Law professor Gene Nichol tells The State that Chief Justice John Roberts and his Republican-friendly colleagues keep bestowing “never-before-enjoyed authorities upon the Trump Administration.”
“Recent steps by the Supreme Court have allowed the executive branch to decimate the Department of Education, summarily fire tens of thousands of other civil servants, permit ‘third country removals’ to notoriously dangerous nations despite demonstrated likelihood of torture, let the Department of Defense brutally dismiss even highly decorated transgender soldiers and sailors based on orders of overt bigotry, terminated legally-assured protections for massive numbers of migrants from war-torn countries and limited the essential reach of federal court decrees against the executive branch — frequently under summary and temporary orders with scant or non-existent justification,” said Nichol.
“Each would have likely been illegal before Donald Trump became president. Now they’re apparently fine,” he adds.
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In addition, the court invalidated the nearly 100-year-old idea that federal agencies should be independent of the White House. The Roberts conservative majority blocked a federal district court ruling preventing Trump from firing three of the five members of the Consumer Product Safety Commission, despite the landmark 1935 decision in Humphrey’s Executor v. U.S., which they simply “cast aside.”
“No limitations on presidential discretion are now to be tolerated — no matter how much sense it may make to remove certain types of administrative decision-making from the sway of politics,” writes Nichol. “All power to Trump, regardless of the claims of text and history. You demand it, Mr. President, we deliver, even if on the down low. Just spare us your wrath. We don’t even mind if you violate our decrees. Just lie when you do it. Easy enough.”
The assault on Constitution separation began with Trump v. United States, says Nichol, where Roberts determined that Donald Trump “is beyond the reach of the criminal law … despite the clear text of the Constitution, the bold declarations of the framers, over two centuries of judicial precedent, and the obvious contemporaneous understandings of every American president.
“We are no longer a government of laws,” writes Nichol. “The axiom had a great run. But 235 years is enough. As Trump puts it: ‘I have an Article II, where I have the right to do whatever I want as president.’
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“Ungrammatical perhaps,” said Nichol, “but he got the gist of it.”
It does not appear to matter that Trump “summoned and instigated a violent attempt to overthrow the government of the United States,” as Nichol describes it, or that “the bloody tirade occurred just down the street from the Court itself.” Roberts still concludes that the Constitution must “bend to Trump instead of the other way around. That since we have a criminal seditionist as president, the legal system must be altered to accommodate the criminality.”
Nichol says he is certain Roberts is ditching “Humphrey’s Executor” out of fear of the president, and he wonders if the rule of law can now survive.
“As John Roberts works to become our worst modern chief justice, will he also effectively become our last?” Nichols asks.
Read the full State report at this link.