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From KQED in San Francisco, I'm Mina Kim. Coming up on Forum, is the U.S. in the talked-about-and-feared constitutional crisis? President Trump and his administration are increasingly ignoring federal court rulings on issues like immigration and funding, raising questions about what the courts can force a president to do. The Atlantic's Adam Serwer calls Trump's actions and defiance of court orders a new step into presidential lawlessness.
We talk with Serwer and with Slate's Mark Joseph Stern about the collision between the branches and the stakes for our constitutional democracy. Join us. Welcome to Forum. I'm Mina Kim. If there was any doubt about whether President Trump and his administration were defying the Supreme Court and its ruling to facilitate the return of a man it admitted it deported mistakenly,
A different order that came after midnight Saturday related to the deportation of Venezuelan migrants was written much more clearly. The government, it said, is directed not to remove any member of the putative class of detainees from the United States until further order of this court. This hour, we look at how this intensifies the battle over the rule of law and whether we're in a constitutional crisis. To help explain, I'm joined by Adam Serwer, staff writer for The Atlantic. Adam, welcome to Forum.
Thank you so much for having me. Yeah, glad to have you. Also with us is Mark Joseph Stern, senior writer for Slate. Thanks for joining us, Mark Joseph Stern. Thank you for having me on. So Mark, I want to start with you. You called that Saturday ruling by the Supreme Court extraordinary. Tell us what happened.
So it was procedurally extraordinary and it was substantively extraordinary. So what we know is that starting on Thursday, so a week ago, the government had started planning to allegedly deport Venezuelan migrants to a prison in El Salvador without
Without providing them the due process that the Supreme Court had afforded them in a decision earlier in April, the ACLU, which represented the migrants, raced to several different courts to try to get an order blocking the deportations, and they failed in all of the lower courts.
So they eventually went to the Supreme Court and the Supreme Court acted at 1 a.m. on Saturday morning, issuing the order you just described, halting the deportations of these migrants to El Salvador until further notice by the Supreme Court. It acted.
It acted before the government had even had a chance to respond to the ACLU's request. It acted before Justice Alito had a chance to finish writing his dissent. It essentially broke all of the usual procedural rules in order to rush out this order, seemingly to ensure that it could act before the government took this illegal step of deporting more migrants without due process. Wow. And why do you think they took this step?
I think that a majority of the court did not trust the government's rather hedged and ambiguous representations to the lower courts that it didn't intend to fly these migrants out of the country. The government's lawyers have been very vague about exactly what they plan to do here. And in the past, at least according to one federal judge, the government has lied about its plans. And at
Adam, would you say this lack of faith is
Also came from the way the Trump administration behaved after the previous order they gave in the case of Kilmar Armando Brego Garcia. This is, of course, the Salvadoran man who was deported to a prison in El Salvador, which the administration admits was a mistake.
Well, outside of court, you know, you have Trump, you know, joking around with the leader of the Salvadoran government about how they want to send, quote, homegrowns there and how, you know, when asked whether they'd send him back, he said, well, Nayib Bukele said, you know, I'm not going to I'm not going to smuggle a terrorist back in the United States, as though that was what anyone was suggesting. Right.
And so, you know, both of them are sort of joking about how neither one of them has the power to release this man when obviously they do. And even in court, you know, recently the administration has taken a sort of, you know,
what I would describe as behaving almost like a toddler. You know, when you ask a toddler to do something, sometimes they might pretend not to hear you so they don't have to do it. And essentially the administration is sort of pretending that the Supreme Court didn't tell them to facilitate this man's release. And so, you know, it sounds to me like the court is maybe, including some of the Trump appointed justices,
are going a little impatient with the fact that the with the administration's bad faith.
Now, ironically, the two justices who are perhaps the Trumpiest justices are the ones who didn't appoint Clarence Thomas and Samuel Alito were sort of, you know, harrumphed and insisted that the administration follow proper procedure in this case, even though it was an obvious emergency in which, you know, these men were at risk of being sent to an overseas gulag, you know, for the rest of their lives with no hope of potentially no hope of release.
Yeah, yeah, that rhetorical game that they were playing, as you described, between Trump and Bukele, and then also, as you also described, the way the Trump administration was acting like they were following the court ruling, but actually ignoring it. It has, I think, a couple of major stakes. But can you just talk about just allowing the president to be able to
continue to behave in this way and not be forced to bring back Abrego Garcia. What does that say about the freedoms for all of us, Adam? Well, I'm going to be honest with you. None of these people should be there at all.
You know, if you want to deport someone, the United States federal government has tremendous powers to send people out of the country who are not citizens, who does not want to be here. There's no reason to send them to an overseas gulag with no communication and no hope of release. If they have committed crimes, you can charge them. If they are otherwise ineligible to be in the United States, you can deport them. You do not need to send them to a torture prison overseas.
