amid-family-ties-and-recent-rulings/?fbclid=IwY2xjawJOmNZleHRuA2FlbQIxMQABHZzBHnyIJRE8HBUmLZGg-TQ8jaaqaOF6nsMr0dYcOslfURXE6yfeC93zow_aem_UZrlKAJok3fUpF2fY0DnLA
https://www.partnersforjustice.org/team-members/katharine-boasberg?fbclid=IwY2xjawJOmPZleHRuA2FlbQIxMAABHSVuvel_j_kI8VbyxnR9W4lzDq104vd89m4-_Gq6pMV2nO4viEM4iIEMTw_aem_RkKuzqMzH2uYsGDxJpnHmQ
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https://x.com/ProfMJCleveland/status/1904317723204517899
https://www.cbsnews.com/news/trump-state-secrets-privilege-deportations-alien-enemies-act/
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https://www.msn.com/en-us/news/politics/mike-johnson-issues-chilling-threat-to-anti-trump-judges-nationwide/ar-AA1BEc4A?ocid=msedgntp&pc=DCTS&cvid=0fa0873cb360447a99efabfd5ddb876c&ei=5
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(https://mcusercontent.com/dc8d30edd7976d2ddf9c2bf96/images/d7bb6852-a869-1490-4ce0-6c9639869412.png)
https://mcusercontent.com/dc8d30edd7976d2ddf9c2bf96/images/d7bb6852-a869-1490-4ce0-6c9639869412.png
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https://www.nationalreview.com/2025/03/an-m-i-a-congress-exacerbates-the-clash-between-trump-and-the-courts/
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https://www.msn.com/en-us/news/politics/supreme-court-allows-trump-to-terminate-16-000-probationary-federal-workers/ar-AA1CxvQo?ocid=msedgntp&pc=DCTS&cvid=ed59aa6bbf3c4ca8a98fb926f0a43f9b&ei=12
On "paid administrative leave" though"?
https://amgreatness.com/2025/04/08/supreme-court-rules-in-favor-of-trump-on-fired-federal-workers/
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https://www.msn.com/en-us/news/us/supreme-court-rejects-trump-s-claim-that-he-can-summarily-deport-anyone-he-describes-as-an-alien-enemy/ar-AA1CxXGN?ocid=msedgntp&pc=DCTS&cvid=21d243c00db643c082ba1354307f5906&ei=38
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https://www.wsj.com/opinion/supreme-court-district-judges-trump-administration-john-roberts-amy-coney-barrett-brett-kavanaugh-f22a6ff0
Trump’s Triple Win at the Supreme Court
The Justices tell lower courts to stay in their proper judicial lane.
(Doug)
Three different majorities in three cases. One unsigned decision seems to be a 7-2 decision with Sotomayor and Brown dissenting. The other two are 5-4 decisions with Roberts joining the majority on one and Barrett on the other.
Unanimous would have sent a stronger message.
From my point of view, Kagan is the most reasonable of the liberal justices. Roberts and Barrett are the least reliable, predictable of the conservative justices.
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As Dean of Harvard Law, Kagan brought in Kavanaugh as a prof.
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(3) TRUMP ADMIN THREATENS FED FUNDING FOR ALL SANCTUARY CITIES: President Donald Trump said he is planning to withhold all federal funding from cities and states with sanctuary immigration policies.
The Brookings Institute said many city attorneys and state attorneys general are prepared to mount legal challenges to Trump administration attempts to cut off federal funds.
Why It Matters: Sanctuary city and state policies have significantly expanded since Trump’s first term, and include many cities and counties in Republican-controlled states. The Trump administration likely sees threats to federal funding as a pressure point against Democrat-controlled states and local governments efforts to disrupt federal immigration enforcement, due to warnings about major budget shortfalls over the next year. Trump’s previous attempt to block federal funds to sanctuary cities and states was challenged in court, but was rescinded by the Biden administration before the Supreme Court could issue a ruling. - R.C.
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https://x.com/i/web/status/1910513548687532170
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https://www.breitbart.com/law-and-order/2025/04/15/federal-judge-blocking-trump-from-deporting-bidens-migrants-has-past-ties-to-democrats/
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(2) TRUMP, COURTS HEADED TO CONSTITUTIONAL CRISIS TIPPING POINT: Washington, D.C. District Judge James Boasberg said there is probable cause to hold some Trump officials in criminal contempt of court, for “willfully disregarding” Boasberg’s order to stop deportation flights of Tren de Aragua members to El Salvador.
The Department of Justice (DOJ) directed federal immigration courts to scour dockets for asylum cases that could be denied without a full hearing. Immigration legal experts said the Trump administration’s order is an attempt to brush aside regulations, and is “flipping the notion of due process on its head.”
Why It Matters: If Boasberg refers Trump officials to the DOJ for criminal contempt charges, Trump could direct Attorney General Pam Bondi to drop the charges, openly defying the court. The Trump Resistance will likely claim Trump’s new order to the Immigration Courts is flouting due process protections, ratcheting up the constitutional crisis narrative. - R.C.
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this is what Larry Tribe et al want
a made up controvers
.
git
like Biden is not demented
like russia hoax
like trump hitler stalin the rest
like tax cuts for the rich
like threat to inclusion diversity etc
now this hoax to be blasted by all the Democrat news hosts and their guests who are there to agree.
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(2) TRUMP, COURTS HEADED TO CONSTITUTIONAL CRISIS TIPPING POINT: Washington, D.C. District Judge James Boasberg said there is probable cause to hold some Trump officials in criminal contempt of court, for “willfully disregarding” Boasberg’s order to stop deportation flights of Tren de Aragua members to El Salvador.
MARC: I enjoy FO a lot but tight legal analysis is not their jurisdiction.
The Department of Justice (DOJ) directed federal immigration courts to scour dockets for asylum cases that could be denied without a full hearing. Immigration legal experts (a.k.a. GONGOs?) said the Trump administration’s order is an attempt to brush aside regulations, and is “flipping the notion of due process on its head.”
Why It Matters: If Boasberg refers Trump officials to the DOJ for criminal contempt charges, Trump could direct Attorney General Pam Bondi to drop the charges,
MARC: I'm just a LINO, but this seems to me an outright error. The judiary does not institute charges, that is an executive function thus G Bondi would not be "dropping the charges" because none will have been brought.
openly defying the court.
MARC: Thus there is no "defiance" of the court.
The Trump Resistance will likely claim Trump’s new order to the Immigration Courts is flouting due process protections, ratcheting up the constitutional crisis narrative. - R.C
MARC: No doubt!
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https://www.msn.com/en-us/news/politics/trump-wins-supreme-court-ruling-threat-to-our-constitution/ss-AA1D7XmV?ocid=msedgntp&pc=DCTS&cvid=55a09dbbdcab4372b65819748c686860&ei=20
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https://www.msn.com/en-us/news/crime/doj-responds-after-judge-boasberg-issues-criminal-contempt-warning/ar-AA1DbMkD?ocid=widgetonlockscreen&cvid=09fb1d459b334c99b60c753b984be28f&ei=34
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https://www.msn.com/en-us/news/opinion/kristi-noem-pam-bondi-slammed-by-conservative-judge-shocking-to-foundation-of-constitutional-order/ar-AA1DbXPV?ocid=msedgntp&pc=DCTS&cvid=2558c5e1e351482eb5b6819600e1fc42&ei=11
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https://www.msn.com/en-us/news/opinion/kristi-noem-pam-bondi-slammed-by-conservative-judge-shocking-to-foundation-of-constitutional-order/ar-AA1DbXPV?ocid=msedgntp&pc=DCTS&cvid=2558c5e1e351482eb5b6819600e1fc42&ei=11
Right, we have a forever bad look because of the enemy media.
I thought he did have deportation orders against him.
How do we give individual due process to 20 million people in a reasonable amount of time? This mess isn't of the Trump administration's doing.
Thinking of emergency orders of covid where all my rights were waived. I thought Trump declared an emergency and these foreign gang members become enemy combatants. They're entitled to individual trials that take years just because they entered the country illegally?
Do illegals have full rights? Why, how so? When was that established?
And then there's the part about this being a conservative judge. A very conservative judge. Maybe he is, but just because Reagan appointed him doesn't mean it was part of a deal to get other judges confirmed. How come I don't hear the MSN or the MSM ever say very liberal judge as something relevant to a ruling?
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The LEFt keeps telling us "even Trump administration" admits it made a mistake.
So if mistake was made get the darn guy back and end the left wing media circus
for political reasons.
it is only one person.
But now the WH is saying irregardless of any mistake guy was linked to gand bangers , was here illegally and El Salv pres says he was in gang in his country
So which is it for God's sake?!!!
And now we have Goldman saying the whole nation should read a Reagan era judge who says it is a black and white issue and guy should be brought back.
This is all a waste of time but the media is drooling with thrist and lust to make this into a big deal.
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Some things I posted on FB:
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What does "facilitate" mean? If the meaning were "ordered to" then that is what would/should have been said.
I would suggest that the precise point here is that SCOTUS did not "order" is precisely because on the facts presented this is outside the jurisdiction of the judicial branch so they chose a mealy mouthed word to cover that up.
Certainly President Trump et al can reasonably make that argument?
