Trump and the Executive don't want to have a Judiciary
As I was finishing my first draft of this post, which focused on Secretary Hegseth’s denial to follow a district court judge’s order, the 9th Circuit Court of Appeals was hearing oral arguments about the order in question. I knew it was just a matter of time before their decision came down, but I wanted to at least write up a quick explainer of the Executive branch’s attack on the Judiciary. I’ve now seen the 9th Circuit’s opinion, the Supreme Court’s opinion on a separate district court judge’s order the Executive openly flouted, and now a report that a leading Justice Department official and nominee to the federal judiciary wanted to ignore court orders purposefully.
This is all a disturbing trend that needs to be addressed, especially in light of Trump’s unilateral strike on Iran. Some will say that the Iran strike is a distraction from the National Guard being sent to LA, which itself is seen as a distraction from Trump’s horrible spending bill that will decimate Medicaid. However, none of these are distractions from one another, they all serve a purpose. The spending bill is to further Trump’s specific promise to his wealthier donors to lower their taxes. These tax cuts are at the expense of Medicaid recipients and the lowest 20% of earners. It’s one of the most unpopular things Trump and Republicans have done thus far and consistently polls negatively.
The National Guard being deployed to L.A. is not a distraction from this bill though. It serves as a strongman tactic to elicit compliance with Trump and Republican’s mass deportation efforts. An official in the White House that I have written about before, Stephen Miller, was upset that deportation efforts were stagnating. He decided to meet with ICE directly and asked them to “just go out there and arrest illegal aliens.” This led to the crackdown that we saw in L.A. where agents showed up at Home Depots and other places where day laborers wait to find what little work they can so they can support themselves, their families, and pay their U.S. taxes. These are not murders, drug traffickers, or rapists. Rather, they are hardworking people who simply don’t have legal documentation.
The original framing of this post was around Defense Secretary Hegseth refusing to commit to following a federal court’s order regarding the deployment of National Guard and Marines to L.A.
Sen. Hirono: “Will you follow a court’s order regarding whether or not this deployment is legal? If the court says this deployment of troops into our cities is not legal, would you follow that court’s order?”
Sec. Hegseth: “Uh, it’s pending in the courts, Senator.”
Hirono: “Well when the court decides would you follow that court’s order … decision?”
Hegseth: “I don’t believe district courts should be determining national security policy, but…”
Hirono: “So you will not be following the legitimate court…”
Hegseth: “If it goes to the Supreme Court, we’ll see.” Video
Sen. Warren: “If the Supreme Court ordered you to remove troops from American cities, will you do so?”
Hegseth: “As I’ve said Senator, I don’t believe district courts should determine national security policy, but if the Supreme Court rules on a topic, we will abide by that.” Video
This dialogue happened just a few days before the 9th Circuit ruled that Trump is likely to succeed in showing that he properly federalized the National Guard under the law at issue, saying that the law requires high deference to the executive’s decision making. Two separate posts by Steve Vladeck do a great job explaining the law the President used in federalizing the National Guard and how their service is limited by the Posse Comitatus Act. In general, the federal district court found that the President most likely did not follow the law when he federalized the National Guard, while the appeals court above found the opposite.
The lawyers arguing on behalf of the government made the audacious claim that “the President could invoke [the law] on no evidence whatsoever” if they so desired, and the determination to invoke the law could not be reviewed by the courts. Even though the appeals court found that the President likely did invoke the law correctly, they found that they still had the right to decide whether or not this was the case. I believe though that the district judge, Judge Breyer, correctly found that this case is quite different than one where deference might be given on more traditional questions of national security or foreign affairs. This case “implicates the President’s domestic use of military force.”
Now that the 9th Circuit has ruled in Trump’s favor we will have to wait to find out if Trump would abide by a decision against him that would force him to relinquish control of the National Guard. However, Hegseth still did not commit to abide by the judge’s order. He could have easily said, “Yes, I will abide by this decision, but we are actively appealing it and are waiting to see the outcome of that appeal.” This would have at the very least calmed fears that the Executive is openly flouting lawful court orders the executive simply doesn’t agree with. And now, with new reporting that seems to be exactly what the Executive is trying to do.
Secretary Hegseth contends that at least district judges should not be determining national security policy as he, and the rest of the executive it seems, believes the President alone, without oversight, can make accurate determinations about the legality of deportations and domestic use of military force. Can the President have an opinion on this? Absolutely. Should the President never be questioned for acting on it according to his own whims? Absolutely not. There is no question that the Executive should abide by a court’s order, even if they want to appeal it as is their right.
When multiple members of the Executive questioning whether or not to follow a court’s orders, it seemingly elevates the President to a role outside the law where whatever the President says is reality. The goal of having co-equal branches of the federal government is so that none of them have more power than the other. If the President has his way and can simply declare a rebellion exists with little to no evidence and without a chance for it to be challenged in court, how is our system of government any different from a dictatorship? If the President can unilaterally strike at and make enemies out of foreign nations, how is that any different than a king forcing his country into needless wars at his behest? Others have done a great job breaking down the problems with Trump’s strike in Iran, so I will let them take charge here.
I urge everyone reading to also read two posts, one by Chris Geidner and one by Steve Vladeck, that talk about the ruling the Supreme Court handed down recently that allows the Trump administration to deport people to a country other than one identified in their original removal proceedings. These highlight that even the Supreme Court is green-lighting the Trump administration’s non-compliance with district court judges.