3 ms·

I think this meets the definition of one type of constitutional crisis, i.e. "...a fight among branches of government in which neither side backs down, and ther

by pmags 2y ago

I think this meets the definition of one type of constitutional crisis, i.e. "...a fight among branches of government in which neither side backs down, and there is no clear resolution within the constitutional system." https://www.law.uchicago.edu/news/ginsburg-and-huq-how-define-constitutional-crisis https://www.law.uchicago.edu/news/ginsburg-and-huq-how-defin... The above is a "simple language" style definition. I am not a constitutional scholar but it seems a straightforward and useful one. There are many other such definitions on the 'net but most have similar elements. To me we seem to have a clear fight among the executive and judicial branches, and the executive branch is doing everything in its power to ignore a Supreme Court ruling and the order of a lower court Federal judge. For those who would argue that the US is NOT in constitutional crisis, I'm curious to hear your reasoning.

tastyface 2y ago
From https://www.democracydocket.com/opinion/if-the-marshals-go-rogue-courts-have-other-ways-to-enforce-their-orders https://www.democracydocket.com/opinion/if-the-marshals-go-r...: “As Berkeley Law School Dean Erwin Chemerinsky argues, ‘the hard truth for those looking to the courts to rein in the Trump administration is that the Constitution gives judges no power to compel compliance with their rulings — it is the executive branch that ultimately enforces judicial orders.’” This strikes me as a pretty serious omission in our Constitution. Did the Framers not consider the threat of a runaway executive? Or maybe the relative size of the government in those days made it seem like much less of a threat than it is today?
- cmurf 2y ago
  It's intentional. Federalist 78 contains the rationale. John Adams said the Constitution is intended for a moral (or virtuous) people. It's just a piece of paper. People have to support and defend it in order for the republic, an empire of laws, to persist. We may be out of virtue, and maybe we don't deserve Constitutional order. Enough people voted for an untrustworthy liar and a psychopath to be president. And the consequences will continue until he's removed from office. There is no bottom for him. And probably no bottom for this Congress. In any case, this presidency is going to be very expensive for everyone.
- busyant 2y ago
  > Did the Framers not consider the threat of a runaway executive? They kind of did consider this. Pretty sure that's what impeachment is for. I suspect the framers expected all three branches to be independent of one another. Right now, Executive branch is holding Legislative on a leash. Judicial branch has no levers.
  - tastyface 2y ago
    But even with impeachment, the executive is still, technically, in charge of the armed forces, etc. Wouldn’t it make more sense for each co-equal branch to have some degree of executive autonomy? For example, marshals that report only to the judicial branch or Congress.
    - busyant 2y ago
      > Wouldn’t it make more sense for each co-equal branch to have some degree of executive autonomy? For example, marshals that report only to the judicial branch or Congress. Your suggestion sounds good at-a-glance. But I always worry that these types of ideas have down-sides that might not be immediately obvious. I have no idea what the down-sides might be for your particular suggestion, but it seems that all systems are corruptible if people try hard enough. I'm not trying to dismiss your suggestion--only saying that a lot of times, it's difficult to see the imperfections. I also think it's absurd that so many people treat the framers of the Constitution as deities. They were flawed people like the rest of us--and the Constitution is not a perfect document. If it were a perfect document, we would not be in the current situation, where the Executive branch is thumbing its nose as the Judicial branch.
s1artibartfast 2y ago
I think this article paints a pretty different picture, which does not imply a crisis. https://archive.is/PI5YJ https://archive.is/PI5YJ As reported in WaPo, the executive position is not refusal, but inability to comply on the requested timeline. They said they can and will provide the information on Tuesday. This seems to be a significantly different narrative than is inferred by piecing together the broken updates provided by NYmag.
- pmags 2y ago
  Do you consider a further 4-day delay as requested by the DOJ to be "reasonable" given the prior events in this case? For example, in the Supreme Court ruling Justic Sotomayor included the following statement: "The United States Government arrested Kilmar Ar-mando Abrego Garcia in Maryland and flew him to a “terrorism confinement center” in El Salvador, where he has been detained for 26 days and counting. To this day, the Government has cited no basis in law for Abrego Garcia’s warrantless arrest, his removal to El Salvador, or his confinement in a Salvadoran prison. " So: * Warrant-less arrest * Government admitted it was in error * 4 weeks in a foreign jail And it's OK for the DOJ to say "we want 4 more days" to develop a plan that you asked us to start developing more than a week ago?
  - ty6853 2y ago
    It's not just 4 days for a plan. They want 4 more days to even say where he is. They refused last session to disclose it and said they need more time to figure it out. They don't know where his (living?) body is.
  - s1artibartfast 2y ago
    I don't know enough details about to say how long is reasonable to collect facts and develop a plan. If I had to guess, it would be possible. It is an extraordinary and unprecedented situation, and I'm not sure what the SCOTUS decision requires because the situation is such a mix of diplomacy and DOJ actions. Does the head of ICE just call the president of el salvador? Does the order require DJT to do it? What if Bukele says "no"? Either way, from a constitutional perspective there is a big difference between the executive saying they can't do something and flat out refusing.
treetalker 2y ago
NYT reports that the government has indicated to the U.S. District Court for the District of Maryland that it will comply with the Supreme Court's order. Take from that what you will. My understanding is that the government has not (yet?) told the District of Maryland that it will not comply with that court's orders, only that, in the government's estimation, that court hasn't given it enough time to comply. Again, take from that what you will — but in my view the government has already gotten extra time to comply on account of its petition for emergency review in SCOTUS and the Chief Justice's stay of the original order (effectively well past the original deadline). So while a constitutional crisis is in the offing and may still come to a head, I don't think we're quite there yet.

