The Final Guardrail Removed

 

                                        

The Final Guardrail Removed

Congress has kowtowed to the new emperor as the MAGA majority accepts Donald Trump’s nation-destroying agenda, parrots the President’s empirically false statements as if they were the gospel and has raised the rich and connected above the hoi palloi, the clearly unworthy “most of us.” So, the checks and balances of a co-equal three branch of government (legislative, executive and judicial) watched Congress take itself out of its Constitutional role as our nation’s primary guardrail against presidential excess and overreach, even allowing its traditional right to declare war slide into unilateral control by the President. On June 27th, the last day of the current term of the United States Supeme Court, we watched a rough-hewn 6-3 majority ruling on a stay in the citizen birthright question, blow away the last guardrail, effectively making unconstitutional orders from the President exceptionally difficult to challenge. Trump vs Casa, Inc.

The Supreme Court, which had ruled dramatically differently against Biden executive orders (e.g., student loans), effectively continued litany of pro-Trump rulings – from presidential immunity from criminal prosecution to allowing presidential deportations of individuals to foreign nations other than the deportees’ homelands (even to incarceration in countries on the State Department’s “do not travel” watch list) without a hearing. The basic ruling tells us that an interim judicial decision just might allow an egregious constitutional violation to remain in practice until the judicial branch makes a final ruling, perhaps more than a year later.

But that’s not the most controversial aspect of the Court’s ruling, articulated in a majority opinion by a Amy Coney Barrett, effectively granting MAGA’s most cherished goal in stopping courts from reviewing presidential executive orders: banning individual federal trial court judges from issuing national injunctions… that universal injunctions "likely exceed the equitable authority that Congress has granted to federal courts." And since this was a case examining whether the President could unilaterally interpret (and partially negate) the citizen birthright set forth in Section 1 of the 14th Amendment, that question remains unresolved.

Effectively, the Court held that absent extraordinary circumstances (the Court’s version of “never”), federal trial judges were limited to offer decisions and remedies solely to the plaintiffs in the case at bar… no more national injunctions. The obvious result could be a cacophony of conflicting constitutional interpretations depending on where the case was brought and decided. Concurring opinions noted that, under Federal Rule 23, plaintiffs could still seek to certify a “class” and convert the instant case into a class action embracing similarly situated plaintiffs in different jurisdictions. What the concurring opinion did not note was the resistance in federal courts against certifying classes in general and the extraordinary expense in finding and aggregating plaintiffs across various jurisdictions.

In a rare instance, Justice Ketanji Brown Jackson read her scathing dissent aloud as the decision was announced. In an equally rare event, Coney Barrett has derided Jackson’s dissents as personal failures to understand her role as a Supreme Court justice. But in the opinion of dozens of constitutional scholars, Jackson’s efforts are beyond justified… Coney Barrett’s logic is the one on shaky ground.

The strange part of this MAGA effort to repeal constitutional rule of law is the belief that this case represents a permanent precedent instilling MAGA power forever, since the President could spew a firehose of executive orders restricting who can vote, how votes are counted and how votes he does not like can simply be voided or somehow overruled… while stopping such undemocratic actions is now exceptionally judicially difficult to negate. Decisions may vary from state to state. The MAGA efforts that successfully contained some of Biden’s executive orders are now not applicable to containing Trump’s obvious excesses. And though, in theory, these new rulings would apply to a Democrat elected President, there is this feeling of MAGA Schadenfreude under the assumption that the Supreme Court is on their side, so perhaps they can prevent a national election in favor of a Democrat from ever happening.

The net effect of this decision is to balkanize where such constitutional rulings apply and where they do not. As different states follow different rules, and as the timeline for any case to reach the Supreme Court is often measured in years, the judicial guardrail against presidential autocracy has been rent asunder. Could US citizens opposing Trump and his policies be deported by executive order as unlawful rulings remain unchecked during the stays inherent in this new appellate process? Does every such violation mandate a separate trial? Who pays all those lawyers?

I’m Peter Dekom, and I can safely say that the United States of America is no longer a representative constitutional democracy.