It’s that some senior Trump administration aides seem not to care if they did. There are even claims that some judges are simply too junior to question the actions of a president.
The furor caused by the administration’s peacetime use of wartime powers under the 18th-century Alien Enemies Act is the latest, and perhaps most overt, sign of President Donald Trump’s sense of omnipotence. He’s also betting voters will reward him for, in his view, keeping them safe with ruthless immigration enforcement rather than recoil from his challenges to the Constitution.
The growing showdown is so critical because the courts are one of the final checks on Trump’s power after he crushed opposition in the Republican Party and helped shut the Democratic Party out of any power in any branch of government in Washington.
The administration’s transformational willingness to test bedrock constitutional principles was laid bare in a stunning interview of senior White House adviser Stephen Miller with CNN’s Kasie Hunt on Monday.
Miller argued that since Trump was flexing his powers as commander in chief, the courts had no right to hold him to account, defying one of the tenets of American democracy upheld through the three branches of government. He said the Alien Enemies Act, which has a dubious historical legacy, was “written explicitly to give the president the authority to repel an alien invasion of the United States.” Miller added: “That is not something that a district court judge has any authority whatsoever to interfere with, to enjoin, to restrict, or to restrain in any way.”
Putting aside the White House claim that the United States is subject to an invasion by Venezuelan gang members – which rests on questionable legal ground – a senior aide to the president is essentially arguing his boss has absolute power.
“You can read the law yourself,” Miller said. “There’s not one clause in that law that makes it subject to judicial review, let alone district court review.”
‘I don’t care’
Miller’s certitude was mirrored Monday by Trump’s border czar Tom Homan, who expressed contempt for the notion that Trump’s border crackdown could be constrained. “We’re not stopping. I don’t care what the judges think. I don’t care what the left thinks. We’re coming,” Homan told Lawrence Jones of Fox News.
The idea that the White House would ignore what judges say threatens the most basic building blocks of constitutional government that every American kid learns in civics class.
The administration’s mindset infuriated the judge in the deportations case, who is investigating whether the White House ignored his orders Saturday to halt the deportations of expelled alleged gang members and return flights carrying them to the US.
The administration is arguing, among other things, that it didn’t violate Judge James Boasberg’s order from the weekend since his oral order from the bench said the government must turn around planes carrying individuals subject to Trump’s proclamation around, but his written order did not.
An exasperated Boasberg summarized the DOJ’s reasoning as: “‘We don’t care, we’ll do what we want.’”
Boasberg gave the DOJ’s lawyers until Tuesday to come up with data about the timing of the deportation flights that they refused to provide on Monday.
“This is a showdown. This is akin to inter-branch March Madness,” former Federal Judge John E. Jones III told CNN’s Kaitlan Collins.
Constitutional experts said Miller’s argument clashed with the landmark Supreme Court case Marbury v. Madison, which established the high court’s authority by finding among other key principles that the actions of the executive branch are subject to judicial review.
“The whole point of Marbury v. Madison … is that you go first to the district court for federal questions and questions of constitutional law, so he’s not understanding that,” said Corey Brettschneider