by pmags 2y ago

tastyface 2y ago

From https://www.democracydocket.com/opinion/if-the-marshals-go-rogue-courts-have-other-ways-to-enforce-their-orders https://www.democracydocket.com/opinion/if-the-marshals-go-r...: “As Berkeley Law School Dean Erwin Chemerinsky argues, ‘the hard truth for those looking to the courts to rein in the Trump administration is that the Constitution gives judges no power to compel compliance with their rulings — it is the executive branch that ultimately enforces judicial orders.’” This strikes me as a pretty serious omission in our Constitution. Did the Framers not consider the threat of a runaway executive? Or maybe the relative size of the government in those days made it seem like much less of a threat than it is today?

cmurf 2y ago
It's intentional. Federalist 78 contains the rationale. John Adams said the Constitution is intended for a moral (or virtuous) people. It's just a piece of paper. People have to support and defend it in order for the republic, an empire of laws, to persist. We may be out of virtue, and maybe we don't deserve Constitutional order. Enough people voted for an untrustworthy liar and a psychopath to be president. And the consequences will continue until he's removed from office. There is no bottom for him. And probably no bottom for this Congress. In any case, this presidency is going to be very expensive for everyone.
busyant 2y ago
> Did the Framers not consider the threat of a runaway executive? They kind of did consider this. Pretty sure that's what impeachment is for. I suspect the framers expected all three branches to be independent of one another. Right now, Executive branch is holding Legislative on a leash. Judicial branch has no levers.
- tastyface 2y ago
  But even with impeachment, the executive is still, technically, in charge of the armed forces, etc. Wouldn’t it make more sense for each co-equal branch to have some degree of executive autonomy? For example, marshals that report only to the judicial branch or Congress.
  - busyant 2y ago
    > Wouldn’t it make more sense for each co-equal branch to have some degree of executive autonomy? For example, marshals that report only to the judicial branch or Congress. Your suggestion sounds good at-a-glance. But I always worry that these types of ideas have down-sides that might not be immediately obvious. I have no idea what the down-sides might be for your particular suggestion, but it seems that all systems are corruptible if people try hard enough. I'm not trying to dismiss your suggestion--only saying that a lot of times, it's difficult to see the imperfections. I also think it's absurd that so many people treat the framers of the Constitution as deities. They were flawed people like the rest of us--and the Constitution is not a perfect document. If it were a perfect document, we would not be in the current situation, where the Executive branch is thumbing its nose as the Judicial branch.

s1artibartfast 2y ago

I think this article paints a pretty different picture, which does not imply a crisis. https://archive.is/PI5YJ https://archive.is/PI5YJ As reported in WaPo, the executive position is not refusal, but inability to comply on the requested timeline. They said they can and will provide the information on Tuesday. This seems to be a significantly different narrative than is inferred by piecing together the broken updates provided by NYmag.

pmags 2y ago
Do you consider a further 4-day delay as requested by the DOJ to be "reasonable" given the prior events in this case? For example, in the Supreme Court ruling Justic Sotomayor included the following statement: "The United States Government arrested Kilmar Ar-mando Abrego Garcia in Maryland and flew him to a “terrorism confinement center” in El Salvador, where he has been detained for 26 days and counting. To this day, the Government has cited no basis in law for Abrego Garcia’s warrantless arrest, his removal to El Salvador, or his confinement in a Salvadoran prison. " So: * Warrant-less arrest * Government admitted it was in error * 4 weeks in a foreign jail And it's OK for the DOJ to say "we want 4 more days" to develop a plan that you asked us to start developing more than a week ago?
- ty6853 2y ago
  It's not just 4 days for a plan. They want 4 more days to even say where he is. They refused last session to disclose it and said they need more time to figure it out. They don't know where his (living?) body is.
- s1artibartfast 2y ago
  I don't know enough details about to say how long is reasonable to collect facts and develop a plan. If I had to guess, it would be possible. It is an extraordinary and unprecedented situation, and I'm not sure what the SCOTUS decision requires because the situation is such a mix of diplomacy and DOJ actions. Does the head of ICE just call the president of el salvador? Does the order require DJT to do it? What if Bukele says "no"? Either way, from a constitutional perspective there is a big difference between the executive saying they can't do something and flat out refusing.

treetalker 2y ago

NYT reports that the government has indicated to the U.S. District Court for the District of Maryland that it will comply with the Supreme Court's order. Take from that what you will. My understanding is that the government has not (yet?) told the District of Maryland that it will not comply with that court's orders, only that, in the government's estimation, that court hasn't given it enough time to comply. Again, take from that what you will — but in my view the government has already gotten extra time to comply on account of its petition for emergency review in SCOTUS and the Chief Justice's stay of the original order (effectively well past the original deadline). So while a constitutional crisis is in the offing and may still come to a head, I don't think we're quite there yet.