And I think the other important thing here is that without due process, you know, the risk of deporting someone who is a citizen is is tremendous because, you know, you know, we have we have had some incidents here in the United States where people have been detained by immigration authorities despite being citizens.
There was an incident in Arizona recently. And so, you know, the possibility that someone could be deported genuinely by mistake or deported is really the wrong word for what is functionally a form of exile.
You know, the administration's position is that even if it deports you by mistake, it doesn't have to do anything to get you back. So if they do deport a citizen, quote unquote, by mistake, someone that maybe, you know, they don't like very much, their position is that they can just
uh, you know, leave them there. They don't have to get them back because that would be foreign policy and the court has no power, uh, to order the administration, uh, to engage in a particular foreign policy approach. Uh, so, so really their position is that, uh,
you know, they can pretty much do this to anyone. And obviously, you know, the not so open secret, and I say not so open secret, because obviously Trump has discussed this publicly, is that they want to be able to do this to citizens, even though it would be lawless, unconstitutional, the kind of thing that dictators do. Yeah. The other aspect of this, Mark, and it's actually the title of Adam's piece, is that
It creates a constitutional crisis. Do you believe that this sort of confrontation and conflict and the way that Trump is behaving with regard to the judicial branch is a constitutional crisis already or that we are on the brink of one?
I would describe it as a constitutional crisis. I would also acknowledge that term has limited utility. That kind of crisis is really in the eye of the beholder. And I think that this administration is breaching so many laws and norms so frequently that we're all
really growing numb to whatever label we decide to put on it. So I think it's fair to say we're in a constitutional crisis when the Trump administration is essentially defying the Supreme Court. You discussed the government refusing to facilitate the return of Kilmer Abrego Garcia, even though he was deposed.
by mistake. I'd also add, and I mentioned this earlier, the government choosing to continue with the unlawful deportations of migrants last month after a federal judge expressly ordered the government to turn around the planes or at least to not disembark passengers when the planes landed. Government officials, we know from reporting, we know now from the judge's own opinion, holding those officials in potential criminal contempt. They chose that
defiance. They said, we will not follow this order. And, you know, if you have one branch of government openly flouting the decisions of the judiciary, it's hard to know what else to call that but a crisis because our system doesn't have a clear backstop here. In theory, the backstop would be the other branch, Congress. Congress would step in. It could hold hearings. It could issue subpoenas. It could conduct its oversight role. It could enact new laws. But of course, right now, Congress is doing none of that because it's held by the same party as the president.
So all we have is the judiciary as a buffer. And if the government will flout what the judiciary says, then that means we really have no buffer at all. Mark, can you talk about just how significant it is that this particular court acted in the way it did on Saturday, given its track record?
So I think it's extraordinarily significant because until that order, the Supreme Court had been trying to avoid a head on conflict with the Trump administration and had issued a series of decisions that tried to sort of strike a pose of compromise that allowed the Trump administration to save face that gave maybe a little bit to both sides. The
the most notorious of those was the order saying, well, the government does have to facilitate the return of Kilmer, but it can't be ordered to effectuate that return. Um, a very formal distinction, some would argue without a difference, but I think that a majority of the justices were thinking that this would allow the Trump administration to claim some modest victory, but then do the right thing and bring back a break. Of course, that's not what happened instead that the government, um,
refused to do any affirmative steps to bring back this individual. And then people like Stephen Miller, deputy right house chief of staff, went on TV, falsely claimed that the administration had won a total victory and that it had absolutely no responsibility to try to bring back Abrego Garcia.
And I'm hoping I think we need more evidence, but I'm hoping that the justices learned from that episode, from from seeing their order really flouted in extreme bad faith and recognize that they need to be more direct. They need to be more blunt and they need to act quickly enough to ensure that their orders will actually have a direct impact before this administration sneaks these individuals outside of the jurisdiction of the United States and then argues that no matter what courts say, there's nothing anyone can do because El Salvador has control of them now.
We're talking with Mark Joseph Stern, senior writer for Slate. His piece is The Supreme Court's Late Night Rebuke to Trump is Extraordinary in More Ways Than One. We're also talking with Adam Serwer, staff writer at The Atlantic, whose piece The Constitutional Crisis is Here is also what we are discussing today. And you, our listeners, are invited to join the conversation. What questions do you have about this?
the court's orders, about Trump's response. What do you want to know about what a constitutional crisis means and how we got here? You can tell us by emailing forum at kqed.org, finding us on our social channels on Blue Sky, Facebook, Instagram, or threads at KQED Forum. You can call us at 866-733-6786, 866-733-6786.
