How the Trump administration’s “shock and awe” approach has resulted in its litigation being shockingly awful

22nd April 2025

How the United States constitutional crisis is intensifying

Maundy Thursday, 2025

And what the US government should realise about a cavalier approach to obligations

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At the beginning of the current constitutional crisis in the United States there was a word, and that word was “Oopsie”.

This was a word in the social media post of the El Salvador president when the first deportations took place from the United States.

This was then re-posted by the actual United States Secretary of State from his personal account.

This re-post signified that at the top of the United States executive there was not only a lack of seriousness about court orders but a willingness to show that lack of seriousness publicly.

And it was that moment that it became plain that there was not only a tension but a contradiction between the attitudes of the executive and the judges.

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Others may date or time the crisis from another starting point – there is no great science in this, and different people can have different views. Just like different people can have a view on when a storm starts, though there will be a point where most people would agree when a storm is happening.

Most people, who have an opinion about such things, would probably accept there is now a crisis in the constitutional arrangements of the United States.

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Of course, the United States government has not publicly said “we are not acting constitutionally”.

As the eminent jurist Mandy Rice-Davies might have put it: they wouldn’t do, would they.

It is instead for those involved and looking on to assess whether certain conduct is constitutional, or not – and whether there is a constitutional crisis, or not.

And from the perspective of this English constitutional law blog there is now not only a crisis, but a crisis which is intensifying.

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There are broadly two strands to the current crisis in respect of the deportations to El Salvador. In general terms they can be seen as the internal and external strands.

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The internal strand is about the compliance of the United States government with the order of the federal court that the planes should have turned round at the time of the initial restraining orders.

Although the government has successfully appealed whether those orders were appropriate – and that a different legal remedy should have been used – the temporary restraining orders still should have been complied with.

In the United States as in the United Kingdom the orders of the court are to be complied with, regardless of whether the party affected thinks they are wrong or unlawful.

The judge dealing with this case has now stated that there is probable cause to show that the United States government was in contempt of the court in refusing to turn the planes around.

The executive must now either “purge” (wonderful word) their contempt or provide information, which may in turn lead to sanctions.

At this stage it does not seem clear whether any sanction – if it is for criminal contempt – is within the scope of things that can be pardoned by a president.

Few if any have a good idea of what will happen next.

And as this blog has averred before, that is in the nature of crises: if one can forecast what will happen next then it is not a crisis.

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The second strand is about the case of one particular individual, Abrego Garcia, who was wrongly and unlawfully deported to El Salvador.

He is now in the infamous mega-prison.

The United States say that it is not within its power to order his return, as he is now outwith the jurisdiction.

El Salvador say that they do not have the legal power to insist that the United States accept his return.

In a strict, narrow technical sense, both these propositions are probably correct – and, if so, that is intentional.

It seems the whole arrangement has been engineered – indeed gamed – so that the unfortunate individuals fall between two jurisdictional stools.

But a federal court has ordered that the United States “facilitate” his return, and this order has been unanimously approved by the Supreme Court.

This blog has already explored the issues about such injunctions generally – and what the word “facilitate” would mean in particular.

Yet whatever the word means in this context, it must mean something.

The United States government, however, ain’t doing nothing.

Even if (somehow) there is no formal mechanism in the agreement with El Salvador for the return of individuals (and the government are refusing to disclose this “classified” agreement), few would doubt that a formal request could be made and an offer of assistance made.

But the government is instead coming up with increasingly implausible definitions of “facilitate”.

Again, as with the internal strand, it is not clear what will now happen and how this matter will now unfold.

And again, that is because the United States is in a constitutional crisis.

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Crises – constitutional or otherwise – are not necessarily dramatic, at least not immediately.

The effects of a crisis can be profound but quiet: a general dislocation leading to unpleasant ongoing consequences.

So there may not be grand gestures and civil unrest and conflict (though there can be). But there will be destabilisation, of one kind or another.

And that destabilisation may not be that which the government is hoping for.

The United States government should bear in mind one thing about being cavalier in its attitude to the constitution.

Such an attitude did not end well for the cavaliers.

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Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.

A note about injunctions in the context of the Abrego Garcia case

14th April 2025

What courts can and cannot order – and what those injuncted can and should do

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In the United States the constitutional crisis seems to have intensified overnight, with the US government appearing to flout an injunctive order of the federal court to facilitate a deportee’s return – an order which has been upheld 9-0 by the US supreme court.

