The Trump Regime Continues its Retrospective Celebration of 1798

I'm working on a longer post, but may I just note the news that the Trump regime is apparently preparing to invoke the Alien Enemies Act of 1798 in service of swifter and more draconian deportation of illegal immigrants, relying on tendentious assertions about "invasion." This cannot be wholly a surprise. And I will not find it a great surprise if and when the regime closes the loop and relies on the whole armament of the Alien and Sedition Acts and their descendants, to punish speech as well as status and to attack citizens as well as non-citizens. I wrote a week or two ago about Ed Warren, the gormless still-Interim U.S. Attorney for the District of Columbia, that his threats against members of Congress and others for engaging in constitutionally protected speech should not be treated merely as a gross misreading of true threat doctrine. Rather, they should be seen as

a revival--impressively, in the absence of anything like a war or emergency--of circa-1917 views on incitement. "The Alien and Sedition Laws constituted one of our sorriest chapters, and I had thought we had done with them forever." I rarely feel the need to quote Justice Douglas, but, I guess, never say never again.

The regime can be relied upon to supply its own "emergency," of course. And a properly cowed and subjugated Secretary of State can be relied upon to offer whatever verbal formula is required.

If there is any comfort to be taken, I find it in two or three things: 1) The regime can be counted on to offer five or six justifications for its actions on any given day, even if they contradict each other and render the justifications incoherent and untrustworthy, and to careen wildly between enforcement and non-enforcement. 2) The more lawyers it fires, or who resign after being told to make bad or improper arguments that would violate their oaths, consciences, or law licenses, the worse things will go for it in the courts.* Opting for "loyalty" over competence and integrity is a costly choice. 3) The more it does, the more it says, the more pretextual or inconsistent or incoherent its arguments become, the more likely it is that at some point the courts--including the Supreme Court--will rethink any general presumption of deference to the executive branch, and reconsider any general or trending reluctance to scrutinize and second-guess the executive's motives, in both separation of powers cases and rights cases.

Law should not be remade for every new administration, and there are good general reasons for judicial deference to the political branches. But I'm reminded of a quote from Harry Kalven: "The Court thus has a hybrid role; and the arresting thing is that were its role to be purified in either direction--by having it become more simply a court and nothing more, or by having it become, bluntly, a political agency and nothing more--it would lose its power and its purpose. The special burden of the Court...is to exercise great political powers while still acting like a court, or if we prefer, to exercise judicial powers over a wide domain while remaining concerned, realistic, and alert as to the political significance of what it is doing." Even as a highly judicial body, the Court is not obliged to remain blind to the nature of this regime and its approach to the executive branch--both in its organization and in its exercise of power. Its reluctance to look behind presidential actions depended on its assumption of the existence of an "impersonal, thoroughly institutional presidency," sufficiently bureaucratized and staffed by capable individuals who provide internal constraints that its actions and good faith could be given some presumptive credence. But the Court exists in a dynamic relationship with the presidency and Congress. The faster, harder, and further the regime runs from a professionalized institutional model, the more likely it will be that the Court adjusts its assumptions and presumptions accordingly.* As it should. 

* Perhaps, in thinking about the legal presumptions of good faith that should or shouldn't apply and the necessity for a hard judicial second look at motives, the Justices and lower court judges will keep in mind the intersection between Trump's desire for an executive branch staffed only by personal loyalists and the blindly obedient, shorn of more independent-minded oath-keepers, and Elon Musk's typically off-putting vision of just who carries out historical atrocities, given that carrying out orders without questioning them appears to be exactly what this presidency wants from its servants: