Keeping the Courts Open in March Sustained Habeas Corpus
The upcoming deadline for government funding at the end of September has renewed the debate over whether Democrats should help keep the government open or not.
I’ll come back to the debate itself — I think lefty pundits are misconstruing the key issues before Democrats in Congress, and therefore making the debate more contentious than it needs to be. I think they’re also misunderstanding how best to fight fascism.
But I want to examine one part of the debate: whether Schumer was right to let the GOP keep the government open in March, in part, to keep the courts open.
In a rambling and often confused post, Ezra Klein described that keeping the courts open was one of Schumer’s justifications for allowing Republicans to fund government back in March.
The argument Schumer made was threefold. First, Trump was being stopped in the courts. There were dozens of cases playing out against him, and he was losing again and again and again. Shut down the government, and you might shut down the courts.
But, Klein opined, that argument no longer holds because Trump is not losing at the Supreme Court.
Not a single argument Schumer made then is valid now. First, Trump is not losing in the Supreme Court, which has weighed in again and again on his behalf. Instead of reprimanding Trump for his executive order unilaterally erasing the 14th Amendment’s guarantee of citizenship to all born here, it reprimanded the lower courts for imposing a national freeze on his order in the way they did. It has shown him extraordinary deference to the way he is exercising power.
[snip]
Schumer’s argument in March was that the courts were stopping Trump; let them do their work. What we can say in September is that no, John Roberts is not going to stop Donald Trump.
I’ve never argued the Supreme Court was going to save us and don’t think Schumer did either. It is certainly true that SCOTUS has used its shadow docket to override lower court orders upholding the plain letter of the law, perhaps most egregiously by endorsing suspicionless searches of Latinos today. Though there are still cases — most notably the tariff challenge — where SCOTUS may treat Trump more skeptically.
But even with SCOTUS’ repeated interventions to overrule lower courts since March, it remains a significantly different question whether keeping the courts open has value.
That is best shown, in my opinion, by the JGG immigration case, a case filed just hours after Democrats let Republicans pass a continuing resolution funding government.
Stephen Miller had schemed for years to use the Alien Enemies Act as a way to carry out deportations with no due process; he saw it as a way to bypass habeas corpus, the very foundation of Anglo-American law enshrined in the Magna Carta. On March 15, Trump invoked AEA with the gang Tren de Aragua, based on claims his spooks told him before and would tell him again afterwards were false. Then DHS started packing hundreds of Venezuelan men onto planes based on little more than their tattoos, sending them to Nayib Bukele’s concentration camp as part of a quid pro quo designed to hide Bukele’s own ties to gangs.
Kilmar Abrego Garcia, who continues to fight to vindicate his legal rights almost six months later, was also on one of those planes.
We would learn, months later, that at a meeting on March 14 — the same day Democrats let Republicans fund government — Emil Bove demanded that those flights “needed to take off, no matter what.” Bove even stated that if a court tried to enjoin the flights, DOJ would have to tell the court, “fuck you.”
ACLU filed that lawsuit and asked for a Temporary Restraining Order overnight after the CR passed the Senate. DC Chief Judge James Boasberg moved quickly, scheduling first a Sunday hearing then rescheduling it for Saturday at 5PM. At the hearing, Boasberg certified a class — including all Venezuelans covered by the AEA declaration — and halted the hearing to find out whether more detainees were being sent to CECOT. After DOJ dodged in response (and, according to Erez Reuveni, lied), Boasberg ordered that, “any plane containing these folks that is going to take off or is in the air needs to be returned to the United States, but those people need to be returned to the United States.”
Emil Bove ordered the men to be unloaded from the planes anyway.
This was not an instance of the courts working. Trump blew off the courts, and when Boasberg later tried to hold DOJ in contempt for ignoring his order, two Trump appointees stalled, then overturned that effort, though a motion for an en banc review remains pending.
Bove has since been rewarded for illegally sending men to a concentration camp with a lifetime appointment on the Third Circuit.
But the courts did have an effect, with SCOTUS reaffirming detainees’ right to challenge their deportation, then intervening on an Easter Saturday to stop another effort to ship men away under the AEA with no due process. Both Trump judges and (this week) the Fifth Circuit have since ruled against Trump’s use of the AEA in this context.
SCOTUS may well intervene again on the Fifth Circuit order, but at the very least this entire set of cases has delayed the use of AEA by six months.
Meanwhile, Boasberg’s order almost certainly created the political problem for Trump that led Trump, ultimately, to have the Venezuelans shipped back to Venezuela, after months of enduring Bukele’s concentration camp. Other detainees who’ve been shipped off to third countries have largely disappeared from consciousness. Not those men, most of whom are free to tell their stories right now.
Just as importantly, having a court available on a weekend to enjoin those flights has created a bunch of political and legal problems for Trump, problems that could have ramifications down the road (and could also be the basis for accountability if we ever get beyond fascism). Donald Trump shipped a bunch of mostly innocent men to a concentration camp, where they were tortured, in defiance of a court order. That could be actionable in the future in a way that merely shipping people to a third country would not, especially because Trump did it in defiance of an order.
