Month: April 2025

With congressional Republicans firmly in Trump’s pocket and an administration stocked with toadies, the federal judiciary stands as the only constraint on his many legally dubious actions. So far, the lower courts have met the challenge as judges across the ideological spectrum frequently rule against his excesses.

Whether the Supreme Court is up to the task remains to be seen. In several preliminary rulings, the Court overturned lower court orders adverse to Trump on technical grounds. While each individual ruling may be defensible, some pundits (but not all) suggest that, taken together, they show a pattern of reluctance by a majority of justices to confront Trump. 

The outrageous deportation of Kilmar Abrego Garcia to El Salvador could be the first direct test of the Court’s resolve. The Supreme Court’s April 10 preliminary ruling in his case is widely viewed as a win for Abrego Garcia; however, the end game remains very much in doubt. The justices agreed with lower courts that Abrego Garcia should be brought back to the United States but were less than supportive of the judiciary ordering that he must be returned.

The Court’s apparently unanimous per curium opinion acknowledged that Abrego Garcia’s deportation was illegal since it violated an immigration agency order prohibiting sending him to El Salvador, and the opinion confirmed that he had wrongly been denied due process.^[1]The Government conceded both points, admitting that his deportation resulted from what it euphemistically called an “administrative error.” It also affirmed a district judge’s order that the Government pursue getting him back to the United States.

From there the opinion veered into ambiguity. While concluding that the district judge appropriately ordered the Government to “facilitate” Abrego Garcia’s return, it seemingly balked at the notion that the judge could go so far as to require the Government to “effectuate” his return, i.e., make it happen. The Court called on the judge to “clarify” that part of her order “with due regard for the deference owed to the Executive Branch in the conduct of foreign affairs.” 

The opinion also seemed to constrain how much information the district court could demand concerning efforts to bring Abrego Garcia back. It stated that the Government should be prepared to “share what it can” concerning steps to obtain his return.

The case now comes down to the sole question of whether the courts can make the Government return him if it persists in resisting. Specifically, what happens if it continues to insist, however implausibly, that it can’t force the Salvadoran government to give him back or that his return is somehow precluded by privileged foreign policy considerations that it can’t “share”?  On its face, the Court’s opinion seems to leave the door open to these assertions.

It will be a sad day if the Supreme Court ultimately accedes to this obvious subterfuge and condones the gross miscarriage of justice that defines this case.

From the outset, it featured patently illegal, bad faith conduct by Trump Administration officials. Abrego Garcia was one of over 200 alleged “terrorist” gang members surreptitiously seized without warrant, removed from the United States, and transported to a notorious prison in El Salvador with no due process. This was supposedly based on the Alien Enemies Act, a law that appears inapplicable by its plain terms. It is also far from clear that some deportees, including Abrego Garcia, were in fact gang members.^[2]From the sketchy information available, there appears to be little if any credible evidence of gang membership regarding Abrego Garcia. And, notably, he is alleged to be a member of MS-13, not the … Continue reading

Undoubtedly, the deportations were conducted hurriedly and secretively at least in part to avoid prior judicial review. Even after the fact, government officials have impeded judicial review at every turn. They defied one federal judge who ordered the deportees’ return while some flights were still in the air and later stonewalled the judge to the point that he was considering holding them in contempt.^[3]The Supreme Court ended this case by ruling that the judge lacked jurisdiction.

Justice Department leaders spearheaded a similar effort against the district judge in the Abrego Garcia case, going so far as to fire  one of their own attorneys for being too candid with the judge and not sufficiently vigorous in stonewalling her. (Shamefully, they appear not only indifferent to their own ethical obligations as officers of the court but determined to force subordinate attorneys to compromise their ethical obligations as well.)   

The Government’s assertion that it can’t return Abrego Garcia to the United States is utterly disingenuous if not an outright lie. El Salvador is essentially a custodial agent for the United States under an agreement in which the United States pays the Salvadoran government $6 million to hold the deportees “for one (1) year, pending the United States’ decision on [their] long term disposition.” (Emphasis supplied)^[4]See the trial judge’s opinion at page 6.

