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The Anti-Democracy Project Of John Roberts

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Trump v. CASA Inc., decided June 27, continues the personal project of John Roberts to enhance the power of the executive at the expense of the other two branches of government. It continues the work of Trump v. United States,  where Roberts gave Trump almost unlimited power to ignore Congress as he sees fit. It follows his weakening of statutes he doesn’t like, his refusal to allow Biden to exercise the authority given him by Congress, as in the student loan case, Biden v. Nebraska, and many other cases.

This post will show how these cases weaken the legislature and the judiciary while strengthening the President. That is profoundly anti-democratic.

Trump v. United States

Here’s a reasonably fair summary of Trump v. United States, which I offer because I refuse to pretend to be neutral about it and don’t seem to be able to make myself read it again anyway.  Read the real thing if you can; it’s a breath-taking demonstration of judicial hubris, based on the ridiculous idea that these six rogues can create a rule for the ages, and the even dumber idea that what this nation really needs is a “vigorous” president, unafraid to push against the boundaries of the law as set by the legislature and judicial precedent.

Trump v. CASA Inc.

This case is a government request for relief from nationwide injunctions barring enforcement of the obviously unconstitutional Trump executive order denying birthright citizenship to a large number of babies born here, causing untold damage to them and their families and inflicting untold costs on the states.

The Dissent filed by Ketanji Brown Jackson gives a clear picture of the case.

It is important to recognize that the Executive’s bid to vanquish so-called “universal injunctions” is, at bottom, a request for this Court’s permission to engage in unlawful behavior. When the Government says “do not allow the lower courts to enjoin executive action universally as a remedy for unconstitutional conduct,” what it is actually saying is that the Executive wants to continue doing something that a court has determined violates the Constitution— please allow this.

Snip

To hear the majority tell it, this suit raises a mind-numbingly technical query: Are universal injunctions “sufficiently ‘analogous’ to the relief issued ‘by the High Court of Chancery in England at the time of the adoption of the Constitution and the enactment of the original Judiciary Act’” to fall within the equitable authority Congress granted federal courts in the Judiciary Act of 1789? Ante, at 6. But that legalese is a smokescreen. It obscures a far more basic question of enormous legal and practical significance: May a federal court in the United States of America order the Executive to follow the law?

Speaking for the anti-democratic majority, Amy Coney Barrett says no. The courts cannot order the Executive to follow the law unless that is necessary to provide complete relief to the parties to the litigation. Her “reasoning” is that the Judiciary Act doesn’t allow a court to give relief to a non-party. Why? Because such relief would not have been allowed under the English Common Law.

Art. III, §1 of the Constitution provides in part as follows:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.

Barrett says that the judicial power of the United States is limited to the powers of the English High Court of Chancery in 1789. That’s absurd. In Marbury v. Madison, the Supreme Court held that it had the final say on Constitutional questions. That is not true under English law, and certainly not for Courts of Chancery.

Barrett cites Marbury once;

See, e.g., Marbury v. Madison, 1 Cranch 137 (1803) (concluding that James Madison had violated the law but holding that the Court lacked jurisdiction to issue a writ of mandamus ordering him to follow it).

The Wikipedia entry explains that the Court in Marbury first held that the Judiciary Act gave the Supreme Court original jurisdiction in cases of mandamus. That was greater than the original jurisdiction of the Supreme Court granted in Article III. Therefore that section of the Judiciary Act was unconstitutional, and was struck down. Marbury specifically holds that mandamus would be appropriate, but that it would have to proceed through a trial court. Does that sound like Barrett’s citation? No it does not.

Under Barrett’s holding, it is not clear exactly how the judicial branch is to act as a check on the executive branch. There is some discussion about class actions and other techniques. But there is no certainty. Perhaps the decisive factor is this:

Finally, the Government must show a likelihood that it will suffer irreparable harm absent a stay. When a federal court enters a universal injunction against the Government, it “improper[ly] intru[des]” on “a coordinate branch of the Government” and prevents the Government from enforcing its policies against nonparties. That is enough to justify interim relief. Cite omitted.

