Two recent happenings in the Supreme Court

The justices might be finally realizing they've gone too far in condoning Trump's extra-constitutional behavior.

Trump is most certainly keeping judges all around the country busy, including the justices on the Supreme Court. The law is not meant to move at the speed at which Trump and his administration are moving—which, of course, is one reason why the Trump team is moving so quickly or, as Steve Bannon put it during the election, flooding the zone with “shit.”

This Substack discusses two of the Supreme Court’s recent interventions: birthright citizenship and unconstitutional deportations. Read on.

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1. Birthright citizenship

Last Thursday, the Supreme Court announced that it will hear arguments on May 15th regarding Trump’s executive order upending the Constitution’s establishment of birthright citizenship. The order states that “no department or agency of the United States government shall issue documents recognizing United States citizenship, or accept documents issued by State, local, or other governments or authorities purporting to recognize United States citizenship” to children born in the country without at least one parent who is a citizen.

This statement directly contradicts the Fourteenth Amendment’s plain language, which guarantees citizenship to anyone born in the country, so long as the child’s parents are not “subject to the jurisdiction” of another country (as, for example, foreign diplomats would be).

I joined ABC News to talk about what it means that the Supreme Court would agree to hear oral arguments in a case, the outcome of which seems so obvious under the Constitution’s text that it shouldn’t even need the High Court’s weigh-in.

2. Unconstitutional deportations

The Court is also involved in the Trump administration’s policy of deporting people without due process, which is guaranteed under the Constitution’s Fifth Amendment (for possible deprivations of life, liberty or property by the federal government) as well as the Fourteenth (by the states). Just before 1:00 am late Saturday night, the Supreme Court issued the following order:

This is a big deal. It signals that the Court may be realizing that—by green-lighting unaccountable power and even criminal activity by a president—it has created a monster. (Even Trump-friendly radio host Joe Rogan has come out against the unconstitutional deportations.)

Why is the Court’s “midnight” order important?

Recall that among his blizzard of executive orders, Trump issued another one invoking the Alien Enemies Act of 1789 (AEA) to target a Venezuelan gang, Tren de Aragua (TdA). The AEA gives the president the power to arrest, detain, and deport all male citizens over the age of 14 during a declared war between with the United States and another foreign country. The AEA is deeply troubling and possibly even unconstitutional — but that’s really beside the point.

The key point here is that Trump is using the AEA to bypass due process. If he can just declare a “war” on the U.S. by Venezuelan gang members, the theory goes, then the government doesn’t need to give targeted individuals the bare minimum that the Constitution guarantees: notice of the offense alleged against them and the opportunity to challenge the government’s argument before an immigration judge.

Let’s be very clear: This is not about whether certain individuals should be deported. Many probably should be. It’s about whether the government has to make a showing that a targeted individual qualifies for deportation before deporting them. It’s about giving them a basic hearing first.

Put another way, the Trump administration is acting as prosecutor, judge and jury all at once. This is a recipe for abuse. The government is undoubtedly getting some of the facts about some of these individuals wrong (that’s why we have a judicial system in the first place — to test the facts).

I was on C-SPAN’s Washington Journal on Sunday answering callers’ questions about the Trump deportation policy, including in particular the deportation to El Salvador of Kilmar Ábrego García, the man from Maryland whose wife identified him in a photo. His case is not the one pending in the Supreme Court, because his immigration status is somewhat unique (the details don’t really matter for the big picture, which is all about due process).

Some callers seemed fine with what Trump is doing, on the theory that there are people in the United States that shouldn’t be there, and our last president didn’t do enough about the problem.

But as I explained on air, if Trump is allowed to get away with this for immigrants, he can get away with it for the rest of us, too.

Skeptical?

Well, let’s assume your brother is a full citizen, as is the rest of your family. Imagine, too, that a black van picks up your brother off the street while he is walking the dog one day.

The government confiscates your brother’s phone and then refuses his request to make a phone call, puts your brother on a plane with blacked-out windows, and shackles him off to a maximum security prison once the plane lands in El Salvador.

What is different for your brother in this scenario? How does the fact that he is a citizen make it any harder for the Trump administration to pull this off than it is for the hundreds of people who are now in El Salvador’s CECOT prison?

None of them—neither your brother nor the immigrants—got advance notice of what they supposedly did wrong. Nobody got an opportunity to tell a judge that they didn’t do anything wrong and therefore should not be deprived of their liberty in this way.

Now that they are in a foreign country, they are outside the jurisdiction of the U.S. government and thus the U.S. Constitution itself — or at least that’s what Trump is arguing. No American constitutional due process protections apply in El Salvador. According to the Trump Administration, it’s “too bad, so sad” for your brother. Or as El Salvador’s president quipped, “Oopsie … Too late.”

On April 7, in a case called Trump v. J.G.G., the U.S. Supreme Court has made clear that people in this posture are entitled to due process. But due process can only feasibly kick in before they are deported. Trump is not asking for permission to deport them. And he’s not even asking for forgiveness. He’s just bulldozing through the Constitution and daring anyone to figure out a way to make him undo his actions after-the-fact.

So … what in this scenario is different for a person born in the U.S. whose parents and grandparents were already citizens? If the Trump administration decides that a person is an enemy of the state and takes them out of the country with no due process, it’s a check mate. This should concern every one of us, regardless of citizenship status or political party.

Read on for a deeper dive into both cases—and please consider becoming a paid subscriber during these tumultuous times. That’s what makes it possible for me to keep this Substack going!

And thanks. Or as the Dutch say “Dank-you-well.” (I am still in The Netherlands.)