There’s so much more. The revocation of birthright citizenship. The attempted federal spending freeze. The attempted firings of agency heads. The ordered removal of federal employees with civil service protections. That birthright citizenship order—contravening the plain text of the Constitution—was issued on Donald Trump’s very first day in office. Arguably, the constitutional crisis started right then and there. Since, three different judges have blocked the order.
Let’s go back in time. First of all, what was the Alien Enemies Act, whose authority Trump invoked to detain the Venezuelans? It was part of the Alien and Sedition Acts of 1798, passed by Congress under President John Adams. If you learned high-school history the way I did, you were told that passage of that law was, to put it mildly, not one of America’s finer moments. Passed as the young United States stood on the brink of war with France, with various French nationals milling about our cities, it gave the president extraordinary emergency powers. The next president, Thomas Jefferson, allowed all aspects of the broader law to expire except for the Alien Enemies Act, which allows the president to declare certain unnaturalized persons as “alien enemies.”
Meanwhile, the state secrets privilege has its roots way back in Aaron Burr’s treason trial, when the government suppressed a letter from a colonel to President Jefferson on the grounds that the letter contained state secrets. The Supreme Court didn’t speak on this until 1953, in United States v. Reynolds, which saw the first formal recognition of the privilege: Namely, that evidence in court proceedings could be excluded if the government says its disclosure would reveal state secrets. It was invoked a few times by George W. Bush after 9-11.
Simultaneously, of course, Trump is demanding that Congress impeach Boasberg, calling him a “radical left lunatic” and a “local, unknown” judge. He’s the chief judge of the U.S. District Court for the District of Columbia. He was originally elevated to the federal bench by George W. Bush. John Roberts appointed him to a term on the Foreign Intelligence Surveillance Court. He once ruled against Hillary Clinton in a case involving her emails. And: He once ruled for Trump in a case involving his tax returns.
It wasn’t some lefty who said, of these breaches, that Trump “has declared war on the rule of law in America.” That was conservative retired judge Michael Luttig.
And if the House votes to impeach Boasberg, do we really think that won’t chill and intimidate other judges? We don’t have to wait for Trump to defy the Supreme Court to think it’s a constitutional crisis. We are in crises, plural, right now. And it’s only been two months.
This article first appeared in Fighting Words, a weekly TNR newsletter authored by editor Michael Tomasky. Sign up here.
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