This is the third post in a row on the same issue.
Adam Liptak wrote in the
NYT this morning about the defiance of Judge Boasberg’s order “renewing fear of
a constitutional crisis.” He quoted a number of legal analysts on the
situation.
Jamal Green, law
professor at Columbia:
“If anyone is being detained or removed based
on the administration’s assertion that it can do so without judicial review or
due process, the president is asserting dictatorial power and ‘constitutional
crisis’ doesn’t capture the gravity of the situation. … A president who
does whatever he wants until someone stops him is a constitutional crisis
whether or not he is sometimes stopped.”
Aziz Huq, law professor at
the U of Chicago argued that it’s more useful to say that America is moving
into a different kind of constitutional order where officials are no longer
bound by the law. “The law, in other
words, becomes a tool to harm enemies, but not to bind those who govern.”
Andrew McCarthy, former federal
prosecutor:
“It should go without saying that, at the
Justice department, the rule of the road is that, in the absence of a true
emergency, the government complies with judicial orders … until it can get them
reversed – either by the issuing judge or a higher court. It’s all right to
complain bitterly about court orders, but they are not to be ignored, much less
knowingly flouted.”
Pamela S. Karlan, a law
professor at Stanford:
“The problem with this administration is not
just the acute episodes, like what’s happening with Judge Boasberg and the
Venezuelan deportation. It’s a chronic disrespect for constitutional norms and
for the other branches of government.”
Ironically just last
week President Trump in his speech at the Department of Justice said, in defense
of Judge Aileen Cannon (who dismissed one of the charges against him last year),
that “it has to be illegal, influencing
judges.” Then this week he calls Judge Boasberg a “Radical Left Lunatic of a Judge [who] should be Impeached!!!” In
Trump’s mind, judges who rule in his favor should be protected from criticism
while any who rule against him should be impeached. Hypocrisy much?
In an interview with Jennifer
Rubin for the Contrarian Adam Kinzinger said “…this is not a battle of beliefs; not a battle of …policy… This is
simply a battle of ‘Do you believe in democracy or don’t you?’.”
What happens next? Will
Judge Boasberg cite Tom Hohman, Pam Bondi, and others for contempt of court? If
so who will arrest them? It’s the job of the United States Marshalls to enforce
judges’ rulings but their leaders have been replaced with Trump loyalists.
In the comments section of
Liptak’s article someone posted the relevant law on this question:
28 U.S.
Code § 566(a) provides,
“It is the primary role and
mission of the United States Marshals Service to provide for the security and
to obey, execute, and enforce all orders of the United States District Courts,
the United States Courts of Appeals, the Court of International Trade, and the
United States Tax Court, as provided by law.” If the federal marshals refuse to
do what they’re told, the federal courts can use local police and sheriffs to
bring the contemnors into court. These individuals are responsible to the court
alone.
Another comment pointed out that contempt is a civil action so Trump’s pardon will not apply. Also that following an illegal or unconstitutional order is in itself a crime if you know, or should know, that it is wrong.
One of the parties
involved must petition to have the case referred to the Supreme Court. If the
DOJ does not then the ACLU would have to. Otherwise the situation will be just
left hanging.
Sources
https://contrarian.substack.com/p/the-constitutional-crisis-may-be
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