In other words, the only harm that matters on injunctive relief is the government’s. The damage to everyone else, to every person in the same position as the named parties, is irrelevant. The damage done to the rule of law by allowing a patently unconstitutional and immoral harm is irrelevant.

Comparing Trump v. CASA Inc. and Trump v. United States

1. In both cases, SCOTUS ignores the facts of the case. The indictment in Trump v. United States said that Trump conspired to overturn an election, and laid out substantial factual allegations to support the claim. Roberts natters on about core powers and such, ignoring the fact that there are no circumstances in which overturning an election is a core executive anything.

In CASA, Barrett ignores the damage Trump and his henchmen do by imposing a blatantly unconstitutional policy on non-parties.

2 In both cases SCOTUS imposes an outcome that favors one political party. In Trump v. United States the decision favors Trump. There is no reasonable observer who thinks this would have been the outcome if that indictment had been charged against a Democrat.

In CASA, Barrett says that Gorsuch, Alito, Thomas, and Kavanaugh had previously raised questions about nationwide injunctions, including those levied against the Biden administration. Either she or Roberts or both could have joined with those four to deal with the problem in any of the cases raised by Biden. But no. Then, suddenly, a few weeks after Trump’s second term begins, they both decide this is an important Constitutional issue that must be totally resolved in favor of Trump and the Republicans.

3. In both cases, the power of the coordinate branches of government is weakened. In Trump v. United States, Roberts strangled the power of Congress to control the actions of the President. The holding makes it clear that Trump is entitled to do whatever he wants with the powers given him by law, and can only be held accountable under highly limited circumstance, to be determined later by him and his crew.

The decision also weakened the power of the judiciary to check the executive branch. It gave no guidance to lower courts or prosecutors. It sets itself up as the arbiter, a role it can easily duck. It insures vast delays in any effort to enforce the law against a criminal president.

The opinion in In CASA weakens the power of the judiciary to check the actions of a lawless executive branch, this time directly. It also weakened the power of Congress. Existing laws can only be enforced piecemeal against a lawless president.

In both cases, the power of the President is exalted above all other considerations.

The attack on democracy

Both cases should be seen as part of a decades-long attack on democracy. The legislature is the most democratic branch. It is closest to the citizenry, even given the undemocratic makeup of the Senate. Reducing the power of Congress reduces the influence of voters. By weakening the judiciary, the anti-democratic forces insure that the actions of a lawless executive cannot be controlled.

These aren’t the only attacks by SCOTUS though. The Voting Rights Act was expressly intended to improve our democracy. Roberts struck it down, finding that there is an implicit statute of limitations in the Reconstruction Amendments.

The recent invention of the so-called major questions doctrine weakens the power of the legislature to deal with emergencies. The attacks by SCOTUS on the administrative state are designed to increase the power of the president despite the explicit intent of Congress. Does anyone think Congress would have empowered Trump to decide on the toxicity of lead or the value of specific vaccines? Does anyone think letting Trump direct prosecutions and criminal investigations is a reasonable thing to do?

It’s not just that Roberts and his gang refuse to protect our rights. They actively help Trump destroy our rights.

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Harvie Wilkinson Tries To Salvage Trump v. US

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Every bad thing that has happened during this lawless administration can be traced to the execrable decision of John Roberts and the Trump Clique in Trump v. US. That certainly includes the rendition of Kilmar Albrego Garcia to a notorious prison in El Salvador; he’s been moved to another prison there. Trump and his henchmen believe that they can lever that decision to justify their outrageous goals. Step one: claim there’s an emergency. Step two: issue a proclamation. Step Three: everything is now just the energetic, vigorous executive dealing with the emergency.

In this case, the “emergency” is the invasion of the US by gangs from Venezuela under the control of an evil dictator. Step two is the invocation of the Alien Enemies Act. Step three is the sudden rendition of several hundred people to foreign prisons, denial of due process required by the Constitution and laws of the US, demands that the Department of Justice defend the action without regard to ethical obligations of all lawyers, and refusal to comply with Court orders. Albrego Garcia isn’t a member of the evil gang but so what? Mistakes happen when you’re being vigorous and energetic.

When Roberts and the Trump Clique saved Trump from accountability in Trump v. US, they never imagined that he might turn on them and on the judiciary so ferociously that the wimp Roberts was forced to issue a limp statement defending the rule of law and the judiciary.