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You do well for a non-lawyer, but as best as I can tell, you are missing the legal consequence of MS 13 being legally declared as a terrorist organization.
Despite your noble paeans to Due Process, the man has already had his Due Process-- and has been ordered deported.
At first the hang up was the requirement that it not be to El Salvador, but once MS 13 was declared terrorist, and thus with it Abrego, the limitation became vitiated.
This is my understanding.
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Forgive me, but you go in further over your head. You mistakenly state the legal posture.
Start with this:
"Declaring MS-13 a terrorist organization"-- you miss that this is a formal legal act with significant legal consequences.
HE HAS HAD HIS DUE PROCESS AND HAS BEEN FORMALLY DECLARED TO BE DEPORTED. NOW THAT HE IS LEGALLY CATEGORIZED AS A TERRORIST THERE WERE ZERO LEGAL BARRIERS TO HIM BEING SENT BACK TO HIS COUNTRY.
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As first posted on FB:
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Although 80 years old, the judge does write with coherent vigor, but IMO he is wrong.
1) He writes:
"The government asserts that Abrego Garcia is a terrorist and a member of MS-13. Perhaps, but perhaps not."
Not my understanding at all. Indeed, quite the contrary-- he has been held to be a member of MS 13-- WHICH IS PRECISELY WHY THE ORDER OF DEPORTATION WAS ENTERED.
" Regardless, he is still entitled to due process."
Which he has received!!!
"If the government is confident of its position, it should be assured that position will prevail in proceedings to terminate the withholding of removal order. See 8 C.F.R. § 208.24(f) (requiring that the government prove “by a preponderance of evidence” that the alien is no longer entitled to a withholding of removal)."
Maybe so, and maybe not and yes this is a key point. With MS-13 legally declared a terrorist organization, the basis for the order (wrongly made in the first instance IMO but I digress) is vitiated. Abrego is now legally considered to be a terrorist and as such the withholding order no longer applies.
"Moreover, the government has conceded that Abrego Garcia was wrongly or “mistakenly” deported."
Here we must get into the weeds a bit. The lawyer who made this apparently mistaken assertion (of course pounced upon by all those who cheered the rape of the due processes of our immigrtion laws) has been removed from the case because of her error (good faith or bad faith we do not know).
Of course the Pravdas, Progs, and Politicians who told us lie after lie during the administration of the corrupt and senile Biden in search of inciting and enabling the invasion of our country for contemptible and unAmerican reasons (illegal stacking of the vote now and in the future) do not circle back to make note of this point and bring it to the attention of we the American people.
"Why then should it not make what was wrong, right?"
a) It wasn't wrong, and
b) As properly and implicitly noted by SCOTUS's use of the word "facilitate"
*the initial action must come from El Salvador (not fg likely!) and
*the judiciary has no power/jurisdiction to compel the President here.
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But wait-- there's more!
"We are not bound in this context by a definition crafted by an administrative agency and contained in a mere policy directive."
Oh really?!? Exactly what should the executive branch have done?!? Blow it off?!?
"Cf. Loper Bright Enters. v. Raimondo, 603 U.S. 369, 400 (2024); Christensen v. Harris Cnty., 529 U.S. 576, 587 (2000)."
Going deeper yet into the weeds, the "Cf" with which the citation begins means that the cases cited are NOT precisely on point. If you want to dig in and see what they say and report back to us, well then have at it.
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Sorry for the link being FB, but this is awesome:
https://www.facebook.com/MichaelARothman/videos/1412445866607235
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https://x.com/julie_kelly2/status/1913958129269604844
Here is what FO has to say:
(3) SUPREME COURT ATTEMPTS TO SAVE DISTRICT COURTS: The Supreme Court over the weekend ordered the Trump administration to temporarily halt plans to deport a second wave of Venezuelan illegal immigrants in Texas under the Alien Enemies Act over the weekend.
The Supreme Court issued the emergency order after the American Civil Liberties Union (ACLU) said it was prepared to file lawsuits in all 94 district courts to block the deportation flight.
Justice Samuel Alito said it was not clear that the Supreme Court had jurisdiction to block the Trump administration, and the order was unprecedented and legally questionable.
Why It Matters: The Supreme Court issued a midnight ruling likely to prevent another district court from issuing an expansive temporary restraining order and declaring that the Trump administration is causing a constitutional crisis. The Supreme Court is attempting to maintain the legitimacy and authority of the courts without overstepping Article III constitutional powers. The legal fight over deportations remains the most likely tipping point for a constitutional crisis, and the Trump administration could reach the point of deciding to openly defy, or comply with the courts as early as this summer. - R.C.
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Yo Crafty, think this one is right up your alley:
In another record-shattering development, the New York Times ran a non-story, a story that was no story at all, topped with an intentionally neutral headline, and just reprinting a Supreme Court dissent in full. The headline only said, “Read Justice Samuel Alito’s Dissent in the Alien Enemies Act Case.” The ‘story,’ if you can call it that, was a single sentence. All the Times could manage to eke out was, “Justice Samuel A. Alito Jr. wrote that the Supreme Court’s decision to block the Trump administration from deporting Venezuelan migrants under a wartime law was premature.”
image 6.png
Hardly. He said a lot more than that. At midnight on Saturday night, Justice Samuel Alito, joined by Justice Thomas, filed a scorcher of a dissent. It responded to a previous midnight decision in AARP vs. Trump, in which the seven other justices had joined on an emergency basis. Justice Alito’s dissent was white-hot. Here’s how it concluded:
image 5.png
You can argue that the Supremes were just following a previously established pattern: they generally don’t rule on appeals from TRO’s, but instead have been waiting for the lower court to first enter a reasoned decision on a preliminary injunction. So far, those cases have all wound up going Trump’s way, albeit after a short period of discomfort. The bigger problem is that lower courts seem to be taking advantage of this prudish restraint and are pushing the outer limits of what’s appropriate or legal to include in a temporary restraining order.
In any case, the Supreme Court’s Friday night order included this remarkable line: “The Government is directed not to remove any member of the putative class of detainees from the United States until further order of this Court.” Giving the Court the benefit of the doubt, it appeared to be attempting to avoid another Judge Boasberg-style mess where Tom Homan just puts the detained plaintiffs on the next plane to El Salvador. Sorry, judge, they’re already gone.
But other commenters saw it as the Supreme Court indefinitely shutting down a whole class of deportations, in a case where they probably lacked jurisdiction, and where the so-called ‘class’ never should have existed to start with. I think everything is going to work out fine, and I don’t want to waste time with the details of yet more leftwing lawfare that is going nowhere.
But this snap, midnight Supreme Court decision put what could be the final polish on a galaxy-sized issue that nobody has dared to consider so far.
⚖️ The U.S. Constitution mentions an archaic, oddly-named privilege called the writ of habeas corpus in its Article I, Section 9, Clause 2. Let’s read Clause 2 together:
“The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”
image 7.png
The ‘privilege’ of the writ of habeas corpus traces its storied lineage back to the Magna Carta. It gives due process rights to anyone detained by the government and gives anyone jailed an in-person court hearing. It also bars indefinite detention. In short, the government can’t just disappear people, so some historians call it the “Great Writ of Liberty.”
Famously or infamously, depending on your point of view, President Lincoln partially suspended the writ in certain key military corridors during the Civil War. It led to a showdown with the Supreme Court in a famous case called Ex parte Merryman. Merryman, who lived in Maryland, was arrested by the U.S. military in May, 1861, for treasonously burning railroad bridges to block Union troops and for recruiting Confederate forces.
Chief Justice Taney found Lincoln’s suspension of the writ to be illegal, holding (quite reasonably) that since Clause 2 appears in Article I, it’s a power held by Congress, not by the Executive Branch.
But the decision did not settle anything; just the opposite. Lincoln (also famously or infamously) ignored the Court’s order. Chief Justice Taney had ordered the military to immediately release John Merryman and coughed up a blistering written opinion, but Lincoln never flinched. He kept Mr. Merryman in chokey and asked Congress to approve the writ’s suspension retroactively— which they did, two years later in 1863, in the Habeus Corpus Suspension Act.
Lincoln enjoyed full public support —the “will of the people”— but modern critics find the Merryman kerfluffle to be Lincoln’s original dictatorial sin. Still, they usually fail to grapple with the fact that Congress subsequently endorsed it — two branches against one.
image 8.png
Merryman never settled the dispute. First, Justice Taney acted alone, in his capacity as a circuit judge, and not for the entire Court. So his decision has no precedential power. Second, Congress blessed Lincoln’s suspension in its 1863 Act. Third, in the years following Merryman, the Supreme Court has carefully danced around the authority issue and has never formally held that a sitting president cannot suspend the writ without Congress.
⚖️ To me, it looks a whole lot like President Trump has been preparing a path to argue for suspending habeas corpus.
First, and most importantly, right out of the gate President Trump issued an executive order declaring mass illegal immigration was an ‘invasion.’ Invasion is one of only two constitutional grounds for suspending the writ. Second, Trump has invoked the Alien Enemies Act of 1798 —the Act at the heart of these key cases— which invokes precedent for wartime-style legal authority over foreign nationals, bypassing peacetime due process protections.
