The Department of Justice has declared war on the federal courts, conveniently omitting the Supreme Court. This is not the surmise of some liberal pundit. It is not an inference drawn from the rant of Emil Bove, now a federal judge, once Trump’s personal lawyer and a high-ranking Justice Department figure. Bove is said to have told his colleagues, after they had ruled against the government in a Venezuelan deportee’s case, “F… the courts.” Bove’s behavior raised eyebrows at the time, but the criticism largely subsided after the Senate confirmed him for the Third Circuit bench.  

But when Deputy Attorney General Todd Blanche told the Federalist Society in November that we must declare war on the courts for bad decisions, there is reason to fear that the independence of the judiciary is seriously undermined. 

Specifically, Blanche attributed the Trump administration’s myriad losses in the lower federal courts to “rogue activist judges,” claiming that these “liberals” are “more political or certainly as political as the most liberal governor or D.A.” As Blanche continued, “There’s a group of judges that are repeat players, and that’s obviously not by happenstance, that’s intentional, and it’s a war, man.” Blanche called it a “war” three times in his speech.” He said we have a “travesty when you have an individual judge able to stop an entire operation or an entire administrative policy that’s constitutional and allowed just because he or she chooses to do so.” But isn’t that precisely what judges are supposed to do? Nevertheless, Blanche thundered, “So, it’s a war.” 

The “war” is being fought on many fronts. Blanche speaks for Attorney General Pam Bondi, who filed a senseless misconduct complaint against Chief Judge James Boasberg of the D.C. district court; White House Rasputin Stephen Miller intermittently decries each adverse ruling against the Trump administration as a “judicial insurrection”; and, although it has been postponed, the Senate Judiciary Committee had been set to convene a hearing on claims of misconduct by two district judges.  

Supreme Court Justice Ketanji Brown Jackson said at a conference of judges and lawyers last May, “These attacks are not random; they seem designed to intimidate those of us who serve in this critical capacity. The threats and harassment are attacks on our democracy, on our system of government. “And they ultimately risk undermining our constitution and the rule of law.” Jackson called on the judges in the room to show “raw courage” and dispense justice without fear of any outside consequences. “I urge you to keep going, keep doing what is right for our country, and I do believe that history will vindicate your service.”  

Court orders must be obeyed unless and until reversed. This is a particular duty imposed on Justice Department lawyers sworn to uphold the Constitution. When this obligation is repudiated, tyranny reigns. There is no reason for the executive branch to delegitimize the judicial branch unless it fears that judges will hold it accountable. Judges today face calls for their impeachment, threats of violence, and instances where their orders are not obeyed. 

One would have thought that political impeachment of judges was settled in 1805, when the Democratic-Republican President Thomas Jefferson sought to impeach the Federalist Justice Samuel Chase. Chase had been a founding father and a signer of the Declaration of Independence. Pre-Chase, there had been one prior Senate impeachment of a judge; in that case, the jurist was removed for drunkenness and insanity. The Chase case required the Senate to explore the meaning of impeachable crimes. 

The Senate record refers to Chase as “a staunch federalist with a volcanic personality.” His fiery rhetoric often drew public attention and criticism, particularly from the Democratic-Republicans who controlled Congress. His conduct, especially his partisan commentary during jury charges, further fueled calls for his impeachment. 

Jefferson became incensed when he learned that Chase had charged a grand jury in a way the president believed had an unfair political slant. So, he wrote to the House and asked them to impeach. The bill of impeachment accused Chase of acting with bias. The articles also addressed rulings he made in cases involving treason and sedition, including refusing to dismiss allegedly biased grand jurors and excluding or limiting defense witnesses in politically sensitive cases. The House impeached Chase for “high crimes and misdemeanors,” and he stood trial in the Senate, declaring that he was being prosecuted for his politics rather than for any crime. The Senate presided over by Jefferson’s vice president, Aaron Burr, who was a fugitive from justice, having killed Alexander Hamilton in a duel the preceding year, failed to convict, even though Jefferson’s party held a super majority. Chase resumed his judicial duties.  

The failed impeachment set a precedent. A federal judge, appointed for life, does not sit at the pleasure of the Senate. We have learned that the Constitution requires judges to tell us what the law is. They should not be impeached for rulings with which the party in power disagrees. Judges should be impeached for outright criminal behavior, such as, to use a true-to-life example, receiving extravagant gifts from parties with business before the court.  

