Americans are getting ready to celebrate the founding of our country this week. Unfortunately, by then it will be too late. American democracy died last week, just shy of this country’s 249th birthday.
Perhaps you missed it.
That’s easy to do with all the chaos Trump has created in just five months — most recently, dropping bombs in a desperate attempt to distract from his plummeting popularity.
The first critical turning point was easy to miss, because it didn’t announce itself. Rather, it was buried in a Supreme Court case on the so-called “shadow docket” called Department of Homeland Security v. D.V.D.
The case concerns the Trump Administration policy of “deporting” — really, human trafficking — immigrants (and possibly U.S. citizens) not to their country of origin but to dangerous countries with which they have no connection. The best-known example is the notorious CECOT prison in El Salvador. In this case, the government decided to send people to Libya and South Sudan, countries with which they had no connection that are also war zones. There was no reason to do this other than cruelty, and perhaps the desire to make sure that the immigrants in question were in no position ever to assert their legal rights.
There is no serious dispute that doing this is illegal.
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The statute is quite clear in limiting the circumstances in which an immigrant can be sent to a third country rather than to their country of origin; those circumstances don’t apply here. And even if that weren’t true, the government — which willfully violated several previous court orders in related cases — takes the position that it can decide on a whim where to send someone, and there is no right to notice or a hearing when it does so. That’s a fundamental violation of due process. Both a district judge and a unanimous federal appellate court panel ordered the government not to do it.
On June 23, the Supreme Court “stayed” that order, 6-3. A stay is a procedural vehicle that is supposed to keep things in place until courts can figure out what to do in the case.
But this “stay” has exactly the opposite effect. It means that D.V.D. and thousands of others will be sent to war zones where they can be tortured and killed with impunity. They will be sent there without any due process. And this will happen despite the fact that there is no plausible argument that doing that is legal. The Supreme Court didn’t just let the administration get away with scoffing at court orders; it affirmatively abetted their illegal conduct.
Citizens aren’t safe
Perhaps you aren’t worried about this, because you’re a citizen. But late last month the Supreme Court dropped its second bombshell: as a practical matter, it said, the government is free to deport U.S. citizens too. Not because it’s legal (it isn’t). But because the court said lower courts have no power to stop it. When the government issues a blatantly unconstitutional order taking away U.S. citizenship, individual people might be able to complain in court — that is, assuming your lawyer is already hired and your complaint is ready to go in the 24 hours or less you might be given before you are shipped overseas).
But there is no longer any way for the courts to declare the whole order illegal.
This is all bad enough on its own. But it is far more worrisome for what it represents — the loss of the last remaining bulwark against the rampant illegality of the Trump Administration. It has been clear for months that the executive branch intends to simply ignore laws it doesn’t like. It has been equally clear that Congress has no intention of standing up to them. But so far the federal courts have done a remarkable job of calling out and reining in those violations of the law. The Supreme Court just took much of that power away from them. In the process, it made it clear that the court intends to side with the Trump administration — and illegality — rather than uphold the rule of law.
There is a history in this country of Supreme Court justices — not all, but some — growing into the role, putting aside partisan preferences in order to uphold the broader principles of the law. Some of us had hopes that some of the current justices might do just that. Those hopes have now been dashed. The six conservatives on the court have shown that they are fully on board with the Trump administration’s attacks on the rule of law.
The court won’t save us.
Liminal moments like this one — turning points that historians point to with the perspective of hindsight — sometimes feel like they should come with flashing neon signs.
Court offers no reasons
This one didn’t. Indeed, in D.V.D. the court didn’t even bother to give any reasons for its decision — almost certainly because there aren’t any that pass the laugh test. That can make a case like D.V.D. easy to overlook.
But I think the failure to even try to justify the decision is part of the problem. ICE agents in masks are abducting people on the street, refusing to show identification and a warrant before kidnapping (and perhaps sending to South Sudan) anyone they decide is suspect, with or without reason.
Their attitude is that of the criminals in Treasure of the Sierra Madre: “We don’t need badges. I don’t have to show you any stinking badges.”
Last week the Supreme Court said they were right: the government has no need to obey the law. And the court apparently feels the same impunity as ICE does: “We don’t need reasons. I don’t have to show you any stinking reasons.”
Whatever you call a government in which thugs roam the streets under cover of law and the court eggs them on just because it can — repressive, authoritarian, fascist — the one thing it isn’t is a constitutional democracy.
Mark A. Lemley is the William H. Neukom Professor at Stanford Law School and a partner at Lex Lumina LLP.