In J.G.G. v. Trump, the Boasberg case, the administration proceeded with deportations despite a temporary restraining order, foreshadowing Lincoln-style defiance. It wasn’t actual defiance, not really, since the Administration argues it did comply with Boasberg’s TRO. But it was nevertheless just short of defiance, since Judge Boasberg clearly disagrees.
Last week, the DC Circuit stayed Boasberg’s contempt order, defusing an imminent constitutional crisis at the last minute.
Third, and maybe most importantly, everything we can see is barreling toward galvanized public support for suspending the writ. Trump and his allies have consistently described the crisis as unlawful judges defying the will of the people —just as in Lincoln’s day— and interfering with the President’s electoral mandate to remove foreign terrorists and cartel gangs from American shores.
image 9.png
In about twenty different ways, Trump has recently said things like, “I’m trying to protect the country—but judges are protecting criminals.”
Indeed, it is difficult to see how Trump can possibly remove up to 20 million illegal immigrants —fulfilling his campaign promise— if each illegal gets a court hearing. Removal at scale is impossible unless one of two things happens: either a massive, rapid expansion of the legal system, which is unlikely to say the least, or removal of the judicial bottleneck.
Our existing immigration system wasn’t built for mass enforcement— it’s built for case-by-case adjudication.
⚖️ Here’s where things get spicy. Trump, citing judges making it impossible for him to fulfill his mass deportation promises, could next ask Congress to authorize suspension of the writ in a continuing resolution, which circumvents the Senate filibuster. (Continuing resolutions are short-term funding bills that let the federal government stay open.)
If the Continuing Resolution also agreed that America is currently under invasion, then two branches would be lined up against one, and the Supreme Court would find it very difficult to undo. Even Justice Taney found that Congress can legally suspend the writ, so Congressional delegation of that authority to the President in a CR would be constitutionally sound.
And the Supreme Court has always deferred to the other branches over things like declarations of emergency, war, or invasions, calling those political questions rather than legal issues.
Once again we see the outlines of a carefully considered plan. One of Trump’s first moves was to declare an invasion, and to declare cartels to be foreign terrorist organizations, which put the Alien Enemies Act on the chessboard, framed the problem in military terms, and teed up an eventual showdown over the writ. Trump’s team must have known they’d face these due process problems in carrying out the mass deportation plan.
Critically, the Courts could avoid this appalling scenario by crafting smart, balanced legal opinions that help the Administration accomplish its objectives without hamstringing it with micromanaged due process concerns. For instance, they could hold that non-citizens caught near the border during a declared invasion have strictly limited procedural rights, especially if prosecuted under the Alien Enemies Act or other federal immigration statutes.
Or, courts could invoke the political question doctrine, and hold that the determination of “invasion” is the province of Congress and the Executive, not the courts. Instead of requiring full due process for illegal terrorists, they could order reporting requirements, time limits, and narrow targeting. Or they could define the limits of emergency Executive powers and require Congress to ratify Trump’s emergency policies within a certain period of time.
But instead, the Courts are walking right into the trap. In their institutional vanity, procedural rigidity, and Trump derangement, the courts are doing exactly what executive strategists want them to do: lean hard into due process formalism, telegraph hostility, and issue sweeping rulings that look like they’re siding with gang-affiliated aliens over national security.
image 10.png
It practically invites defiance. It lets Trump rightfully say, Look, I didn’t want to ignore the courts—but I have no choice. They’ve made the country ungovernable.
Trump is forcing the courts into a clear choice: cooperate or become irrelevant.
⚖️ And so we return to Justice Alito’s scathing dissent, which reads like a manifesto for suspension of the writ. The logic and tone of Alito’s dissent make it clear that he sees judicial overreach as the true constitutional crisis, rather than executive enforcement.
When Alito wrote, “Both the Executive and the Judiciary have an obligation to follow the law,” he was saying that when the Executive uses legal tools like the Alien Enemies Act and constitutional powers during a crisis, the Court’s role is to tread lightly.
By pointing out the absurdity of class-wide habeas, and the procedural circus of midnight TROs based on speculative harms, Alito implictly argued that the writ is being abused by the courts— which sets the stage for suspending it entirely.
Alito’s dissent rang with echoes of the Civil War-era logic of necessity that Lincoln invoked in Ex parte Merryman. Alito signaled that, if the President acts lawfully under an invasion theory, the courts should not interfere with procedural technicalities. His dissent’s strong language undermined the legitimacy of judicial interference with mass enforcement, fueled public sympathy against detainees by focusing on legal overreach and lack of any rationale explanation, and created a quotable moral and legal groundwork to argue that: the judiciary left us no choice. The writ is now suspended.
Neither the Obama nor Bush administrations faced the kind of judicial micromanagement over deportations that Trump has encountered, and no court issued a nationwide TRO halting those presidents’ deportation programs, much less midnight orders eviscerating mass enforcement.
image 11.png
⚖️ At bottom, this lawyer sees a timid, reactive Supreme Court desperately trying to walk an increasingly thin line between endorsing the Administration’s aggressive immigration enforcement and maintaining judicial credibility. But that timidity is walking the country into uncharted constitutional waters.
In 2018, Chief Justice Roberts wrote an opinion in Trump v. Hawaii, upholding Trump’s “muslim travel ban.” But in it, he sharply criticized the court’s decision in Korematsu, which upheld FDR’s internment of Japanese Americans during World War II. That decision was never overturned, but Roberts called it a stain on the Constitution. FDR didn’t need to suspend the writ because the courts let him conduct de facto mass detention.
image 12.png
This time, unlike in FDR’s day, the courts aren’t letting Trump conduct mass deportations. Justice Roberts seems obsessed with not getting on history’s wrong side by endorsing another Korematsu. But in undermining the Executive’s core constitutional function to defend the borders, he is also undermining the Court’s own legitimacy, by issuing hasty, unsustainable rulings with no constitutional compass or even a plan.
In 1942, executive overreach was the problem. In 2025, it may be judicial overreach. This time, the courts aren’t letting the executive function, and that may prove far more dangerous than the Court’s passive deference of 1944.
The battle is far from over. Whatever happens, it’s going to make more history. And it definitely won’t be boring.
https://www.coffeeandcovid.com/p/habeas-corpses-monday-april-21-2025
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That was REALLY good!!!
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HT BBG!
The Courts Are The Scofflaws Behind Our Current Constitutional Crisis
BY: MARGOT CLEVELAND
APRIL 22, 2025
CC BY 2.0
The Supreme Court’s double standard suggests it is not prudence dictating the outcome. It is also not the Constitution.
MARGOT CLEVELAND
“Both the Executive and the Judiciary have an obligation to follow the law.”
Those thirteen words, penned by Justice Samuel Alito on Holy Saturday, represent the first admission by the judiciary that courts too can wrongly flout the law.
Justice Alito’s stark acknowledgement concluded his bullet-point evisceration of the Supreme Court’s “unprecedented” command that President Trump not remove a “putative class of detainees” under the Alien Enemies Act. The Supreme Court had entered that order shortly after midnight after the American Civil Liberties Union (“ACLU”) filed an emergency application asking alternatively for an emergency injunction, an immediate administrative injunction, a writ of mandamus, or a stay of removal, to prevent the Trump Administration from removing Venezuelans to El Salvador pursuant to the Alien Enemies Act.
The ACLU’s scattershot request for relief from the Supreme Court came a mere two days after they sued the Trump Administration in a federal court in Texas — and before that court or the Fifth Circuit Court of Appeals had an opportunity to rule on the request for an injunction barring the removal of any more aliens to El Salvador.
The ACLU filed the habeas corpus complaint on Wednesday in the Northern District of Texas, on behalf of two plaintiffs, identified merely as A.A.R.P. and W.M.M., but the ACLU also sought certification of a class defined as “[a]ll noncitizens in custody in the Northern District of Texas who were, are, or will be subject to the March 2025 Presidential Proclamation entitled ‘Invocation of the Alien Enemies Act Regarding the Invasion of the United States by Tren De Aragua’ and/or its implementation.”
Simultaneously, the ACLU filed a motion for a Temporary Restraining Order to prevent the Trump Administration from removing any aliens under the presidential proclamation Trump signed on March 14, 2024. That proclamation provided that “all Venezuelan citizens 14 years of age or older who are members of TdA [Tren de Aragua], are within the United States, and are not actually naturalized or lawful permanent residents of the United States are liable to be apprehended, restrained, secured, and removed as Alien Enemies.”
On March 15, 2024, even before the Trump Administration published the proclamation, the ACLU had filed a similar class action in a D.C. federal court. Early that Saturday morning, Judge James Boasberg, a Barack Obama appointee, entered a TRO barring the Trump Administration from removing the five named plaintiffs in that case. Judge Boasberg then scheduled an emergency hearing later in the day to consider the ACLU’s request to certify a class and to extend the TRO to enjoin the removal any members of the class.