Stephen Vladeck, the Constitutional scholar, called Blanche’s statements “shamelessly hypocritical; and profoundly dangerous.” He wrote in his Substack One First, “The galling part is that Blanche never actually explains which of the more than 100 federal district court judges (to say nothing of the dozens of circuit judges) to rule against the Trump administration are ‘rogue activist judges.’ And all he really could provide as support for why they are “rogue activist judges” is because they are … ruling against the Trump administration.” Blanche said that “these Article. III judges [are] literally telling the president, the executive, what he can and cannot do.” 

And that is precisely what Article III judges are supposed to do. Blanche reminds us of Louie, the corrupt police chief in Casablanca who cynically said as he collected his winnings in Rick’s café, “I am shocked, shocked that gambling is going on in here.”  

Blanche is parroting the “unitary executive theory” that the president has total power over the executive branch, and even the entire government. Nothing in the Constitution says that. The argument is that an untrammeled executive is implicit in the Constitution and is gathered from the provisions of Article II that the “executive power shall be vested in the president;” that he is “commander-in-chief” of the Armed Forces; that he has the appointment power; and that “he shall take care that the laws be faithfully executed.” These powers, however, are qualified. The appointment power often requires the consent of the Senate. The treaty-making power is subject to ratification by 2/3 of the Senate, and the power to declare war belongs to Congress, not Todd Blanche and not Pam Bondi. And until now, whoever heard of one branch declaring war on another? It is certainly no accident that these attacks on lower courts coincide with decisions that have proven to be the most effective brake on the lawless behavior of the Trump administration. 

 Autocracy is just around the corner. Checks and balances are a toothless tiger. A supine Congress has demurely handed over its authority to the president, and the Supreme Court has been Trump’s handmaiden. Consider that the oral argument this week presages that the Court may overturn a 90-year-old precedent and bless his firing of independent agency appointees under the unitary executive theory, which it has vastly overblown. Maybe it will come to its senses over Trump’s usurpation of tariff powers. And maybe not.  

But if there is war, only the lower courts, including judges appointed by Trump himself, have manned the ramparts. 

The post Our Heroic Lower Court Judges  appeared first on Washington Monthly.

A paradox haunts books by contemporary Supreme Court justices. Publishers give the justices huge sums—$2 million, in the case of Justice Amy Coney Barrett—to write monographs insisting that Supreme Court judging is apolitical. Publishers provide these guarantees because Supreme Court judging in the United States is hyperpolitical: Partisans can be trusted to buy and praise the books written by justices on their side of the political fence. 

This paradox has a predictable literary consequence: The books are almost always bad. Recent books by Justice Neil Gorsuch and former Justice Stephen Breyer were widely and rightly panned by reviewers, though purchased in large numbers by partisan readers. Neither book explained why publishers, bookstores, producers, and influencers roll out red carpets for people whose primary job is supposedly to follow, to the letter, instructions given in past centuries.

Justice Barrett’s new book, Listening to the Law, meets the low bar set by her colleagues. She promises an accessible (not scholarly) insider’s guide to Supreme Court practice. The justices, Barrett tells us, like one another, attend parties together, and manage to disagree without rancor. Judging, she insists, is a matter of humility, of listening carefully to the law made by others. Apart from an informative discussion of textualism, the method with which Barrett is most associated, the book offers no account of why serious scholars—including, one suspects, Professor Barrett—think actual judicial practice is far more complicated than simply discovering (or “listening to”) the law made by others. The effect is less analysis than campaign biography, a self-presentation in the style of politicians explaining why they can be trusted with power.

The resemblance to political memoir is not accidental. Barrett, like her colleagues, aims to humanize herself. She assures readers that her pre-Court “life was good, but like anyone’s, it was not perfect”; that “these last years of being in the public eye have toughened me up”; that “all human relationships depend on kindness and humility.” Such bromides could have been lifted from a stump speech. Justices, like candidates, must persuade their audiences that they are relatable, trustworthy, and possessed of the moral fiber to do their jobs. The difference is that candidates eventually face voters. Justices, armed with life tenure, face only history.

