The opinion, issued on February 19, denied the Justice Department’s “emergency” request for the appeals court to overrule a district judge’s injunction against Trump’s executive order purporting to end birthright citizenship, despite the language of the Fourteenth Amendment and despite consistent judicial interpretations of the Fourteenth Amendment, going back to 1898. (If anyone cares, that district judge, who reamed out Trump and his Justice Department, was appointed by President Reagan.)
To be clear, the district court’s ruling in question was not the judge’s definitive answer to the question whether Trump was right or wrong on birthright citizenship. It was, instead, a decision ordering a “preliminary injunction” pending full briefing, trial, and argument of the case.
Brushing away lots of legalese, the central issues at play when a judge rules on a request for a preliminary injunction are three:
the “likelihood of success on the merits,” in other words, what does the judge think will probably happen when all the dust settles: Is the plaintiff more likely to win, or is it the defendant who will probably prevail? and, second,
the harm issue—will the plaintiff be harmed if a preliminary injunction is not issued to preserve the state of play, while the issue is litigated? Or is it the defendant who will suffer harm if it is enjoined from doing what it wants to do?
the public interest issue—apart from the parties to the case, what about the broader public?
In my experience, the first of these factors—“likelihood of success on the merits”—tends to be dispositive. And so it was here. Two of the three panel members of the appellate panel, Judge William Canby (appointed by Carter) and Milan Smith (appointed by Bush the Elder), joined in a terse, one page decision, declining to overrule the district court, because Team Trump did not make a “strong showing that [they are] likely to succeed on the merits.”
The third judge, Danielle J. Forrest, wrote a much more expansive piece of prose, concurring in the majority’s bottom line result, but “for reasons different than relied on” by the other two members of the panel.
Many are wondering how the Federalist Society judges, who now bestride the third branch of our federal government, will deal with Team Trump. What the Supreme Court does with birthright citizenship remains to be seen. But Judge Forrest’s treatment of the case is not without interest.
A bit of background: Judge Danielle Forrest was appointed to the bench in 2019, during Trump 1.0. Reading between the lines of her Wikipedia biography, I glean that Democratic opposition to her appointment was weak, probably on the ground that, “Well, this is about the best we can expect from a Trump appointment.”
Interestingly, her Wikipedia entry says, in black and white, that “She was a member of the Federalist Society from 2002 to 2006 and again from 2017 to present.” One might wonder whether her renewed commitment to the Federalist Society in 2017 might have had something to do with a desire for higher office—given that Trump 1.0 farmed out the judicial selection function to the esteemed Society. That said, in any event …
In her six pages of prose, Judge Forrest manfully eschewed any views on the “likelihood of success on the merits”—in other words, whether birthright citizenship is found in the Constitution, or whether it isn’t.
Instead, the very large burr in her saddle was the purported “emergency” referenced by Team Trump. The implication is that birthright citizenship has been the law of the land ever since 1866 or 1898, depending on how you count. Letting it be the law of the land for a few more weeks, or a few more months, is in no way an emergency.
And just because Team Trump SAYS there’s an emergency does not mean there REALLY IS an emergency.
In short, for this one Federalist Society jurisprude, Team Trump’s legal Shock and Awe is really Shock and Awful.
In a couple of hours, my wife will be having a pointed discussion with the local tax assessors over the value of her apartment. The condos in our building vary a whole lot in size, layout, and many other features. But guess what? It turns out that the thing that best predicts the sale price is the number of square feet in the condo. If you know that number, then you have a very good idea of the condo’s fair market value.
Why in the world make that point? Because, let me humbly submit, while people vary in all sorts of ways, the one thing that best predicts their behavior is their incentives.
I was in Big Law for a long time. Some of the people I knew were fine human beings. Some, I’m sorry to say, had the morality of a sea slug. But, like the rest of the human race, most of them were somewhere in the middle, morality-wise.
I am confident that, for some of those who wrote and promoted the New York City Bar Association’s statement on the Adams case, promoting justice and good government was a driving concern. I am equally confident that the objective incentives of the Bar Association’s members was a driving force, as well.
Let me put it bluntly.
If the legal system breaks down, ain’t nobody gonna pay you no $2.5 million for your skilful manipulation of the legal system.
