It may be soon the most stable of Blue states will be pretty much equivalent to the most stable of dominoes.
The fact that we are all interconnected all the time makes this feel so much more immediate than any crisis we had in the past. We are all witnesses to this insane history in real time. And it is literally insane. It’s like a bad sci-fi movie with only villains.
I think Mump has a better ring to it…
“Mumping” is or was the slang word in the Metropolitan Police for taking advantage of favours or petty bribes - and sundry other meanings you might consider appropriate
I don’t blame anyone for being in doubt and having to see court enforcement to believe it, so I’ll just post this for the house’s consideration.
Marc Elias of Democracy Docket (fast forward to about 7:35):
What I would say to people on the right who may be watching this video and think “Oh, we don’t have to worry about [contempt orders] because, you know, we control the Department of Justice” – federal judges have the authority to appoint private prosecutors to prosecute criminal content so you’re not getting out of it quite that simple.
And for people on the left who say “Yeah but, you know, what if Donald Trump just ignores the order or what if the people in the government ignore the order?” I remind them that Donald Trump may be immune from criminal prosecution, but it is only Donald Trump [that] is, and there are a lot of people – cabinet secretaries, people under the cabinet secretaries, lawyers in the Justice Department elsewhere – and they do have to worry about the direct consequences of contempt and the indirect consequences of contempt that come with it. So I would advise anyone in the government: do not test the patience of these federal judges. Do not think that you are going to win a battle with a federal judge over whether or not to comply with their order …
So … federal courts can straight up hire on prosecutorial staff? Status Kuo’s Jay Kuo paraphrased Elias’ statement as thus:
You generally do not want to mess with a federal judge. Perhaps the president can’t be prosecuted or held in criminal contempt while he is in office, but that’s not true of his cabinet members or any of their subordinates. Justice Department lawyers can also be hauled up on sanctions over their misrepresentations and their dissembling. And as Elias noted, courts can even hire private companies if necessary to help enforce contempt orders and proceedings. Rare, but possible in this environment.
When I first read Kuo’s paraphrase, it made me think a federal court had the (codified?) power to hire/deputize an entire private law enforcement arm – “police”, investigators, special prosecutors, the works. “Rare, but possible in this environment.”
“Interesting” times, to be sure.
If true then it’d come down to courts being willing to act against a hostile administration.
I wasn’t aware of that.
Sounds promising but, I’d note, the courts would probably need to feel like they had the backing of the Supreme Court, first.
One of the judges on the birthright citizenship case was appointed by Reagan and, if you read through the amendment itself and the Congressional debates on the birthright amendment, there’s zero ambiguity both in the text and the legislative intent. It may well be that birthright citizenship has outlived its era, but it is definitely the unambiguous law of our land.
But, textualism is the new “Living Document” theory of Constitutional interpretation and you can, effectively, ignore anything in the text or history that gets in the way of clarity of intent, and then decide as your heart tells you in that remaining ambiguity.
So even Reagan appointee, on what should be solid footing, can’t necessarily feel free to go arresting folk until he sees whether SCOTUS is going to follow the law or do something more like wiggle their nose and make the words magically disappear. Only once there’s a decision that reaffirms history, the text, and the explicit statements of intent can we execute the words of the Constitution.
Has there been any official defying the birthright citizenship court order? If not then its not an apt comparison.
I had no intent but to give a hypothetical.
Elias did not give the basis of his contention that federal courts could hire and deploy private prosecutors (and maybe more), but I found the Supreme Court decision upon which Elias’ contention was likely based.
Young v. United States ex rel. Vuitton et Fils (1987) - this presents a layman’s level summary of the decision followed by extensive quotes from Justice Brennan’s majority opinion and Justice Scalia’s concurrence. It’s interesting to me that although Scalia wrote a concurrence to the majority opinion, he seemed to disagree with the underlying fact of the case:
The argument between Justice Brennan (majority opinion) and Justice Scalia (concurring opinion) offers an interesting reflection on the role of the Court in the separation-of-powers scheme. Brennan argued that without the ability to independently prosecute violations of federal court decisions, the courts would be powerless because their judgments might have no effect. Scalia argued that this is precisely what the Founders intended, as Hamilton explained in Federalist 78 . The Court was “the least dangerous branch,” Hamilton wrote, because it possessed neither will nor force, but only judgment.
