A few months ago, I wrote a column about how many of us were worried about Trump using the Alien Enemies Act of 1798 to justify deportations based on spurious claims that we were at war or being invaded. (This was the statute used to intern Japanese residents in World War II). It seemed reasonable to me and others that his invocation of the statute would fail based on the plain language of the law. He did invoke it, and as the case wends its way to the Supreme Court, many of us who litigated the issue feel the Court will disallow the use of that act.
That said, the real lesson to be learned is that this administration will literally say and do anything to invoke federal law predicated on not even a reasonable reading of it. Even though there are over 250 stays of administration acts in existence as of a week ago, the U.S. District Attorney’s Office is misrepresenting facts and refusing to faithfully comply with court orders around the nation. There are numerous contempt hearings against the government that are on hold because of stays issued by appeals courts. These hearings must be held in the near future and will show clearly the contemptuous conduct of the administration towards the judicial system.
The law is a slow-moving vehicle. Emergency docket applications may lead to stays or other interim relief, but the government lawyers are not dopes—nor is the Supreme Court—and realize that today’s outrages are yesterdays news, and as such the American people have no patience for results that are remote in time from the acts being perpetrated. Trump, and (judging by the many recent decisions on the interim relief applications before it) the Supreme Court understand this and use this delay to allow public outrage to abate. They are stretching out cases as much as they can, hoping the next Trump pronouncement or birthday parade will cause an overload of anxiety that will divert attention from what has gone before.
Now, however, we are entering into more dangerous territory, where delay may result in martial law as Trump invokes statutes to deploy federal troops in civilian law enforcement settings. His action in California, I submit, is an attempt to end the rule of law in our democracy and aggregate powers to himself that has not a scintilla of factual or legal basis. The details are easily read in the main-stream media and elsewhere; there is no insurrection that is a predicate that would allow him to declare the state of emergency necessary to unilaterally mobilize the Marines and call up the National Guard over the objections of California’s governor.
This was my concern when he first tried out the Alien Enemies Act four months ago as a trial run to see how far he could go. He has been “flooding the zone” with so many daily outrages that many of us feel beaten down and have given up even trying to stay abreast of the news. We cannot let this happen—our democracy is at stake.
This is being written before June 14 and the demonstrations. A massive turnout is necessary to show that Americans will not tolerate a corrupt, draft-dodging real estate huckster to seize our nation. I do not think any of these comments are hyperbolic, just reflect back on what he has done in the last four and a half months.
He is the president and may implement his executive orders, but those orders have to comply with the Constitution and the laws of the United States. The concern now is that he will not only not comply with court orders but will soon just make no pretext of even complying with his oath and upholding the Constitution.
There is an old axiom that the law is what the judge says it is. That is literally true, and why we have appellate courts to correct improper decisions. There are no appellate courts for a self-appointed king who is unbound by any factual or legal constraints except his own ego and self-interest.