Back in my day, it was officially The Association of the Bar of the City of New York, its original name from back in 1870, when it was formed to fight the judicial corruption promoted by the Tammany Hall machine. Now, it’s the New York City Bar Association. Its president is a partner in a global law firm with profits per partner of $2.5 million. Its leadership includes a number of the president’s peers in other global law firms (together with others too, like professors and legal aid attorneys).
Yesterday, the association issued this press release.
On United States v. Eric Adams
Since its founding in 1870, the New York City Bar Association has supported the rule of law as one of its core missions – regardless of politics or ideological persuasion. “The true administration of justice is the firmest pillar of good government” is not merely an aphorism engraved in stone on courthouses but, together with the rule of law, the essence of American democracy. This mission and these values necessitate voicing our concern about the events of recent days in the ongoing federal case of United States v. Eric Adams, 24-CRIM-556 (S.D.N.Y.).
Prosecutors have a duty to act in the public interest, to perform their duties with objectivity, and to analyze all the evidence when deciding whether to pursue criminal charges. This is especially true in the prosecution of crimes allegedly committed by public officials involving abuses of power or corruption.
While the City Bar takes no position on the substantive merits of the Adams case, the numerous resignations by prosecutors from the office of the United States Attorney for the Southern District of New York and the Public Integrity Section of the United States Department of Justice, and the flurry of letters from those who have resigned and from the Acting Deputy Attorney General, command the City Bar’s attention and expression of concern.
The events of recent days are reminiscent of the Saturday Night Massacre resignations of Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus, which precipitated the crisis of public confidence when they were ordered by President Nixon to dismiss Special Prosecutor Archibald Cox to halt the Watergate investigation.
The direction of Acting Deputy Attorney General Emil Bove III to the Southern District prosecutors to prepare and file a motion to dismiss the case against the Mayor of New York City cuts to the heart of the rule of law. The unusual form of Mr. Bove’s direction via a public memorandum buttresses arguments that the direction is based on pretextual grounds.
The letter from Acting United States Attorney Danielle Sassoon and Mr. Bove’s response give every indication that the dismissal of Mayor Adams’ case, without prejudice, is predicated on his agreeing to increase New York City’s assistance in the Trump administration’s immigration enforcement efforts. When the proposed dismissal is made “without prejudice” to the charges possibly being reinstated at some future date, the entire proposal raises serious questions involving both the potential quid pro quoand prosecutorial weaponization of our justice system.
Indeed, the justification offered by Mr. Bove for his decision expressly avoids any consideration of the merits of the prosecution, instead resting on a rationale which is expressly political. In particular, Mr. Bove suggests that dismissal is predicated upon Mr. Adams’s continuing agreement to use the power of his office as mayor to facilitate the administration’s immigration enforcement policies. The policy choices of the government of New York City cannot be dependent on or appear to be dependent on the decision of the Justice Department to prosecute or withhold prosecution of corruption charges against the mayor.
Against such a backdrop, the City Bar commends Ms. Sassoon for her courageous decision to offer her resignation from a post she assumed a few short weeks ago. Whatever the merits of the underlying case against Mayor Adams, her letter reflects the proper course of conduct for a prosecutor seeking to adhere to her oath to pursue justice without fear or favor. Her letter reflects integrity and a principled commitment to the rule of law and democracy. The City Bar likewise applauds Assistant United States Attorney Hagan Scotten, Acting Chief of the Criminal Division Kevin Driscoll, Acting Chief of the Public Integrity Section John Keller, and the other attorneys at the Department of Justice who chose to resign rather than acquiesce to a decision raising profound questions of legality, morality, and legal ethics.
The interests of the public are best served by the continuation of the prosecution of Mr. Adams. In any event, the Department of Justice’s motion to dismiss the charges must be resolved on the basis of a complete record, which should include a searching inquiry into the nature of the bargain struck and a determination of its benefit to the public. If, as Mr. Bove contends, the prosecution of Mayor Adams was brought for improper political purposes, such an allegation can and should be adjudicated in the District Court. There is precedent for the District Court’s appointment of amicus curiae to obtain input from an independent counsel. See United States v. Flynn, No. 20-5143 (D.D.C.) (brief by former federal judge John Gleeson). In our view, the District Court should not dismiss the indictment against Mayor Adams without hearing from an independent lawyer, as neither the Mayor’s counsel nor the lawyers from the Department of Justice can fulfill that role.