Here’s another article that addresses the matter, citing both the 1987 Young case and a 1988 federal district court case:
But a glimmer of the former fire survives in later cases. Under Young v. United States ex rel. Vuitton Et Fils, S.A., 481 U.S. 787 (1987), a federal court can appoint a private attorney to prosecute a criminal contempt action if the executive refuses to prosecute.
Another such case of interest was the federal case State of New Jersey v. William Kinder, 701 F.Supp. 486 (D.N.J.1988). A private complainant instituted a criminal case against the defendant by charging him with simple assault and battery under the authority of New Jersey Municipal Court Rule 7:4-4(b), which provides in part, “any attorney may appear on behalf of any complaining witness and prosecute the action on behalf of the state or the municipality”. After removing the case from the Municipal Court of New Brunswick, the defendant moved to dismiss. The District Court, Debevoise, J., held that: (1) Municipal Court Rule 7:4-4(b) allowing state to prosecute defendant through use of private attorney was applicable even upon removal to federal court, and (2) the private attorney who prosecuted the case did not have a conflict of interest that violated defendant’s constitutional right to due process. In its opinion the Court stated that “there is no provision of the Federal Rules of Criminal Procedure which conflicts with its provisions”.
Given the firehose of actions, I find myself of mixed minds as to which are the most “important.” If the courts strike down the citizenship order, a lot of folk will claim that is a big success for standing up against lawlessness. But if 100 or 1000 smaller actions take place, eroding so many classes of peoples’ rights, expectations of process, protections, services… Trump might be perfectly happy to accept that trade.
Which is the fundamental aim of Bannon’s “flood the zone” strategy; that there are so many different violations of Constitutional limitations and laws (not to mention basic democratic norms) that there is no way for courts to catch up, and eventually the courts become so moribund with backlogs of cases and appeals that they become irrelevant in the context of trying to enforce any limitations or strike down executive overreach.
Stranger
Nah the big issue is whether any court orders have any practical effect beyond entirely voluntary compliance.
If the trump admin can violate a court order, big or small, temporary or final, then they will never have to follow any court orders in the future.
If it were just a matter of flooding the zone and letting the courts try and keep up that would be one thing, but on the federal freeze the courts have kept up in terms of a temporary order to prevent irreparable harm. The trump admin is choosing not to comply and now we have to see if the courts are willing and able to force them to comply or not.
I don’t know, but apparently four judges have issued court orders blocking it.
4th federal judge blocks Trump’s birthright citizenship executive order - CBS News
But it doesn’t matter if courts block it if it continues to happen and consequential actions aren’t taken.
I’m not a lawyer, but I wonder whether it may require someone being harmed by Trump’s EO (e.g. a child of non-citizens is denied birthright citizenship) before a legal challenge can be mounted
I didn’t read everything after this post.
For the primarily Federal stuff we’re talking about, what would stop a determined President Trump from issuing pardons the way physicians used to whip out the prescription pad and write prescriptions?
Rather than making any kind of predictions, I’ve been inclined to ask myself … what’s stopping him (from doing X, Y, or Z)?
No, the courts have recognized legal challenges, have temporarily blocked the birthright citizenship order and there hasn’t been reporting of Trump defying it.
It’s different then the orders related to blocking government grants and other Elon-related things - those are the unique situation where Trump is openly defying court orders.
Nothing I can imagine. Plus, we’ve recently seen pre-emptive pardons, and pardons of large groups with no examination of individual merits.
Perhaps time and information? Does Trump know, specifically, who to pardon at the lowest levels of implementation (e.g. not Cabinet Secretaries or their immediate subordinates)? And is he willing to spend every waking hour dealing with pardons? That’s not a task he can delegate. “I’ll pardon everyone!” has its limits.
That said, perhaps court orders can be enforced (by non-DOJ private enforcement) differently. Instead of going straight to arrest of grunts disobeying a given court order (presumably on orders on high), perhaps those same grunts could be physically removed from their posts somehow – “You’re not going to be arrested, but you must vacate the premises”. At gunpoint, if necessary (?).
Slight tangent: When people talk about envisioning how an American civil war would play out in 2025, they commonly get hung up on “Well, would Alabama march on Illinois? Would rural areas assemble militias and go looking to take over cities? How would all that work?” However … it may actually all come down to dueling law enforcement arms: Trump’s executive branch vs. what would essentially be ad hoc mercenaries of given federal district courts. And if the executive branch can ignore federal district courts, can federal district courts ignore the Supreme Court, should it come to that? So then you get Supreme Court mercenaries vs. the Fifth District’s mercenaries?
The mind reels.