Harvie Wilkinson of the Fourth Circuit is trying to show Roberts his error. In his order slapping down the government’s attempt to avoid accountability for its illegal abduction of Abrego Garcia. Wilkinson writes:

“Energy in the [E]xecutive” is much to be respected. FEDERALIST NO. 70, at 423 (1789) (Alexander Hamilton) (Clinton Rossiter ed., 1961). It can rescue government from its lassitude and recalibrate imbalances too long left unexamined. The knowledge that executive energy is a perishable quality understandably breeds impatience with the courts. Courts, in turn, are frequently attuned to caution and are often uneasy with the Executive Branch’s breakneck pace.

And the differences do not end there. The Executive is inherently focused upon ends; the Judiciary much more so upon means. Ends are bestowed on the Executive by electoral outcomes. Means are entrusted to all of government, but most especially to the Judiciary by the Constitution itself.

For Wilkinson this is prelude to a discussion of the need for respect between the executive and the judiciary, for which he makes an extraordinary plea.

The reference to Federalist No. 70 is a polite call-back to Trump v. US:

The Framers “sought to encourage energetic, vigorous, decisive, and speedy execution of the laws by placing in the hands of a single, constitutionally indispensable, individual the ultimate authority that, in respect to the other branches, the Constitution divides among many.” Clinton v. Jones, 520 U. S. 681, 712 (1997) (Breyer, J., concurring in judgment). They “deemed an energetic executive essential to ‘the protection of the community against foreign attacks,’ ‘the steady administration of the laws,’ ‘the protection of property,’ and ‘the security of liberty.’ ” Seila Law, 591 U. S., at 223–224 (quoting The Federalist No. 70, p. 471 (J. Cooke ed. 1961) (A. Hamilton)). The purpose of a “vigorous” and “energetic” Executive, they thought, was to ensure “good government,” for a “feeble executive implies a feeble execution of the government.” Id., at 471–472.

Roberts, whether out of naiveté or ideological fervor, in substance removed the possibility of judicial control over egregious violations of law. Sonia Sotomayor, writing for the minority, pointed to the mendacity of Roberts’ citation of Federalist No. 70:

The majority’s single-minded fixation on the President’s need for boldness and dispatch ignores the countervailing need for accountability and restraint. The Framers were not so single-minded. In the Federalist Papers, after “endeavor[ing] to show” that the Executive designed by the Constitution “combines ,,, all the requisites to energy,” Alexander Hamilton asked a separate, equally important question: “Does it also combine the requisites to safety, in republican sense, a due dependence on the people, a due responsibility?” The Federalist No. 77, p. 507 (J. Harvard Library ed. 2009). The answer then was yes, based in part upon the President’s vulnerability to “prosecution in the common course of law.” Ibid. The answer after today is no.

Reading Wilkinson in this light shows how he is telling Roberts and the Trump Clique they screwed up and must remedy that by asserting the requirement that energy be restrained and explaining how that restraint is to be enforced. In her dissent in Trump v. US, Ketanji Brown Jackson explains what the idiot majority missed:

Here, I will highlight just two observations about the results … . First, the Court has unilaterally altered the balance of power between the three coordinate branches of our Government as it relates to the Rule of Law, aggrandizing power in the Judiciary and the Executive, to the detriment of Congress. Second, the majority … undermines the constraints of the law as a deterrent for future Presidents who might otherwise abuse their power, to the detriment of us all.

Wilkinson agrees with Jackson at least on the first point. The executive is focused on ends, he says, while the judiciary is focused on means to the end. He says means are set by all three branches of government. He thinks the judiciary is primarily responsible for insuring that the executive is limited to the means provided by law, which leads him to put the judiciary first. But he implicitly acknowledges the role of the legislature in setting  allowable means through laws. This too follows from both Federalist Nos. 70 and 77, which emphasize the power of the people acting through popularly elected legislatures as the protector of the safety of the people from tyrants.

Others have pointed out that Wilkinson is a conservative, and a respected jurist. His opinion should be read as a direct challenge from Roberts’ own ideological team to the foolish decision in Trump v. US. With the astonishing action of SCOTUS in the wee hours today, that message may be starting to sink in for some members of the Trump Clique.