Now it is for the United States District Court for the Southern District of New York to examine whether dismissal of the charges in United States v. Eric Adamsis “in the public interest” and is “not tainted by impropriety” or “bad faith.” All members of the public concerned about whether law enforcement agencies will protect the public rather than manipulate the criminal justice system for political means await the outcome. Whatever the outcome, this episode is a stark reminder of the dangers of political interference in our justice system and the potential such interference has to undermine the public’s trust and confidence in the rule of law.
About the Association The mission of the New York City Bar Association, which was founded in 1870 and has 23,000 members, is to equip and mobilize a diverse legal profession to practice with excellence, promote reform of the law, and uphold the rule of law and access to justice in support of a fair society and the public interest in our community, our nation, and throughout the world.www.nycbar.org
Pictured above is Emil Joseph Bove the Third, formerly criminal defense lawyer for Donald Trump and currently Acting U.S. Deputy Attorney General. Would you buy a used car from this man?
But I digress.
Many—including the Wall Street Journal Editorial Board—have applauded the actions of Danielle Sassoon,Hagan Scotten, and Justice Department attorneys who walked out the door last week, rather than sign their names to a bullshit legal filing. See, for example,
But let me give you one lawyer’s perspective. Yes, courage and cowardice, political expediency, and common sense versus stupidity are all part of this. But, ladies and germs, there are also some rules.
On the One Hand …
The President appointed, subject to the advice and consent of the Senate, one Pamela Jo Bondi to be United States Attorney General. The Senate duly advised and consented to Ms. Bondi’s appointment, and she is now the head of the Justice Department.
In that role, it is reported that she has reminded all of her subordinate lawyers that they have an ethical duty to represent their client zealously, within the bounds of the law.
Now, at this point, kindly quibble me no quibbles about who “the client” is—Donald Trump poisonally, the “Office of the President,” or “the American people.”
For the fact is that Attorney General Bondi has the right to set the legal policy of the Justice Department. And the subordinate attorneys have nothing that prevents them from leaving if they have—for whatever reason—a strong personal antipathy for arguing “zealously, within the bounds of the law,” in support of the positions they are directed to advance.
A side note for context: Attorneys are encouraged to take unpopular causes, and to represent those causes “zealously, within the bounds of the law.” But there is no legal requirement to take on causes that are personally repugnant—for one thing, because if the cause is so damn repugnant, we probably would not do a bangup job advancing it.
But, if we do take on a cause, then we have a duty to advance that cause “zealously, within the bounds of the law.”
So, score one for Attorney General Bondi.
For Example …
The Attorney General might order a subordinate attorney to argue that United States v. Wong Kim Ark (Supreme Court, 1898), confirming birthright citizenship for children of Chinese immigrants, was wrongly decided and should be reversed. It would then be the subordinate’s duty EITHER to develop arguments to overrule the Wong case, whether or not the attorney thought those were persuasive arguments OR to seek other employment.
Litigators often advance argument which they do not personally believe. That is the core of the rule of legal ethics that requires us to represent our clients zealously, within the bounds of the law.
On the Other Hand …
There is that part about “within the bounds of the law.”
For Example …
Although you can and should urge the judge to focus on the facts that favor your side and to place less importance on facts favorable to the other side, you cannot misrepresent the facts. For example, if you’re a Justice Department lawyer in a case where the judge has issued an injunction against shutting down the Department of Education, you cannot tell the judge that the government is obeying the order when the government is actually violating the order.
Nor can you tell a judge that a case you cite stands for proposition X when the case does not stand for proposition X, it stands for something else.
In the Thursday Afternoon Massacre situation, Emil Joseph Bove the Third order Danielle Sassoon and others to declare that the dismissal of the Eric Adams criminal prosecution was something other than a corrupt political deal. When in fact it was exactly that: a corrupt political deal.
To Cut to the Chase …
If your boss tells you to do something grossly unethical or highly stupid, then it’s a good idea to walk out the door.