Even as SCOTUS continues to override lower courts, those lower courts do continue to rule in favor of plaintiffs. Just last week, in a showdown similar to the one in March (with DOJ lawyer Drew Ensign in a key role again), Judge Sparkle Sooknanan temporarily prevented the government from deporting a bunch of Guatemalan kids, and like the Venezuelan precedent, the aftermath has led to further visibility about what happened, which can be a tool for political pressure.
We don’t know how many of the judicial interventions that have slowed Trump down since March DOJ would have been able to thwart with Executive decisions about personnel covered by shutdowns. Even before the CR, Trump had done two things that tested his ability to shut down courts via secondary means — first, having GSA shut down an actual federal building housing courts, and politicizing the deployment of US Marshals. If the government shuts down this month, I would be unsurprised if he repeats both tactics as a means to shut down access to courts.
And while DOJ wouldn’t have been able to shut down court rooms immediately, they can pick and choose which of their own employees are deemed non-essential. What DOJ can do — has already been able to do, in the wake of purges at DOJ — is to ask for delays in scheduling due to the fact they’re short-handed. We know from Erez Reuvani that DOJ was counting on just such a delay with the JGG case, just 48 hours so they could get their innocent men into Bukele’s concentration camp without legal review first.
That didn’t happen in March. It may well happen in September during a shutdown.
We’re not in the same place we were in March, for a variety of reasons (again, I plan a follow-up). The question before both parties in Congress is whether Congress will reaffirm the power of the purse at all in the wake of Trump’s rescissions. That makes this decision far different than the one Congress faced in March.
But what the last six months have shown may well be the opposite of what Klein argues on the courts. Yes, SCOTUS has repeatedly intervened to help Trump. Even in the face of that, though, the courts remain one tool that people are using to fight fascism. There are people alive and free today who bear witness to that.
And that tool may get a lot more scarce if the government shuts down at the end of the month.
It is a win for Republicans and the MAGA cult when the courts shut down. They want lawless society from which their large bank accounts can pay for the exploitation of the poor. I do understand the point of the article, a court room is just a place to fight, shut it down and there is no place for drama.
I know I keep repeating this, but there is no fighting the MAGA cult. They want the fight. They celebrate violence. It doesn’t matter who wins, they just want to fight. What is bringing the cult down is the cult itself. The story below is probably the tip of the iceberg of what is happening and will happen-
https://thehill.com/homenews/administration/5492241-treasury-official-heated-dinner/
They are going to eat themselves. Any opposition to the MAGA cult needs to just sit back and watch the self destruction.
I’m sure there’s worse counsel for those of us hoping to see the other side of this catastrophe, but I won’t bother myself thinking about what it might be.
Alfred Pennyworth (Michael Caine) – The Dark Knight
Do the Rs in Congress have the courage to claim that Congress should exert its Constitutional powers?
Is the Pope Hindu?
Can pigs fly?
Does a bear shit in a toilet?
Depends on your definition of a ‘bear.’ : P
Clearly there’s less courage in the GOP to do that then there was 6 years ago. And that’s…not good.
there is almost no courage left with the Rs. Of course it just maybe they don’t want to upset their cushy lives, with health care, trips, salaries, time away from the family, what they think of as prestige. if they were primaried out they’d have to go back to flying couch, no limos, etc. being cowards is the big one. some times when you see some of them on t.v you can actually see it in their expressions.
Makes me wonder how much of our dough they have on hand (that Trump can lay his hands on) to fund goons to interfere with midterms.
re: Today’s outrageous decision without explanation.
SCOTUS: Considering race as one factor in a college applicant’s file is blatantly unconstitutional.
– also –
SCOTUS: Considering race as one factor in targeting whom to detain and deport is pretty dang awesome.
And Thomas is fine with this, because he won’t be affected by it – somehow.
A variant of this observation is now enshrined as my Facebook cover photo.
I’ve fantasized about impeaching Thomas (for gross corruption) and Kavanaugh (for lying under oath during his confirmation hearings), but my fantasy is now impeaching all of the Supremes who roll over for Trump’s obviously unconstitutional executive orders, and let him continue to violate his constitutional oath without explanation.
Is illiteracy a high crime or misdemeanor? If not, it ought to be.
I’d say that at least four current Supreme Court Justices lied under oath during their confirmation hearings. Hopefully it’s not more than that.
At least four. Possibly six.
Justice Amy: Justices ‘wear black, not red or blue’
(Yeah…black with orange powder dust)
What a puerile utterance from a preening, trolling, hypocrite, our Ms. Barrett.
I bet she has a red robe in her closet.
How long can the integrity of the Supreme Court last? It appears that most of the appeals courts and other courts that my “I am a musician who plays a lawyer on TV” brain can understand are going against Trump and Miller, then off to the Supreme Court and poof, rule in favor of Trump and Miller. It is unfortunate, that most of the Supreme Court is part of the MAGA cult.
If the Supreme Court keeps ruling like they have been, I think there is going to be massive civil unrest— perhaps after the Supreme Court rules that elections are not part of the Constitution.