Indeed, one of Barrett’s most insistent themes is precisely that life tenure guarantees independence. “The Constitution’s guarantees of life tenure and salary protection for federal judges,” she writes, “are designed to fortify a judge’s resolve to stand firm against the tide of public opinion.” The only evidence she provides for this claim is Alexander Hamilton’s assertion, made more than 200 years ago in Federalist no. 78, that “nothing will contribute so much as [life tenure] to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty.” Throughout, Listening to the Law celebrates the “genius” of the Framers. What was good enough for 18th-century minds ought to be good enough for 21st-century citizens.

An accessible guide to constitutional practice might note that very few constitutional democracies grant judges life tenure, and those that do (Canada and the United Kingdom) still require retirement no later than 75. Those judiciaries seem at least as independent as federal courts in the United States. A Brennan Center for Justice study by Lisa Hilbink of the University of Minnesota found that other democracies achieve judicial independence through shorter terms, mandatory retirement, or both, with no decline in performance. Indeed, the supreme court of Israel, which imposes mandatory retirement no later than 70, has far more aggressively challenged Prime Minister Benjamin Netanyahu’s policies than the U.S. Supreme Court has challenged Donald Trump’s policies. Similarly, the lack of life tenure has not inhibited the supreme courts of India and Germany from declaring constitutional amendments unconstitutional. 

Equally central to Barrett’s civics is the notion that judicial review exists to protect minorities from majority tyranny. Aware of our fallibility, the wise Framers of the Constitution created an institution that would ultimately declare segregated schools unconstitutional, protect free speech from local censors, and prevent police officers from physically abusing persons suspected of crime. The trouble, which Barrett conveniently neglects, is that the most difficult and consequential cases pit one minority against another. Consider Fulton v. Philadelphia (2021), which concerned whether the city could exclude a Catholic foster care agency that refused to work with same-sex couples. Both parties plausibly claimed to be protecting vulnerable minorities. Philadelphia argued that it was protecting LGBTQ families from discrimination; the Catholic agency argued that it was being discriminated against for its religious beliefs. 

History also undermines the slogan. Before Brown v. Board of Education (1954), it is difficult to identify a Supreme Court decision striking down a federal law most Americans would now say protected deserving minorities. More often it went the other way: Dred Scott (1856) denied Congress the power to ban slavery in the territories; the Civil Rights Cases (1883) voided Reconstruction-era protections; Pollock (1895) struck down the federal income tax; Carter Coal (1936) invalidated New Deal reforms. Slaveholders, too, claimed the mantle of an oppressed minority. As today, one person’s “worthy minority” was another’s entrenched interest, and few historians would tally the Court’s record as consistently protective of the vulnerable.

The deeper problem is not just that the Court often failed in practice, but that it has never had a clear method for identifying which minorities deserve protection. That choice is inherently political, so Barrett just ignores it. Listening to the Law never even hints at the difficulty of identifying the minorities that merit judicial protection, or whether the history of judicial review evinces any tendency for courts to make the right choices in this regard. Once one looks at the actual record of judicial review, what emerges is less a steady defense of the downtrodden minorities than a scattershot series of interventions, many of them on behalf of entrenched elites. 

As Mark Tushnet has noted, judicial review amounts to “noise around zero,” producing essentially random deviations—sometimes good, often bad—from what the political system would otherwise generate. When a pattern can be discerned, it is a tendency to side with the executive over Congress and with legal elites when they differ from the less educated or less wealthy. Professor Barrett is almost certainly aware of this scholarship, but Justice Barrett leaves readers with the comforting civics textbook version, assuring them that courts stand reliably with the powerless when in fact the historical record points to something closer to the opposite.

Listening to the Law likewise assures readers that justices decide cases on law, not politics. A few anecdotes about particular justices, Barrett’s willingness to sustain death sentences despite her moral opposition to capital punishment, and statistics demonstrating that approximately half the decisions the justices make are unanimous constitute the entire evidence for this assertion. No scholar paints with so broad a brush. A high percentage of the Supreme Court’s unanimous decisions concern matters such as the proper interpretation of the Employment Retirement Income Security Act (ERISA), a matter on which most people who are not retired have weak if any policy preferences. 

As politically conscious citizens observe, when the justices decide major cases on which the political parties divide, the justices appointed by Republican presidents almost always take positions favored by the Republican Party and the justices appointed by Democratic presidents almost always take positions favored by the Democratic Party. Consider abortion, campaign finance, and the recent Supreme Court practice of using the emergency, or shadow, docket to block lower federal court rulings temporarily enjoining Trump administration executive orders. A citizen who bet at even odds that the justices would vote consistently with the president that appointed them would gain a fortune. When exceptions exist, the tendency is for the justice to side with more moderate members of the party against more extreme members. That some Roberts Court justices may side with the Wall Street Journal editorial page over Donald Trump when the justices rule on tariffs hardly demonstrates a court above politics.