The case is that of Kilmar Abrego Garcia (as you can see from that Wiki page, his name has various versions, and this is the version which is preferred on that site, and it is there shortened to Abrego Garcia, which is also how the courts refer to him).

On 15 March 2025 he was unlawfully removed from the United States by the US government and deported to El Salvador.

The removal was unlawful as it was contrary to a court withholding order – and the US government has openly admitted that the removal was a mistake.

Abrego Garcia is now in the notorious Center for Terrorism Confinement (CECOT) in El Salvador, despite him not having any criminal record or other determination against him. He has not even been charged with anything.

On 7 April 2025 a federal court ordered that the US government “facilitate and effectuate” his return.

On 10 April 2025 the US Supreme Court unanimously upheld this order in respect of facilitating his return – though the court also held the term “effectuate” was unclear and required clarification.

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Pausing at this point, why did the federal court in Marlyand not simply order the US government to return Abrego Garcia?

Why even add the words “facilitate and effectuate”?

Why not just say that the US government is ordered to facilitate and effectuate the return of Abrego Garcia?

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Here we have to look at what injunctions can and cannot do.

Injunctions are powerful orders of any court.

An injunction typically fixes upon person [x] and if that person does not comply with the order, then [x] is in contempt and can be punished by the court.

The historical roots of the injunction in England go back to the old days of equity where the court, on behalf of the crown, would order that a person act in accordance with their (supposed) conscience – to do what was conscionable.

Of course, like a lot of equity, it was a fiction – those injuncted may or may not have any conscience about doing or not doing something – but that was the legal theory.

It is an order to ensure a person does what the court considers they should be doing.

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In simple cases, an injunction will be along the lines of [x] should or should not do something.

The assumptions here are that [x] is subject to the jurisdiction of the court and what [x] is being ordered to do (or not do) is within the control of [x].

But sometimes things can get more complicated.

What if [x] is not subject to the jurisdiction of the court?

What if [x] is being ordered to do something outside of their control?

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Consider the following situation:

[x] is in control of another person [y]

[x] removes [y] from the jurisdiction of the court by deporting [y] to country [z]

[x] no longer has control of [y]

[z] now has control of [y]

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In this situation the court cannot order [x] to return [y] because [x] no longer has control of [y]. Returning [y] is no longer within the power of [x].

But the court also cannot order country [z] to return [y] because [z] is outwith the jurisdiction of the court.

Therefore the court cannot simply order [x] to return [y].

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But what happens if [x] has acted unconscionably? Is the court impotent?

Well, the court can order [x] to do what they can to return [y].

In England, for example, a court may order [x] to use their best endeavours to procure the return of [y]. [x] may not be capable of being ordered to return [y] but they can be ordered to do everything they can do.

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Going back to the Abrego Garcia case, the federal court was no doubt aware that they could not simply order his return.

That is why the court ordered the US government to facilitate his return. The court also ordered the US government to “effectuate” his return, though for many this is a less clear word, though it is not absolutely unclear.

But the word “facilitate” was probably enough – anything covered by the one word would generally be covered by the other.

If the US government, for example, had contractual or other powers to insist to El Salvador that Abrego Garcia be returned, then that should be done.

The fact that he is outside the jurisdiction of the federal court does not mean the US government can now just shrug and not do anything.

The US government is required to do what they can.

And by further order of the court, the US government is now also required to give progress reports on what they are (not) doing to facilitate the return of Abrego Garcia.

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The US government does not want to do this.

As reported overnight by Aaron Reichlin-Melnick:

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It would appear from the news reports that the US government is not taking the court orders in this case seriously – that they are flatly refusing to facilitate the return of Abrego Garcia.

The US government submission is here.

You will see they are not saying that they are breaching the order – but one would expect that.

You will see that they are quibbling about what the word “facilitate” means.

Formally, at least, the government claims it is not in breach – they say that the order has no application.

The US government also do not seem to be giving the updates required by the court – at least not in any meaningful way.

The impression conveyed is that the US is flouting the order – and that, even if it were within their power to “facilitate the return of Abrego Garcia that they will not do so.

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What will happen next?

If the US government is flouting the order, which appears to be the case, then the constitutional crisis in the United States is intensifying.

Perhaps the US government will successfully appeal to the Supreme Court and that court construes the order and the word “facilitate” to mean something other than the ordinary meaning of the order and indeed the word “facilitate”.