During the Saturday afternoon hearing, the Trump Administration stressed that because the named plaintiffs were detained in Texas and because the lawsuit “sounded in habeas” — a type of case that concerns the physical custody of an individual — the D.C.-based court lacked jurisdiction. The ACLU would then voluntarily dismiss the habeas claims, and Judge Boasberg would later enter a written order certifying a class of all noncitizens in U.S. custody who are subject to the presidential proclamation. The Obama appointee then enjoined the government “from removing members of such class, . . . ”
By the time Judge Boasberg had entered his written order, the Trump Administration had already removed two planes filled with illegal aliens from the United States. Judge Boasberg would later find there was probable cause to find the “Defendants acted contemptuously,” by not turning the planes around, as he had orally commanded, and by not returning the aliens to the United States after the planes had landed in El Salvador. The Trump Administration is currently appealing that decision.
The Trump Administration also appealed Judge Boasberg’s underlying injunction, arguing the D.C. federal court lacked jurisdiction. The Supreme Court agreed, and vacated Judge Boasberg’s injunctions, holding that challenges to removal under the Alien Enemies Act, “must be brought in habeas,” and that for “habeas petitions,” “jurisdiction lies in only one district: the district of confinement.”
But rather than leave matters there, the Supreme Court added that Alien Enemies Act “detainees must receive notice after the date of this order that they are subject to removal under the Act. The notice must be afforded within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs.”
After the Supreme Court’s vacated Judge Boasberg’s injunction, the ACLU filed suit in several federal districts where various members of Tren de Aragua were detained, including the A.A.R.P. and W.M.M. habeas case filed on Wednesday in the Northern District of Texas. On Thursday, after the Trump Administration agreed it would not remove A.A.R.P. or W.M.M. until the conclusion of their habeas proceedings, Judge James Hendrix, a Trump appointee, denied the ACLU’s Motion for a Temporary Restraining order, but reserved decision on whether to certify a class action.
On Friday, the ACLU filed a second emergency TRO and an emergency motion for a status conference. Judge Hendrix would later enter an order detailing the sequence of events, noting that at 12:34 a.m. Friday, A.A.R.P. and W.M.M. filed a second motion for an emergency temporary restraining order, followed at 12:48:55 p.m. with a motion for an emergency status conference. Then, at 3:02 p.m., the ACLU filed a notice of appeal, attempting to appeal from the Court’s denial of its first motion for a temporary restraining order, as well as the supposed “constructive” denial of class certification and the second TRO motion.
Thereafter, Judge Hendrix would deny the ACLU’s motions because, by appealing to the Fifth Circuit, the district court was divested of jurisdiction to consider the motions. Judge Hendrix added that he “was working with utmost diligence to resolve these important and complicated issues as quickly as possible” and before the appeal was taken, had planned to issue a decision by no later than noon, on Saturday, April 19.
In addition to appealing to the Fifth Circuit, the ACLU also filed the application summarized above with the Supreme Court. And then, without waiting for the Fifth Circuit to rule, the Supreme Court shortly after midnight directed the government “not to remove any member of the putative class of detainees from the United States until further order of this Court.” The order noted that a dissent by Justice Alito, joined by Justice Thomas, would follow.
Late Saturday, that dissent hit, with Justice Alito ticking off seven problems with the Supreme Court’s decision, most significantly the high court’s lack of jurisdiction. While Justice Alito framed the concern more collegially, saying “t is not clear that the Court had jurisdiction,” there was no basis for the high court to exercise jurisdiction because the district court had not yet entered a decision on class certification or on the motion for a second temporary restraining order.
In fact, simultaneously with the Supreme Court entering its order precluding any removals under the proclamation, the Fifth Circuit dismissed the ACLU’s appeal as premature, stressing “[a] court of appeals sits as a court of review, not of first view.” “That principle dictates our ruling today,” the Fifth Circuit explained, adding that while “Petitioners insist that they tried to proceed before the district court in the first instance, and that the district court simply “refus[ed] to act,” the ACLU “gave the court only 42 minutes to act — and did not give Respondents an opportunity to respond.”
Like the Fifth Circuit, the Supreme Court sits as a court of review, other than in limited circumstances not applicable here. Yet, seven justices ignored their limited jurisdiction and entered the order barring removals of illegal aliens under the proclamation. The Supreme Court’s order was equally troubling because the high court provided a remedy to a non-existent class.
Or as Justice Alito summed it up: “[L]iterally in the middle of the night, the Court issued unprecedented and legally questionable relief without giving the lower courts a chance to rule, without hearing from the opposing party, within eight hours of receiving the application, with dubious factual support for its order, and without providing any explanation for its order.”
It isn’t difficult to surmise why seven of the justices acquiesced to the demands of the ACLU: They watched the Trump Administration outrun an injunction in the earlier case pending before Judge Boasberg and they likely wanted to ensure there was no repeat.
But the Supreme Court is not an almighty righter of wrongs — real or perceived — as Marbury v. Madison taught. While best known for establishing the principle of judicial review, the Supreme Court in Marbury also recognized the limits of its power. In that landmark case, the Supreme Court declared that Secretary of State James Madison had illegally refused to deliver William Marbury his judicial commission. But the Supreme Court then refused to provide Marbury a remedy because he had filed suit against Secretary Madison in the Supreme Court and under the Constitution, the Supreme Court lacked original jurisdiction to resolve the case.
The irony here cannot be overstated: For three months, Trump’s critics have been denouncing the president for criticizing the courts, who under Marbury are charged with declaring what the law is. And yet, the Supreme Court just ignored the same-said precedent to safeguard illegal alien gang members.
Saturday’s intervention also contrasts sharply with the Supreme Court’s more tentative approach to appeals in which President Trump sought to challenge the lower courts’ blatant interference in his Article II authority — and in those cases, the Supreme Court’s appellate jurisdiction is clear.
The Supreme Court’s double standard suggests it is not prudence dictating the outcome. It is also not the Constitution, for if it were, the justices would check the lower courts more quickly, while restraining their own impulses in cases like this where they lack jurisdiction.
We will soon know whether the Supreme Court has recognized the huge misstep it made over the weekend, for the Trump Administration has since filed a response elaborating on the many reasons the ACLU’s application should be denied. Conversely, the ACLU has requested the Supreme Court leave in place the order barring removals under the presidential proclamation and further asked the justices to elaborating on the type of notice the Trump Administration must provide before removing illegal aliens under the Alien Enemies Act. However, anything other than a silent denial of the ACLUs application would only serve to further undermine the Supreme Court’s standing — for issuing an advisory opinion is equally beyond the high court’s jurisdiction.
Margot Cleveland is an investigative journalist and legal analyst and serves as The Federalist’s senior legal correspondent. Margot’s work has been published at The Wall Street Journal, The American Spectator, the New Criterion, National Review Online, Townhall.com, the Daily Signal, USA Today, and the Detroit Free Press. She is also a regular guest on nationally syndicated radio programs and on Fox News, Fox Business, and Newsmax. Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prize—the law school’s highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals. Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time. Cleveland is also of counsel for the New Civil Liberties Alliance. Cleveland is on Twitter at @ProfMJCleveland where you can read more about her greatest accomplishments—her dear husband and dear son. The views expressed here are those of Cleveland in her private capacity.
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Trump Tries to Tip the Balance of Powers
He sees few limits on his power over not only the executive but the other branches.
By
William A. Galston
Follow
April 22, 2025 1:22 pm ET
Since taking office this year, President Trump has forcefully asserted control over the federal bureaucracy and administrative agencies, backed by the “unitary executive” theory developed by conservative scholars since the 1980s—the idea that the president has complete authority over the executive branch.
This alone would be a massive expansion of presidential power. But Mr. Trump demands more: an executive that’s not only unitary but plenipotentiary, dominant over the other branches of government. “When somebody is the president of the United States, the authority is total, and that’s the way it’s got to be,” he told reporters at a Covid-19 press briefing in 2020. Stephen Miller, one of his most powerful aides, recently said that the president is “the only official in the government that is elected by the entire nation” and that “the whole will of democracy is imbued into the elected president.”
The whole will of democracy. Ponder these words. What about members of the House and Senate, elected by the people? Doesn’t Congress represent a part of the people’s will? What about federal judges, who are nominated by the president and confirmed by the Senate?
It verges on embarrassing to restate Civics 101, but our sorry times require it. The Constitution creates three distinct, coordinate and equal branches of government. Each represents the people in a different way. Legislation involves all three branches: Congress votes a bill up or down, the president signs or vetoes it, and the Supreme Court interprets it and tests its constitutionality. Presidential orders are subject to judicial challenge, and sometimes Congress can overrule them by changing the law. If Congress or the president are sufficiently aroused by what they see as judicial overreach, they can respond by altering the court’s jurisdiction—as we see in the current effort to curb national injunctions.
The bottom line: Setting aside the additional constraints of federalism, no single branch of government represents the people’s will, even at the federal level. Nor is any branch supreme over the others. The Constitution allows each branch to struggle for power against the other two, but this competition isn’t supposed to end in total victory for any one branch.
The Founders created this system to preserve liberty and oppose tyranny, which James Madison defined in Federalist No. 47 as “the accumulation of all powers, legislative, executive, and judiciary, in the same hands.” In his “House Divided” speech during an even more turbulent period than today, Abraham Lincoln urged his audience to consider “whither we are tending”—that is, our direction as a nation. Today, we must similarly consider where we’re headed if we hope to prevent the U.S. from moving toward authoritarianism.
