President Bill Clinton’s former secretary of labor, Robert Reich, as well as many liberals and progressives, is leading the chorus in arguing that Donald Trump and his “bottom-feeding fanatics…have overreached” in taking on “China, Harvard, and the Supreme Court.” It is true that China has refused to back down, and the federal courts may well protect Harvard’s tax-exempt status, but I wouldn’t count on the Supreme Court to stand up to Trump’s escalating threats and demands regarding the imprisonment of Abrego Garcia in El Salvador.
During the Cold War and in the Vietnam era, the Supreme Court’s decisions favored the free speech rights stipulated in the First Amendment over the view that some speech represented a crime if it compromised the national security interests of the United States. In the seminal Pentagon Papers case, involving a secret history of the Vietnam War, the Supreme Court blocked the Nixon administration’s efforts in1971 to stop the New York Times and the Washington Post from publishing the papers. The court didn’t buy the government’s warnings that publishing would imperil intelligence agents and peace talks. Indeed, the Court defended the First Amendment’s right of free press against prior restraint by the government.
In 2010, when liberal jurist Elena Kagan was the solicitor general in the Obama administration, she successfully argued that the courts needed to defer to the government’s assessments of national security threats. Only several months before she was appointed to the court, the Supreme Court in Holder v. Humanitarian Law Project had ruled in favor of Kagan and the Obama administration that it was a crime to provide “even benign assistance in the form of speech of groups said to engage in terrorism.” Chief Justice John Roberts and the Court were willing to defer to the government, whereas earlier courts had been skeptical about limiting the free speech rights of the First Amendment.
Robert Reich and the mainstream media believe that the Supreme Court’s unanimous 9-0 decision that refused to block a lower court’s order to “facilitate” bringing back Abrego Garcia would ultimately lead the Court to stop Trump’s efforts to keep Abrego Garcia in the notorious Cecot prison in El Salvador. My concern is that the Trump administration is basing its case on the Constitution’s provision that the “president, not federal district courts,” are charged with the “conduct of foreign diplomacy, and protecting the nation against foreign terrorists, including by effectuating their removal.”
The Supreme Court, which has a 6-3 conservative majority, issued its decision in an unsigned order, refusing to give the Trump administration a deadline for when Abrego Garcia should be freed. Meanwhile, Secretary of State Marco Rubio, along with deputy chief of staff Steve Miller and Attorney General Pam Bondi, hewed to Trump’s party line, insisting that “no court in the United States has a right to conduct the foreign policy of the United States.”
Trump’s Department of Justice concluded that the Supreme Court “correctly recognized it is the exclusive prerogative of the president to conduct foreign affairs.” It is additionally troubling that last year the Court ruled in a 6-3 decision that presidents have absolute immunity for acts committed by a president within his core constitutional purview and for official acts within his official responsibility. This decision poses a risk to our system of governance, forfeiting critical checks on executive power.
The court’s majority claimed that its ruling restored the Founding Father’s designs for an “energetic executive,” but in doing so the conservative majority essentially invited a future president to use the levers of the federal government to commit crimes. It is possible the Supreme Court will give deference to the “core executive functions” of the president in cases that involve foreign affairs, national security, terrorism, and national emergencies. I would expect the Trump administration to argue the Abrego Garcia case on the basis of any, even all, of these “core executive functions.”
It was this kind of behavior by a future president, who could become a future tyrant, that led George Washington and Alexander Hamilton to warn against leaders who are mad for power, which represents a mortal threat to democracy. Tom Nichols, a staff writer at the Atlantic, wrote recently that “Trump is the man the Founders feared might arise from a mire of populism and ignorance, a selfish demagogue who would stop at nothing to gain and keep power.” Washington, in his farewell address, warned that “sooner or later the chief of some prevailing faction” would manipulate the public’s emotions and their partisan loyalties “to the purposes of his own elevation, on the ruins of public liberty.”
It is particularly bizarre that two of the most powerful and authoritarian presidents in the world–Donald Trump and El Salvador’s Nayib Bukele–could sit in the Oval Office of the White House and argue with straight faces that they have no power to return Kilmar Armando Abrego Garcia, an innocent man, to his home in Maryland. Duke law professor Marin Levy noted that “It is alarming that we are even having to ask whether the government is failing to comply with court orders.”
The post Why the Supreme Court May Ultimately Side With Trump in the Abrego Garcia Case appeared first on CounterPunch.org.
This content originally appeared on CounterPunch.org and was authored by Mel Goodman.