Perhaps the court will punish those responsible at the US government for contempt.

Perhaps even Abrego Garcia will be returned.

It is in the nature of a constitutional crisis that one cannot predict the next events to unfold – for if one could predict what will happen next then it would not be a crisis.

Perhaps nothing dramatic will happen at all – and this will be another quiet tug on the fabric of the constitution the effects of which will worsen over time.

But it is hard to see anything good coming of this.

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Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.

How Trump is misusing emergency powers in his tariffs policy

10th April 2025

A good way to commentate is to start with a puzzle: something that does not make sense – or at least does not make sense at first glance.

And one puzzle about the tariff policy of Donald Trump is why he as president is devising general United States trade policy himself, by a sequence of what can only be called decrees.

This is a puzzle because the constitution of the United States expressly provides that trade policy is for Congress.

Article I of the constitution provides that Congress is “to regulate Commerce with foreign Nations”.

The same Article also provides that Congress is to have the final word on imports and exports – though that provision is framed in terms of it not being for the individual states to have the final word:

“No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it’s inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.”

Neither the so-called “commerce clause” or the “import-export clause” mentions the presidency having any role in trade policy.

And if you look at Article II – which provides for the powers of the presidency (and is the Article beloved by exponents of presidential power) – you will not not see mention of trade or commerce there either.

But there he is, conducting trade policy on a whim, by decree.

There he is, not imposing tariffs on one particular foreign nation, but recasting the entire tariff policy of the United States in respect of almost every country in the world – and the only exceptions are the ones he chooses.

How is Trump able to do this, when the constitution so plainly says that it is for Congress to set international trade policy and not the presidency?

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This is the question to which I have set out an answer over at Prospect – please click and read here.

In essence, Trump is able to do so because he is (mis)using old emergency legislation passed by Congress, which was not designed for the purpose of setting general trade policy and has never before 2025 been used for this purpose (or even used to impose tariffs on another country, let alone every country).

And Congress is letting him do so.

As such, this tariff policy is not so much an example of presidential power, but of congressional impotence.

This is not an instance of Trump running with a power provided for the presidency by Article II and running with it as far as possible.

It is instead an example of him reaching over to Article I and stealing a power expressly allocated to Congress.

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In essence: the way this is being done is as follows.

A statute from 1977 enables a president to take measures in the event of an emergency – that there is an “unusual and extraordinary threat”.

Once the president formally declares an emergency, the president can then put in place measures – measures which are defined (if defined at all) in the most general terms.

Before 2025, it would appear that the 1977 Act was used regularly by president but only against particular individuals and to impose particular sanctions.

As such, it in a way made sense for this Act to be used in the way it was.

But in 2025 came this executive order.

This executive order – really a decree – contains this extraordinary passage:

“I, DONALD J. TRUMP, President of the United States of America, find that underlying conditions, including a lack of reciprocity in our bilateral trade relationships, disparate tariff rates and non-tariff barriers, and U.S. trading partners’ economic policies that suppress domestic wages and consumption, as indicated by large and persistent annual U.S. goods trade deficits, constitute an unusual and extraordinary threat to the national security and economy of the United States. That threat has its source in whole or substantial part outside the United States in the domestic economic policies of key trading partners and structural imbalances in the global trading system. I hereby declare a national emergency with respect to this threat.”

The rest of the decree (which should be read in full) sets out how this “threat” has come about since 1945 – indeed the decree contains a potted (if one-sided) history of post-war international trade.

In summary the deficits are structural and they have been in place a long time.

In other words: the deficits are usual and ordinary.

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Words like “unusual” and “extraordinary” can have wide and expansive meanings.

But – logically – however wide the meaning of a word can be expanded, it (normally) cannot include its own antonym.

Unusual cannot mean usual.

Extraordinary cannot mean ordinary.

But here Trump is formally declaring that the usual and ordinary trading conditions of the United States “constitute an unusual and extraordinary threat to the national security and economy of the United States”.

And that is an unusual and extraordinary thing for a President to do with emergency legislation – or at least it should be.

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What Trump is doing is that easy.

Regardless of the constitution expressly stating regulating trade is a matter for Congress, Trump can simply declare an emergency and so take it upon himself to recast the tariff policy of the United States with almost every country in the world.

In any sensible polity, this constitutional expropriation would face instant challenge.

The legislature would instantly check the executive, either by mechanisms within the statute or by repealing the law outright.

