The following is a lightly edited transcript of the September 8 episode of the
Daily Blast podcast. Listen to it here.
Greg Sargent: This is The Daily Blast from The New Republic, produced and presented by the DSR network. I’m your host, Greg Sargent.
Suddenly President Donald Trump’s losses in court are really piling up on many fronts. In just the last week or so, Trump’s use of the Alien Enemies Act for deportations has been blocked in court. Most of his tariffs were ruled illegal, and the judge also invalidated Trump’s cancellation of grants to Harvard. We think there’s a through line here that deserves attention. It’s that judges are taking a very hard line on Trump’s use of pretexts to justify his illegal actions. And that’s critical because that use of pretexts, often incredibly absurd ones, is essential to Trump’s effort to consolidate authoritarian power. But what happens when all this collides with the Supreme Court? Michigan University law professor Leah Litman wrote a book on the Supreme Court that’s aptly titled Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes, so she’s pretty well suited to explain all this to us. Leah, thanks for coming on.
Leah Litman: Thanks for having me.
Sargent: So Leah, all these losses are pretty big, but I want to start with the Alien Enemies Act decision because it really encapsulates the worst ways Trump is abusing power. Trump has claimed the power under the AEA to deport Venezuelans by insisting that their presence here constitutes an invasion or predatory incursion by a hostile foreign power, which AEA requires. The U.S. Court of Appeals for the Fifth Circuit struck this down pretty sharply, concluding that an invasion or predatory incursion has not occurred on the facts. What was your takeaway from that?
Litman: I think it’s a really significant loss. One thing is it happened in the U.S. Court of Appeals for the Fifth Circuit, one of the most conservative courts in the country. It was a majority opinion written by a Republican appointee. And as you say, this is one of his most abusive and, I think, chilling exercises of authority, summarily expelling people to a foreign torture prison where they experienced severe abuse and torture. It is also significant because the premise of his proclamation was that we are in a state of some sort of emergency, and everyone familiar with the history of fascism and autocrats knows that oftentimes it is declarations of emergencies that serve as the basis of the groundwork for authoritarianism and autocracy. And I think this is one of the instances where he tried that path, and here you have a court of appeals shutting him down—finding that there is just no way, no sense in which this alleged gang operating out of Venezuela is remotely, remotely similar to an armed organized army entering the United States.
Sargent: Yeah, and that really gets at the core of something else about this as well, which is it’s part of this larger agenda of militarizing domestic law enforcement.
Litman: Yes, exactly. Whether it is deploying the National Guard, whether it is declaring that the fentanyl crisis is such an emergency that it gives the president emergency extraordinary powers with respect to the economy, it is across the board looking for ways to incorporate more shows of force in an escalated way for the president to impose his agenda.
Sargent: And saying it’s all justified by emergency, but we’ll come back to that. We had something similar on these two other cases. On tariffs, this time the appeals court for the Federal Circuit ruled most of them illegal. Trump had argued that he can invoke an economic emergency to unlock the authority to unilaterally impose tariffs—and he said the economic emergency in question was our trade deficits. But then the court ruled that the statute in question, which is the International Emergency Economic Powers Act, doesn’t grant Trump this unlimited tariff authority. And then on Harvard, a federal district judge ruled that Trump’s government broke the law when it froze billions of dollars in research money on the grounds that Harvard had failed to do enough to fight antisemitism. Leah, in both these cases, the rationale for Trump’s illegal acts was frankly a joke, and everybody knew it. Are you happy with the way the courts handled both those?
Litman: I have to say I am very happy with the opinion in the Harvard case. I am less happy with the opinion in the tariff case because the way the court resolved the tariff case was not to dive in to this pretext of an emergency. Instead, it was just to declare that whether or not there is an emergency, the president just lacks the authority to institute these tariffs or these kinds of tariffs. And I think that that skirts what, as you say, is the key issue in this case and others, which is the underlying claim and premise is bullshit. He is creating an emergency in order to justify emergency powers. And so I wish that the Federal Circuit had been willing to examine that part of the challenge. The Harvard opinion, I think, is a tour de force. It utterly demolishes the, again, pretextual bullshit suggestion that this was ever about antisemitism. It is, as the judge found, just a thinly concealed pretext for an ideological war on higher education and elite education.