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Welcome back to Forum. I'm Mina Kim. President Trump and his administration are increasingly ignoring federal court rulings, raising questions about what the courts can force a president to do and a collision between the executive and judicial branches, creating a constitutional crisis. According to my guest, Mark Joseph Stern of Slate and Adam Serwer of The Atlantic, and you are listeners as well,
are invited to join the conversation with your questions about how Trump is responding to federal court orders and the U.S. Supreme Court. Also, you know, what you want to know about a constitutional crisis and how we got here and how we move through it.
What actions would you like to see the courts take? What do you think the Supreme Court will do? You can call us at 866-733-6786, post on our social channels at KQED Forum or email forum at kqed.org. So Adam, just before the break, Mark was just talking about what an extraordinary shift this is with this particular court. And I'm wondering what you think with regard to
this particular ruling that was very clear and somewhat confrontational right on Saturday and whether they are likely to see this through? Well, the issue is that, you know, the onus is on the Trump administration to obey these rulings. I mean, I think the big question, I mean, you know, Mark is really right when he talks about a constitutional crisis being inadequate for describing the moment that we're in. We are in a relentless crisis.
unceasing assault on the basic concept of the American government, which was founded on the basis of preventing arbitrary exercises of power by a capricious executive. I mean, that's why that's the whole point of rejecting a king. And now we have a man who thinks he's a king who is the president, and he is exercising power in as arbitrary a manner as possible. And the Supreme Court, in the system that they designed,
is, you know, can check that power. But there are factions within the Trump administration that do not believe that the Trump administration should even obey a ruling from the Supreme Court. And how do we know this? We know this because Donald Trump's vice president, J.D. Vance, said publicly before he was chosen as his vice president that Donald Trump should pull an Andrew Jackson and say, well, that's their ruling. Now let them enforce it.
So I think ultimately we are going to get at some point where one of those factions in the Trump administration is going to win. And to clarify that, what I mean is either the faction that says we don't have to obey the Supreme Court is going to win and they're going to defy a Supreme Court order, or the faction that says we have to obey the Supreme Court is going to win. And in this particular narrow arena, the rule of law will have been preserved. But quite
Because it is a relentless assault on so many different fronts, it's very difficult to say because they obeyed this one, we're still living in a society of loss. The fact is that concept is at risk every day that Donald Trump remains in office.
And I think the Supreme Court is, you know, and John Roberts in particular, is aware of the delicate nature of this situation. And part of their avoidance of confrontation with the court is a desire not to let it get to that sort of apocalyptic point. Unfortunately, the Trump administration is, you know, insistent on pushing the lines and
and indulging Donald Trump's whims. And so it's very difficult for me to imagine that there's not going to be a much more direct confrontation at one point. But I think what I would describe the court's
Thinking here, my guess is that they felt, you know, just based on the fact that it was a 7-2 ruling, that some sort of extremely firm stand was needed in order to dissuade the Trump administration from the path that it had been on, which was just sort of saying, well, we can ignore the court if we feel like it. And Mark, at this point, the Trump administration has not defied that Saturday order, right? They have not
put more Venezuelan migrants or other detainees on the plane to El Salvador? Not to our knowledge, but we do know that the administration has argued that it is free to essentially defy or work around a different order preventing them from deporting different migrants based on the pretext that the judge enjoined the deportation
Department of Homeland Security and that the government would be flying those individuals out using the Department of Defense, which is not a named defendant. So these lawyers are working very hard to find loopholes in these orders. They haven't defied this SCOTUS order yet, but I wouldn't be surprised if they start looking for a creative reading for it in order to wiggle around it.
Fisner writes, yes, we are experiencing a constitutional crisis. Congress is not exercising the role as a check on the executive branch. The judicial branch is not being taken seriously. Trump has marginalized the private legal system and he has dismantled federal financial backstops to corruption. He is actively marginalizing the free press and there is economic upheaval with no pushback by Congress. You know, Mark, so one of the other definitions of a constitutional crisis besides this
Right.
Right. So, you know, I think your question reflects something that Adam said a moment ago, which is that the framers designed a constitution expressly to avoid having a king or a monarch like ruler who could sort of declare that he's above the law. I really do believe that the framers would be aghast at the powers that Trump has exerted. And I also think they simply did not
plan for this contingency and did not craft a document thinking perhaps the American people will elect someone who recognizes no legitimate limits on his authority. This is uncharted territory in that sense, in another way in which we're arguably in a true constitutional crisis because, you know, there are safeguards, but Trump seems to be eager to blast past all of them. So, you know, what can the courts do?