But if your boss tells you that you have to do an illegal act yourself, then you had really, really better skedaddle, and that right quickly. Because you are at risk not only of being sanctioned by your friendly local bar association, you are at also in danger of prosecution for criminal obstruction or justice or criminal contempt of court.
This afternoon, Hagan Scotten, who was Danielle Sassoon’s colleague and second in command, has followed her out the door. Mr. Scotten took his law degree at Harvard, was a clerk to Brett Kavanaugh and to Chief Justice Roberts, and prosecuted the case against Eric Adams.
On the way out, Scotten took out his undated resignation letter and fired it off. It reads as follows:
BY EMAIL
Re: United States v. Eric Adams, 24 Cr. 556 (DEH)
Mr. Bove,
I have received correspondence indicating that I refused your order to move to dismiss the indictment against Eric Adams without prejudice, subject to certain conditions, including the express possibility of reinstatement of the indictment. That is not exactly correct. The U.S. Attorney, Danielle R. Sassoon, never asked me to file such a motion,and I therefore never had an opportunity to refuse. But I am entirely in agreement with her decision not to do so, for thereasons stated in her February 12, 2025 letter to the Attorney General.
In short, the first justification for the motion—that Damian Williams’s role in the case somehow tainted a validindictment supported by ample evidence, and pursued under four differentU.S. attorneys—is so weak as to be transparently pretextual. The second justification is worse. No system of ordered liberty can allow the Government to use the carrot of dismissing charges, or the stick of threatening to bring them again, to induce an elected official to support its policy objectives.
There is a tradition in public service of resigning in a last-ditch effort to head off a serious mistake. Some will view the mistake you are committing here in the light of their generally negative views of the new Administration. I do not share those views. I can even understand how a Chief Executive whose background is in business and politics might see the contemplated dismissal-with-leverage as a good, if distasteful, deal. But any assistant U.S. attorneywould know that our laws and traditions do not allow using the prosecutorial power to influence other citizens, much less elected officials, in this way. If no lawyer within earshot of the President is willing to give him that advice, then I expect you will eventually find someone who is enough of a fool, or enough of a coward, to file your motion. But it was never going to be me.
Please consider this my resignation. It has been an honor to serve as a prosecutor in the Southern District of New York.
Yours truly, Hagan Scotten
Assistant United States Attorney Southern District ofNew York
Danielle Sassoon, Esq., a graduate of Harvard College and of Yale Law School, a former clerk for Justice Antonin Scalia, a continuing member in good standing of the Federalist Society, and—for a few weeks, following Trump’s inauguration—temporary chief federal prosecutor in Manhattan, has resigned. She took this action because she could not, in good conscience, obey her masters’ orders to go into court and ask for dismissal of the criminal case against Eric Adams, in circumstances where there was no proper legal basis for making such a request.
Her resignation letter of February 12, addressed to Attorney General Bondi, spends 7½ pages explaining the baselessness of the position she had been ordered to advocate to the courts. The letter concludes thusly,
I Cannot in Good Faith Request the Contemplated Dismissal
Because the law does not support a dismissal, and because I am confident that Adams has committed the crimes with which he is charged, I cannot agree to seek a dismissal driven by improper considerations. As Justice Robert Jackson explained, “the prosecutor at his best is one of the most beneficent forces in our society, when heacts from malice or other base motives, he is one of the worst.” The Federal Prosecutor, 24 J. Am. Jud. Soc’y 18 (“This authority has been granted by people who really wanted the right thing done—wanted crime eliminated—but also wanted the best in our American traditions preserved.”). I understand my duty as a prosecutor to mean enforcing the law impartially, and that includes prosecuting a validly returned indictment regardless whether its dismissal would be politically advantageous, to the defendant or to those who appointed me. A federal prosecutor “is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all.” Berger v. United States, 295 U.S. 78, 88 (1935).
