Why Should You Even Have to Ask?

The following points are blindingly obvious, but I felt compelled to make them just the same.

The first and far less important one is that it seems perfectly cogent and morally acceptable to ask the question, “Can a federal court force the president to negotiate with a foreign leader to obtain return of an alien?” Or, to put it more fully, “Can a federal court order the president to ask a foreign leader to return an alien it has concededly removed in error?” It’s a perfectly legitimate legal question raising issues of judicial power and separation of powers. I suppose the only reason the point needs to be made is that the moral overhang is so powerful that one might be accused of a kind of fatal moral desiccation for even asking such a question, in the same way that one might be astonished by someone asking whether the American soldiers who liberated Buchenwald maintained proper unit discipline. Of course such an inquiry would miss the main point, and of course such an inquiry might well be made for morally desiccated, bad-faith, or even monstrous reasons. But the question is not illegitimate as such. It could be asked for purely academic reasons—to write a history, for example. It could even have some forward-looking value. Buchenwald was not the first or the last prison camp, and—provided, at least, that the United States prefers to liberate such places rather than to build them or lease space in them—it might be nice for planning purposes to know such things.   

The second is, again, obvious: It seems bizarre to ask the question above without asking, “Why on earth would it have to?” If the United States reaches an agreement with a dictatorial populist thug and part-time internet troll—hard to imagine us being well-positioned to do this, I know, but bear with me—and offers to pay several million dollars, plus (one imagines) other benefits such as improved relations, to rent space in that leader’s human-rights-violating maximum-security prison, and then by its own admission sends someone there in error, why on earth would a court have to ask it to make some effort to seek the return of that individual? (To say nothing of the unknown number of others it has also sent there in error but hasn’t gotten around to admitting to.) How, unless perchance there were a particularly important golf tournament, would it even have time to before finding out that the question had been mooted by the government’s own mitigating efforts?

One can understand that whether a court can order a president to engage in what our regime pretends, in high-flown language, is “sensitive foreign negotiations” is a genuine question. But when the United States realizes it has sent someone to a foreign prison camp-cum-American-storage-space-rental in violation of a court order, and knows that the sensitive negotiations consist of some lackey picking up a phone and exercising the same leverage he used the first time around, or at least trying and failing, the obvious prior question is: How does it not even try?

I suppose one could view this as a matter of “breaking norms.” But I prefer to think of the norm of attempting to correct your own mistakes without having to be asked as more of a fundamental question of morality and of honor. And not one that exists entirely outside of or irrelevantly to the Constitution. One reason courts are not faced with fixing every mistake made by executive actors is that executive actors often, as honorable officials will, attempt to clean up their own messes. The core values that lead them to see themselves as honor-bound in such circumstances to attempt to correct the mistake are the same ones that permit them to take oaths of office, to give some content to them, and to live up to them. To be willfully indifferent to the first is to be unworthy of and presumptively incapable of carrying out the second.

Of course it is often harder to undo a mistake than to make it in the first place, easier to destroy than to build--or to remedy. I take it that is one reason for things like due process, the separation of powers, and a system that requires law to be made by large legislative bodies rather than by one short-fingered individual. You can’t guarantee the return of a prisoner from a foreign prison camp, any more than you can resurrect ten trillion annihilated dollars. (I believe the current word for that kind of thing is “oopsie.”) That it doesn’t occur to an executive branch to try—or, worse, that it does occur to it—is, it seems to me, the more pressing question. Very pressing.

As I said, these are obvious points, so forgive me. Whatever the result in this case, all these things are obvious to the courts too. I’m more concerned at present with the enormity of the conduct. But I’ll note, also obviously, that this is one more occasion on which the Trump regime has said to the judicial branch, as loudly as possible, that its actions and justifications should be viewed with skepticism and with no presumption of good faith, legitimate motives, or the capacity for lawful, honest, or decent conduct. No one can reasonably expect judges, like other human beings, not to recognize and, implicitly or explicitly, respond to the extent to which the current executive branch—and, perhaps, its apologists—have become legally, mentally, and/or morally deranged.