It’s imperative to confine the presidency within constitutional bounds. To be sure, some limits are contested. The Supreme Court soon may ratify certain powers of the unitary executive. More agency officials may end up subject to firing at the president’s will rather than for cause. Despite the disadvantages of this step, it wouldn’t fundamentally endanger liberty.
Not so for other possible changes. The president doesn’t have the authority to disregard congressional appropriations. Once they become law, he is obligated to execute them as written.
(MARC: But what if the Congress delegates its authority to the discretion of an agency, which then acts on its own criteria (e.g. Woken Dead horsepoop). Correctly we need to see propper specificity by the legislation, yes?)
He isn’t free to act on his belief, however sincere and well-founded, that Congress has appropriated too much or for the wrong purposes. If he disapproves of the appropriations, he should return them to Congress with his veto. If the appropriations were enacted under a previous president, he should ask Congress to rescind them.
The Trump administration disagrees, which is why it’s asking the Supreme Court to declare the 1974 Impoundment Control Act unconstitutional. If the court goes along with the president, it will neuter Congress’s power of the purse and move us further down Madison’s road to the accumulation of all powers in the same hands.
America would move even further down this path if Mr. Trump were to defy a court ruling and get away with it. The foundations for defiance have already been laid. In February, Vice President JD Vance tweeted, “Judges aren’t allowed to control the executive’s legitimate power.” But it’s the court’s role to determine the extent of this power.
Mr. Trump’s press secretary, Karoline Leavitt, recently criticized judges who are slowing the administration’s mass deportations for “undermining the will of the American public.” But we don’t live in a direct democracy. Voters picked Mr. Trump partly to deal with the border crisis, but that doesn’t mean they empowered him to act illegally. The law distinguishes between proper and improper means for carrying out the people’s will, and the judges are only doing their duty by enforcing this distinction.
This frustrates Mr. Trump and many of his supporters, but it’s what the rule of law requires. And it is the rule of law itself—the fundamental basis of ordered liberty—that is at stake.
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https://www.politico.com/news/2025/04/22/voice-of-america-donald-trump-00303983
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HT BBG
Dancing On The Head Of A Pin For An MS-13 Member -- The Problem Is Small And The Solution Is Simple
The vexing issue is the insistence by an Article III Judge that she can dictate to the Article II Executive how to correct the problem under threat of judicial sanction.
SHIPWRECKEDCREW
APR 22, 2025
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Let me begin with one observation — the Opinion issued on April 6, 2025, by District of Maryland District Judge Xinis is an over-the-top diatribe that parrots every claim made by the advocates for Hilmar Abrego Garcia as if they were truths etched in stone tablets. She recites the allegations set forth in the Complaint as if they have been litigated and resolved, ignoring the fact that there is much in the Complaint that is contrary to the VERY LIMITED EVIDENCE that was before her.
She held a hearing on April 4, 2025, and at the conclusion of the hearing she granted the plaintiffs’ motion for injunctive relief. The Opinion explaining her decision was published two days later.
But the hearing took place one day after District Judge Boasberg in D.C., 39 miles away, held a very contentious hearing in the matter involving the invocation of the Alien Enemies Act and removal of a large number of members of the Tren de Aragua (TdA) criminal gang based in Venezuela, seemingly in violation of his prior injunction. During the TdA hearing, Judge Boasberg’s comments certainly suggested he thought the Administration has intentionally violated his order — later determined to have been made without jurisdiction — that everyone being removed pursuant to the proclamation needed to be returned to the United States.
Judge Xinis is presiding over a case where the Administration admitted that Abrego Garcia was placed on one of those planes — not under the AEA proclamation but because he was an illegal alien with a final Order of Removal — due to an “administrative error.” In 2019 an Immigration Judge had granted Abrego Garcia “Withholding of Removal” that prevented him from being deported back to his home country, El Salvador. Judge Xinis had ORDERED the Administration to “facilitate and effectuate” the return of Abrego Garcia to the United States —whatever that means — setting the deadline for Monday, April 7, at 11:59 pm.
Both Tren de Aragua and MS-13 — the gang affiliation of Abrego Garcia, which is not in serious doubt as set forth herein — have been declared “terrorist organizations” by the Trump Administration pursuant to a federal statute giving it the authority to do so, whether district judges like it or not.
There is nothing about the process leading to Hilmar Abrego Garcia’s return to El Salvador that is hard to understand. One error was made – but the nature of that error is such that events that predated his deportation back to El Salvador have made it harmless. Below is the entire saga in story-book form – details coming from various police and court records — followed by an explanation of the very simple solution along with the political reason why this simple solution is turning out to be so difficult to put in place.
Abrego Garcia, along with three others, were detained by Maryland local police on March 28, 2019. One detective immediately recognized one of the four as an MS-13 member — “Bimbo” — known to him from previous contacts. That individual had been encountered multiple times by the “Prince Georges County Gang Unit MS-13 Intelligence Squad.” The MS-13 problem is so bad they have an entire Gang Unit with its own Intelligence Squad dedicated to identifying and investigating MS-13 members. “Bimbo” has an extensive criminal record with multiple convictions.
A second individual – not confirmed as an MS-13 member – had tattoos indicative of Hispanic gang membership. Eyes, ears, and mouths covered by skulls which are meant to emphasize “see no evil, hear no evil, speak no evil” and communicate the need to stay silent. A past proven and reliable source of information identified this second person as an MS-13 member with the gang name of “Maniaco.” This individual also had a calf tattoo known to represent high level MS-13 members.
Abrego Garcia was wearing a Chicago Bulls hat – images of a bull’s head with horns is indicative of an MS-13 member in good standing. The same source of information identified Abrego Garcia as an MS-13 member with the gang name “Chele”
Of interest, however, is that the fourth individual was not known to the police or the source of information as an MS-13 member. If, as has been suggested, this source of information was not reliable and had fabricated the information about Abrego Garcia being a member of MS-13, why did he not fabricate information about the 4th individual who, according to the report, was released at the scene.
All of those details come from the Maryland local police who encountered the four men.
Abergo Garcia freely admitted to being a Salvadoran citizen in the United States illegally, and he was turned over to the custody by ICE -- there is an ICE Form I-213 dated March 28, 2019, completed the same evening by two ICE agents. On March 29 he was given a Notice to Appear at a Removal Hearing, and was detained in custody by DHS pending that hearing. The I-213 states it was the Prince Georges County Police Gang Unit who first encountered the four when they were “detained in connection with a murder investigation.” This wasn’t a random police contact – it was the Gang Unit contacting known gang members. It doesn’t say they were suspects in a murder, only that they were detained in connection with an investigation. The I-213 says in multiple locations that Abrego Garcia is an MS-13 member – based on the information given to ICE by the local police Gang Unit dedicated to MS-13.
Abrego Garcia was denied bond after a hearing on April 24, 2019. In the written Memorandum dated May 22, 2019, documenting the denial of the motion, the Immigration Judge stated:
“[T]he determination that the Respondent is a gang member appears to be trustworthy and is supported by other evidence in the record, namely, information contained in the Gang Field Interview Sheet…. [T]he fact that a “past, proven, and reliable source of information” verified [Abrego Garcia’s] gang membership, rank, and gang name is sufficient to support that the Respondent is a gang member….”
The “determination” was made by the Maryland police and adopted by ICE. These are not casual decisions made by the flip of a coin. Accurately identifying gang affiliations is a paramount concern when it comes to arrest/detention/ incarceration. Having members of rival and hostile gangs housed together is an invitation to widespread violence. So accurately determining gang affiliation is the reason why police have gang unit “Intelligence Squads.” To dismiss this determination — as Judge Xinis does in almost comical fashion in her April 6 Opinion for this poor “Maryland Man” — only exposes ignorance as to how and why these determinations are made.
The Board of Immigration Appeals, in a written decision December 19, 2019, adopted and affirmed the Immigration Judge’s decision denying bond to Abrego Garcia on the basis of his status as an MS-13 member.
“[Abrego-Garcia] argues that the Immigration Judge clearly erred in determining that is a verified member of MS-13 because there is no reliable evidence in the record to support such a finding…. We adopt and affirm the Immigration Judge’s danger ruling…. [T]he immigration judge appropriately considered allegations of gang affiliation against the respondent in determining that he has not demonstrated that he is not a danger to property or persons.”
“Gang affiliation” is not a “crime.” So the claim that Abrego Garcia has never been charged with a crime where his gang affiliation was “proven” in court is meaningless. I suspect the Immigration Judge who made the initial FACTUAL FINDING, and the Board of Appeals panel who affirmed that “FACTUAL FINDING” have reviewed far more MS-13 determinations made in this fashion than has Judge Xinis from the district court bench.
Between his arrest and the denial of his bond appeal, Abrego Garcia filed an application for relief from the Order of Removal under three separate provisions of immigration law. First, he asked for asylum, which would have allowed him to lawfully remain in the United States if granted. Second, he asked for protection under the Convention Against Torture (CAT), a U.N. convention that is limited to fear with regard to the government of the country where the alien would otherwise be removed. The Immigration Judge who conducted the hearing denied both his asylum claim and his CAT claim.