I’m not a lawyer, but my understanding is that they aren’t ruling in favor of Trump – they’re allowing him to continue to violate his constitutional oath while DoJ drags its feet on actually appealing lower court decisions.
The actual justices have nailed this in multiple cases – especially in oral arguments on the case that strongly discouraged nationwide injunctions, so that if you take the government to court and win, you are the only one that has your birthright citizenship confirmed, and the government can continue to take it away from everyone else.
What is really too bad is there isn’t a retirement age so you can at least look forward to that or a code of conduct.
In Canada all Supreme Court Justices must retire at 75. The Canadian Supreme Court must also represent various areas of Canada, i.e. Quebec and Ontario each have 3 Supreme Court Justices. 2 are from the Western Provinces and the North and one from Atlantic Canada. They all have specific specialties. ie. one of the Quebec justices must have a back ground in Maritine law.
Bad behaviour can get you kicked off the court.
[T]here are occasions when martial rule can be properly applied.
If, in foreign invasion or civil war, the courts are actually closed,
and it is impossible to administer criminal justice according to
law, then, on the theatre of active military operations, where war
really prevails, there is a necessity to furnish a substitute for the
civil authority, thus overthrown, to preserve the safety of the
army and society; and as no power is left but the military, it is
allowed to govern by martial rule until the laws can have their
free course. As necessity creates the rule, so it limits its
duration; for, if this government is continued after the courts are
reinstated, it is a gross usurpation of power. Martial rule can
never exist where the courts are open, and in the proper and
unobstructed exercise of their jurisdiction.
Ex parte Milligan, 71 U.S. (4 Wall.) 2, 127 (1866) (emphasis in original).
The current rogue Supremes will have no difficulty either reading out the qualifier “in foreign invasion or civil war” or in accepting DJT’s claim of “foreign invasion.”
As I’ve said a number of times, my own experience with the courts, government officials, and their actions decades ago was similar in many respects to what is happening currently. Reflecting back on it, it still startles me how much wrongdoing and corruption there was. I saw a wide range of human behavior that is very much like what we see today.
So, you might think I would recommend shutting down the government. But it’s not at all what I would recommend. That would seriously enhance fascism, IMO. It took years, but I eventually prevailed against a variety of corruption. It is exceedingly important to keep the courts open.
With that in mind, I wholeheartedly support what Marcy says here:
“Yes, SCOTUS has repeatedly intervened to help Trump. Even in the face of that, though, the courts remain one tool that people are using to fight fascism. There are people alive and free today who bear witness to that.”
“And that tool may get a lot more scarce if the government shuts down at the end of the month.”
I agree, SL. It is ever more important to hang the anti-constitutionality and kleptocratic capture of SCOTUS around John Roberts’s neck–even as it seems less clear that he cares about “his” court’s legacy. Every time he signs on to such decisions (putatively supportive of the Unitary Executive but, as KBJ asserts, in fact slavishly obsequious to Trump) he coats himself and the Court with fecal matter that won’t wash off for generations. It stinks. And the public can smell it.
Pressure exerted upwards from district judges may not directly affect a SCOTUS decision. The GOP Six seem to feel no limit as to how far outside the boundaries of the law they will go on their imperious rampage through American jurisprudence. But those lower courts do leave a record of carefully reasoned and often beautifully written decisions. That record will outlast corrupt and careerist mediocrities like Sam Alito, no matter how much they scream about being “disrespected.”
SCOTUS teaching children to be racists, bigots, hateful, mean, cruel, abusive, violent and hypocrites.
Six conservatives from the “I am better than you are” club, approving a practice violating the 4th amendment. With 6-3 decision ICE officers can use race to conduct raids and detain people. However, SCOTUS ruled colleges/universities can’t use race in admissions process.
Two women of color, Justices Jackson and Sotomayor serving on the Supreme Court with 6 justices who consider your rights to be unequal to their own. A man of color, Thomas stripping the rights of others like him.
This is fascism.
First they came for the socialists, and I did not speak out—because I was not a socialist.
Then they came for the trade unionists, and I did not speak out—because I was not a trade unionist.
Then they came for the Jews, and I did not speak out—because I was not a Jew.
Then they came for me—and there was no one left to speak for me.
Martin Niemöller
I read the damn poem years ago, so I’ve been protesting since April!
Conservatives, have been known to cheat black people of their proper political representation, curtail their civil rights, slash programs that help minority businesses and poor people, invent phrases like ‘race-neutral’ to hang a veil over rank discrimination using racist ‘dog-whistling’ to reach their base, embrace the likes of Candace Owens, Ben Carson, Tim Scott, and Clarence Thomas – all whom are representative of black Americans who see themselves unlike other Black Americans.
These same black politicos embrace the dominant white philosophy and give short shrift to African-Americans by showing strong support for values that do not necessarily represent black American interests and often hurt the African American cause for their ongoing quest for equality, because these folks listed above desire the approval of their white peers and have bought into the idea that they’re “not like the others.”