For the reasons explained above, I do not believe there are reasonable arguments in support of a Rule 48(a) motion to dismiss a case that is well supported by the evidence and the law. I understand that Mr. Bove disagrees,and I am mindful of your recent order reiterating prosecutors’ duty to make good-faith arguments in support of the Executive Branch’s positions. See Feb. 5, 2025 Mem. “General Policy Regarding Zealous Advocacy on Behalf of the United States.” But because I do not see any good-faith basis for the proposed position, I cannot make sucharguments consistent with my duty of candor. N.Y.R.P.C. 3.3; id. cmt. 2 (“A lawyer acting as an advocate in an adjudicative proceeding has an obligation to present the client’s case with persuasive force. Performance of thatduty while maintaining confidences of the client, however, is qualified by the advocate’s duty of candor to the tribunal.”).
In particular, the rationale given by Mr. Bove—an exchange between a criminal defendant and the Department of Justice akin to the Bout exchange with Russia—is, as explained above, a bargain that a prosecutor should not make. Moreover, dismissing without prejudice and with the express option of again indicting Adams in the future creates obvious ethical problems, by implicitly threatening future prosecution if Adams’s cooperation with enforcing the immigration laws proves unsatisfactory to the Department. See In re Christoff, 690 N.E.2d 1135 (Ind. 1997) (disciplining prosecutor for threatening to renew a dormant criminal investigation against a potentialcandidate for public office in order to dissuade the candidate from running); Bruce A.Green & Rebecca Roiphe, Who Should Police Politicization of the DOJ?, 35 Notre Dame J.L. Ethics & Pub. Pol’y671, 681 (2021) (noting that the Arizona Supreme Court disbarred the elected chief prosecutor of Maricopa County,Arizona, and his deputy, in part, for misusing their power to advance the chief prosecutor’s partisan political interests). Finally, given the highly generalized accusations of weaponization, weighed against the strength of theevidence against Adams, a court will likely question whether that basis is pretextual. See, e.g., United States v. Greater Blouse, Skirt & Neckwear Contractors, 228 F. Supp. 483, 487 (S.D.N.Y. 1964) (courts “should be satisfiedthat the reasons advanced for the proposed dismissal are substantial and the real grounds upon which the application is based”).
I remain baffled by the rushed and superficial process by which this decision was reached, in seemingcollaboration with Adams’s counsel and without my direct input on the ultimate stated rationales for dismissal. Mr. Bove admonished me to be mindful of my obligation to zealously defend the interests of the United States and to advance good-faith arguments on behalf of the Administration. I hope you share my view that soliciting andconsidering the concerns of the U.S. Attorney overseeing the case serves rather than hinders that goal, and that we can find time to meet.
In the event you are unwilling to meet or to reconsider the directive in light of the problems raised by Mr. Bove’s memo, I am prepared to offer my resignation. It has been, and continues to be, my honor to serve as a prosecutor in the Southern District of New York.
Very truly yours,
DANIELLE R. SASSOON
United States Attorney Southern District of NewYork
A Statement by the President of the ABA: Every Lawyer’s Duty
It has been three weeks since Inauguration Day. Most Americans recognize that newly elected leaders bring change. That is expected. But most Americans also expect that changes will take place in accordance with the rule of law and in an orderly manner that respects the lives of affected individuals and the work they have been asked to perform.
Instead, we see wide-scale affronts to the rule of law itself, such as attacks on constitutionally protected birthright citizenship, the dismantling of USAID and the attempts to criminalize those who support lawful programs to eliminate bias and enhance diversity.
We have seen attempts at wholesale dismantling of departments and entities created by Congress without seeking the required congressional approval to change the law. There are efforts to dismiss employees with little regard for the law and protections they merit, and social media announcements that disparage and appear to be motivated by a desire to inflame without any stated factual basis. This is chaotic. It may appeal to a few. But it is wrong. And most Americans recognize it is wrong. It is also contrary to the rule of law.
The American Bar Association supports the rule of law. That means holding governments, including our own, accountable under law. We stand for a legal process that is orderly and fair. We have consistently urged the administrations of both parties to adhere to the rule of law. We stand in that familiar place again today. And we do not stand alone. Our courts stand for the rule of law as well.
Just last week, in rejecting citizenship challenges, the U.S. District Judge John Coughenour said that the rule of law is, according to this administration, something to navigate around or simply ignore. “Nevertheless,” he said, “in this courtroom and under my watch, the rule of law is a bright beacon which I intend to follow.” He is correct. The rule of law is a bright beacon for our country.