But he made a third claim asking for “Withholding of Removal” which prevents deportation back to the alien’s home country if the alien can show a “well-founded fear of persecution” based on religion, ethnicity, etc. One of the classifications recognized in the statute is fear of persecution based on membership in a “particular social group.”
With several months to rehearse the story, Abrego Garcia testified to an almost comical claim that his family’s business – making and selling pupusas from the kitchen of their house (“everyone in town knew to get their pupusa from Pupuseria Cecelia”) – was extorted by a El Salvadoran gang, Barrio 18. The family was given the choice to either pay the extortion on the pupusa sales or the gang would take their son(s) and force them to join the gang. Initially the demand was for Abrego-Garcia’s older brother to join so the family arranged for the older brother to leave for the U.S. Agrego Garcia claimed the family moved from one neighborhood in the capitol San Salvador to another neighborhood 10 minutes away by car. But the gang tracked them down and continued to demand payment or it would force Abrego Garcia — then about 16 — to join. The family moved again, this time 15 minutes farther away by car – but Barrio 18 would just not be denied. They would either have their pupuseria money or Abrego Garcia would join their gang. In response, the family sent him to the U.S. as well.
If you don’t know, pupusas are a stuffed handheld pancake-like street food that are the national dish of El Salvador. Street venders are ubiquitous in Salvadoran towns. The idea that one family’s kitchen would be “the place” to get pupusas is just idiotic beyond belief. It would be like saying “Everyone on Staten Island knew to get their cheesesteak sandwiches at Betty Smith’s house.”
Abrego Garcia told the Immigration Judge in 2019 that he feared being attacked and/or killed by Barrio 18 if he were to be returned to El Salvador – seven years after he left. The judge accepted the story and granted him “Withholding of Removal” – WOR – preventing him from being deported to El Salvador. He could be sent anywhere else, just not back to his home country.
Whether the judge believed the story or not, granting WOR is a backdoor way to get around the one-year limit on applying for asylum – and everyone in the business knows that. That is why ridiculous stories like the one told by Abrego Garcia are invented. Entering an order that a Salvadoran national can’t be sent back to El Salvador creates a significant complication in deporting him at all because a third country needs to agree to take him — a member of MS-13 as determined by the U.S. government.
On the same day he was granted WOR, it appears that he was released from detention. There doesn’t seem to be any document that explains the rationale for releasing Abrego Garcia given that his status as an MS-13 member was used to detain him in the first instance, and that that decision was later affirmed by the Board of Immigration Appeals.
But, informed speculation based on events and the statutes for holding him in custody suggests that a rather simple explanation is likely. Under the statutes governing detention pending deportation, there is a 90 day period within which an alien is to be removed after a final Order of Removal is granted.
Title 8 U.S.C. Sec. 1231(a)(1)(A) states that an alien subject to an Order of Removal shall be removed within 90 days, and shall remain detained during that period.
That period may be extended an additional 90 days if the alien fails to make a “timely application in good faith for travel” or otherwise acts in ways to prevent his removal. He shall remain in custody during that second 90 day period.
There are some provisions in this statute for keeping certain specific classes of individuals in detention until removal is arranged. But, outside those narrow classes the statute provides for release from detention when removal within the statutory period — 6 months total — cannot be accomplished.
When Abrego Garcia was granted WOR to El Salvador, he had been in custody for almost 6 months after his Order of Removal was final. The timing of his release in relationship to that 6 month period, is the best explanation for his release from detention. In Zadvydas v. Davis the Supreme Court held in 2001 that when the date of removal is not “reasonably foreseeable”, continued detention of an alien subject to removal was unconstitutional. So, for Abrego Garcia, indefinite detention while trying to arrange for his removal to a country other than El Salvador, was not an option. After Joe Biden took office, the Biden DOJ had no interest in deporting anyone. That explains why Abrego Garcia was able to “build a life as a Maryland Dad” while being an illegal alien subject to removal for the past 4 years.
There is one more important fact to consider in terms of the WOR with regard to Abrego Garcia, as well as the determination that he is a member of MS-13. In the Complaint filed by his attorneys in the District of Maryland, there is the following allegations in Paragraph 53, at p. 11-12:
The evening after his arrest, [Abrego Garcia’s wife] received a call from Plaintiff Abrego Garcia…. During that conversation, Plaintiff Abrego Garcia informed [his wife] that he was being questioned about gang affiliations. He repeatedly informed his interviewers that he was never a gang member and had no gang affiliations. He was shown several photos where he appeared in public, and asked about other people in those photos, but was unable to provide any information on them, as he did not know them or anything about them.”
So on March 14, 2025, ICE already possessed photographs of him with other individuals in public places and asked him for information about the people he was with while showing him the photographs?
Who thinks those pictures were taken at gatherings of ex-pat Salvadorans to discuss the happenings back in the home country while celebrating their shared cultural heritage?
Most readers here with experience in law enforcement will recognize this as being 100% consistent with innumerable accounts of criminal investigations where law enforcement is trying to gather additional intelligence on individuals of interest. When interviewing a documented MS-13 member who is an illegal alien from El Salvador, who are the subjects most likely to be in the photographs with Abrego Garcia that ICE would in interested in?
Based on experience, what is the most likely response to be given by an MS-13 member when shown photographs of himself with other MS-13 members, and asked for information about the others in the photos — “I don’t know anything about those people”??
Exactly.
The idea that Abrego Garcia’s A-File — all illegal aliens who go through removal have an A-File — only had the 2019 reports as evidence of his MS-13 membership is laughable. The top enforcement priority for ICE staring January 21 was removal of Tren de Aragua and MS-13 members who had come into the country illegally. Every ICE Office would have prioritized their targets based on their own files. They didn’t just pick Abrego Garcia’s name out of a hat. The fact that Prince Georges County has an MS-13 Gang Unit is highly suggestive of the fact that Prince Georges County has an MS-13 gang problem.
Now lets turn to the issue of how to correct the problem of sending Abrego Garcia to the one country on the planet he could not be sent to with the WOR in place.
A different subsection of the same statute cited above — 8 U.S.C. Sec. 1231 — sets for the standard for granting that WOR status that was given to Abrego Garcia. But the process for revisiting a prior granting of WOR status is set forth in the regulations that have been adopted by DOJ for proceedings in Immigration Courts. These are found in Title 8 of the Code of Federal Regulations.
Withholding of Removal is not necessarily a permanent protected status. A change in circumstances in the country for which Withholding was granted is a basis to reopen the matter. If the reasons for fearing retribution if returned to a particular country cease to exist, the WOR for that country can be removed by way of a motion to reopen. As noted above, fear of retribution by the Barrio 18 gang was the reason for withholding removal to El Salvador in 2019. If the Trump Administration establishes that Barrio 18 is no longer the threat it was in 2019 — and it is not — the WOR status could be revoked in a proper hearing conducted for that purpose.
But, more signficantly for Abrego Garcia, the statute granting him WOR has a significant exception that now applies to him. Pursuant to 8 U.S.C. Sec. 1231(b)(3)(B)(iv) — WOR is not available to an illegal alien when:
there are reasonable grounds to believe that the alien is a danger to the security of the United States.
The designation of MS-13 as a “terrorist organization” provides the basis for removing Abrego Garcia’s WOR protection — IF he is an MS-13 member. The standard — established by a statute passed by Congress and signed by a prior President — is “reasonable grounds to believe.” It is not “beyond a reasonable doubt” or “preponderance of the evidence.” It is much closer to what is recognized in other contexts as “probable cause” which also turns on a “reasonableness” standard and not a weighing of evidence.
This is underpinned by a basic judicial principle that is not being given enough consideration by those yammering back and forth over this subject — illegal aliens with no right to remain in the United States are not entitled to the same
”due process” rights as citizens EXCEPT in circumstances where they are charged with a crime and the government is seeking to imprison them as punishment for that crime.
Finally, how would this motion to reopen be made to happen? It is a hearing and it must happen before an Immigration Judge who would make the decision.
But NOTHING I have found leads to the conclusion that the hearing requires Abrego Garcia’s in-person appearance in the United States. Under 18 U.S.C. Sec. 1229a(b)(2), immigration hearings may be conducted via video or teleconference.
One exception requiring consent by the alien to a video or teleconference is when the hearing is for the purpose of considering evidence. But, given the proceedings that have already taken place with Abrego Garcia present in Maryland, both grounds for removing his WOR status can be asserted without his in-person appearance back in the United States.
First, as to his membership in MS-13, regardless of the various legalistic claims that the findings during his two bail hearings are not sufficient, such claims are nonsense because the doctrine of “collateral estoppel” applies. It is a legal doctrine that prevents a party from relitigating an issue that was resolved in a previous lawsuit or administrative proceeding, even if the issue relates to a different claim in the new matter. The requirements are only that the issue was part of the final determination in the earlier proceeding, and the issue was raised and decided with both parties having had a chance to present evidence and argument on the issue.
Whether Abrego Garcia was an MS-13 member was squarely before the Immigration Judge and the Bureau of Immigration Appeals. The government presented the evidence of his affiliation and Abrego Garcia denied being a member and offered evidence to the contrary. The fact that Abrego Garcia had the burden of proof in that setting is irrelevant to the question of whether the matter was squarely before the judge, Abrego Garcia contested the issue, and the issue was decided. The decision does not say he was denied bail because he failed to carry his burden of proof that he was not a danger to the community — it says the evidence of his membership in MS-13 established he was a danger to the community:
After considering the information provided by both parties, the Court concluded that no bond was appropriate in this matter. The Court first reasoned that the Respondent failed to meet his burden of demonstrating that his release from custody would not pose a danger to others, as the evidence shows that he is a verified member of MS-13.”
