“there is extraordinarily little support for the idea that the president could simply disregard orders from the courts. That is true across the public, according to recent polls, with more than 80 percent of Americans rejecting the idea.
I also found similar responses from an informal survey of conservative legal thinkers, including from those generally sympathetic or otherwise open to the administration’s legal positions.
“The Constitution implicitly requires the executive branch to … comply with judicial judgments when the executive is part of the case,” Saikrishna Prakash, a law professor at the University of Virginia and onetime clerk for Supreme Court Justice Clarence Thomas, told me.
“It’s never permissible for a president to defy a court order,” said Ilya Shapiro, a senior fellow and legal analyst at the Manhattan Institute.”
…
“There are other practical reasons for the Trump administration to stay on the right side of the courts.
“What’s laying in the background is that they probably perceive, rightly or wrongly, that they’re going to win 70, 60 percent of the time in the Supreme Court,” Prakash told me, referring to the array of ongoing disputes that may wind up before the justices. “So why would you want to trash the judiciary if you think you’re ultimately going to win most of the time?”
Just as important, if not more so, is that a confrontation between Trump and the courts would imperil the successful, decades-long project by Republicans and conservatives to shift the Supreme Court to the right. In just the last few years, the six GOP appointees have revamped constitutional law in a host of areas — from abortion to affirmative action to the administrative state — but there are plenty of issues that are still on conservatives’ wish list and facing action at the Supreme Court.”
…
“None of this works particularly well if Trump ends up antagonizing potential swing-vote justices like Roberts or Amy Coney Barrett. As former Gov. Chris Christie recently noted to ABC News, “He’s going to tick off the Supreme Court so much that they may not give him everything he wants.””
“Two law firms targeted by President Donald Trump sued Friday to bar enforcement of his executive orders seeking to shut them out of government business and strip key lawyers of their security clearances.
In separate suits, Big Law firms Jenner & Block and WilmerHale say Trump’s effort to target them amounts to an unprecedented attack on the legal profession in retaliation for their work for past clients he doesn’t like and for past causes with which he disagrees. If carried out, they say, the orders would devastate their practices and have already begun to cause anxiety among their hundreds clients with government business.
Jenner & Block’s lawsuit contends Trump’s order is an unconstitutional threat to the firm and the legal system itself, seeking to “punish citizens and lawyers based on the clients they represent, the positions they advocate, the opinions they voice, and the people with whom they associate.” The lawsuit was filed on the firm’s behalf by California-based law firm Cooley LLP.
“The President’s sweeping attack on WilmerHale (and other firms) is unprecedented and unconstitutional,” writes Paul Clement, a veteran Supreme Court lawyer representing the firm in its lawsuit. “The First Amendment protects the rights of WilmerHale, its employees, and its clients to speak freely, petition the courts and other government institutions, and associate with the counsel of their choice without facing retaliation and discrimination by federal officials.””
“Until Trump took office in January, the AEA had been invoked only three times in 226 years: during the War of 1812, World War I, and World War II. All of those situations fell into the “declared war” category. The AEA has never previously been invoked in response to a putative “invasion or predatory incursion” outside the context of a declared war. That is the threat Trump cites to justify peremptorily deporting suspected members of the Venezuelan gang Tren de Aragua.”
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“Trump does not claim to be at war with Venezuela. Nor does he claim that the Venezuelan government has mounted an “invasion or predatory incursion against the territory of the United States.” And a criminal organization, even one that has corrupted or “infiltrated” a foreign government, is not a “hostile nation or government” as those terms are ordinarily understood.
Nor does Trump’s understanding of “invasion or predatory incursion” make sense in the context of the AEA. “As the Supreme Court and past presidents have acknowledged, the Alien Enemies Act is a wartime authority enacted and implemented under the war power,” Katherine Yon Ebright, a lawyer at the Brennan Center for Justice who specializes in national security issues, explained last fall. “When the Fifth Congress passed the law and the Wilson administration defended it in court during World War I, they did so on the understanding that noncitizens with connections to a foreign belligerent could be ‘treated as prisoners of war’ under the ‘rules of war under the law of nations.’ In the Constitution and other late-1700s statutes, the term invasion is used literally, typically to refer to large-scale attacks. The term predatory incursion is also used literally in writings of that period to refer to slightly smaller attacks like the 1781 Raid on Richmond led by American defector Benedict Arnold.””
…
“”There is a lot of law about what constitutes a foreign government,” Gelernt told Boasberg. “And I don’t think the United States recognizes [Tren de Aragua] as a foreign government. They recognize Venezuela as a foreign government. I think that’s the
historic understanding of the statute.”
Gerlent also questioned the government’s definition of “invasion or predatory incursion”: “We think the Court certainly can review whether immigration constitutes some kind of invasion….We know of no historical precedent that would suggest that straight migration or noncitizens coming and committing crimes constitutes an invasion within the meaning of the statute or the Constitution.””
“President Donald Trump has reached a peace deal with a prominent law firm, agreeing to lift a punitive executive order in exchange for concessions that include an agreement to do pro bono work on behalf of conservative causes.”
“Trump doesn’t have to do something dramatic like cancel the election in order to erode democracy. The relationship between democracy and autocracy is a spectrum, not a binary; for example, countries like Venezuela, Nicaragua, Turkey and Hungary still hold elections, but their leaders aren’t held meaningfully accountable by them (or by other mechanisms like the courts). A more realistic concern is that the U.S. will slide into what political scientists call “competitive authoritarianism,” in which democratic institutions still exist but they are regularly abused. Maybe the chief executive can’t just abolish the other branches of government, the free press and other tools of accountability for fear of being seen as illegitimate, but he can find ways to weaken or circumvent them. And while the incumbent party still must face elections — and can even lose them — it makes every effort to tilt the electoral playing field in its favor.”
…
“some of these things wouldn’t be new for Trump. During his first term, he fired FBI Director James Comey, who was leading an investigation into Trump’s ties to Russia. He purged the Republican Party of his critics by endorsing their opponents in primaries. And of course, he sowed distrust in the results of the 2020 election and attempted to overturn former President Joe Biden’s win. But that’s just the point: According to some political scientists, Trump’s actions during his first term already meet the definition of democratic erosion.”
“the First Amendment is understood as a general restriction on the government’s behavior, as The Volokh Conspiracy’s Ilya Somin points out.
“The First Amendment’s protection for freedom of speech, like most constitutional rights, is not limited to US citizens,” he writes. “The text of the First Amendment is worded as a general limitation on government power, not a form of special protection for a particular group of people, such as US citizens or permanent residents.”
Setting aside the constitutional issue, the detention of a student activist for engaging in what would clearly be considered First Amendment–protected activity under other circumstances is very alarming. If the State Department wishes to proceed with this course of action, the burden is on the government to sufficiently explain why Khalil should be deported. Authorities must persuasively demonstrate that his conduct crosses some very, very red line.
Yet, at present, the government’s justifications don’t come anywhere close to satisfying such a requirement. On the contrary, the official explanation for Khalil’s detention is so woefully insufficient as to be laughable—except, of course, this matter isn’t funny at all.”
“The lawsuit filed by USAID employees and contractors argued that Musk and DOGE are wielding power the Constitution reserves only for those who win elections or are confirmed by the Senate.”
“The administration maintains that it has the power to revoke Khalil’s green card and deport him because he helped lead pro-Palestinian protests. Indeed, it’s becoming clear that Khalil was targeted because of his speech, rather than any other conduct that might be reasonably construed as criminal behavior.”