Telling the federal judiciary to "f*ck off"

Will Trump defy the Supreme Court?

Robert Reich Mar 17

Friends,

Sorry to intrude on your inboxes for a second time today, but it’s necessary.

After a federal judge pressed the Trump administration to provide evidence by 5 pm today about whether the White House had violated the court’s order in deporting migrants with little to no due process, so-called border czar Tom Homan said that flights would continue regardless. “We’re not stopping,” he said. “I don’t care what the judges think.”

In our system, judges don’t just “think.” They have the final say, unless their rulings are appealed to the Supreme Court, in which case the high court’s majority has the final final say.

This afternoon, it became apparent that Trump’s Justice Department shares Homan’s odd view of our judicial system. DOJ lawyers filed papers telling the judge they would not appear in court, that the administration would not provide any further information about the deportation flights, and that the court should vacate the hearing.

What’s going on here?

On Sunday night, Trump told reporters that a federal judge in California who ordered the administration to rehire thousands of fired probationary workers was “putting himself in the position of the president of the United States, who was elected by close to 80 million votes.”

Wrong. In our system of government, courts pass judgment on actions of a president and the executive branch. Court don’t put themselves in the position of a president. They act as the Constitution empowers them to act — as a co-equal branch of government. If the executive branch doesn’t agree with what a lower-court judge decides, it can appeal to a higher court and ultimately to the Supreme Court.

Trump isn’t the only one to make this mistake. In early February, Trump’s vice-president JD Vance declared that “judges aren’t allowed to control the executive’s legitimate power.” It was an odd statement from someone who has studied at one of America’s preeminent law schools — and it was logically absurd, since it’s up to judges and — if their rulings are appealed to the Supreme Court — justices to determine a president’s “legitimate power.”

Let’s be clear. Trump has openly violated numerous laws and constitutional provisions — such ending birthright citizenship; giving associates of Elon Musk’s government-slashing effort access to a sensitive Treasury Department system; transferring transgender female inmates to male prisons; placing thousands of U.S. Agency for International Development employees on leave; and effectively dismantling U.S.A.I.D. and folding it into the State Department. In response, federal judges have temporarily barred a slew of Trump orders from taking effect.

But not until today has Trump or his regime openly and blatantly refused to follow a judge’s order.

What happens when this or another lower court ruling goes to the Supreme Court, and the high court rules against Trump?

Vance has said if this occurs, Trump should “stand before the country like Andrew Jackson did and say, ‘The chief justice has made his ruling. Now let him enforce it.’”

Never mind that the quote attributed to Jackson is, as one scholar has noted, “probably apocryphal.” It’s heard more and more from Trump appointees these days, as exemplified by Homan’s remark, and this afternoon’s Justice Department filing.

Trump’s appointments in his second term are having the opposite effect of his first-term appointees. In first term, they restrained him somewhat. The Justice Department’s top brass threatened to resign en mass if he appointed as Attorney General the one assistant attorney general who was prepared to sell his soul to Trump and say the 2020 election was stolen from him.

This time, his appointees are magnifying his worst instincts. Rather than act as guardrails, they are egging Trump on.

Many people wonder if we’re in a “constitutional crisis.” Definitions of that phrase vary considerably as do opinions about whether we’re in one now.

My worry is that Trump is surrounded by extremist anti-democracy nihilists, including his vice president, who are encouraging him to defy the Supreme Court.

If and when he does, we’ll be in a constitutional crisis that should cause every American to take to the streets.