Sargent: Let’s step back and note that, OK, Trump has won some in court recently, but these three losses—Alien Enemies Act, tariffs, Harvard—really constitute three major pillars of Trump’s agenda. You’ve got the mass deportations, the effort to rip up the international trading order, and the strong-arming of the biggest cultural institutions in this country. So if you step back, you can see how large swaths of the Trump agenda are currently resting on top of enormous abuses of power and flagrantly illegal acts. And hasn’t this been revealed in a fresh way?
Litman: Yes. I think it is very heartening that the lower federal courts are still willing to do their jobs. And for people who are skeptical about what law can do in the situation we find ourselves in, particularly with the Supreme Court such as it is, I think these decisions and opinions, their ability to develop the facts, to expose the facts, right, to make plain what it is we are witnessing—that is all very powerful, even if down the road the Supreme Court blows it up for whatever garbage reason they will invent.
Sargent: That just might happen, and I want to come back to that. It seems to me that in some sense, these cases get at the core of Trump’s agenda in another way. Trump and Stephen Miller and the more overtly fascist advisers around Trump are really deliberately testing how far they can get with pretexts for these illegal acts that are unabashedly manufactured rationales. It’s a feature of what they’re doing that the rationales are made up. The core of their project is to create this new reality, this brave new world, in which the president has the power to say we’re in the midst of an emergency by fiat, simply by saying it’s so—no matter how legally specious or disconnected from reality it is. So is what’s being tested now whether the courts are capable of dealing with that project?
Litman: I do think that is part of these cases. I think that came through very clearly in the Harvard opinion. I think that also came through pretty clearly in the Alien Enemies Act, or AEA, opinion. It is possible it could surface eventually in another round of litigation over the tariffs, although who knows whether that will happen. But I do think that this array of challenges is very much getting at whether, and to what extent, courts are willing and able to review a president’s obviously false declarations of emergencies. So much of our law is premised on the notion that the president, the executive branch, the legislature—they’re just in better positions than the courts to determine the facts. And courts should ordinarily defer to the executive branch and afford them what’s called a presumption of regularity, the idea that they are operating according to normal processes and in good faith. But I think if anything, the last however many months we’ve been dealing with this and in all of this litigation is really testing the ability and willingness of courts to recognize when that presumption isn’t warranted, [when] to call a spade a spade, when to actually admit we are not living in normal times.
Sargent: Yeah. I feel like it’s not stated clearly enough that core to the project is the bad faith, that the whole point is to assert the power to invent the rationales.
Litman: Yes, exactly. Because if he can invent the rationales, if he can just decree what reality is, that gives him unlimited power. Then it wouldn’t matter what the facts actually are; he gets to declare them otherwise. It doesn’t really matter whether they’re actual emergencies because he can just make them up. And so, yes, this is absolutely core to his project. I think it is oftentimes a part of the rise of authoritarianism: the power just to declare that blue is red, the sky is green, and whatever else suits their whim or their agenda.
Sargent: I feel like we should at least say it’s pretty good that the lower courts knocked out three of the major pillars of Trump’s entire agenda, all of which were consisting of this bad-faith invention of rationales.
Litman: Yes, it is very encouraging. I think the lower federal courts are really doing their jobs in the face of considerable adversity not just from the administration but also from the Supreme Court. And I think that bears mentioning and appreciating.
Sargent: Well, now comes the bad part.
Litman: One First Street.
Sargent: Right. Exactly. In some of these cases, the statutes seem pretty clear. The Alien Enemies Act requires an invasion or predatory incursion by a hostile foreign nation. Tren de Aragua is not a hostile foreign nation. The statute Trump is invoking on tariffs doesn’t even mention tariffs as something he can use in a declared economic emergency—and the idea that trade deficits constitute an emergency is a sick joke. But what happens when the Supreme Court gets ahold of all this?