 

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SCOTUS Usurps Congressional Power

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Posts in this series.

In the previous post in this series I described the thesis of Jamal Greene’s How Rights Went Wrong. He says the Bill of Rights was designed to protect the power of states against intrusion by the newly created federal government. Chapter 1 provides evidence to support his conclusion. My original plan was to go over the evidence he cites. Instead, I have a different bit of evidence.

SCOTUS didn’t mention the Bill of Rights when it listed the rights of citizens of the United States in any of the seminal cases construing the Reconstruction Amendments.

The issue of individual rights under the 14th Amendment came before SCOTUS in The Slaughterhouse Cases (1873), which I discussed here. The majority says that there is a difference between the rights which Americans have as citizens of the United States on one hand, and the rights they have as citizens of a state on the other.

The adoption of the first eleven amendments to the Constitution so soon after the original instrument was accepted shows a prevailing sense of danger at that time from the Federal power. And it cannot be denied that such a jealousy continued to exist with many patriotic men until the breaking out of the late civil war. It was then discovered that the true danger to the perpetuity of the Union was in the capacity of the State organizations to combine and concentrate all the powers of the State, and of contiguous States, for a determined resistance to the General Government.

Unquestionably this has given great force to the argument, and added largely to the number of those who believe in the necessity of a strong National government.

But, however pervading this sentiment, and however it may have contributed to the adoption of the amendments we have been considering, we do not see in those amendments any purpose to destroy the main features of the general system. Under the pressure of all the excited feeling growing out of the war, our statesmen have still believed that the existence of the State with powers for domestic and local government, including the regulation of civil rights the rights of person and of property [sic] was essential to the perfect working of our complex form of government, though they have thought proper to impose additional limitations on the States, and to confer additional power on that of the Nation.

So what does the majority say are the rights of citizens of the United States? Very few, all of which are set out in the main body of the Constitution. The majority cites several older cases, and describes each of them as saying that the rights we claim come from our status as citizens of a state.

But neither the majority nor any of the older cases point to the Bill of Rights as a source of our rights as citizens of the US. None of them say that as citizens of the United States we have a right to a jury trial, or to freedom of speech, or any other right in the Bill of Rights.

In that section of The Slaughterhouse Cases the Court says the opposite. It says that the 14th Amendment does not change the principle that our rights come from our status as citizens of a state.

As we saw in earlier posts on the Second Founding, subsequent decisions of SCOTUS including United States v. Cruikshank  and The Civil Rights Cases take the same position, and strike down all of the remedial legislation enacted by Congress under the 14th Amendment to give civil liberties to all citizens including Black people. These cases led us to Plessy v. Ferguson. All of them stand for the proposition that the Reconstruction Amendments do not grant rights to U.S. citizens, and that it is unconstitutional for Congress to grant such rights.

Congress gave up trying, and nothing happened to repair the damage of slavery or bring an end to Jim Crow segregation for 70 years.

Discussion

1. SCOTUS ignores America history and its own precedents when it puts itself in charge of our rights. It wasn’t that way in 1792, and it wasn’t that way in the late 1800s. That whole thing was invented in the 20th Century as SCOTUS began to say that the provisions of the Bill of Rights applied to individuals through the Due Process Clause. The concept of due process has a legal definition, and this isn’t it. We now call it “substantive due process,” and I have never understood how it’s supposed to work. Clarence Thomas agrees, calling substantive due process a “legal fiction” in  MacDonald v. City of Chicago, Thomas J. concurring.

Here’s the Wikipedia entry on substantive due process.  I’m not sure I agree with it completely, particularly the pre-Civil War material. Here’s another which seems closer to what I remember from law school.

2. So where do our rights come from? In early cases under the Reconstruction Amendments, the Court says that our rights come from the states. Rights might be found in a state constitution, or in statutes enacted by state legislatures. That means there is no agreed set of rights held by all of us. It means that there is nothing significant to the idea of being a citizen of the U.S. It also means that we have to go from state to state amending laws and constitutions to protect our liberty.