Since “collateral estoppel” is a legal issue and does not require any new evidentiary determination, a hearing to assert his membership in MS-13 as a basis for removal of his WOR status can be conducted by video/teleconference.
But, even if the application of collateral estoppel is disputed, ICE regulations provide that an Immigration Judge may conduct a hearing by video or teleconference to consider or review “credible fear determinations” without the consent of the alien. 8 C.F.R. Sec. 1003.25(c).
Telephonic or video hearings. An Immigration Judge may conduct hearings through video conference to the same extent as he or she may conduct hearings in person. An Immigration Judge may also conduct a hearing through a telephone conference, but an evidentiary hearing on the merits may only be conducted through a telephone conference with the consent of the alien involved … except that credible fear determinations may be reviewed by the Immigration Judge through a telephone conference without the consent of the alien.
If the changed circumstances in El Salvador with respect to Barrio 18 are such that there is no longer a basis for finding a “credible fear of persecution” at the hands of that gang, that issue can be heard and resolved by an Immigration Judge through a telephone conference without Abrego-Garcia’s consent to proceed in that fashion.
So there is a simple solution to fixing the WOR problem that does not require Abrego Garcia being returned to the United States. These proceedings are through the Immigration Court that is part of the Executive Branch, and over which the Article III district courts have been divested of jurisdiction by the Congress. Judge Xinis has no authority to interfere in this process if DOJ chooses to revisit the WOR benefit in this fashion. Abrego Garcia would have a right to appeal the outcome to the Board of Immigration Appeals and then to the Court of Appeals for the Fourth Circuit. Both could be done on his behalf without his presence in the United States.
The only remaining hurdle is a political one — the Administration seems unwilling to proceed in a manner that could be construed as acknowledging the validity of the Order from Judge Xinis. It seems intent on continuing to contest the legal validity of the order itself, as well as the sufficiency of the the language of the Order following the Supreme Court’s earlier intervention directing her to provide more clear guidance — which she thereafter declined to offer.
I predicted last week when this issue turned volatile that the Administration would fix the error involving Abrego Garcia, but it would not do so in response to a judicial order that it act in any specific manner in correcting the error. This is an Executive error, subject to correction through administrative processes in the Executive branch, and involving a subject matter that is within the exclusive authority of the Executive. It is going to resolve it in that manner without conceding that the Article III district court has any role to play
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As usual, a highly pertinent and perceptive find by BBG.
The last paragraph makes a key point, one that I will be using in my Sisyphean struggles with the misinformed on FB and elsewhere.
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second
When I was an attorney in DC I worked with the APA and when I taught C'l Law at UNC Pembroke, a lot of our semester was about Separation of Powers.
I'm not sure how soundly it is reasoned, but this caught my attention:
"The Administrative Procedure Act had been created in response to the rise of a vast unaccountable government bureaucracy under FDR. The APA was supposed to stop the administrative state from turning into exactly the kind of self-governing machine it grew into which FDR had described as threatening to “develop a fourth branch of government for which there is no sanction in the Constitution.” It was not meant to block presidents from executing their policies or subject every one of those policies to the review of the D.C. Circuit Court."
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https://www.zerohedge.com/markets/one-weird-trick-let-dc-judges-stage-coup
This One Weird Trick Let D.C. Judges Stage A Coup
Tyler Durden's Photo
by Tyler Durden
Monday, Apr 21, 2025 - 01:25 PM
Authored by Daniel Greenfield,
The Supreme Court’s ruling in J.G.G. v. Donald J. Trump was not an unqualified triumph for the Trump administration’s deportations of foreign gang members, but it was a definite rebuke not just to Judge Boasberg, but to the entire D.C. Circuit Court shadow government.
The ACLU filed J.G.G. v. Trump in defense of five Venezuelan inmates in New York and Texas. All of the men claimed that they were not gang members and there was no indication that any of them were being deported, denying them any actual standing for coming before the court.
Especially before Judge James Boasberg who is thousands of miles away in Washington D.C.
Despite the lack of standing and the case being filed in the wrong venue, Judge James Boasberg, the chief judge of the D.C. Circuit Court, not only blocked the deportation of all gang members back to Venezuela, but ordered that planes currently over international airspace that were carrying gang members turn around and bring them back to the United States.
Boasberg fumed that the planes were not turned around on his mere word and threatened the Justice Department with repercussions for not recognizing his power over not only the entire country, but also the entire planet.
But why was a judge from the D.C. Circuit Court on a case involving inmates in Texas?
The answer is that leftist organizations and the judges of the D.C. Circuit Court were using one weird trick to seize power over the entire country (if not always the planet) and transform themselves into a shadow government able to block any Trump administration move.
The Supreme Court’s ruling vacating Boasberg’s order stated that, “the detainees are confined in Texas, so venue is improper in the District of Columbia” and directed that the appropriate “venue lies in the district of confinement”. So how did a D.C. judge ever get involved at all?
In Justice Brett Kavanaugh’s concurrence he noted that the “only question is where that judicial review should occur. That venue question turns on whether these transfer claims belong in habeas corpus proceedings or instead may be brought under the Administrative Procedure Act.” The Supreme Court’s ruling even noted that “initially the detainees sought relief in habeas among other causes of action, but they dismissed their habeas claims” and stated that “their claims fall within the ‘core’ of the writ of habeas corpus and thus must be brought in habeas.”
Kavanaugh then laid out a brief history of detainees, including those terrorists at Gitmo, bringing claims under habeas corpus rather than, strangely, under the Administrative Procedure Act.
The Administrative Procedure Act had been created in response to the rise of a vast unaccountable government bureaucracy under FDR. The APA was supposed to stop the administrative state from turning into exactly the kind of self-governing machine it grew into which FDR had described as threatening to “develop a fourth branch of government for which there is no sanction in the Constitution.” It was not meant to block presidents from executing their policies or subject every one of those policies to the review of the D.C. Circuit Court.
The D.C. Circuit Court however has enabled every leftist ‘resistance’ group to go ‘judge shopping’ and file APA complaints to block anything and everything President Trump does.
And so the ACLU appealed to the D.C. Circuit Court, wielding the Administrative Procedure Act, to challenge the question of whether President Trump’s use of the Alien Enemies Act (which predated the APA by 148 years) applied and what could be defined as wartime. The ACLU was asking Boasberg to block President Trump’s use of presidential powers based on an act meant to check bureaucratic overreach. And Judge Boasberg went ahead and tried to seize control of U.S. forces abroad from President Trump in the name of an act meant to regulate agencies.
The Supreme Court’s response to this unconstitutional abomination was milder than it deserved.
What gave the ACLU and Boasberg the idea that they could get away with it? The ACLU had previously sued the Trump administration for removing materials falsely describing the existence of a ‘transgender’ society as a violation of the “Administrative Procedure Act” by “removing articles without a reasoned basis” as if that were a matter subject to the APA.
In another case, ‘Judge’ Ana Reyes, a Uruguayan activist lawyer appointed by Biden as the first gay ‘Latinx’ judge in the D.C. Circuit Court, blocked the removal of mentally ill individuals who hallucinate the idea that they are members of some other sex than their biological one, by claiming that it’ss “soaked in animus and dripping with pretext, Its language is unabashedly demeaning, its policy stigmatizes transgender persons as inherently unfit” and argued, despite the mountain of evidence, that the Department of Defense had “not provided a legitimate reason for banning all transgender troops” and therefore violated the Administrative Procedure Act.
Reyes had confused the Administrative Procedure Act with her own personal opinion and rather than ruling on the legality of a policy based on actual laws, abused the APA to seize power over the Pentagon to promote her own favored social and sexual worldviews in the APA’s name.
But the Supreme Court has begun shooting down some APA abuses.
In its response to a Biden judge in Massachusetts blocking the Trump administration from ending education grants that violate its ban on DEI, the court noted that Judge Myong Joun and the court “lacked jurisdiction to order the payment of money under the APA” and that monetary cases involving the government are supposed to go to the Court of Federal Claims.
The APA has become a favored weapon of choice whether the issue at hand is financial, foreign policy, deporting illegal aliens or even publishing materials about the existence of transgenderism on government websites. During the first term of the administration, leftist groups had taken to boasting of having entire “teams of APA litigators and experts”.
And with a 93% loss rate for the Trump administration in APA cases, the judicial coup was a sound strategy. All a leftist judge had to do was declare that the Trump administration’s actions were “poorly reasoned” or lacked “sufficient rationale” and would override the president’s orders.
The APA enabled a massive shift of power from the executive branch to district courts, and to the D.C. Circuit Court which had seized virtually unlimited power from both the president and local courts and judges in the process creating an unelected shadow government.
But the D.C. judicial shadow government overreached itself. And Boasberg’s attempt to seize presidential powers has created a constitutional moment of crisis that may unwind the coup.
