By Stephen Collinson, CNN
US President Donald Trump. Photo: Brian Snyder/Reuters via CNN Newsource
Analysis - The most chilling aspect of a new White House claim of boundless executive power is not whether officials ignored a judge's order to halt deportations of Venezuelan gang members. It's that some senior Trump administration aides seem not to care if they did. There are even claims that some judges are simply too junior to question the actions of a president.
The furore caused by the administration's peacetime use of wartime powers under the 18th-century Alien Enemies Act is the latest, and perhaps most overt, sign of President Donald Trump's sense of omnipotence. He's also betting voters will reward him for, in his view, keeping them safe with ruthless immigration enforcement rather than recoil from his challenges to the Constitution.
The growing showdown is so critical because the courts are one of the final checks on Trump's power after he crushed opposition in the Republican Party and helped shut the Democratic Party out of any power in any branch of government in Washington.
The administration's transformational willingness to test bedrock constitutional principles was laid bare in a stunning interview of senior White House adviser Stephen Miller with CNN's Kasie Hunt.
Miller argued that since Trump was flexing his powers as commander in chief, the courts had no right to hold him to account, defying one of the tenets of American democracy upheld through the three branches of government. He said the Alien Enemies Act, which has a dubious historical legacy, was "written explicitly to give the president the authority to repel an alien invasion of the United States." Miller added: "That is not something that a district court judge has any authority whatsoever to interfere with, to enjoin, to restrict, or to restrain in any way."
Putting aside the White House claim that the United States is subject to an invasion by Venezuelan gang members - which rests on questionable legal ground - a senior aide to the president is essentially arguing his boss has absolute power.
"You can read the law yourself," Miller said. "There's not one clause in that law that makes it subject to judicial review, let alone district court review."
'I don't care'
Miller's certitude was mirrored Monday by Trump's border czar Tom Homan, who expressed contempt for the notion that Trump's border crackdown could be constrained.
"We're not stopping. I don't care what the judges think. I don't care what the left thinks. We're coming," Homan told Lawrence Jones of Fox News.
The idea that the White House would ignore what judges say threatens the most basic building blocks of constitutional government that every American kid learns in civics class.
The administration's mindset infuriated the judge in the deportations case, who is investigating whether the White House ignored his orders Saturday to halt the deportations of expelled alleged gang members and return flights carrying them to the US.
The administration is arguing, among other things, that it didn't violate Judge James Boasberg's order from the weekend since his oral order from the bench said the government must turn around planes carrying individuals subject to Trump's proclamation around, but his written order did not.
An exasperated Boasberg summarized the DOJ's reasoning as: "'We don't care, we'll do what we want.'"
Boasberg gave the DOJ's lawyers until Tuesday to come up with data about the timing of the deportation flights that they refused to provide on Monday.
"This is a showdown. This is akin to inter-branch March Madness," former Federal Judge John E. Jones III told CNN's Kaitlan Collins.
Constitutional experts said Miller's argument clashed with the landmark Supreme Court case Marbury v. Madison, which established the high court's authority by finding among other key principles that the actions of the executive branch are subject to judicial review.
"The whole point of Marbury v. Madison … is that you go first to the district court for federal questions and questions of constitutional law, so he's not understanding that," said Corey Brettschneider, a Brown University professor and host of the podcast "The Oath and the Office." "If you think that the Supreme Court can ultimately opine, then you think the district court can opine on these matters."
CNN legal analyst Elliot Williams also narrowed in on Marbury v. Madison. "The Supreme Court rules in 1803 that (it) has the authority to review the actions of the executive and legislative branches of government. … The president's actions can be reviewed by a court - that is basic American history."
Williams went on: "The idea that somehow there's a class of actions that cannot be reviewed is nonsense. Everybody who lived through the 2000s knows that the war on terror was litigated in the courts over and over."
Trump believes there are few limits on his power
Trump has long advanced the belief that the presidency confers ultimate power, even though this conflicts with the principles of a nation built on revulsion of rule by an absolute monarch.
"I have an Article II, where I have to the right to do whatever I want as president," he said in July 2019, during his first term.
Article II of the Constitution lays out the duties of the presidency - but it does not confer unfettered executive authority.
People don't normally reach the heights of the West Wing without understanding the basics of history and American jurisprudence. So the comments by Miller and Homan seem to hint at a second-term corps of officials keen to fulfill Trump's dreams of kingly might.
"Where it gets scary and this is what was so frightening about the interview is when he starts saying 'I don't care what the courts say - we have the right to do it anyway' and he wouldn't even commit to following even a Supreme Court order' - that's why we are so obviously in a constitutional crisis," Brettschneider said.
A political crisis is also gathering
The battle over the deportations to a notorious prison in El Salvador is only the latest sign that the administration plans to claim almost limitless presidential power on issue after issue two months into Trump's jarring second term.
Trump is betting that his Republican allies will do nothing to rein him in, that his Democratic foes are too weak to slow him and that procedural traditions in the courts can only rule on his disruption in retrospect.
"We are unafraid to double down, and to take responsibility and ownership of the serious decisions that are being made," White House press secretary Karoline Leavitt said Monday. "The president was elected with an overwhelming mandate to launch the largest mass deportation campaign in American history, and that's exactly what he is doing."
Constitutional and legal fights can often feel remote to the more pressing daily concerns of citizens outside Washington - as Democrats found to their cost last year when they based at least part of their election campaign on the need to defend institutions that many Americans feel are not responding to their needs.
But the outcome of the migrant flights drama - and challenges to other far-reaching administration initiatives, such as the attempt to overturn birthright citizenship and Elon Musk's evisceration of the federal government - will be critical to deciding how America will be led and what kind of country it will be for the next four years and possibly for years afterwards.
In a White House dominated by an all-powerful commander in chief, officials harbor a conception of the Constitution that most Americans would not recognise.
When Hunt raised the separation of powers in relation to the use of the Alien Enemies Act to deport migrants - apparently without due process - Miller replied: "Yes, separation of powers. This is the judiciary interfering in the executive function."
- CNN