Whenever you have to ask that question, it means that a lot has already gone quite wrong. The court should generally be the last resort in a situation like this because, in part, they have such limited authority. They have very limited power. They don't have their own armies. They don't have any kind of mechanism to directly enforce their decisions. All the courts can really do is hold individual officials in contempt. They can hold them in civil contempt and impose fines.
They can hold them in criminal contempt and potentially subject them to jail time. But those contempt orders are supposed to be enforced in the first line by the Justice Department and by the federal marshals. The Justice Department is in the hands of Pam Bondi, who is very loyal to Trump. The federal marshals are part of the Justice Department. Now, we can talk about all of the sort of tricks and workarounds that federal judges could potentially use to try to deputize others to prosecute these cases. But in my view, the unfortunate reality is that if the entire administration is in lockstep against the courts—
They have pretty much all the cards if they do not want to follow orders and they do not want to play ball when held in contempt. Let me go to Rick in Sacramento. Hi, Rick. You're on. Hi. Thank you for taking my call. I
I think that the first salvo by the justices saying that they were going to stand firm was when the Chief Justice issued a note to Trump rebuking him for basically bad-mouthing a federal appeals judge recently. And I think that that was their way of saying, hey, we're going to stick up for the judges.
And I think this is all just one unfortunate part of when we elect somebody who has no honor or ethics or morals or values.
anything when it comes to that, because that's what always held the presidents in the past to do what the justices wanted or what the courts wanted was their honor of our, the honor of our system and the value of our system that, you know, honorable people will do those things. But Trump just doesn't have any of that, in my opinion. Well, Rick, thanks. Adam, you know, Rick is sharing where he sees the,
Justice John Roberts in his rebuke of Trump as being, you know, a moment where maybe they were starting to change the way that they understand and approach this administration. And we were talking about that a moment ago, when you said something really interesting, you said that they're dealing with a system that they designed. Are you talking about previous rulings that gave the president such power, or they interpreted the president to have so much power?
Well, I was talking about the framers in that case. I was talking about the framers who designed a system that was meant to prevent the arbitrary exercise of power by the state. Now, in terms of Donald Trump in particular, I do think John Roberts deserves a tremendous amount of blame for enabling this kind of behavior, and I'll explain what I mean by that. The Supreme Court's presidential immunity ruling
is invented out of whole cloth based on nothing in the text of the Constitution and really fundamentally going against the idea that the president is just a man and not a monarch.
And I do believe that part of Trump's boldness in his second terms in his second term in terms of flouting the law is in part due to the fact that the Supreme Court said that you're immune to any kind of criminal investigation if you're the president and you and you decide to break the law in the course of your, quote unquote, official duties.
I do think that they have enabled him. They, to some extent, created this Frankenstein's monster. And if they're shocked by the fact that he's behaving this way right now, well, I don't know what to say, because that was predictable from the moment they handed down that ruling. Would you agree, Mark? I mean...
I think probably if you had to pick one point at which all of recent history, meaning the last three months or so was set in motion, it was that immunity decision. There was so much in that decision that seemed to endorse a Trumpian vision of the executive. And it
goes beyond just giving the president this sweeping protection against criminal prosecution. What the Supreme Court did in that decision was endorse this idea of the president as essentially a king-like figure who can wield absolute authority over every inch of the executive branch and manipulate it
all in furtherance of his own personal agenda. I actually don't know that Chief Justice Roberts was thinking about these consequences when he wrote the opinion. We know it was written very quickly. It was kind of rushed. I don't know he was thinking through what it would mean for him to say things like it's within the president's power to reach out to the Justice Department and direct them to open corrupt
investigations into phony allegations of voter fraud. But that's what he did. And Trump has used that language, sort of plucked it out of that opinion and used it to, again, really assert absolute authority over the entire branch of government and to weaponize it for his own ends against law firms he doesn't like, against individuals he doesn't like, you know, claiming that
All of it is protected constitutional power. And no previous president has come anywhere close to that. This is an entirely new phenomenon. And I do agree that what he's doing largely tracks what the Supreme Court said he could do in that deeply unfortunate and misbegotten immunity ruling. Let me go to caller Andy in San Mateo. Hi, Andy, you're on.
Hi, thanks for taking my call. I actually think that a lot of my questions just got answered with how we created this Frankenstein. So with that said, I'm wondering what kind of recourse
Is there a take at this point where is it up to the Congress to do something to change the fact that they did give him free-wielding power with no handrails to do exactly what he's doing right now? And the other crazy thing, and then I'll take my call off the air, is why can't we address...
The fact that the foreshadowing of this hypocrisy and this insanity was created on January 6th when he did the insurrection. I mean, right there was a blatant show of I mean, he didn't want to leave the office.