In the last 21 days, more than a dozen lawsuits have been filed alleging that the administration’s actions violate the rule of law and are contrary to the Constitution or laws of the United States. The list grows longer every day.
These actions have forced affected parties to seek relief in the courts, which stand as a bulwark against these violations. We support our courts who are treating these cases with the urgency they require. Americans know there is a right way and a wrong way to proceed. What is being done is not the right way to pursue the change that is sought in our system of government.
These actions do not make America stronger. They make us weaker. Many Americans are rightly concerned about how leaders who are elected, confirmed or appointed are proceeding to make changes. The goals of eliminating departments and entire functions do not justify the means when the means are not in accordance with the law. Americans expect better. Even among those who want change, no one wants their neighbor or their family to be treated this way. Yet that is exactly what is happening.
These actions have real-world consequences. Recently hired employees fear they will lose their jobs because of some matter they were assigned to in the Justice Department or some training they attended in their agency. USAID employees assigned to build programs that benefit foreign countries are being doxed, harassed with name-calling and receiving conflicting information about their employment status. These stories should concern all Americans because they are our family members, neighbors and friends. No American can be proud of a government that carries out change in this way. Neither can these actions be rationalized by discussion of past grievances or appeals to efficiency. Everything can be more efficient, but adherence to the rule of law is paramount. We must be cognizant of the harm being done by these methods. No American can be proud of a government that carries out change in this way. Neither can these actions be rationalized by discussion of past grievances or appeals to efficiency. Everything can be more efficient, but adherence to the rule of law is paramount. We must be cognizant of the harm being done by these methods.
These stories should concern all Americans because they are our family members, neighbors and friends. No American can be proud of a government that carries out change in this way.
Moreover, refusing to spend money appropriated by Congress under the euphemism of a pause is a violation of the rule of law and suggests that the executive branch can overrule the other two co-equal branches of government. This is contrary to the constitutional framework and not the way our democracy works. The money appropriated by Congress must be spent in accordance with what Congress has said. It cannot be changed or paused because a newly elected administration desires it. Our elected representatives know this. The lawyers of this country know this. It must stop.
There is much that Americans disagree on, but all of us expect our government to follow the rule of law, protect due process and treat individuals in a way that we would treat others in our homes and workplaces. The ABA does not oppose any administration. Instead, we remain steadfast in our support for the rule of law.
We call upon our elected representatives to stand with us and to insist upon adherence to the rule of law and the legal processes and procedures that ensure orderly change. The administration cannot choose which law it will follow or ignore. These are not partisan or political issues. These are rule of law and process issues. We cannot afford to remain silent. We must stand up for the values we hold dear. The ABA will do its part and act to protect the rule of law.
We urge every attorney to join us and insist that our government, a government of the people, follow the law. It is part of the oath we took when we became lawyers. Whatever your political party or your views, change must be made in the right way. Americans expect no less.
Right now, the federal district courts are doing a good job standing up to Trump’s myriad of unconstitutional and otherwise illegal acts. And the lawyers who have the misfortune to try to defend Trump in court can’t quite decide whether to obey the injunctions, to pretend to obey the injunctions and lie to the court, or just to say, “Your Honor, fuck you and the horse you rode in on.”
Soon, the circuit courts of appeal will weigh in, and then the Supreme Court.
The New York Times spoke to a bunch of experts on constitutional law, and produced the following article summarizing the situation as of today, Monday, Feb. 10. (And please remember that among the jobs of an expert on constitutional law is to follow closely the thinking of individual justices.)
The Times reporter writes,
There is no universally accepted definition of a constitutional crisis, but legal scholars agree about some of its characteristics. It is generally the product of presidential defiance of laws and judicial rulings. It is not binary: It is a slope, not a switch. It can be cumulative, and once one starts, it can get much worse.
It can also be obvious, said Erwin Chemerinsky, dean of the law school at the University of California, Berkeley.
“We are in the midst of a constitutional crisis right now,” he said on Friday. “There have been so many unconstitutional and illegal actions in the first 18 days of the Trump presidency. We never have seen anything like this.”