In this post, I pointed to Hannah Arendt’s view of rights. She thinks that rights only exist among people living in societies that are based on equality as citiznes. In those societies rights arise from a mutual guarantee. We give each other rights, and agree to enforcement mechanisms; and we benefit by having the same rights. That certainly doesn’t point to courts as the source of rights. It points to founding documents, and to the legislature. The courts and the executive branch serve only as enforcement mechanisms.

Each of the Reconstruction Amendments expressly empowers Congress to pass legislation to enforce them. This is a power given to Congress, not to SCOTUS. The idea that SCOTUS gets to overrule the exercise of expressly authorized power by Congress is not in the Constitution or any amendment.

I note in passing that the argument in Shelby County v. Holder, striking down a critical part of the Voting Rights Act, is the dignity of the states. That’s a term cited by John Roberts, a long-time foe of the Voting Rights Act and other legislation broadening democratic rights. Dignity is very important when it comes to states limiting the right to vote, says Roberts.

In Trump v. United States, the right-wingers granted the President almost total immunity in the exercise of official duties. It said in essence that citizens can’t hold Presidents accountable civilly or criminally, and it hamstrung any enforcement that might not have been foreclosed.

That’s how we should treat Congressional actions, including legislation and investigation related to its powers under the Constitution. That’s how we get our rights. We petition Congress for rights, and if granted, they are ours without regard to what five unelected zealots scribble.

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Open Thread: Last Batch of SCOTUS Decisions

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[NB: check the byline, thanks. /~Rayne]

The last batch of decisions will drop shortly — I think. Last week the Supreme Court didn’t deliver all of the remaining decisions it had on its plate and pushed them into a new month.

I hope these outstanding cases will be decided today:

NetChoice, LLC v. Paxton and Moody v. NetChoice, LLC (these are both about social media and may come as one or two decisions)

Corner Post, Inc. v. Board of Governors Of The Federal Rsrv. Sys.

Trump v. United States

Decisions released today follow in an update at the bottom of this post.

~ ~ ~

First decision: Corner Post, Inc. v. Board of Governors Of The Federal Rsrv. Sys.

Justice Barrett wrote the 6-3 decision; Justice Brown Jackson wrote the dissent joined by Sotomayor and Kagan.

This one could cause a lot of problems forcing reassessment of past rules and decisions by the Fed Reserve’s Board based on the dates used — the date an injury occurred due to a new Fed rule versus the date the new rule was first in force.

Second decision: NetChoice, LLC v. Paxton and Moody v. NetChoice, LLC

Justice Kagan wrote the unanimous decision on these consolidated cases, though there are concurrences:

KAGAN, J., delivered the opinion of the Court, in which ROBERTS, C. J.,
and SOTOMAYOR, KAVANAUGH, and BARRETT, JJ., joined in full, and in
which JACKSON, J., joined as to Parts I, II and III–A. BARRETT, J., filed a
concurring opinion. JACKSON, J., filed an opinion concurring in part and
concurring in the judgment. THOMAS, J., filed an opinion concurring in
the judgment. ALITO, J., filed an opinion concurring in the judgment, in
which THOMAS and GORSUCH, JJ., joined.

Whew. I don’t see the word “dissent” in this, do you? It’s another smackdown of the Fifth Circuit as well.

Third decision: Trump v. United States

Justice Roberts wrote the 6-3 court decision; Justice Sotomayor wrote a dissent joined by Kagan and Brown Jackson. Justice Brown Jackson also wrote a dissent.

From SCOTUSBlog’s thread:

The court holds that a former president has absolute immunity for his core constitutional powers.

Former presidents are also entitled to at least a presumption of immunity for their official acts.

There is no immunity, the court holds, for unofficial acts.

The core constitutional powers are things like appointing ambassadors and foreign governments.

This is not all of the decision – Roberts was still reading his decision at 10:37 a.m. ET. It looks like this is being handed back to lower courts because of the lack of distinction between official and unofficial acts. It also looks like the rightwing of SCOTUS has extended immunity to Trump for his discussions with Department of Justice, which I assume means if he made any false statements to FBI or other DOJ personnel, those charges will be dropped.

~ ~ ~

This is an open thread. Any further updates related to these cases will appear at the bottom of this post.

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