So I'm just wondering, what kind of recourse do we have? And I'm sorry that we didn't see this coming with the insurrection. And I'll take my call off the air. Thank you. Andy, thanks. Robin has a similar question. Robin writes, it's unlikely Congress will put their foot down, but let's say they did decide to try and stop Trump. What could Congress do if the executive branch chooses to ignore them? Adam, I guess they could try for another impeachment?
Well, look, there's no there's simply no I mean, the founders designed a system of checks and balances, but there's no system that of checks and balances that works if the branches don't want to check and balance. So right now you have a Congress that is supine and unwilling to do anything to check the power of the president, even when it's within their prerogative to do so. And, you know, a system simply can't function like that.
I mean, ultimately, you know, I mean, even even countries with dictatorships have internal politics. I mean, ultimately, it's up to the public to respond to lawless behavior with a forceful rejection, one that is so forceful that, you know, the people's representatives and the administration can't afford to ignore it. And I don't know what that looks like. I don't know how it happens.
But, you know, it's very clear that, you know, Congress and to some extent, you know, I think, you know, not to make a pun, but the jury's still out on how far the judiciary will go.
As long as the actors in government that, you know, the people who have empowered to protect their rights are not acting to do that, then it falls to the public to do so. Again, I don't know what that looks like, but, you know, it will like ultimately the people are going to have to be the ones to say we've had enough. This has to stop. Yeah.
Judge Boasberg, who was involved in the Venezuelan deportation case, Mark, he is hinting at contempt of court or criminal contempt of court ruling, right? He has said there's probable cause to find the government in criminal contempt. Yes, a lot more than than just a hint. As you said, probable cause that government officials acted in criminal contempt, which is pretty much the most serious finding that a court can make.
Yeah, but then it would probably play out along the lines you described with regard to the Justice Department being asked to prosecute, unlikely to prosecute the marshals, unlikely to do something because they're under the supervision of the Justice Department and Pam Bondi. And then in that case, they try to get some kind of independent prosecution.
So, I mean, we keep sort of coming back to the same problem. So the federal rules do allow the court to appoint an independent prosecutor who could carry that case to completion, including potentially a conviction and sentencing. And then if federal marshals refuse to carry out that sentence, then the rules allow for the court to appoint another law enforcement officer, say an officer of Maryland law.
to carry it out. But these theories that we've been discussing that the Supreme Court has endorsed about sweeping executive authority, they may well stand in the way of that. And we've already seen some conservative scholars argue that Judge Boasberg wouldn't have the power to deputize private attorneys or other law enforcement officers because the executive authority
all resides in the president. And so you just sort of keep getting stuck in this trap of the Supreme Court's own making, where any effort to impose checks and balances on the executive branch all have to fall because of the Supreme Court's own sort of extreme and sweeping interpretation of executive authority as limiting any real checks on what the president does. Let me go to caller Dale and Cupertino. Hi, Dale, you're on.
Hi. My call was prompted by a comment of one of your guests made that the framers of the Constitution did not anticipate that the president would disobey the Supreme Court or action in a way that.
that was contrary to what they saw as the law. But I mean, the framers did put in the mechanism of impeachment, and I think you're just kind of glossing over that. And given what your speakers have said, I would say that just because the Congress is not doing or not yet doing what you want them to do, that doesn't mean that the system is broken. Yeah, I think that was you, Adam. Do you want to respond to Dale?
Yeah. So, I mean, what I said was not that the framers didn't anticipate the president acting lawlessly. What I said was that they did not. I mean, there's no way to anticipate creating a system in which of checks and balances in which there's just a refusal to check and balance. And so impeachment of the president would be Congress acting to preserve the rule of law. You know, that's a check that's built into the Constitution. But if Congress doesn't want to do that,
and the president is acting lawlessly, then obviously, you know, the system is designed does not work. This listener, Anita writes, it doesn't feel like we can wait until the midterm election. So much has happened so far and it's only April. Can non-Republicans in Congress form their own committees and investigations? Can they lead protests? Can state and local prosecutors go after people in the executive branch who are breaking the law?
We'll talk about how we move through this right after the break. We're talking now with Adam Serwer, a staff writer at The Atlantic, and Mark Joseph Stern, a senior writer for Slate, and with you, our listeners, sharing your thoughts and questions at 866-733-6786 on our social channels and at our email address, forum at kqd.org. I'm Mina Kim. Stay with us. Hilton brings you new ways to stay with experiences that let you capture the glory days. Introducing the Graduate Hotels.
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Welcome back to Forum. I'm Mina Kim. We're talking this hour about what Mark Joseph Stern, senior writer for Slate, has described Trump's defiance of court rulings as careening toward a head-on conflict between the president and the court with foundational principles of constitutional democracy hanging in the balance. He's one of our guests today, along with Adam Serwer, a staff writer for The Atlantic, and along with you, our listeners.