The free exercise clause offers perhaps the starkest example of politics shaping judicial decision making. During the second half of the 20th century, conservative originalists were committed to the proposition that the free exercise clause as originally understood provided religious believers with no exemptions from generally applicable laws. This point was emphasized in the Reagan administration’s Guidelines on Constitutional Litigation in 1988, a core statement of conservation constitutional principles at the time. Justice Antonin Scalia made it explicit in Employment Division v. Smith (1990), holding that worshippers had no right to use peyote in religious ceremonies when Oregon law banned the drug entirely. 

By the early 21st century, however, evangelical Protestants—core members of the Republican coalition—became the typical free exercise claimants. A miracle promptly occurred. Republican-appointed justices discovered that the 1791 clause had always guaranteed exemptions, or that laws burdening evangelicals were exceptions to the no-exemptions principles. Who knew? Religious organizations may now engage in what would otherwise be considered employment discrimination by designating employees or teachers as ministers, as decided in Our Lady of Guadalupe School v. Morrissey-Berru (2020). 

The near-perfect correlation between partisan affiliation and votes goes unacknowledged in Listening to the Law. The message is simple: Trust us.

This, finally, is the problem with the genre itself. By presenting judging as a realm of pure law, insulated from politics, the justices offer a picture so implausible that it makes the opposite claim—that judging is nothing but politics—more credible. In their effort to inspire confidence, they deepen cynicism. If the only choices are civics class pieties or unvarnished partisanship, many readers will conclude, not unreasonably, that the latter is closer to the truth. Publishers, of course, will not mind. Judicial celebrity sells, and the market for reassurance is deep. Barrett closes with optimism that the constitutional project will endure, with no hint of constitutional crisis or recognition that many Americans believe one already exists. That is for serious studies of law and politics. Barrett’s purpose, like that of her colleagues’ books, is to persuade readers that all will be well so long as the justices remain in charge.

The post Justice Barrett’s Campaign Biography appeared first on Washington Monthly.

On August 3, the Biden Administration issued an order from the Centers for Disease Control and Prevention creating a second eviction moratorium. Given the agency’s mixed record in court defending the first order, which applied to the entire United States, the CDC revised its provisions to “target specific areas of the country where [Covid] cases are rapidly increasing, which likely would be exacerbated by mass evictions.” The moratorium’s reach still extends to 80 percent of counties.

At a court hearing on August 9 to hear legal challenges to the new rules, U.S. District Court Judge Dabney Friedrich said:

Given that this order is almost identical to the CDC’s earlier order, as to the effect of it, it’s really hard in light of the Supreme Court’s decision, in light of the Sixth Circuit’s decision, in light of statements this administration has made both before and after the Supreme Court decision, to conclude there’s not a degree of gamesmanship going on.

But it is hardly unprecedented for authorities, in hope of winning the day, to tweak either regulatory or legislative initiatives that the judiciary has earlier rebuffed. Recall that the Trump travel ban order ultimately approved by the Supreme Court was a third draft. The Trump administration’s earlier drafts were rejected in decisions by three district courts and the U.S. Court of Appeals for the Ninth Circuit.

In issuing an eviction moratorium, the Biden administration is not claiming any inherent constitutional powers of the presidency. President Joe Biden is not, like Abraham Lincoln, asserting necessity as a justification for suspending habeas corpus unilaterally. He is not, like Harry Truman, claiming that his commander-in-chief powers allow him to seize domestic steel mills. He is not even, like Donald Trump, relying on nothing at all in ordering his Office of Management and Budget to set annual “cost ceilings” on the number of regulations administrative agencies may issue.

The moratorium controversy is a dispute over law and policy. It is about statutory, not constitutional, interpretation. Article II, which sets out the president’s powers, is not involved.

The administration acknowledges that any power it has to protect public health must come from Congress, presumably exercising its Commerce Clause power to protect the nation from significant threats to interstate commerce, including public health threats that arise from local activity. The legal fight is about whether the CDC is properly interpreting two sentences in Section 346 of the 1944 Public Health Act, which is based on that power.

