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SCOTUS Can Let the President Break the Law, But It Can’t Change the Law - Josh Marshall (Talking Points Memo)

From Josh Marshall's newsletter today, The Backchannel:

SCOTUS Can Let the President Break the Law, But It Can’t Change the Law

Josh Marshall

April 17, 2025

We are now cranking up another edition of the “will he or won’t he?” Trump song and dance, this time about firing Fed Chair Jerome Powell. Trump manages to add an additional pungency to these dramas by trying to fire the guy who is actually his own Fed Chair. Biden renominated Powell. But Trump actually gave him the job. Axios just pushed a newsletter update that ran through this drama, first reporting the events of the day and then adding this: “What we’re watching: Federal law and Supreme Court precedent say presidents cannot fire the Fed chair over a policy disagreement.” It then goes on from there. But that’s actually the end of the story. The other possibilities are illegal.

....In a moment like this, and very much like that flight analog, you may not be able to control what’s happening but you need to know what’s happening. The whole conversation ends with that quote above. Anything else is illegal. The Supreme Court might allow Trump to break the law. But that will be what it is — allowing him to break the law. We will collectively have to grapple with that reality. But it will still be illegal. The Court can say up is down, but up will still be up. It is simply not the case that Congress made the law, that Congress understood what the law meant, that it was universally understood what the law meant, but that we now have a Supreme Court which can simply start history from scratch. We might as well say that Moby Dick was a donkey rather than a whale.

And this brings me to a key point. Trump is hungry to walk through this door of lawless autocracy. But it is the conservative legal movement, embodied in the Federalist Society, organized by Leonard Leo and others, who opened the door. They manufactured the fraudulent idea that presidents cannot be constrained by the law. They imported it from abroad, from the degenerate ideologues of autocracy. They did this. They created the current moment in which a renegade President can simply start chainsawing through the legal fabric and do anything he wants and we, the citizens of the country, must wait in anxious expectation to learn which if any of the laws turn out to be real. That’s not how the rule of law works. It’s not a game of Magic Eight Ball, built by design on inherent suspense and uncertainty. It’s nature is its clarity and fixity, especially during arduous times of tumult and fear.

....The core aim of the 1787 Constitution was to create a viable national government with a robust executive power. That represented a significant national course correction from the first years after the overthrow of the monarchy. The question was whether that could be done without creating a tyrant-in-the-making. That was the challenge of writing the document and it was the sales challenge that the newspaper essay campaign (which we now call the Federalist Papers) was meant to answer. We can talk endlessly about whether we’re still in a democracy or whether Trump wants to be or is acting like a dictator. We can debate words such as “fascism” that were unknown before a century ago. But what we are seeing right now is the definition of tyranny, a half-archaic concept the founders of the American Republic were very familiar with. Trump’s rule is both lawless and arbitrary. He has taken the bundle of powers the Constitution provides him to govern and defend the Constitution and turned them to an entirely different and corrupt purpose: using them as weapons to attack the people and institutions he deems his enemies.

This kind of creature is precisely what the core architects of the constitutional order said the document could never be used to create. The President is no King; he is subject to the law. And yet here we are. And it is the fraudulent doctrine of unitary executive authority which is walking before him like a statutory bushwhacker, clearing a path for him through every law and restraint. As I wrote above, this doctrine is based on theories and philosophical principles totally unknown to the architects of the Constitution. It’s legitimacy can only rest on an argument about function. It fails the test totally. The Constitution was sold to the American people, designed to prevent such a creature from emerging from its words and structures. But this doctrine turns out to be that creature’s greatest ally.</>

Senator Lisa Murkowski is a brave woman - "We are all afraid"

https://www.nytimes.com/2025/04/17/us/politics/lisa-murkowski-trump.html?smid=url-share

Senator Lisa Murkowski, the moderate Alaska Republican who has routinely broken with her party to criticize President Trump, has made a startling admission about the reality of serving in public office at a time when an unbound leader in the Oval Office is bent on retribution against his political foes.

“We are all afraid,” Ms. Murkowski said, speaking at a conference in Anchorage on Monday. After pausing for about five seconds, she acknowledged: “It’s quite a statement. But we are in a time and a place where I certainly have not been here before. I’ll tell you, I’m oftentimes very anxious myself about using my voice, because retaliation is real. And that’s not right.”