Joining us now is Mariano Florentino Cuellar, president of the Carnegie Endowment for International Peace and previously a justice on the California Supreme Court. Judge Cuellar, thank you so much for being with us.
Good morning, Mina. Nice to be on your show. Yeah. So I was reading a piece that you wrote recently called How to Survive a Constitutional Crisis. This was in Foreign Affairs. And you, I think, agree with the points that were just being made before that it is unlikely to see a meaningful challenge from the Republican-led Congress, also given that the majority is very worried about primary challenges that the president can try to create for them, those types of issues. And I think that's a great point.
So if that's the case, what do we do? What are the other elements, the courts obviously, but besides the courts, that can try to constrain somebody who is forcing a confrontation and defying court orders?
Thank you, Mina. So I think it's important to start with the recognition that the framers designed a system that was meant to allow elections to have consequences. And that's how our American democracy has evolved. The courage of our convictions, if we believe in democracy.
is that we, those of us who participate in elections and vote and live in America, have to accept the possibility that our preferred candidate will lose and the policies will change. And of course, it's important to recognize that the president's power is not infinite. A president has to faithfully execute the laws that's in the Constitution. President gets to propose the people that
She might want an office in key cabinet-type positions, of course, subject to Senate approval. And a president has particular power and authority not just to propose legislation or maybe tweak interpretations of existing law, but in foreign affairs and national security. So amidst all that, one of the points I make in the article is to remind our readers that
that it is crucial to recognize that we might disagree with certain decisions the president might make on things like withdrawing U.S. participation in the World Health Organization or, as has been playing out, changing the U.S. approach to Ukraine, which I know many of my colleagues at Carnegie find troubling.
But that's different from critiquing what the president is doing to potentially weaken the guardrails for our democracy. And those involve not only here to get to the core answer to your question, not only the Congress and the courts at the federal level, but recognizing that we have a structure that is a federation of states that are part of a single nation, but they have independent powers. So one thing we have to do is just be aware of the power of mayors and governors to litigate, to speak out, to shape the narrative.
that we also benefit from a very robust tradition buttressed by the First Amendment to have an independent media and ideas sector where people speak their minds, they publish things, they call it like it is. And then, of course, we have the courts. And it's crucial to recognize not only that these three guardrails continue to exist, even if they're being targeted in different ways, but that they also buttress each other at the end of the day if
If a client Congress were, for example, to try to restrict the jurisdiction of courts who cut their budgets, you've got media coverage, you've got governors and mayors that can speak out, you've got the public that can mobilize. Conversely, as the president of this administration might come close to saying, we don't think that this court decision is what we're going to follow, that there are ways for the media to cover that and for other actors in our political process to take the court decision seriously and hold the administration accountable.
Yeah, I appreciate what you're saying about the ability of state and local officials to be the ones who have carried things out. But as we're seeing in California, they seem to be very much checked by their dependence on federal money. Yeah, up to a point, I think it's important to recognize that a major part of our history as a country was when post-World War II, really in the Johnson administration, we began to
accept a system where states were more and more involved with the federal government and the federal government paid for crime control and urban redevelopment and education. And many folks on the left, the center left, I think embraced that as an important indication of how much the federal government
ought to be invested in redressing inequalities, for example. But I think the flip side of that has been it's not all a bad thing for the federal government to make investments in the country and work with the states. But it is also important for states not to become so dependent that that possibility of disruptions and federal funding really becomes a cudgel to limit the degree of state flexibility. However, there is one thing to note there that
Congress has enacted in many cases fairly specific procedures for what the federal government has to do if it's actually going to restrict funding. So one of the places where we're going to have a lot of public debate and courts are going to be involved is if, for example, the administration wants to withdraw funding from a state, take Maine, for example, on some dispute involving an educational issue. And then the question becomes, well, is the federal government actually following the procedures that Congress put in place?