His ticked off examples of what he called President Trump’s lawless conduct: revoking birthright citizenship, freezing federal spending, shutting down an agency, removing leaders of other agencies, firing government employees subject to civil service protections and threatening to deport people based on their political views.
That is a partial list, Professor Chemerinsky said, and it grows by the day. “Systematic unconstitutional and illegal acts create a constitutional crisis,” he said.
The distinctive feature of the current situation, several legal scholars said, is its chaotic flood of activity that collectively amounts to a radically new conception of presidential power. But the volume and speed of those actions may overwhelm and thus thwart sober and measured judicial consideration.
It will take some time, though perhaps only weeks, for a challenge to one of Mr. Trump’s actions to reach the Supreme Court. So far he has not openly flouted lower court rulings temporarily halting some of his initiatives, and it remains to be seen whether he would defy a ruling against him by the justices.
“It’s an open question whether the administration will be as contemptuous of courts as it has been of Congress and the Constitution,” said Kate Shaw, a law professor at the University of Pennsylvania. “At least so far, it hasn’t been.”
Vice President JD Vance struck a confrontational tone on social media on Sunday when he wrote, “Judges aren’t allowed to control the executive’s legitimate power.”Haiyun Jiang for The New York Times
Professor Shaw said a clash with the courts would only add to a crisis that is already underway. “A number of the new administration’s executive orders and other executive actions are in clear violation of laws enacted by Congress,” she said.
“The administration’s early moves,” she added, “also seem designed to demonstrate maximum contempt for core constitutional values — the separation of powers, the freedom of speech, equal justice under law.”
Pamela Karlan, a law professor at Stanford, added that a crisis need not arise from clashes between the branches of the federal government.
“It’s a constitutional crisis when the president of the United States doesn’t care what the Constitution says regardless whether Congress or the courts resist a particular unconstitutional action,” she said. “Up until now, while presidents might engage in particular acts that were unconstitutional, I never had the sense that there was a president for whom the Constitution was essentially meaningless.”
The courts, in any event, may not be inclined or equipped to push back. So much is happening, and so fast, that even eventual final rulings from the Supreme Court rejecting Mr. Trump’s arguments could come too late. After the U.S. Agency for International Development or the Consumer Financial Protection Bureau are disassembled, say, no court decision can recreate them.
In many cases, of course, the Supreme Court’s six-member conservative majority may be receptive to Mr. Trump’s arguments. Its decision in Julygranting him substantial immunityfrom prosecution embraced an expansive vision of the presidency that can only have emboldened him.
Members of that majority are, for instance, likely to embracethe president’s position that he is free to fire leaders of independent agencies.
The court may nonetheless issue an early, splashy ruling against Mr. Trump to send a signal about its power and independence. Striking down Mr. Trump’s order directing officials to deny citizenship to the children of immigrants would seem to be a good candidate, as it is at odds with the conventional understanding of the Constitution and the court’s precedents.
Such a decision would have an added benefit: It would be hard to disobey. From its earliest days, the Supreme Court has been wary of issuing rulings that might be ignored.
“I’m reminded of Marbury v. Madison, when the government did not even bother to show up before the Supreme Court to defend its position — strongly suggesting it would flout any court order against it,” said Amanda Frost, a law professor at the University of Virginia.
Even as the court ruled that the administration of Thomas Jefferson had acted unlawfully, she said, “the court carefully crafted its opinion in that case to avoid a ruling requiring executive branch compliance.”
Much has changed since that 1803 decision, and the Supreme Court’s stature and authority has grown. “Nonetheless,” Professor Frost said, “the Supreme Court may find it hard to defend the laws Congress enacted against executive usurpation when the Republican-controlled Congress refuses to do the same.”
Professor Karlan said she worried that the justices would rule for Mr. Trump for fear that he would ignore decisions rejecting his positions. “The idea that courts should preserve the illusion of power by abdicating their responsibilities would just make the constitutional crisis even worse,” she said.
Mr. Trump has already disregarded one Supreme Court decision, its ruling last monthupholding a federal law, passed by lopsided bipartisan majorities, requiring TikTok to be sold or banned. Mr. Trump instead ordered the Justice Departmentnot to enforce the law for 75 days, citing as authority for the move his “unique constitutional responsibility for the national security of the United States.”