Litman: To date, nothing good has happened, and I don’t know that we should expect that that’s going to change. So what will happen? Honestly, my guess is the administration probably will lose some of these cases in the Supreme Court, but they’re going to prevail in others. And in some respects, the cases that I am most concerned about are those that turn on the facts because this Supreme Court, like the Trump administration, has been all too willing to just ignore the facts, play fast and loose with the facts, and invent alternative versions of the facts when the actual facts aren’t convenient to them. So I am worried about their willingness to just ignore basic rules of judicial procedure, like respecting the trial court’s findings of fact, and I am curious to see whether that aspect of their decision-making thus far continues.
Sargent: It seems to me that this court is predisposed to the idea that the president should be able to say what reality is. Can you talk about that?
Litman: Yeah. So three things I would say there. One is at this point, the Trump administration’s near-unbroken string of victories in the Supreme Court makes pretty clear that this court’s underlying sympathies are with the Trump administration. When the court is forced to make these fast off-the-cuff determinations, their instinct—when they’re shooting from the hip—is that the president gets to do this and the president’s agenda is fine. I think that intuition should be very troubling—that that is their assessment of reality.
Second is we know from their public statements that they think everything is just fine. Justice Barrett had her ridiculous event with Bari Weiss about her book—exactly, we could talk for eternity about that—in which she just openly declared, We’re not in a constitutional crisis. There have always been conflicts between the courts and the president and the executive about authority. This is nothing new. This is nothing bad. And if that is her truly delusional outlook on life, then they really just do see this administration as completely normal and nothing to be concerned about—as if all of the brazen, systematic lawlessness is just par for the course or maybe it’s not so lawless at all.
And third, as I was alluding to, this court is totally fine making up facts. Neil Gorsuch wrote a majority opinion in which he basically invented a false reality about the facts of the case involving a coach who prayed at a public school. So they’re not above doing the same bullshit.
Sargent: Yeah, it’s pretty distressing. I have to say, maybe I’m a little overly optimistic, but I have a tough time seeing the court getting to siding with Trump on the tariffs or the Alien Enemies Act stuff. Is that too optimistic?
Litman: So I agree with you on the Alien Enemies Act. I think that they will probably side against him, [though] I’m not super confident in that. The tariffs, I’m just a little nervous. And I say I am a little nervous because I’ve already seen seeds in Brett Kavanaugh’s opinions laying the groundwork for him to avoid applying the various legal doctrines that he and the other Republican appointees applied to the Biden administration to limit some of their regulatory initiatives. The Supreme Court invented this legal rule—the major questions doctrine—that basically said agencies can’t do these big significant things when they are exercising authority delegated to them by Congress. But in opinions at the end of last term, Brett Kavanaugh was like, Well, maybe that rule just doesn’t apply in foreign affairs.
Sargent: Yeah.
Litman: Right. And so they’re just gerrymandering the law potentially. Exactly.
Sargent: Exactly. They’re going to come up with some way for the major questions doctrine to not apply there. Is that what you expect to happen, or do you think it’s up in the air?
Litman: I think it’s up in the air. I’m absolutely not going to say this one is a sure deal. But if I had to guess, that’s my instinct right now.
Sargent: You can see two end games here—one in which the court does the right thing on tariffs and on Alien Enemies Act, and something like the rule of law is visible in an outcome like that, and something like a rebuke to unlimited presidential power to use a Sharpie to invent legal rationales; [that] doesn’t really get upheld. But on the other side, maybe on one or two of the cases, the court sides with Trump. What do you see on the other side if it goes down that bad road? How bad does it get?
Litman: We know that this administration is not going to stop testing the limits of their power. I think if they get any yeses, they will take them and run with them and try to rely on those statutes or those courses of action more to try to replicate them. So I think giving him the A-OK on any of these bullshit exercises, claims of emergency, is very dangerous because it signals to him this strategy is sometimes going to work. And their internalized lesson is if you throw enough shit at the wall, some of it is going to hit. So even a mixed record at the court based on some of these pretextual claims of emergency, I think, will probably embolden them.
Sargent: Yeah, and as you pointed out, Amy Coney Barrett at least doesn’t see the need to worry about this emboldening, which is just absolutely baffling. Folks, if you enjoyed this discussion, make sure to check out Leah Litman’s book Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes. Very well titled. Leah, thanks for coming on with us.
Litman: Thanks, as always, for having me.