Dem
47
GOP
53
Every time Donald Trump and his administration pursue a policy of dubious legality, we write that the matter is going to end up in court (if you would like proof, re-read the above items, where we make that prediction more than once). Usually (easily more than 90% of the time) we are right about that. Part of the problem is that Trump & Co. like to push the boundaries of the law very aggressively, often to the point of absurdity. Another part of the problem is that even when the law is on Trump's side, he and his underlings lack the patience and/or competence to actually do things correctly, in accordance with established law and/or procedure.
We're about 200 days in and, in a repeat of Trump v1.0, the court defeats are already piling up. Just as proof of concept, we went through the list of recent items that appeared at the bottom of yesterday's page, looking for all the items about court defeats. That's 50 items over the last 8 days, and six of those 50 items were "Trump administration legal setback" items (see here, here, here, here, here and here). Fully 12% of our items are about this administration losing in court! And although we did not compile exhaustive statistics (the staff statistician was out with the staff mathematician last night), we don't think that this is a particularly unusual run.
Yesterday, as is the case most days, the administration lost in court, again. Twice, in fact. In the first loss, the conservative Fifth Circuit held that Trump unlawfully used the Alien Enemies Act to bypass immigrants' due process rights to speed up deportations. The AEA authorizes the president to arrest and deport in a time of war. The Court found that there's been no invasion by a foreign country that would justify invoking the law. "A country's encouraging its residents and citizens to enter this country illegally is not the modern-day equivalent of sending an armed, organized force to occupy, to disrupt, or to otherwise harm the United States," wrote Leslie H. Southwick, an appointee of President George W. Bush.
This is the case that prompted SCOTUS to weigh in after midnight to stop busloads of Texas detainees from being flown out of the country. The high court stopped those deportations until the Fifth Circuit could weigh in on the merits, which it has now done. The Supremes will now be faced with the substance of the issue. Between this case and the use of the Posse Comitatus Act, the Court is going to have to think very carefully about how much power to give this president. We are concerned—actually concerned, not Susan Collins concerned—about where they might come down on that question.
The second loss, meanwhile, involves recissions, the clawing-back of budgeted money after the fact, which we had an item about yesterday. Judge of the United States District Court for the District of Columbia Amir Ali, a Joe Biden appointee (born in—gulp—Canada), ruled that the White House's plans are illegal. "There is not a plausible interpretation of the statutes that would justify the billions of dollars they plan to withhold," he wrote.
Ali's decision has already been appealed to the D.C. Circuit Court of Appeals, which is likely to rule quickly. The issues involved are pretty basic and the likely conclusion is pretty clear, and this is actually already the second go-round for this particular case. The Supreme Court already addressed the matter, and kicked it back to Ali to deal with. Once the Court of Appeals rules (again), then the matter will presumably be appealed to SCOTUS (again). Whether they accept the case again, and what they do with it, is anyone's guess. Even the other federal judges don't have the faintest idea (keep reading). Meanwhile, there surely have to be at least some Trump supporters wondering when all the winning that he promised is finally going to commence. (Z & L)