Greg Sargent: This is The Daily Blast from The New Republic, produced and presented by the DSR network. I’m your host, Greg Sargent.
Leah Litman: Thanks for having me.
Litman: I think it’s a really significant loss. One thing is it happened in the U.S. Court of Appeals for the Fifth Circuit, one of the most conservative courts in the country. It was a majority opinion written by a Republican appointee. And as you say, this is one of his most abusive and, I think, chilling exercises of authority, summarily expelling people to a foreign torture prison where they experienced severe abuse and torture. It is also significant because the premise of his proclamation was that we are in a state of some emergency, and everyone familiar with the history of fascism and autocrats knows that oftentimes it is declarations of emergencies that serve as the basis of the groundwork for authoritarianism and autocracy. And I think this is one of the instances where he tried that path, and here you have a court of appeals shutting him down—finding that there is just no way, no sense in which this alleged gang operating out of Venezuela is remotely, remotely similar to an armed organized army entering the United States.
Litman: Yes, exactly. Whether it is deploying the National Guard, whether it is declaring that the fentanyl crisis is such an emergency that it gives the president emergency extraordinary powers with respect to the economy, it is across the board looking for ways to incorporate more shows of force in an escalated way for the president to impose his agenda.
Litman: I have to say I am very happy with the opinion in the Harvard case. I am less happy with the opinion in the tariff case because the way the court resolved the tariff case was not to dive in to this pretext of an emergency. Instead, it was just to declare that whether or not there is an emergency, the president just lacks the authority to institute these tariffs or these kinds of tariffs. And I think that that skirts what, as you say, is the key issue in this case and others, which is the underlying claim and premise is bullshit. He is creating an emergency in order to justify emergency powers. And so I wish that the Federal Circuit had been willing to examine that part of the challenge. The Harvard opinion, I think, is a tour de force. It utterly demolishes the, again, pretextual bullshit suggestion that this was ever about antisemitism. It is, as the judge found, just a thinly concealed pretext for an ideological war on higher education and elite education.
Litman: Yes. I think it is very heartening that the lower federal courts are still willing to do their jobs. And for people who are skeptical about what law can do in the situation we find ourselves in, particularly with the Supreme Court such as it is, I think these decisions and opinions, their ability to develop the facts, to expose the facts right, to make plain what it is we are witnessing—that is all very powerful, even if down the road the Supreme Court blows it up for whatever garbage reason they will invent.
Litman: I do think that is part of these cases. I think that came through very clearly in the Harvard opinion. I think that also came through pretty clearly in the Alien Enemies Act, or AEA, opinion. It is possible it could surface eventually in another round of litigation over the tariffs, although who knows whether that will happen. But I do think that this array of challenges is very much getting at whether, and to what extent, courts are willing and able to review a president’s obviously false declarations of emergencies. So much of our law is premised on the notion that the president, the executive branch, the legislature—they’re just in better positions than the courts to determine the facts. And courts should ordinarily defer to the executive branch and afford them what’s called a presumption of regularity, the idea that they are operating according to normal processes and in good faith. But I think if anything, the last however many months we’ve been dealing with this and in all of this litigation is really testing the ability and willingness of courts to recognize when that presumption isn’t warranted, [when] to call a spade a spade, when to actually admit we are not living in normal times.
Litman: Yes, exactly. Because if he can invent the rationales, if he can just decree what reality is, that gives him unlimited power. Then it wouldn’t matter what the facts actually are; he gets to declare them otherwise. It doesn’t really matter whether they’re actual emergencies because he can just make them up. And so, yes, this is absolutely core to his project. I think it is oftentimes a part of the rise of authoritarianism: the power just to declare that blue is red, the sky is green, and whatever else suits their whim or their agenda.
Litman: Yes, it is very encouraging. I think the lower federal courts are really doing their jobs in the face of considerable adversity not just from the administration but also from the Supreme Court. And I think that bears mentioning and appreciating.
Litman: One First Street.
Litman: To date, nothing good has happened, and I don’t know that we should expect that that’s going to change. So what will happen? Honestly, my guess is the administration probably will lose some of these cases in the Supreme Court, but they’re going to prevail in others. And in some respects, the cases that I am most concerned about are those that turn on the facts because this Supreme Court, like the Trump administration, has been all too willing to just ignore the facts, play fast and loose with the facts, and invent alternative versions of the facts when the actual facts aren’t convenient to them. So I am worried about their willingness to just ignore basic rules of judicial procedure, like respecting the trial court’s findings of fact, and I am curious to see whether that aspect of their decision-making thus far continues.
Litman: Yeah. So three things I would say there. One is at this point, the Trump administration’s near-unbroken string of victories in the Supreme Court makes pretty clear that this court’s underlying sympathies are with the Trump administration. When the court is forced to make these fast off-the-cuff determinations, their instinct—when they’re shooting from the hip—is that the president gets to do this and the president’s agenda is fine. I think that intuition should be very troubling—that that is their assessment of reality.
And third, as I was alluding to, this court is totally fine making up facts. Neil Gorsuch wrote a majority opinion in which he basically invented a false reality about the facts of the case involving a coach who prayed at a public school. So they’re not above doing the same bullshit.
Litman: So I agree with you on the Alien Enemies Act. I think that they will probably side against him, [though] I’m not super confident in that. The tariffs, I’m just a little nervous. And I say I am a little nervous because I’ve already seen seeds in Brett Kavanaugh’s opinions laying the groundwork for him to avoid applying the various legal doctrines that he and the other Republican appointees applied to the Biden administration to limit some of their regulatory initiatives. The Supreme Court invented this legal rule—the Major Questions Doctrine—that basically said agencies can’t do these big significant things when they are exercising authority delegated to them by Congress. But in opinions at the end of last term, Brett Kavanaugh was like, Well, maybe that rule just doesn’t apply in foreign affairs.
Litman: Right. And so they’re just gerrymandering the law potentially. Exactly.
Litman: I think it’s up in the air. I’m absolutely not going to say this one is a sure deal. But if I had to guess, that’s my instinct right now.
Litman: We know that this administration is not going to stop testing the limits of their power. I think if they get any yeses, they will take them and run with them and try to rely on those statutes or those courses of action more to try to replicate them. So I think giving him the A-OK on any of these bullshit exercises, claims of emergency, is very dangerous because it signals to him this strategy is sometimes going to work. And their internalized lesson is if you throw enough shit at the wall, some of it is going to hit. So even a mixed record at the court based on some of these pretextual claims of emergency, I think, will probably embolden them.
Litman: Thanks, as always, for having me.
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