The first sentence of the key paragraph is worded broadly enough—especially if read literally—to encompass a health-protective eviction moratorium. Originally empowering the Surgeon General, whose relevant functions have since been transferred to the CDC director, it authorizes that official “to make and enforce such regulations as… are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession.” These words pose no bar to eviction bans as a technique for preventing the spread of disease.

This section’s capacious initial sentence, however, is followed by another: “For purposes of carrying out and enforcing such regulations,” the director “may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary.” Opponents of the moratorium argue that this second sentence shows a carefully delineated legislative intent. As explained by one federal judge who reads the statute narrowly, the text reveals that Congress empowered the executive in the first sentence to regulate only “animals or articles which are themselves infected or a source of contagion that presents a risk of transmission to other people.”

Defenders of the moratorium read the second sentence, however, as having no such limiting effect. Rather than narrowing the reach of the first sentence, they argue, the second sentence underscores the breadth of the first. “Such regulations” as the first sentence permits may even allow the CDC to trespass upon or seize property in ways that might otherwise raise problems under the Fourth Amendment. But such trespasses and seizures do not exhaust the CDC’s authority.

In taking the broader view, the Biden administration is hardly engaging in what the National Review’s David Harsanyi laughably called an “unprecedented attack on the Constitution.” U.S. District Court Judge J. Philip Calabrese—a Trump appointee who ruled last March in Ohio that the CDC’s prior moratorium was unlawful—came closer to the mark. The question of the moratorium’s legality, Calabrese wrote, “depends on interpretation of the particular statutes at issue—a… lawyerly and arcane task about which reasonable people may ultimately disagree.” Indeed, although six lower courts ruled against the earlier CDC moratorium, three others would have upheld it. And contrary to Harsanyi in the National Review, the Washington Post, and perhaps even President Biden—the Supreme Court has never ruled on the matter.

However inadvertently, Biden added to confusion about the controversy when he cast his deliberations as a matter of consultation with “constitutional lawyers” and said, “the bulk of the constitutional scholarship says that [a moratorium] is not likely to pass constitutional muster.” The only constitutional question plausibly implicated is whether the president would have inherent Article II authority to impose a health-protective peacetime eviction moratorium. The answer to that question is clearly “no.” It is hard to imagine any competent constitutional lawyer anywhere on the political spectrum concluding otherwise.

There is, to be sure, a backdrop constitutional question that affects the nay-sayers’ reading of the Public Health Act. Conservative Justices, as well as legal scholars, have raised anew the “non-delegation question”—that is, they debate whether Congress may constitutionally authorize executive action in terms as broad as those embodied, for example, in that generous initial sentence on which the CDC relies. As long understood by the Supreme Court, the so-called nondelegation doctrine precludes Congress from giving the executive branch policymaking authority unless it is constrained by some “intelligible principle.” The principle must be limiting enough to enable courts to test the legality of how administrative authority is being exercised. Giving the executive branch limitless discretion would, under the nondelegation doctrine, put Congress in the unconstitutional position of abdicating its legislative power.

Whether the Public Health Act, read broadly, violates the nondelegation doctrine is debatable under current case law, but, for modern-day conservative jurists, the question may appear serious enough to invoke what is called the “constitutional avoidance canon” in reading the Public Health Act. If a statute is subject to alternative plausible readings, but one of the alternatives would raise serious constitutional issues, the “avoidance canon” counsels judges to choose the less problematic reading. The canon puts a thumb on the scale in favor of the more restrictive interpretation of CDC power—at least if you think reading the statute broadly would raise a serious constitutional concern about delegation.

A conundrum exists, however, because the “constitutional avoidance canon” is not the only venerable guide to interpretation at stake here. Another is the “ordinary meaning” canon, a favorite of the Roberts Court. If the ordinary meaning of a statutory provision meaning is clear, judges following this rule would apply that plain meaning. In this case, the plain meaning of the broader sentence in question favors the CDC.

Yet another is the canon that so-called remedial statutes (laws that repair defects in earlier statues, provide redress to legally injured people, or introduce “regulations conducive to the public good”) ought to be read broadly in order to accomplish their purposes. Following that reasoning, if Congress wanted the CDC to have adequate power to combat interstate threats to public health, and if a health-protective eviction moratorium would do so, the “remedial” canon gives points to the CDC. After all, the broadly worded first sentence is not an entirely blank check for the CDC. Any measures adopted must be “necessary” to accomplish Congress’s explicit objectives. Requiring a demonstration of reasonable necessity in this context provides an “intelligible” limitation on CDC discretion. From this point of view, the specter of excessive delegation seems vaporous. (I’m putting aside for purposes of this argument important scholarship here and here, to which the Supreme Court has yet to attend, that questions whether the non-delegation doctrine has any strong historical basis at all.)