The judiciary would also check the executive, by ruling that acts outside the scope of the statute were outside the legal powers of the executive.

These would be the checks that would balance the overall constitution of a polity where the executive misused – abused – power provided to it by legislation.

But in the United States the separation of powers currently means little or nothing, because those powers are aligned.

A Republican majority in both houses of Congress is complemented by a conservative majority on the Supreme Court.

And so, in the current circumstances, the United States may as well not have the separation of powers at all.

Indeed, it may as well not have a written constitution, for all the good it is doing at the moment.

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Once rulers get a taste for emergency powers they tend to carry on using them.

And if a polity has a compliant legislature and a deferent judiciary, there is little or nothing that can limit the executive’s use – misuse, abuse – of emergency powers.

What has already happened has been pretty significant – a 1977 Act has been used for Trump to recast the entire trading policy of the United States.

Similarly Trump invoked the Alien Enemies Act of 1798 – even though Congress has not declared any war – and has used it to deport humans to an industrial-sized prison in another country.

The only limits to what Trump and his circle want to do with emergency or wartime legislation seem to be set by their own imaginations.

The extent to which emergency or wartime legislation is already being put is alarming.

And it thereby is not especially alarmist to say that the current presidency may use – misuse, abuse – other emergency and wartime legislation, because they can, and nobody will stop them.

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The Prospect article was published before Trump caved a little on tariffs.

Some of the more onerous tariffs were suspended for a period.

But think about this.

Something which was necessary because of “an unusual and extraordinary threat to the national security and economy of the United States” suddenly became unnecessary.

What Trump described in his decree as “an unusual and extraordinary threat to the national security and economy of the United States” had not itself changed – though stock and other market conditions certainly had changed.

Yet suddenly the most onerous of the emergency measures to be rushed into place were not needed.

The most obvious explanation is that what he described as “an unusual and extraordinary threat to the national security and economy of the United States” was not an unusual and extraordinary threat at all.

If it were still such a threat, then he would not have so casually suspended the measures supposedly necessary to meet that threat.

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Trump and his circle’s taste for emergency and wartime legislation is a bad thing.

And it can only get worse, despite him caving on some tariffs.

This is not a strong, robust presidency using to the full its designated powers under Article II of the constitution.

This is a presidency taking powers allocated elsewhere in the constitution and misusing and abusing those powers – with the support or forbearance of Congress and the courts.

And this is the real emergency.

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Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.

How Trump’s tariffs can be a Force Majeure event for some contracts

7th April 2025

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The significance of the Wisconsin court election result

2nd April 2025

Discussion about this post

 

“But what if…?” – constitutional commentary in an age of anxiety

31st March 2025

What constitutional commentary can do and what constitutional commentary cannot do

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There are many who are anxious and alarmed at what is unfolding in the United States.

And they are right to be anxious and alarmed – indeed, any other overall response would be strange given what is happening.

There is a certain cruelty in a good deal of what the US government is doing with its executive orders and other measures – and cruelty which is an end in and of itself.

As Adam Serwer rightly out it in his prescient 2018 article and subsequent book, this cruelty is the point.

Nothing in this post should be taken to gainsay this sense of anxiety and alarm – and still less to dismiss or discredit it. It is a perfectly sensible reaction to an unpleasant developing situation. There is nastiness and vileness, and it is horrific.

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This post instead is about the limits of constitutional (and legal and perhaps even political) commentary to meet this anxiety and alarm.

For example, there is only so many times a constitutional commentator can usefully respond to the increasingly common “But what if…?” queries about possible future developments.

Today, one issue is about whether President Trump will somehow find a way to serve a third term, notwithstanding what appear (at least at first glance) to be a clear prohibition in the US constitution.

– But what if….he tried?

Well, the constitutional commentator may respond, there are these provisions in the US constitution which would appear to prohibit such a thing, and if those provisions were contested or defied it would be likely to ultimately end up at the supreme court.

– But what if….that did not work?

And it is at this second “But what if…?” that constitutional commentary effectively breaks down and offers no further useful aid to the person pressing for further answers.

A constitutional commentator may perhaps have a go at putting together a further answer, if they are feeling helpful, but both the questioner and the commentator are now leaving the realm of constitutional commentary and entering the world of speculation instead.

For there is only so much a constitutional commentator can say in response to “But what if…?”.

