John Roberts Reaps The Whirlwind
I begin today for an unusual (for me) foray into the Bible. Because there are two passages that seem particularly apt for the moment of crisis we find ourselves in. There are many translations of these verses available, but I decided on a traditionalist approach and used the King James Version for both.
The first is Galatians 6:7, which proclaims:
Whatsoever a man soweth, that shall he also reap.
And the second is Hosea 8:7, which states the same case with a warning:
For they have sown the wind, and they shall reap the whirlwind.
Put in more modern vernacular, both verses warn that whatever seeds you plant, the fruit of those seeds is precisely what you will harvest as a direct result. These days, the thought is usually shortened to: "You reap what you sow."
Supreme Court Chief Justice John Roberts is now learning this biblical lesson, one assumes. When the conservatives on the court ruled last year that presidents could essentially order lawless actions and could never be held accountable for doing so in a court of law -- as long as the president called them "official presidential actions" -- they set up the situation we now find ourselves in.
President Whirlwind... (oh, sorry, meant to say "Donald Trump" there)... is now directly challenging not only lower courts' rulings but also a unanimous ruling from the Supreme Court itself. We stand at the brink of constitutional crisis, folks.
Trump has flat-out refused to obey several court rulings in the short time he has been in office again, including continuing to bar an Associated Press reporter from events that other members of the press are allowed to attend in the White House -- even though a judge ruled that the White House had to stop doing so. Other judgments have ordered the White House to spend money it had halted, to no avail. The money still isn't being spent, despite the rulings.
But it is the case of Kilmar Armando Abrego García that has risen to the forefront, since the Supreme Court largely upheld an order by a lower court for the president to "facilitate" his return from an infamous prison in El Salvador. The Trump administration is not doing so.
They are making two arguments, one constitutional in nature and one semantic in nature. The original order from the presiding judge in the case directed the White House to "facilitate and effectuate" García's return. This order was challenged in the appellate courts, which upheld the judge (ruling against the Trump administration, in other words). So the administration filed an emergency appeal to the Supreme Court.
They lost, in a startling 9-to-0 decision. But the way this decision was written seemed to open up a loophole for the administration. The high court instructed the lower court to further define what it meant by "facilitate," but to avoid using "effectuate" and to give deference to the executive branch's "conduct of foreign affairs."
Which brings up the constitutional argument the White House is now making -- that even though the administration agreed in court that García had been deported by mistake (by "an administrative error"), that since he was now in a foreign country there simply wasn't anything they could do to get him back, period. Their position is that if García should somehow magically appear at a U.S. airport, they will "facilitate" his return by allowing him in (after which, they have now said, they will deport him all over again).
Since the Supreme Court's ruling, the original judge in the case has been working to redefine her original order. However, the Justice Department has been coming very close to stonewalling the judge's requests for information. Another hearing was held in the case today, and the judge seems to be contemplating contempt of court charges against the administration for their refusal to answer basic inquiries from the judge.
The next steps in this drama seem almost inevitable, at this point. The judge is going to rule (in one fashion or another) that the administration is not doing what she told them to do, and is going to issue a much-clearer order for them to get García back to this country. She may also begin contempt proceedings, depending on how recalcitrant the administration has been to follow her orders. This will all (inevitably) also be appealed, and will wind up back at the Supreme Court.
This is where the biblical lessons come into play, since the last thing Roberts wants is to have a constitutional showdown with a sitting president. However, at this point it seems inevitable -- if not in this case, then in some other that is currently wending its way upward through the judicial system.
Such a showdown was pretty easy to see coming, given the nature of Trump and the sweeping immunity the court bestowed on the presidency. If the Trump administration had had their choice of cases to test the courts on, they likely would have picked an immigration case. Trump's immigration policies were a big selling point for him on the campaign trail and even while his approval ratings on economic issues are now way down (by double-digits) in the polls, his immigration policy is still supported by a slim majority of Americans. Trump (as usual) will be trying the case simultaneously in the real courts and the "court of public opinion," so having the showdown happen on one of the few issues the public still supports him on should help, one might think.