There is no reason to believe the Salvadorans would (or could, under the agreement) refuse a request to return Abrego Garcia to U.S. custody for transport back to the United States. Moreover, he is not alleged to have committed any crime in El Salvador so the Salvadorans have no reason of their own to detain him. Even Trump said that he could get Abrego Garcia back, and would do so if the Supreme Court told him to, before he was apparently advised to walk back that statement.

All three levels of the federal judiciary have ruled unanimously that Abrego Garcia’s deportation was unlawful and that he should be returned to the United States. One might think the Trump Administration would get the message and finally do the right thing. (The Supreme Court was surely hoping they would too.) Instead, clearly emboldened by the wiggle room in the Court’s opinion, it has become even more recalcitrant.

The Justice Department’s latest filing takes the absurd position that its obligation to “facilitate” Abrego Garcia’s return means nothing more than to remove any “domestic barriers” to his return. Under this ridiculous interpretation, the Trump Administration need not even ask the Salvadorans to turn him over to them.

Perhaps this latest act of flouting the law and disrespecting the judiciary—now including the Supreme Court by grossly distorting its opinion—will be the final straw. It’s hard to imagine why or even how the Supreme Court would still give any credence to the Trump Administration’s transparently false assertions. Indeed, considering its conduct in this and other cases, it’s hard to imagine a president or a Justice Department less entitled to the presumption of regularity and good faith usually accorded to the executive branch. 

If the Trump Administration persists and forces the Supreme Court to take another shot at the case, the Court should definitively put an end to this lawless, unconscionable farce.

 

On April 2, in his latest and potentially most consequential act of hubris, Donald Trump announced a blizzard of so-called “Liberation Day” tariffs on most countries—and then some. This triggered financial chaos in the United States and throughout the world. The U.S. stock market fell into “correction” territory and there were widespread expressions of concern domestically and internationally.

Trump’s tariffs have been panned by economists and others across the ideological spectrum.^[1]See here for a summary of criticisms from the right. Their stated goals are widely viewed as implausible and internally inconsistent. The supporting facts are dubious and rife with errors. Tariff targets include barren islands populated mainly by penguins. There are contradictions over whether the tariffs are firm or simply a negotiating tactic. Even apart from their negative economic impacts, the tariffs are yet another blow to our standing in the world. Whatever may be said in support of the tariffs, the issues and potential effects are surely much too complex to be left to the whim of one individual.

The tariffs and their rollout have all the hallmarks of a typical Trump flight of fancy that his bumbling, unquestioning staff attempted to execute as best they could understand them and most congressional Republicans were afraid to criticize. All in all, it would have been more fitting to announce the tariffs on April 1.

How is Trump, or any other president, able to take such sweeping, unilateral action with such profound impact on foreign commerce and the domestic economy? There’s nothing in the Constitution granting the executive branch this authority. On the contrary, the Commerce Clause (Art. I, section 8) explicitly grants Congress, not the president, the power to “collect Taxes, Duties, Imposts and Excises (Clause 1) and to “regulate Commerce with Foreign Nations” (Clause 3).

This is yet another striking example of how Congress has ceded its constitutional authority to the executive branch with few constraints on its exercise. Congress enacted statutes over the years delegating to the president authority to impose tariffs under various circumstances. The circumstances are usually described in general terms, often referencing loosely defined emergency conditions. The courts have consistently upheld the delegations.^[2]For detailed background, see here and here.

It’s possible that Trump’s assertion of a qualifying “emergency” to support his massive tariffs here may be too far-fetched for the courts to accept.^[3]See here and here. In any event, there is a more fundamental point beyond the issues related to these tariffs.

Congress may get away with abdicating its constitutional authority over tariffs and so many other subjects to presidents who act with at least a modicum of responsibly and good faith. Clearly, that’s is not the case with Trump. His only motivation is self-gratification, he operates with no regard for laws or democratic norms, and many of his initiatives are hoaxes.^[4]For example, his “Department of Government Efficiency,” fronted by Elon Musk, is not a serious effort to reduce fraud and waste by any objective definition or make a significant dent in federal … Continue reading

Trump’s many abuses highlight the urgent need for Congress to reclaim its constitutional role and responsibilities. Of course, this isn’t likely to happen with the current majorities composed largely of Trump sycophants. Hopefully, a future Congress will awaken from hibernation and find some remnants of democracy left when it emerges.