P.G. Smith Author

I never intended this to be a political blog, but in a mere 100 days Donald Trump has singlehandedly changed my focus from almost everything to saving my country. I’m not sure democracy or our Constitution will survive this administration. Will the courts protect us from that threat?

I am happy to say that I think they will. At least, I think they will try (which is more than the Republican majority in Congress is doing.) It seemed for a while like no one would do anything to stop Trump’s multiple illegal usurpations of power. Congress still has done almost nothing and the courts did nothing for months, or so it seemed.

This worried me a lot; but now I realize (something we all know all too well) that this is because legal action takes time. Courts (and legislatures are slow. A court can’t act until someone brings a case to it. There has to be a plaintiff with a complaint. That starts out in the lowest court (in the federal system, it is the district court, then the circuit court (or appeals court) and then occasionally the Supreme Court.) So, the courts were following the law, going through the steps, and that takes time.

In the meantime, Trump was doing enormous amounts of damage. But the reason he could “accomplish” so much in only 100 days was that he didn’t bother to do any or much of it legally. That’s now catching up with him. Courts have now reversed his efforts to fire probationary federal workers (without consulting Congress), or to freeze billions of dollars of foreign aid (appropriated by Congress), or to void contracts (already approved by Congress), or to gut some agencies (overseen by Congress). Notice a pattern?

And Trump’s ongoing court battles over deportations have become daily news. Yesterday, I am so happy to report, that our Supreme Court in a 7-2 decision, blocked a Trump administration request to resume rapid deportation of Venezuelan nationals under an archaic law, the Alien Enemies Act of 1798, which allows such deportations in times of declared war or invasion. In this case four conservative Justices (along with the three liberals) supported the decision that: the government cannot take people off the street and deport them to a foreign prison without due process (i.e. without notice, a hearing and representation to ensure the justice and accuracy of the case against them.) Clearly, the right decision. We don’t have a nation of laws without it.

At the same time, the case of Kilmar Abrego Garcia has become a cause Celebre because it demonstrates that mistakes can be made. Abrego Garcia was arrested and shipped off to prison in El Salvador without due process and against two court orders because of an “administrative error” which the government admitted. But now the government won’t bring him back; says it can’t.

Judge Xinis of the Maryland District Court is considering contempt proceedings. The Fourth Circuit Court, which rejected the government’s appeal said, in the opinion of respected, conservative Judge Wilkinson:

“It is difficult in some cases to get to the very heart of the matter. But in this case, it is not hard at all. The government is asserting a right to stash away residents of this country in a foreign prison without the semblance of due process that is the foundation of our constitutional order. Further, it claims that because it has rid itself of custody [by deportation] that there is nothing that can be done. This should be shocking, not only to judges, but to the intuitive sense of liberty that Americans far removed from courthouses still hold dear.”

After months of worry, while watching unchecked lawlessness, it is heartening to be reminded that when it comes to bedrock principles, liberals and conservatives agree. This is beyond politics. We are a nation of laws. We believe in law and order. We might not always achieve it, but it is a basic principle for which we strive.

That’s what that 7-2 Supreme Court decision stands for. That’s what district courts and circuit courts across our nation are standing for when they issue temporary restraining orders to stop the government from sending people to foreign prisons or remote detention centers without due process. This is beyond politics. It’s not that immigrants cannot be deported, but that they cannot be deported without a hearing. This is a law that protects all of us. By violating it, Trump has gone beyond politics to illegality and the courts are calling him on it. We should all be encouraged by this.

With so much division and discord, let’s remind ourselves that on basic principles we agree. We all believe in democracy and the Constitution. (It’s a tiny, tiny group that doesn’t.) That’s what the courts are now upholding. This is cause for hope. Let’s hope Trump will comply.