Law Above The People

 Proposal:  The Supreme Court is not interested in the country. Trump can do what he wants to that.

Trump has no legal authority or even colorable legal theory for claiming the authority to send any person in the United States, whether citizen or immigrant, convicted or not suspected of any crime or administrative infraction, to a foreign prison. For that matter,  he has no authority to put anyone in an American prison (except the authority used to send prisoners to Gitmo. I question that authority, but Congress gave the President that authority after 9/11. Trump is relying on the AEA, so any other law doesn’t enter the discussion. And Gitmo is not a foreign prison.) That authority resides with the courts, but no one can say the courts are guarding that authority very zealously.

Trump says he has authority to deport people to El Salvador . He separately (?) says he has authority to act without due process under the AEA. The AEA might create a “state of exception” (i.e., martial law), but the courts have not addressed whether the law applies to Tren de Aragua or MS-13, or brown people with tattoos. I’m not sure any if those groups are at war with the U.S. 

The AEA certainly doesn’t give Trump the power to deport anyone to a prison in a foreign country. The legal question remains: where does that authority come from?  Because if it doesn’t come from any law or Constitutional provision, it doesn’t exist.

The courts are slow to address the question, but the Supreme Court ducked it completely in A.A.R.P. They acceded to Trump’s authority over foreign policy, but never considered the question of his authority to put people in this position in the first place. They just let him have that, 

They aren’t letting him fuck with the court’s authority, though. They made that clear last Saturday. They reacted to what the Administration has done, and what they expected it to do. (They couldn’t know the busses were in transit, but they accepted the ACLU’s representations, because they knew how Trump was treating their orders. How he was treating the prisoners and deportees is far less important.) Trump can do what he wants, within the limits this court sets. But it’s fucking with those limits that really matters, because that’s fucking with the courts.

There’s nothing stopping the courts from questioning the authority of the president to even do this. It’s like a violation of the Constitution, or of jurisdiction: it can be brought up at any time, even on the court’s initiative, because lack of authority undermines all government action carried out through that purported authority. The courts could do it; but they haven’t.

That’s the real problem. The Court is not really on the side of the nation in this. So far, nobody is. 

Which is the real constitutional crisis. The Constitution won’t protect we, the people, from rogue government. And neither will the any of the vaunted three branches. Not this time. Not so far.