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https://nypost.com/2025/04/23/opinion/alito-is-right-courts-trump-scorn-will-cost-them-dearly/
Excerpts:
“A number of judges have seemingly adopted a constitutional meta-principle: what a past President did, President Trump may not undo.”
So wrote Harvard Law professor and constitutional scholar Adrian Vermeule on Friday after a district court judge issued yet another lawless nationwide injunction meant to handcuff Trump and halt his agenda.
It’s a criticism that the Supreme Court, and particularly Chief Justice John Roberts, must take to heart.
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Here’s what Justice Samuel Alito said, in a blazing dissent:
“Literally in the middle of the night, the Court issued unprecedented and legally questionable relief without giving the lower courts a chance to rule, without hearing from the opposing party, within eight hours of receiving the application, with dubious factual support for its order, and without providing any explanation.”
The court may make much of the “rule of law,” Alito noted — but “both the Executive and the Judiciary have an obligation to follow the law.
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If this continues, it’s likely to be reflected in judicial appointments and legislation that the chief will find uncongenial.
Glenn Reynolds is Professor of Law at University of Tennessee
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https://twitchy.com/samj/2025/04/25/western-lensman-democrats-plan-n2411882?utm_source=twdailyam&utm_medium=email&utm_campaign=nl&bcid=a1714aba6c197395707aecde9ada65a65090b7be5f45291f6611e9cf3bd6bace&lctg=2677215
https://hotair.com/david-strom/2025/04/25/my-02-on-the-judicial-insurrection-n3802140?utm_source=twdailypm&utm_medium=email&utm_campaign=nl&bcid=a1714aba6c197395707aecde9ada65a65090b7be5f45291f6611e9cf3bd6bace&lctg=2677215
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https://www.wsj.com/video/series/wsj-explains/the-legal-theory-behind-trumps-plan-to-consolidate-power/58539273-8A82-4977-AF7C-99DD713D181F?mod=e2fb&fbclid=IwY2xjawJ6hSlleHRuA2FlbQEwAGFkaWQBqx2Gt1lcKmJyaWQRMTRnMFVYcExyblBMUzEySDABHkYKODI3S0OMiQ944lFzsDAPMCmEDoHArs5w_QENOBt110GLi3Q4eI1twTNN_aem_oeisUMi9LI5_h-yfibIh2g&utm_campaign=23862285852320105&utm_content=120222279077790106&utm_id=23862285852320105&utm_medium=paid&utm_source=fb&utm_term=120213384733240106
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https://www.msn.com/en-us/news/crime/judge-threatens-to-close-court-after-fbi-arrest-of-milwaukee-judge/ar-AA1DGFQX?ocid=msedgntp&pc=DCTS&cvid=0ca4516f168448949ab7ea2218bc0991&ei=18
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From FB:
Jay Hubbard
Regarding Trump’s many “due process” controversies, part of the reason there’s confusion is that differing legal pathways exist from which to achieve deportation, all of which have different standards, and some of which aren’t subject to due process whatsoever. I believe people are mixing the legal standards up or are unaware of them. I also believe the legacy media is demonstrating double standards in pretending these presidential powers aren’t (for the most part) lawful.
Take, for instance, the IIRIRA.
In 1996, congress specifically authorized the executive branch to conduct non-judicial deportations NOT SUBJECT TO DUE PROCESS. [a] While one might argue against this on ethical grounds, one cannot argue that the president lacks the authority. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) was passed by Bill Clinton [a], enforced by George W. Bush, and expanded by Barack Obama, with support from both political parties.
Per congressional records:
“The expedited removal process, created by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, is codified in INA § 235(b)(1). The statute permits the Department of Homeland Security (DHS) to summarily remove aliens arriving at a designated U.S. port of entry (arriving aliens) WITHOUT FURTHER HEARING OR REVIEW if they are inadmissible either because they (1) lack valid entry documents, or (2) tried to procure their admission into the United States through fraud or misrepresentation. INA § 235(b)(1) also authorizes—but does not require—DHS to extend application of expedited removal to "certain other aliens" inadmissible on the same grounds if they (1) were not admitted or paroled into the United States by immigration authorities and (2) cannot establish at least two years' continuous physical presence in the United States at the time of apprehension.” [a]
To be clear, this wasn’t always the case. As the ACLU wrote back in the Obama administration:
“The deportation system has dramatically changed over the past 19 years – moving from a judicial system prior to 1996, where the vast majority of people facing deportation had immigration court hearings, to a system today of nonjudicial removals, where 75 percent of people removed do not see a judge before being expelled from the U.S. The numbers are staggering: in 1995, 1,400 immigrants were subject to nonjudicial removals, representing 3 percent of total deportations. By FY 2012 that number had sharply increased to 313,000 nonjudicial removals.” So to reiterate, all the way back in 2014, the ACLU specifically cited that 75% of Obama’s deportees had NO DUE PROCESS.
I’m outlining these complaints from the ACLU not necessarily to agree with them nor to disagree with them, but to demonstrate that this presidential power was well established prior to Trump. Unless you were deeply involved in following the ACLU’s advocacy, you likely weren’t aware anyone took issue with it. This - yet again - exposes the legacy media’s double standards. They were silent regarding Obama’s use of non-judicial removals, going so far as to let him classify his administration as “scandal free”[c], yet when Trump’s in office, non-judicial removals become a scandal.
Per the American Immigration Council:
“Individuals placed in expedited removal generally have no right to challenge their deportation in federal court, thanks to jurisdiction-stripping provisions in the 1996 law which created the process. …Individuals may only bring a lawsuit challenging their expedited removal order if they are a lawful permanent resident, or someone already determined to be a refugee or granted asylum, who has been wrongfully subject to expedited removal. In 2020, the Supreme Court upheld this law, finding that it did not violate the right to habeas corpus or due process. Expedited removal has become a bedrock of the United States’ processing of noncitizens, particularly at our southern border.” [d]
The law also made deportation eligibility retroactive and introduced penalties for overstaying visas, including bars on reentry for certain periods. It also made it more difficult for undocumented immigrants to adjust their status, even if they had family members who were US citizens. [e] I’m again pointing this out not to argue for or against it, but merely to demonstrate that these expanded authorities existed prior to Trump. This is not a power grab. His office was granted this authority by democratically elected legislators.
Up until now, I’ve been discussing the 1996 law which allowed expedited removal under Section 235 of the INA. That pivoted away from the usual removal proceedings which were governed under Section 240 of the INA. It’s Section 240 (the usual process) where suspected illegal aliens are afforded a hearing (due process) in front of an immigration judge. [f] If someone doesn’t qualify for expedited removal, only THEN are they entitled to that formal hearing.
That was the case until Trump named some groups “terrorist organizations” while invoking the Alien Enemies Act, however.
When Trump entered office the 2nd time, he designated several globally powerful gangs as terrorist organizations. These massive organized crime networks had been competing with governments around the world for control, often by forcing businesses to pay them “taxes”. They were guilty of human trafficking, drug trafficking, murder, rape, extortion, and racketeering. This is worth pointing out since the Anti-Terrorist and Effective Death Penalty Act,” also passed in 1996, criminalized the act of providing material support or resources to terrorist organizations [g] and has been argued by the New York Law Review to have encroached on due process. Again, as is the theme of this editorial, I’m not noting this to agree or disagree, only to demonstrate that the power existed before Trump. It was a 1996 law, and formally designating someone as a terrorist means they legally have different entitlements.
As for the Alien Enemies Act? Here, too, exists an authority granted to the presidency by congress in 1798. “It allows the president to detain or deport the natives and citizens of an enemy nation. The law permits the president to target these immigrants WITHOUT A HEARING and based only on their country of birth or citizenship. Although the law was enacted to prevent foreign espionage and sabotage in wartime, it can be — and has been — wielded against immigrants.” [h]
CONCLUSION:
Whether violating the concept of due process concerns you or not, these ARE legal pathways toward deportation. Each case is different, where some were deported under the expedited removal standard, others deported under Section 240, and others deported under the Alien Enemies Act, but these legal pathways were all created by Congress. I won’t deny that the efficacy and morality of all laws are worth debating, but that’s different from legality. Also, why wasn’t there a national debate on these laws while Biden, Obama, Bush, or Clinton were president? Why now? That they are becoming scandalous NOW despite being barely noticed in prior administrations is a testament to the legacy media’s political bias. It's argued that a rogue President is engaging in an unlawful power grab, but that’s simply false. These laws existed prior to Trump. These laws were enforced prior to Trump. These powers were democratically granted to the executive branch by Congress. If you don’t like them, fine, petition Congress to change the law, but don’t falsely claim the President is acting unlawfully.
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Sources:
[a]
https://www.congress.gov/crs-product/IF11357....
https://www.aclu.org/.../speed-over-fairness-deportation...
[c]
https://www.cnn.com/.../obama-trump-white.../index.html
[d]
https://www.americanimmigrationcouncil.org/.../expedited....
[e]
https://www.vox.com/.../11515132/iirira-clinton-immigration
[f]
https://americafirstpolicy.com/.../a-primer-on...
[g]
https://digitalcommons.nyls.edu/cgi/viewcontent.cgi...
[h]
https://www.brennancenter.org/.../alien-enemies-act...