What advice would you give courts understanding that they are dealing with, with federal court judges understanding the fact that they are dealing with a president who will look for any loophole or ambiguity in any kind of ruling? Well, rather than giving them advice, I'm going to make a descriptive statement, which reflects in part my empathy with judges and the fact that I lived through that experience. And I think one thing you take away from that is realizing that
The facts of a case, the law often ends up being very complicated and a real challenge in our system. But when we live through is the fact that it's easy enough for people to pick apart a decision, critique it, not just the people who might lose in court, but many who don't understand the nuances. And of course, courts are not in the business of giving press conferences or hiring PR firms to promote them. And so when asked to give our judges a degree of respect and appreciation for the role they're
playing and also, frankly, hope that high level public officials and folks in civil society don't start sort of unnecessarily threatening them in different ways. But I think it's fair to say that our courts over time have evolved to have an important quality, which is maybe an element of the independence they have. And that is they can be
pragmatic and recognize that it's often hard to implement decisions involving constitutional law or statutes, but they seem not to be discouraged systematically by the possibility that the executive branch will just say, well, you know, Alexander Hamilton said that the courts are the least dangerous branch because they can't directly tax, they don't have an army, they don't have a police force, so we're not going to do what the courts are going to tell us to do. Instead, I would point out, it seems to me that over American history, courts have been
thoughtful about the limits of their power, but also clear about the importance of calling it like it is and defending the commitments that society has made through law. And one indication of that is the recent willingness of the U.S. Supreme Court, 7 to 2, on the Alien Enemies Act litigation to indicate that they did not want the administration to proceed with a further removal of folks who were in transit at the time to leave the country. That doesn't mean the court will always land
in a place where everybody will agree. But I do think it suggests that so far, this administration indicates that it's reluctant to engage in a flat out direct confrontation with the U.S. Supreme Court. You know, Mark and Adam, I want to ask you, as we're talking about the courts and as we're talking about judges and justices, I want to ask you about the dissent in that Saturday ruling from Justice Alito and
Justice Thomas, you both seemed very concerned about it for different reasons. Well, Mark, I'll start with you. Tell me why you found it disturbing. Yeah, so I think that Justice Alito makes a lot of arguments about the law that are just flat out wrong. I encourage everyone to read Professor Steve Loddick's post sort of rebutting them point by point.
What upset me the most is that Justice Alito makes a factual assertion that I think is not borne out in the record at all. Justice Alito faults his colleagues for acting so quickly. He says the action wasn't necessary and claims that the government had told the lower court that it did not plan to deport any migrants on Friday or Saturday. That is not true. I got a transcript of the
court proceeding that he mentioned from the ACLU. And the Justice Department attorney, Drew Ensign, who is currently himself facing contempt of court for lying to Judge Boasberg in the past, he was very, very careful to hedge his statements in a great deal of uncertainty and to say that he was just being passed along some information, maybe not the whole story. He said that to his knowledge, the government didn't plan to send anyone out on Friday, but that it reserved the right
to deport people on Saturday that could have been as early as 12.01 a.m. on Saturday. And Judge Boasberg sort of lifted this up during the hearing and made it clear he was disturbed that these deportations were imminent. So for Alito to, I guess, misread that factual record and that transcript and try to assure readers that the court overstepped and acted rashly because, in fact, no one was at risk of being unlawfully deported, I just...
don't think that that meets the factual standard to which the justices should hold themselves. Adam, talk about your concerns. One of the things you brought up was that you felt like it was an example of selective proceduralism. Tell me what concerned you about Alito's dissent.
Yeah, well, I think Mark is right to highlight the factual error in Alito's dissent because, you know, that's not a small error because the entire idea here is that, you know, the Supreme Court is acting quickly because there is a possibility of irreparable harm.
And emergency and exceptions from usual procedures exist precisely to act in those situations where irreparable harm might occur. And to be clear, the irreparable harm we're discussing here is meant being sent to a gulag overseas and where they might not ever be retrieved because the administration is insisting that they have to do that even if a court orders them to.
And so, you know, Alito and Thomas demanding on the basis of something that was not true that the government – that the court follow its usual procedures in a situation where someone might end up losing their freedom forever as a result of the administration defying the law. I mean if that's not a justification for acting expeditiously, then I don't know what is.
And I think that Alito has been perfectly willing to depart from procedure in cases where the cause is one that's dear to him.
But I think the justices, and I think in general this is part of an issue with the ideological composition of the court and part of an issue with their own sort of legal experience, which is that these questions involving people who are at the bottom of our society in the sense of being subject to the hard edge of state power is just an abstraction for them. It's not something they think about very deeply or care about very much.
And so it just doesn't, you know, they are not capable of conceiving of those stakes in real terms the way, say, the attorneys from the ACLU were who were, you know, rushing to get the Supreme Court to act.
So I think, you know, functionally, what their procedural objection, if it had carried the day with the majority, would have done is that it would have allowed, as Mark described, the Trump administration to, you know, send these men overseas to El Salvador without, you know, without any interference from the Supreme Court if they felt like doing that, which is what the administration attorney actually said. If we want to do that, that's what we're going to do.
Mina, can I jump in here for a second just to add to that? So I think that's a very good point about how that procedural dispute played out. And to my mind, it reinforces one of the most interesting things to watch in the next few months as these court disputes play out.