Trump's Gestapo is already here - ICE

A short excerpt from a post by Tristan Snell in the Big Picture (Substack).

Last year, I did a series called Decoding Project 2025 — and one of the most jarring Trumpian proposals was, from my point of view, the planned degradation of the existing Immigration and Customs Enforcement (ICE) into an immigration Gestapo to detain undocumented immigrants and deport them without any legal due process.

I was wrong.

It turns out ICE is not a Gestapo for undocumented immigrants.

It is a general Gestapo — a secret national police force not just for undocumented immigrants but for any immigrants, even legal ones with documents, even permanent residents (green card holders), and if Trump has his way, soon, even U.S. citizens.

ICE is arresting and detaining people without alleging that they have committed any crimes at all—holding them without any legal process, without an immigration removal proceeding, without a trial, without an evidentiary hearing, without anything—and then shackling and chaining them into military cargo planes and deporting them for indefinite imprisonment without trial in El Salvador’s Centro de Confinamiento del Terrorismo (CECOT).

Then the administration lies, falsely claiming that it can do nothing to return anyone who has been sent to CECOT.

Then the president of El Salvador, Nayib Bukele, follows along with the lie, claiming that he is powerless to return anyone to the US.

Meanwhile, the ICE officers try to shrug off any responsibility, claiming that they are just doing what the government tells them to do.

Frankenstein’s monster is running amok, terrorizing people and killing them, and yet everyone involved is throwing up their hands, disingenuously, claiming that they have no power to stop the monstrous Gestapo that Trump has created.

Yet every step of the monster’s creation was premeditated—a completely purposeful crime against humanity.

This is not an accident. This is what they meant to do. They had a blueprint and they are following it.

The question now becomes whether anyone is going to do anything to stop Donald Trump, Marco Rubio, Stephen Miller, and everyone else involved in these extrajudicial detentions and deportations.

The courts are being defied and flouted, but will they escalate their response to insist that the law be obeyed?

Refusing to be complicit in evil

From Jonathan V. Last of the Bulwark, "Inside the Mind of an ICE agent":

I know what it is like to lose your job because you won’t do what powerful people want. I understand how scary that is when you’re middle-aged and have a family to support. I’m not saying it’s easy.

For most people, refusing to be complicit in evil will be the hardest test they are ever given.

2. ICE

Then again, for some people the test seems easy.

Our immigration enforcement officers at ICE have witnessed a sea-change in operations over the last four months. They now routinely detain American citizens in airports and use axes to pry frightened people out of their cars as they wait for their legal representation. Perhaps you have seen this video. 

I am confused about one thing: With this radical change in job description, why aren’t ICE agents quitting their jobs in droves?

Imagine you work in a widget factory. You have no real passion for widgets, but the work is fine. It’s a job.

Then one day you show up to the office and the company is under new management. The owners have decided to transition from making widgets to slaughtering puppies. Your job now is to stand in front of a conveyor belt and kill puppies. It’s kind of a big change.

Would you stay in that new job? Do you think most of your colleagues would stay?

And if they did stay—all of them—would it make you suspect that all those years you were making widgets together, maybe your buddies secretly wished they could be killing puppies instead?

For four months ICE agents have acted in ways that validate the worst caricatures of the agency.

And yet we have not seen a wave of resignations. We have not seen pushback from career employees. We have not seen even off-the-record quotes of concern from ICE officers in the media

I wonder why that is.¹ (Where does the “Abolish ICE” movement go to get its apology?)

There have been books written about this sort of thing. [Link is to Hitler's Willing Executioners: Ordinary Germans and the Holocaust, by Daniel Jonah Goldhagen].

Harvard's response to the demands of the Trump administration

 

Does the Declaration of Independence remind you of anyone today?

Who does this remind you of? King George III, or someone else today?

From the Declaration of Independence:

He has refused his Assent to Laws, the most wholesome and necessary for the public good.... 

He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers... 

He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people... 

For cutting off our Trade with all parts of the world: 

For imposing Taxes on us without our Consent: 

For depriving us in many cases, of the benefits of Trial by Jury: 

For transporting us beyond Seas to be tried for pretended offenses