However, the facts of the case (which I am not going to delve into in depth here -- that's a subject for a whole 'nother column, sorry) are pretty sympathetic to García. And the public's support for Trump's mass deportation plans is not very deep -- it crumbles in polls which ask more in-depth questions about whether immigrants in different situations should be deported or not. Most agree that dangerous criminals should indeed be deported, but most also agree that someone: without a criminal record, who has lived here for 10 years or more, is married to an American citizen, and has American children should not be deported -- which is exactly what García is. He has never been arrested or charged with any crime -- in either America or El Salvador (which he left when he was 16 years old).
The Trump administration is mightily trying to paint García as some monster of a gangbanger, who is so dangerous to the American public that he richly deserved getting sent to a hellhole of a prison in a country run by a dictator, where he will spend at least a year in confinement (again: despite not ever being charged with any crime in either country). Their accusations that García is a monster (which are almost certainly unfounded, due to the dearth of evidence for any of them) have not been proven in any court of law, which is precisely the point here. Here's what the trial judge had to say about these accusations: "The 'evidence' against Abrego García consisted of nothing more than his Chicago Bulls hat and hoodie, and a vague, uncorroborated allegation from a confidential informant claiming he belonged to MS-13's 'Western' clique in New York -- a place he has never lived." Not exactly irrefutable evidence beyond reasonable doubt of being the murderous gangbanger thug the administration is trying to paint him as, is it?
The Supreme Court pointed out -- in plan language -- what the core legal problem is for the administration, in their unanimous ruling: "The United States acknowledges that Abrego García was subject to a withholding order forbidding his removal to El Salvador, and that the removal to El Salvador was therefore illegal."
The administration has now essentially taken the position of: "So what?"
The whole courtroom drama will play out however it plays out before it returns to the Supreme Court. But eventually, Roberts and the other justices will have to address the issue once again -- with far more clarity and detail than they provided the first time.
Allowing Trump to get away with what he did would be both reaping the whirlwind of their previous immunity decision (since what the Trump administration did was clearly illegal) and planting the seeds for even more lawless behavior by the administration in the very near future. Trump is openly speculating that this Salvadorian prison would be a dandy place to send American citizens that he particularly didn't like for one reason or another. He has floated this idea on multiple occasions. This would mean the Trump administration would have the power to "disappear" anyone, and then whisk them away to a foreign hellhole of a prison with no due process and no hope of challenging such a decision in a U.S. court of law.
That should weigh heavily on Roberts and the high court. Indeed, it should downright frighten them. If Trump is not held in check in this particular case (by some legalistic punt by the high court towards the president's foreign affairs powers) then he will be unfettered to expand his use of this illegal and unconstitutional tactic.
But Roberts has brought this upon himself and his fellow justices. He planted this seed of illegal behavior being acceptable and unanswerable right there in the Oval Office himself. So I have no sympathy for the position he finds himself in now. He has sown the wind, so when a tornado hits the high court he has forfeited the ability to be in any way surprised by such a development.
You reap what you sow, Mr. Chief Justice.
-- Chris Weigant
Follow Chris on Twitter: @ChrisWeigant
kilmar is more legal than mELakON.
I have to admit I don't have a lot of faith in Roberts and his conservative majority on this front.
As you say, the Republican administration's attitude towards court rulings they don't like is already 'so what?'. And what will Roberts & Co. do, if they summon the guts to order the president, with no exceptions or vague language, to f-ing OBEY THE LAW?
'So what?'
Your move, Mr. Chief Justice. Congress ain't here - they're hiding behind that curtain over there. The Justice Department ain't here - they're owned lock stock and barrel by the party you're trying to enforce the law against.
Now if Roberts knows this, why would he expose his impotence in the first place? Why not stick with 'facilitate' and 'it's foreign policy, nothing can be done' and 'we don't care if the president can now deport anyone he likes to permanent prison without charges or process, as long as he doesn't do it to us.'
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New Rule
Thou shalt not speak of Trump
and biblical things unless thou
doth quote 2 Corinthians.
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Two Corinthians walked into a bar and said:
*
Put in more modern vernacular: "A shit ton is about to hit the proverbial fan."
not sure the correct biblical reference for this point, but we have a big fan, and another three and three quarters years of fecal matter still to be thrown at it.
Kick [3] -
OK, I have to admit, that made me laugh long and hard! Hilarious! Well done!
:-D
-CW