They can set out what the constitution provides for that eventuality and what mechanism can be applied to resolve any tension or dispute. But that is all they can do, for that is all a constitution is.

As a general (not universal) rule-of-thumb, the second “But what if…?” is the limit of any useful exchange about any constitutional query.

With the third and fourth “But what if…?” the value of any constitutional commentary will tend to fall to zero.

And that is because of the nature of constitutional arrangements: they only provide “the rules of the game” for foreseeable situations.

(In addition, few if any constitutional commentators are competent or qualified to deal with the anxiety and alarm of others. Indeed, constitutional commentators are (if they are candid) likely to make such anxiety and alarm even worse.)

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All this said, here are some general points about the current constitutional situation in the United States which may provide some comfort.

First, the US government is (or is insisting) that it is complying with court orders. Yes, there are political and media figures boasting about breaching “unconstitutional” court orders – but in the court room, the US government lawyers are saying orders are being complied with.

Second, Trump and his supporters are again seeking to game the US constitution rather than breach it outright. You may recall the “January 6” violence was in respect of an attempt to get the vice-president and senate to exercise their constitutional function in respect of counting and certifying the electoral college in the favour of the losing candidate.

That clever-clever, elaborate (and misconceived) constitutional ploy failed, regardless of the violence. There is no more inherent reason to believe that the new clever-clever, elaborate (and misconceived) constitutional ploys for a third term will work.

Third, the federal executive does not have a monopoly of political power: even with a weak legislature, the federal judiciary and the states also have powers. Any analysis of scenario needs to take account not only of what powers the federal executive have (or wants to have) but which ones it does not.

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At this point, a constitutional commentator setting that there are other possible outcomes than catastrophe is accused of “complacency” or “optimism”.

Alas, I am a deep pessimist when it comes to constitutional matters.

My pessimism is deeper than many will imagine.

For me it is a minor miracle that any human gathering greater than Dunbar’s Number ever endures, without breaking up in violence and recriminations.

(It really is not a surprise that every other species in the genus Homo became extinct, despite us supposedly being the most intelligent creatures to have yet evolved: and Homo sapiens have this immense capacity for violence against other members of our own species, and the capacity to make tools as weapons for this violence.)

Constitutions are precarious things, and at some point they will all tend to fail.

The questions are when and how.

The pre-conditions are there for the US constitution to fail – and for the current crisis to become either a civil conflict or the basis of a totalitarian state.

But at the moment, there are still other possible, more positive outcomes.

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Again, setting out the limitations of constitutional commentary is not to gainsay the current alarm and anxiety.

And “But what if…?” can actually be a useful question the first time it is asked – and, indeed, thought experiments are sometimes helpful or revealing.

But an infinite regression of “But what if…?” questions to a constitutional commentator helps nobody. It does not help the questioner, for no answer will address the underlying alarm and anxiety, and it does not help the commentator, who will have no useful answers.

The only thing that constitutional commentary can do is to look at the constant stream of heres-and-nows, and to set out contexts and possible outcomes.

It is a plodding, limited, often thankless task.

And let us hope that one day, constitutional law becomes dull again.

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Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.

A significant defeat for the Trump government in the federal court of appeal

27th March 2025

Reckoning the legal and practical significance of the United States deportations case

Making sense of the Trump-Roberts exchange about impeachment

19th March 2025

Two public statements about the impeachment of judges – and why the Roberts one is highly significant

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We are in strange constitutional times.

Yesterday there were two public statements, from the heads of their respective branches of the United States constitutional system.

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The first was from the president of the United States Donald Trump on social media:

“This Radical Left Lunatic of a Judge, a troublemaker and agitator who was sadly appointed by Barack Hussein Obama, was not elected President – He didn’t WIN the popular VOTE (by a lot!), he didn’t WIN ALL SEVEN SWING STATES, he didn’t WIN 2,750 to 525 Counties, HE DIDN’T WIN ANYTHING! I WON FOR MANY REASONS, IN AN OVERWHELMING MANDATE, BUT FIGHTING ILLEGAL IMMIGRATION MAY HAVE BEEN THE NUMBER ONE REASON FOR THIS HISTORIC VICTORY. I’m just doing what the VOTERS wanted me to do. This judge, like many of the Crooked Judges’ I am forced to appear before, should be IMPEACHED!!! WE DON’T WANT VICIOUS, VIOLENT, AND DEMENTED CRIMINALS, MANY OF THEM DERANGED MURDERERS, IN OUR COUNTRY. MAKE AMERICA GREAT AGAIN!!!”