The administration's position, not only in court, but rhetorically, will be that a dispute like the one that just played out in the Supreme Court is really about a narrow issue. It's about how much power the administration has to use a particular legal theory to remove people who shouldn't be in the country and, in fact, are threatening the country. But I think you will find in some of the judicial opinions that are written on the other side that
The the other frame will be this is actually about the role that courts play in protecting individuals in the United States from arbitrary power and one way to sum up the Constitution This is a little broad I would say but if you want to ask me like can you sum up in one sentence? What is the US Constitution mean? I would say well following a Revolutionary War with a royal power in Europe. I
We wrote a document that, however imperfectly realized over time, said people should not be subject to arbitrary coercion. That's really what it comes down to at some level.
And so at some level, what will play out both in the courts, but also in the public sphere and discussions people may be having in homes all over America is what does it mean for the court to play a sensible role to prevent the use of power in an arbitrary course of way, while at the same time giving the president some leeway to play his appropriate constitutional role?
I just want to have listeners. Sorry, I just do a quick ID here. Let me remind listeners, you are listening to Forum. I'm Mina Kim. Adam, go ahead.
So I just want to add one more thing. Alito's dissent says, you know, the executive branch should follow the law and the court should follow its usual procedures. And I thought that was interesting because what he was sort of saying in doing that is he's distancing himself from the idea that he substantively supports the ability of the administration to send people to a prison abroad without due process.
But once you take away the fact that the administration – that rests on the idea that the administration was following the court's ruling, which as Mark points out, it was not. And Justice Alito misinterpreted or misread what the administration attorney said. And once you take that out, then following the law in this case, like it simply justifies the majority's position rather than his own position. I just want to –
Justice Ware, you talked about how it's so important for the courts to do their due duty, right? And for the courts as well to be robust and that they are held up by really the public's faith in their rulings and the norms of people following the court's rulings. But what do you think about
The fact that, you know, the court system has its credibility has been tainted by the ideological, the strong political nature of the court, especially in the last several years. You know, like, to what extent do you think that that will be a robust check on Trump's, you know, assault on the Constitution?
Yeah, that's fair. Well, let's just remember that it is not a new thing in American history for courts to be very heavily criticized.
But two points about this. Number one, I would say, well, nobody can deny that the harshness sometimes inside the judiciary as judges take pot shots at each other, but also about the judiciary and judicial confirmations and so on, for example, has gotten more intense. But the first point I would make is that it's important to realize that in some ways, the very fact that the Supreme Court of the United States has grown more ideologically sort of pushed to one side,
can sometimes oddly be a resource for the court when the court is able to speak forcefully to push back on some arbitrary executive action. Because it's not like you can easily say, well, that's a court that's sort of extremist on the left, and that can be a powerful signal. And I suspect that that is part of what is playing out right now, that, you know, the president, whatever his disagreements with the judiciary, cannot say that the U.S. Supreme Court doesn't have a number of
conservative justices that form a majority at some level. The second point is that we ought to remember that courts of last resort in our system often get hard cases that are not always straightforward from a purely sort of like scientific, technical kind of legal perspective. They end up having to make some judgment calls where the very edges of the law get a little bit blurry. And this is where
It is important for them to both bear in mind the limits of their power, but also the important role that they have to play in keeping the public narrative and the public system effectively focused on preventing arbitrary action. And I think that's why you get seven, two decisions when it comes to this attempted removal of folks under the Alien Enemies Act. Yeah. We have less than a minute left.
So I just wanted to ask you this one last thing. We had a listener earlier say, yes, we're in a constitutional crisis and yes, we're in a dictatorship. You, of course, have taken great pains to remind us that we are not living under an authoritarian regime. Why is it so important to remind us of that? Oh, I think it's really reckless to use language like that because it plays
plays down the extent to which most Americans have the power to act in strategic and constructive ways when they disagree with the state. And I don't want to leave aside that some people feel very concerned, for example, if they're immigrants or if they're international students. But the fact is that
Most Americans, whether they work in nonprofits or the private sector, can get their legitimate work done, even if they might sometimes fear a degree of backlash. They can litigate. They can speak up. They can donate to causes they believe in. And I think that's a critical part of our system. Mariano Florentino Cuellar.
Former Justice on the California Supreme Court, thank you so much for talking with us. My thanks as well to Mark Joseph Stern of Slate and Adam Serwer of The Atlantic and to Mark Nieto for producing today's segment. Thank you, listeners, who've been listening to Forum. I'm Mina Kim.
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I'm Jorge Andres Olivares and I'm hosting a new show, Hyphenacion. Unlike many other hyphenated Latinos in the U.S., our cultures and our communities inform our choices, like with money. We had that pressure to be the breadwinner. Religion. I just think Jesus was what we would now define as Christ.
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