"Trump said he does not know if he has to uphold the Constitution, nor did he know if noncitizens have due process rights"

 

His adviser Stephen Miller thinks the writ of habeas corpus (the legal writ that ensures law enforcement produce a prisoner and justify their detention before a court) is a “privilege,” which he insinuates the administration might suspend if the courts do not “do the right thing” (i.e. support Trump’s lawlessness). In the words of constitutional scholar and The Contrarian contributor Steve Vladeck, Miller’s reckless comment is “both (1) wrong; and (2) profoundly dangerous.” Vladeck enumerates all the reasons Miller is wrong, concluding: He’s suggesting that the administration would (unlawfully) suspend habeas corpus if (but apparently only if) it disagrees with how courts rule in these cases.  In other words, it’s not the judicial review itself that’s imperiling national security; it’s the possibility that the government might lose. That’s not, and has never been, a viable argument for suspending habeas corpus. Were it otherwise, there’d be no point to having the writ in the first place—let alone to enshrining it in the Constitution. It is yet another measure of how badly and regularly Trump is losing in the courts that his henchmen would make such a threat. On Friday alone, he lost on two key immigration motions (as discussed below). In a separate matter, a federal court judge in California enjoined Trump for two weeks from moving forward on “plans for mass layoffs and program closures, barring two dozen agencies from moving forward with the largest phase of the president’s downsizing efforts, which the judge said was illegal without congressional authorization.” So, it is a good thing then, as Chief Justice John Roberts reiterated last week, that the “Judiciary is a coequal branch of government, separate from the others with the authority to interpret the Constitution as law, and strike down, obviously, acts of Congress or acts of the president.”  It is the courts’ job, Roberts pointed out, to “check the excesses of Congress or the executive.” There are plenty of executive excesses these days. Given Miller’s attempt to intimidate the courts, perhaps Roberts was wise to stress: “Judicial independence is crucial.” As noted, Miller may have been provoked by the two stinging immigration defeats. First, U.S. District Court Judge William Sessions III in Vermont held there was zero basis for locking up and deporting Rumeysa Ozturk, a Turkish Tufts University Ph.D. student. Ozturk had been carted off to Louisiana, where she suffered multiple asthma attacks. Replete evidence showed she was an adored member of the community. She committed no crime. She had written an op-ed. “That literally is the case. There is no evidence here … absent consideration of the op-ed,” Sessions said, in ordering her release. Sessions observed that the government’s actions, if allowed to proceed, would have the effect of chilling speech for millions of people who might “avoid exercising their First Amendment rights for fear of being whisked away to a detention center from their home.” In addition, Chris Geidner (“Law Dork”) reported that Sessions declared, “This is a woman who is just totally committed to her academic career.” Sessions added, “There is absolutely no evidence that she has engaged in violence or advocated violence.” The Second Circuit upheld another similar lower court’s ruling on Friday, affirming that Columbia University student Mohsen Mahdawi be released from custody. The appellate panel unanimously slapped down the argument that the district court lacked jurisdiction to release Mahdawi on bail because immigration courts have jurisdiction over deportation matters.  The deportation issue is still pending. But the Second Circuit chastised the government for “dramatically overstat[ing]” the extent to which immigration courts can displace federal court jurisdiction. The panel summed up: Mahdawi’s unlawful detention claims may be resolved without affecting pending removal proceedings. He asserts that the government arrested him to punish speech with which it disagrees.  But doing so would violate the Constitution—quite separate from the removal procedures followed by the 14 immigration courts. Consequently, even if his claims have a substantive overlap with challenges he may bring in his removal proceedings, his detention claims do not themselves challenge or arise from “removal proceedings”…. You do not need to be a lawyer to see that Trump/Miller’s arguments are not simply losing; they are engendering the disgust of a wide swath of the federal judiciary. The lawyers assigned to advocate these untenable positions are getting laughed out of court. (Recall that three different federal district courts—in Texas, New York, and Colorado—previously blasted the government for invoking the Alien Enemies Act.) When the Trump brain trust loses in such embarrassing fashion, it makes ridiculous threats, as Miller did. Worse, its lackeys start arresting people. On Friday afternoon, the arrestee was Mayor Ras Baraka, who was peacefully protesting with members of Congress outside a Newark detention facility run by a private prison.  The ostensible grounds for handcuffing and arresting him were “trespassing,” but the Department of Homeland Security’s accusation that members of Congress had “stormed the facility” beggars belief. (Rep. Bonnie Watson Coleman, a New Jersey congresswoman, flatly denied the accusation.) Video evidence shows Baraka on the public side of the fence. In sum, as with the arrest of Judge Hannah Dugan in Wisconsin, Trump’s go-to tactic increasingly involves dramatic shows of force against elected officials on spurious grounds. In doing so, they show their thuggish contempt for the rule of law, not to mention their frustration over repeated courtroom humiliation. Perhaps Roberts will need to be more specific when admonishing Trump and his thugs. The Contrarian is reader-supported. To receive new posts and support our work, in the court of public opinion and the court of law, kindly consider becoming a free or paid subscriber.