excalibur
Diamond Member
- Mar 19, 2015
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Yep. And judge Boasberg lit this un-democrtic, anti-Republic fuse.
Isn't it interesting how the left/Democrats pay lip service to "democracy" (a word not in the Constitution), but perpetrate shenanigans that are undemocratic to hold onto power.
Isn't it interesting how the left/Democrats pay lip service to "democracy" (a word not in the Constitution), but perpetrate shenanigans that are undemocratic to hold onto power.
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When actual examples of the administration violating court orders turned out to be hard to find, and contestable in any given case, some commentators broadened the notion of defiance to include so-called malicious compliance (or legalistic noncompliance). The idea here is that even if the president or his agents did comply with the terms of court orders, however unreasonable, they might be doing so in bad faith, with the covert motive of actually evading or circumventing the point of the order.
The issue of defying court orders is still with us — but it has taken a twist. Now the defiance is coming from inside the judicial branch itself, in the form of a lower-court mutiny against the Supreme Court. District Court judges, and in some cases even appellate courts, have either defied orders of the court outright or engaged in malicious compliance and evasion of those orders, in transparent bad faith.
In the past decade or so, increasing judicial overreach has caused harm to our constitutional order by limiting the ability of the executive branch to implement the program it was elected by the American people to pursue. It has been a scourge for both recent Republican and Democratic presidents, and it may provoke extreme measures to restore order. The recent defiance goes even further, threatening to damage the internal integrity of the judiciary, which ultimately relies on lower courts to follow the Supreme Court’s direction.
Consider Judge Brian Murphy of the Federal District Court in Massachusetts. Judge Murphy issued a preliminary injunction against the transfer of removable aliens to third countries, in cases in which the transfer was expressly permitted by federal law. So far, this was just an ordinary example of judicial overreach.
But after the Supreme Court issued an order to stay — that is, to stop — the preliminary injunction while litigation proceeded (over a dissent by Justice Sonia Sotomayor), Judge Murphy went beyond overreach. He decided that his order enforcing the injunction that the court had stayed nonetheless remained in effect — a proposition for which his only cited authority was the dissent from Justice Sotomayor. This seemed to be malicious, whether or not it counts as “compliance” at all. The Supreme Court, with the notable concurrence of Justice Elena Kagan, then had to stay this second order and explain that Judge Murphy’s renewed effort was also illicit.
In a similar episode, a Federal District Court judge in Oregon held that the Department of Homeland Security could not engage in mass terminations of parole status for a class of migrants, and in doing so cited earlier lower-court decisions that had blocked similar executive action — but somehow omitted that the Supreme Court had already stayed those other lower-court decisions.
These examples are hardly isolated. In Trump v. Wilcox, the Supreme Court stayed orders from the Federal District Court in Washington that would have blocked the president’s removal of members from two important federal agencies, the National Labor Relations Board and the Merit Systems Protection Board. The court emphasized that the government was likely to prevail because these agencies exercised substantial executive power; hence, under existing law, the president’s removal power could not be limited. Nonetheless, a panel of the Fourth Circuit recently declined to stay a District Court order enjoining presidential removal of members from the Consumer Product Safety Commission, a legally indistinguishable agency.
The Supreme Court then granted the stay, explaining that the case was “squarely controlled by Trump v. Wilcox” and that the court’s orders on the emergency docket should inform how a lower court “should exercise its equitable discretion in like cases.” Some commentators have complained that the court is not providing enough reasoning with its orders. But as this case illustrates, even when the lower courts have plenty of notice of the Supreme Court’s view, some have simply chosen to ignore it.
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The final recourse in the system — a controversial and rarely used fallback — is what is described in constitutional theory as “departmentalism”: The president may ignore a judicial order that, on the president’s independent interpretation of the law, exceeds the scope of judicial power, as when a District Court were to purport to bar the president from granting a pardon or vetoing a bill. As my Harvard colleague Jack Goldsmith recently wrote, the theory has “a long pedigree in American history.”
“The basic theory of departmentalism is that while the Supreme Court has the authority to exercise its Article III ‘judicial Power’ in cases or controversies before it,” Mr. Goldsmith wrote, “the President’s Article II duty to ‘take care that the law be faithfully executed’ gives him an independent power to determine what ‘the law,’ including the Constitution, means, for purposes of exercising executive power.”
Alexander Hamilton, writing in the Federalist Papers, described that possibility as one of the main checks on the judiciary created by the constitutional system of divided powers.
The general merits of departmentalism are much debated. It is strong medicine that risks doing more harm than good overall, and that by its nature requires controversial judgments by the executive.
But whatever its usual merits, the case for it here is different and unusually strong. When a lower court’s order attempting to limit the executive is also an act of mutiny against the Supreme Court, the issue is not conflict between branches, but the legitimate hierarchy of authority within the judicial branch.
By ignoring such an order, the president, far from defying the judiciary as such, would be supporting the authority of the Supreme Court — the only court created by the Constitution itself.