It is speculation about the state of the nondelegation doctrine that makes the current role of the Supreme Court problematic. National Review, the Washington Post, and even Biden at his press reference, all said—quite wrongly—that the Supreme Court has ruled that the CDC doesn’t have power to impose an eviction moratorium. There has been no such ruling. Last May, U.S. District Court Judge Friedrich sided in D.C. with plaintiffs in striking down the CDC moratorium that expired in July. The judge, however, “stayed” her order—that is, she prevented it from going into effect so that the government could appeal. The U.S. Court of Appeals for the D.C. Circuit refused in June to lift that stay, meaning that the moratorium remained in place. The plaintiffs then filed an “emergency application” to the Supreme Court, asking the Justices to vacate the “stay” and allow landlords to begin evictions.

A decision by that Court to lift the stay would have required five votes. Justices Alito, Barrett, Gorsuch, and Thomas voted to do so. However, the three liberals (Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor), joined by Chief Justice John Roberts and Justice Brett Kavanaugh, voted against lifting the stay. After this 5-4 vote, the moratorium remained in place. Kavanaugh was the only Justice to explain his vote. In a separate solo opinion, he said he would not vote to block the CDC’s first moratorium when it would expire in a month by its own terms. However, he added: “In my view, clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium past July.”

Kavanaugh’s statement is not the law; it is not a “ruling”; it articulates his personal viewpoint and not a legal holding. The entire case was handled in what has come to be called the Supreme Court’s “shadow docket.” This docket comprises a wide variety of court orders that are not fully briefed and argued, as are cases on the Court’s high-profile “merits docket.” The reasons animating the Court’s shadow orders are frequently left to guesswork—as this one was.

Kavanaugh’s statement, however, is being treated as a legal holding. There is a general assumption that the four Justices who would have lifted the stay can be counted on to overturn any public health policy supported by Democratic progressives—and that Kavanaugh will predictably join them. The conservative Justices have all expressed doubts on occasion about the permissiveness of the nondelegation doctrine in its current state. They are likely to regard the property rights of landlords as also of central concern.

There are, however, at least three problems with treating the Kavanaugh statement as somehow binding on the Biden Administration. One is that the new moratorium, although effective across most of the country, is not fully national, unlike the moratorium about which Kavanaugh spoke. In other words, this is not an “extension” of the previous moratorium—it is more careful in defining the leases and geographic areas it refers to.

The breadth or narrowness of regulations is an important consideration in statutory construction. The refinements could very well affect the Court’s analysis.

The second is that Chief Justice Roberts, himself no slouch in worrying about broad delegation, joined the Court’s liberals in leaving the moratorium in place. If his vote represents his substantive interpretation of the Public Health Act, we shouldn’t assume that, after full briefing and argument, he may not be able to bring one other Justice to his side.

Third, we don’t know the jurisprudential basis for the votes of Justices Alito, Barrett, Gorsuch, and Thomas. They may have a firm view of CDC authority. But they also might have thought more modestly that the legal question is a close one—and that it would thus be unfair to allow the new moratorium to compromise the property rights of landlords.

Defenders of Donald Trump’s Supreme Court nominees—now Justices Gorsuch, Kavanaugh, and Barrett—routinely chastised skeptics for assuming that, as jurists, Trump’s Justices would simply vote a right-wing party line. If that assumption was not to be indulged when those judges were elevated to the Court, it ought not be used now to treat their unexplained votes on procedural motions as binding the Biden Administration on matters of substantive legal interpretation.

What constitutional lawyers could accurately have told President Biden is that the Supreme Court has previously held that not every legal claim challenging a president’s interpretation of statutory authority is of constitutional dimension. Every administration loses some cases in court, and the Biden Administration may lose this one. But every administration makes honest, even if politically convenient mistakes in interpreting the scope of Congress’s frequently ambiguous charges. In this instance, the administration’s position is less “stretchy” than the Bush Administration’s assertion that waterboarding is not torture, the Obama Administration’s claim of authority to remain engaged in Libya under the War Powers Resolution, or the Trump Administration’s claim that the southern border wall could be funded as a “military installation.”