This social media post indicated Trump was perhaps a little disappointed with how the current case on deportations is going (covered on this blog  in the last couple of days).

And unlike many of the documents examined on this blog, this Trump post really is not a difficult text to parse.

Once upon a time, when things were normal, such a statement by a president or anyone else in a position of power would have caused consternation, and maybe even triggered its own impeachment.

Now, we just expect these things – and one’s eyes glaze over such missives, with their lines of block capitals, just like one’s eyes can glaze over those irksome American contracts which insist in putting dozens provisions in block capitals so as to make them (supposedly) duly prominent.

And the fact that Trump was attacking a judge and calling for their impeachment also registered hardly a shrug.

So what? This is what he does. Next news item, please.

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But.

It is a text not without interest – not for what it says, but for its context.

The timing of this post would accord with when Trump was probably being told of how the court case was going, with federal lawyers briefing him on the merits of the success of the defence.

As this blog has said, the US federal government are facing a hard time in this particular case – and there seems no obvious way that the government was not in breach of a court order.

If that was the substance of what Trump was being told, there is no wonder his response was this social media text. He would not take such news well.

But even after setting out this possible context, few would give such blather a second thought. More of the same.

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But.

Then something unexpected happened.

John Roberts, the chief justice of the United States Supreme Court, put out his own public statement.

Such statements are as rare as Trumps posts are ubiquitous, and so it had the sudden effect that Trump’s posts have lost long lost.

Roberts simply said this, in a mere two sentences, and without any block capitals or exclamation marks:

“For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision. The normal appellate review process exists for that purpose.”

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Bang.

Of course, this does not mention Trump expressly. And nor it is it an exceptional statement – it states the obvious.

In and of itself, it is not a radical text.

Yet the context of this text maybe makes it very potent indeed, and for at least two possible reasons.

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First, it perhaps indicates that Roberts – part of the nominal conservative majority on the court – is not happy with threats to impeach judges over how cases are decided.

And if Roberts is not happy, it is likely that other conservative justices such as Amy Coney Barrett are unhappy too.

Given that Trump and his supporters hope and expect the conservative majority on the supreme court to ultimately uphold a lot of what they are currently doing, this statement was a signal that this majority cannot be taken for granted.

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Second, it appears to also be a signal of judicial leadership. Roberts is implicitly telling the other federal judges across America who are having to adjudicate legal claims arising from the current political turmoil not to be intimidated by threats of impeachment.

(Any impeachment would also require two-thirds of the senate – votes which the conservatives have not (yet) got.)

If it is such a signal of leadership then, again, this is not good news for Trump and his bullying supporters.

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Was it proper for Roberts to make such an extra-judicial statement?

Already conservative senators are saying that Roberts has trespassed onto the arena of the legislature, for it is Congress that decides whether to impeach.

(Such senators, of course, are silent on whether it was proper for the president to usurp the role of Congress on impeachment – but presumably such intellectual consistency is for the hobgoblin of little minds.)

But in any case Roberts was correctly stating the appropriate response to disagreeing with a court decision – you appeal, which is certainly proper for a chief justice to say.

And by saying what is the appropriate response, you are also necessarily saying what is not the appropriate response, and there is nothing wrong with him doing that expressly.

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One never would have expected the president and chief justice to engage in, what is in effect, a twenty-first century pamphlet war – to have such a row in public.

To his credit Roberts avoided joining with Trump expressly, but the meaning of his speech act was plain: it was a public correction, if not a contradiction, of the president of the United States. It was a public rebuke.

Roberts would not have enjoyed doing this, and so there must have been for him a compelling reason to overwhelm his usual reluctance to make such statements.

(One wonders if he is also tempted to make a general statement that court orders should also be complied with unless appealed – though that may be too close to the facts of many currently contested cases.)

Many – fully aware of Roberts’ own rather illiberal judicial record – were unimpressed with this intervention. It was too little, too late and he only has himself to blame for much of the current law and policy dumpster fires.

Perhaps.

But here Roberts did do the right thing, and for that he should be commended – even if much of the rest of his record should be condemned.

And if politics is about getting people to shift their position to a better position, then any such move should always be welcomed.

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Of course, the Roberts statement will make little difference to the current spectacular legal and political breakdown of the United States.

But it is a signal that those seeking to bring about this breakdown are not going to have it all their own way.

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