Trump and the courts

 Jennifer Rubin, Contrarian -   Donald Trump said he does not know if he has to uphold the Constitution, nor did he know if noncitizens have due process rights. His adviser Stephen Miller thinks the writ of habeas corpus (the legal writ that ensures law enforcement produce a prisoner and justify their detention before a court) is a “privilege,” which he insinuates the administration might suspend if the courts do not “do the right thing” (i.e. support Trump’s lawlessness).

In the words of constitutional scholar and The Contrarian contributor Steve Vladeck, Miller’s reckless comment is “both (1) wrong; and (2) profoundly dangerous.” Vladeck enumerates all the reasons Miller is wrong, concluding:

He’s suggesting that the administration would (unlawfully) suspend habeas corpus if (but apparently only if) it disagrees with how courts rule in these cases. In other words, it’s not the judicial review itself that’s imperiling national security; it’s the possibility that the government might lose. That’s not, and has never been, a viable argument for suspending habeas corpus. Were it otherwise, there’d be no point to having the writ in the first place—let alone to enshrining it in the Constitution.

It is yet another measure of how badly and regularly Trump is losing in the courts that his henchmen would make such a threat. On Friday alone, he lost on two key immigration motions (as discussed below). In a separate matter, a federal court judge in California enjoined Trump for two weeks from moving forward on “plans for mass layoffs and program closures, barring two dozen agencies from moving forward with the largest phase of the president’s downsizing efforts, which the judge said was illegal without congressional authorization.”

So it is a good thing then, as Chief Justice John Roberts reiterated last week, that the “Judiciary is a coequal branch of government, separate from the others with the authority to interpret the Constitution as law, and strike down, obviously, acts of Congress or acts of the president.” It is the courts’ job, Roberts pointed out, to “check the excesses of Congress or the executive.” There are plenty of executive excesses these days. Given Miller’s attempt to intimidate the courts, perhaps Roberts was wise to stress: “Judicial independence is crucial.”