The time to worry is when presidents treat Article II as a constitutional permission slip to bypass Congress or signal their indifference to shoddy or purely tendentious lawyering. Neither happened here.

The post No, the CDC Eviction Moratorium Does Not Raise Constitutional Issues appeared first on Washington Monthly.

When Barack Obama issued executive orders, especially during his last two years in office, Republicans responded with words like “tyranny.” The 44th president clearly stated that he would employ his “pen and phone” strategy to accomplish things that congress had refused to take up, primarily because the Republican approach had been to obstruct anything he and the Democrats attempted to do.

The Republicans, of course, changed their tune when Donald Trump was elected. Since the first days of his presidency, when he issued a travel ban on Muslims, this president has governed primarily through the use of executive orders, even when his party controlled both houses of congress.

For a while now, the Trump administration has been insisting that congress change the rules for how the government responds to claims of asylum. Because those changes are part of this administration’s xenophobic approach to refugees, congress has not acted on any of them. On Monday, Trump issued yet another executive order that basically ends asylum protections.

The Trump administration on Monday moved to end asylum protections for most Central American migrants in a major escalation of the president’s battle to tamp down the number of people crossing the U.S.-Mexico border.

According to a new rule published in the Federal Register, asylum seekers who pass through another country first will be ineligible for asylum at the U.S. southern border. The rule, expected to go into effect Tuesday, also applies to children who have crossed the border alone…

But the move by President Donald Trump’s administration was meant to essentially end asylum protections as they now are on the southern border.

Just as with most of Obama’s and Trump’s executive orders, this one will be challenged in court the minute it goes into effect on Tuesday. What we are witnessing is a pattern beginning to emerge that substitutes the judiciary for the legislative branch of government.

The Supreme Court recently announced that they will take up the challenge to DACA when they reconvene in October. President Obama issued that executive order to protect Dreamers from deportation after congress failed to pass both comprehensive immigration reform and the Dream Act. Trump ended the program via an executive order and, for months, tried to use the Dreamers as hostages to pass his xenophobic asylum reforms. It is his attempt to end the program that will be heard by the Supreme Court. So ultimately, the fate of the Dreamers will be in the hands of nine justices.

Similarly, the fate of health insurance for millions of Americans will likely find its way into the hands of Supreme Court Justices once again, after the Republican-controlled congress failed to repeal Obamacare. Also winding their way through the courts are numerous executive orders issued by Trump to undo the progress the Obama administration made on curbing climate change.

Other than passing massive tax cuts for corporations and the wealthy, Majority Leader McConnell has been clear that he is not interested in passing legislation. He spent the eight years of the Obama administration obstructing everything Democrats tried to do and now embraces the title “Grim Reaper” when it comes to stopping bills that have passed the House. McConnell had to be cajoled by Jared Kushner to allow criminal justice reform to reach the Senate floor—so he’s not even interested in passing anything on Trump’s agenda.

Instead, as we’ve seen, the majority leader is focused solely on confirming conservative justices to federal courts. That’s why he referred to his decision to block Obama’s Supreme Court nominee, Merrick Garland, as his most consequential political accomplishment.

McConnell knows that the GOP is destined to become a minority party in the coming years. If they maintain their slight majority in the Senate, they have the power to obstruct anything a Democratic president tries to accomplish. Even if they lose their majority, they can still obstruct as long as the filibuster rules remain in place.

Ultimately, minorities and majorities are meaningless if McConnell can stack the federal courts with extremist judges and use them to bypass both congress and the president. That is precisely why he had that little smirk on his face when responding to the question about whether the Senate would confirm a Trump-nominated Supreme Court nominee in 2020.

Mitch McConnell doesn’t care that you think he’s a hypocrite. pic.twitter.com/AXTEaP9rMf

— Nancy LeTourneau (@Smartypants60) May 29, 2019

Mitch McConnell is perfectly happy to completely neuter congress, stack the federal courts with extremist judges, and allow them to legislate from the bench while the GOP slips into minority status. And no, he doesn’t give a damn if you think that Republicans are hypocrites after all the years they have accused Democrats of legislating from the bench. What voters think doesn’t matter when the courts—the only unelected branch of government—hold all of the power.

The post McConnell’s Plan: Stack the Courts and Legislate From the Bench appeared first on Washington Monthly.