President Dwight D. Eisenhower sent the 101st Airborne Division to Little Rock, Ark., in 1957 to enforce Brown v. Board of Education, a Supreme Court decision in 1954 that banned segregation in public schools.Associated Press
Defiance of Supreme Court decisions is not unheard-of. Southern states, for instance, for years refused to follow Brown v. Board of Education, the 1954 decision that banned segregation in public schools, engaging in what came to be known as “massive resistance.”
The Brown decision is now almost universally viewed as a towering achievement. But its enforcement required President Dwight D. Eisenhower to decide to send members of the 101st Airborne Division to Little Rock, Ark., to escort Black students through an angry white mob.
Not all presidents gave the court’s rulings the same respect. In 1832, President Andrew Jackson refused to enforce a Supreme Court decisionarising from a clash between Georgia and the Cherokee Nation. A probably apocryphal but nonetheless potent comment is often attributed to Jackson about Chief Justice John Marshall: “John Marshall has made his decision; now let him enforce it.”
Even before this weekend, Mr. Vance has saidthat Mr. Trump should ignore the Supreme Court. In a 2021 interview, he said Mr. Trump should “fire every single midlevel bureaucrat, every civil servant in the administrative state” and “replace them with our people.”
He added: “When the courts stop you, stand before the country like Andrew Jackson did and say, ‘The chief justice has made his ruling. Now let him enforce it.’”
Chief Justice John G. Roberts Jr. took note of such threats in his year-end reportin December.
“Every administration suffers defeats in the court system — sometimes in cases with major ramifications for executive or legislative power or other consequential topics,” he wrote. “Nevertheless, for the past several decades, the decisions of the courts, popular or not, have been followed, and the nation has avoided the standoffs that plagued the 1950s and 1960s.”
“Within the past few years, however,” the chief justice went on, “elected officials from across the political spectrum have raised the specter of open disregard for federal court rulings. These dangerous suggestions, however sporadic, must be soundly rejected.”
That view has many supporters, though some use caveats. “It would be an extremely grave matter for a president to defy an actual (unstayed, in-effect) order of a federal court in a case that is indisputably in the court’s jurisdiction,” Ed Whelan, a conservative legal commentator, wrote on social media.
But considering discrete clashes may be relying on an outdated paradigm.
“One way to look at the administration’s assault on legal barriers is that it is seeking to establish ‘test cases’ to litigate and win favorable Supreme Court decisions,” Bob Bauer and Jack Goldsmith wrote in their Executive Functionsnewsletter. “But the typical test case is a carefully developed, discrete challenge to statutory or judge-made law with some good faith basis.”
Mr. Goldsmith is a law professor at Harvard and a former Justice Department official in the George W. Bush administration. Mr. Bauer was White House counsel for President Barack Obama. They are students of Article II of the Constitution, which sets out the powers of the president.
Mr. Trump’s executive orders have some features suggesting that they mean to test legal theories in the Supreme Court, they wrote. “But in the aggregate,” they added, “they seem more like pieces of a program, in the form of law defiance, for a mini-constitutional convention to ‘amend’ Article II across a broad front.”
Step One. Will the federal district courts and the federal courts of appeal keep on telling Trump that he must obey the Constitution and the laws?
Step Two. When the first cases reach the Supreme Court, will the Court follow the example set by the lower courts and order the Administration to obey the Constitution and the laws, and will the Supreme Court reaffirm that Marbury v. Madison remains the law of the land? (See the post immediately below for some thoughts on that question.)
Step Three. Thus far, Mango Mussolini and some of the people aboard his clown car have been cutsy-wootsy about whether they will obey the courts. But J.D. Vance—who has some asshole buddies that hate democracy—bleated out this weekend that the Supreme Court has no authority over Trump. Soo … when the courts find some of Trump’s henchmen in contempt of court and order the U.S. Marshalls Service to go arrest them, will Trump countermand the order, or will he back down, or will he pretend to back down and play cutsy-wootsy?
Step Four. If Orange Jesus follows Vance’s advice and defies the courts, what happens then?
Facing MAGA 