Courts

Let's Do A Close Read Of Trump Undermining Our 'Court System'

Trump lost in court (DACA, this time), but his attacks on the courts haven't gotten enough attention recently.

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(Photo credit: ROBYN BECK/AFP/Getty Images)

Yesterday, U.S. District Judge William Alsup temporarily blocked Donald Trump’s rollback of the Deferred Action For Childhood Arrivals (DACA). The Trump administration obviously has the authority to end DACA, but Judge Alsup ruled that the way they did it was arbitrary and capricious.

There are lots of good pieces out already analyzing the decision. I particularly liked NY Mag’s Cristain Farias who wrote: “Calling something illegal doesn’t make it so just because you believe it in your heart. You need to show your work, which neither Sessions nor DHS seems to have done very convincingly.”

As I’ve said before, the defining legal characteristic of the Trump administration is “shoddy.” Lord help us if Trump or Sessions ever actually hires a competent attorney to advise the government. The inability of the Trump administration to execute its plans within basic legal strictures is the resistance’s greatest strength. Kind of like how Storm Troopers would be unstoppable if they could shoot straight.

And Trump, of course, doesn’t understand why courts are even there or what they do, so he can’t develop a strategy for addressing their concerns. Aslup’s ruling sets a pretty low bar for the President to rescind a program he CLEARLY has the authority to rescind. This really is a “show your work” ruling, but Trump can’t say “we disagree with the court’s interpretation, but we will redouble our efforts to meet the court’s technical requirements.” No, that kind of restraint and nuance is beyond him. So instead he has to tweet to the country that the Ninth Circuit is out to get him.

Trump loses in court so often that I think people have stopped noticing that he tries to undermine the courts whenever he loses. And, as we all know, he tweets ridiculous or manifestly deranged things so often that no individual one ever really gets the attention it deserves. But I want to focus in on this latest one. It’s not as sexy as his latest stupid nickname contest (this time for Diane Feinstein), or as unhinged as his “very stable genius” horror over the weekend. It’s just an everyday, mundane… ATTACK ON OUR COURTS AND OUR SEPARATION OF POWERS that gets missed because it doesn’t spark a meme.

Here’s what he said, after the loss. I’m going to use the @RealPressSecBot because I really do think that people would care more if they thought about what’s happening as “official statements from the President of the United States,” as opposed to looking like a 2012-“S**t Your Dad Says” parody account.

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Everything about that statement is wrong, inaccurate, and demonstrably stupid. Let’s take it from the top:

“It just shows everyone how broken and unfair our Court System” Another phrase for “Court System” is “A CO-EQUAL BRANCH OF GOVERNMENT.” Trump wants courts to be subservient to him. He doesn’t get that it’s there SPECIFICALLY to check him and his cronies. FAIRNESS ain’t got nothing to do with it. The courts are supposed to be impartial and review any case or controversy without bias. And, despite the best efforts of people like Mitch McConnell, you could make a case that the third branch of government is the ONLY branch of government that still FUNCTIONS. It’s the only one that is not OBVIOUSLY broken.

“[W]hen the opposing side in a case (such as DACA) always runs to the 9th Circuit” The president’s attacks on the Ninth Circuit are legion. He’s not the only one, but he is doing everything he can to make the Ninth Circuit look like some kind of radical court put on this Earth to frustrate the rest of America. The constant suggestions of bias don’t hold up to even the slightest scrutiny. The Ninth Circuit is not overturned more than any other Circuit. The Circuit covers both liberal states (like California) and conservative ones (like Alaska). If Trump is more likely to get dinged in front of the Ninth, it probably has more to do with the fact that Trump is always coming after immigrants and the Ninth Circuit has some expertise in dealing with immigration issues.

When Trump and his family start getting sued over their seeming financial graft and corruption, I expect that’ll end up in front of the Second Circuit, which is well-versed in financial crimes. When we need expertise in legal ways to cook shrimp, we’ll go to the Fifth.

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Joking aside, the real reason these immigration cases end up in the Ninth Circuit isn’t even because of a plaintiff’s forum shopping of Circuit expertise. It’s because there are a hell of a lot of immigrants in the Ninth Circuit’s jurisdiction. Courts are not here to make advisory opinions, they’re here to deal with real cases and controversies. It just so happens that a lot of the people most injured by Trump’s immigration policies happen to live in the Ninth Circuit. If the Ninth Circuit has a particular expertise in immigration law, it’s BECAUSE so many immigrants live there and the Ninth has to hear more of those cases, compared to other Circuits.

“[A]nd almost always wins before being reversed by higher courts.” First of all, there are not higher court[S] than the Ninth Circuit, there is A higher court. One. And the Supreme Court, thus far, has only fought the Ninth Circuit on procedure. Almost no court, Supreme or otherwise, has really gotten into the substance of what Trump is doing. This goes back to my overarching point: the Trump administration is so bad at MAKING LAWS that courts generally don’t have to get into the substance of what the administration is doing, because the flurry of orders are so slapdash and shoddy that you can poke holes in them on purely administrative grounds. Again, substantively, everybody agrees that Trump has the authority to rollback DACA, seeing as the program was never an act of Congress in the first place. The problem is that the way he’s done it lacks so many basic administrative concepts that it’s easy to set the whole thing aside and order the administration to, like, DO THEIR JOB.

Trump says this crap so often that people have stopped noticing, but statements like these are put out there so Trump’s base never cottons onto the fact that Trump keeps losing in court because he and his people don’t know how to legally execute his plans. He’s the coach who blames the refs when the real problem is that he has a crappy team and hasn’t taught them how to defend without fouling.

And I’m sure these tweets are working. I’m sure his base thinks (to the extent that you can call eagerly repeating what their cult leader wants them to say “thinking”) that the courts are to blame for Trump’s stalled immigration agenda.

But the reality is that the courts would probably let Trump ban Muslims and deport thousands of innocent people if Trump’s lawyers were just barely competent at their jobs.

Thank God they’re not.

Trump Ending DACA Was Never About the Law. A Federal Judge Noticed. [NY Mag]

Elie Mystal is the Executive Editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

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