Trump is still seething at the Supreme Court for halting his efforts to deport immigrants under the Alien Enemies Act without due process
On Saturday, Trump shared a post on Truth Social from lawyer Mike Davis, one of his most extreme MAGA allies, claiming that the Supreme Court put “an illegal injunction on the president of the United States, preventing him from commanding military operations to expel these foreign terrorists.”
Davis added in the post that Trump “should house these terrorists near the Chevy Chase Country Club, with daytime release.” (Supreme Court Justices John Roberts and Brett Kavanaugh both live in Chevy Chase, Maryland.)
Trump shared another post from Davis complaining that the justices had blocked Trump from deporting undocumented immigrants “without years of court process.” The president wrote, “The Supreme Court must come to the RESCUE OF AMERICA.”
Everything the Supreme Court orders is “legal”, by definition. That’s what Supreme means. They have taken up the duty of the judicial department to say what the law is. There is no further appeal.
But they don’t make law. Only rule on what is lawful. Congress can change the rules at any time and the SCOTUS would be required to uphold it.
In a functioning democracy…
SCOTUS has been effectively making laws for a while. Interracial marriage is legal because of a SCOTUS ruling. Gay marriage is legal because of a SCOTUS ruling. Abortion was legal because of a SCOTUS ruling.
These are all legal in Canada because parliament passed laws making them legal, and not because of Supreme Court rulings. I get the sense that the US Congress is so bad at passing any laws whatsoever that the only time laws change is when SCOTUS changes them.
We’re fucking terrible at passing any good laws. I really think being able to add riders to a bill is the biggest reason for this.
But then who says what the statutes that Congress passed mean…?
In this case, the court has determined that notices in English only, that give a 24 hour deadline, with no information about how to contact an attorney, are illegal. That amount of notice is not due process as guaranteed by the 5th amendment of the Constitution.
The constitution overrides all parts of federal law, including the Alien Enemies Act. There is no power to suspend the constitution here. Not even a war power. The constitution applies to the plaintiffs in this case, because they are in the territory of the United States. Full stop.
The government has argued to the court, without citing any specific clause of the constitution, that the President enjoys broad “war powers” that prevent the court from looking into any aspect of what the administration is doing here. The court has clearly rejected that argument* with respect to the 5th amendment concerns.
So that is what the law is, and that’s what the law is not. That’s a final decision.
*The court has not decided yet on whether the government can use this reasoning to block any interpretation of the meaning of the words “invasion” or “predatory incursion.” The lower courts that have ruled are something like 4 or 5 to 1, on the side that the judiciary can interpret those words.
EDIT: Actually, I think the one judge that ruled for the AEA proclamation did so by interpreting “invasion” by looking it up in a dictionary. She just used a modern dictionary, while the others have been using 1798 dictionaries.
that’s not completely true considering the presidential immunity ruling was completely made up out of whole cloth and not existing legislation.
Congress would need a constitutional amendment in this case, though in state supreme courts you are generally correct.