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Fresh from a major victory in the birthright citizenship litigation, the American Civil Liberties Union’s national legal director Cecillia Wang has earned her optimistic outlook on the ability of the federal courts to hold Trump 2.0 to account.
In that case, the ACLU proved that Trump’s illegal actions could still be blocked universally after the Supreme Court all but abolished nationwide injunctions. The civil rights group also “took a win” in two out of five Supreme Court orders in the emergency docket. One of those decisions, J.G.G. v. Trump, upheld due process in a case related to Trump’s invocation of the Alien Enemies Act, and another rejected the state of Florida’s effort to enforce an anti-immigrant law that was blocked by a lower court.
Despite those successes, Wang acknowledges that the fight for accountability at the Supreme Court has been a “mixed bag.”
Less than an hour before our interview, the Supreme Court on Monday paused a federal judge’s order that blocked the Trump administration from deep cuts aimed at dismantling the Department of Education. In her dissent, Justice Sonia Sotomayor noted that the conservative supermajority effectively paved the way for Trump to abolish an agency created by Congress, at least until the litigation returns to its docket.
“When the Executive publicly announces its intent to break the law, and then executes on that promise, it is the Judiciary’s duty to check that lawlessness, not expedite it,” Sotomayor wrote.
Democracy Forward’s president Skye Perryman, who leads one of the groups behind that litigation, expressed confidence that her legal team would ultimately prevail.
“While this is disappointing, the Trump-Vance administration's actions to decimate a department established by Congress are still unconstitutional,” Perryman said in a statement. “No court in the nation — not even the Supreme Court — has found that what the administration is doing is lawful. We will aggressively pursue every legal option as this case proceeds to ensure that all children in this country have access to the public education they deserve.”
There have been various other rulings like it — hugely consequential orders issued on the so-called shadow docket without any explanation or oral argument on the issue. In one, the Supreme Court paused injunctions that stopped the Trump administration from sending immigrants to third party countries like South Sudan or El Salvador without any notice or a hearing.
Because of the Supreme Court majority’s silence, it’s unclear just how sweeping the Trump administration’s powers are, and Immigration and Customs Enforcement is taking as broad an interpretation as possible. The Washington Post reported that an ICE memo states that six hours notice is enough before sending an immigrant to a country where that person might be tortured. ICE believes that no advance notice is necessary if the host government asserts that the immigrant will not be tortured, according to the article.
Wang believes that this policy still can be successfully challenged before the Supreme Court.
“You can't expect someone to ask for due process by going to a federal court within a matter of four hours or six hours,” Wang said. “The court has already said 24 hours is not enough in an equivalent situation, and it certainly isn't enough when the government is trying to bypass ordinary immigration court procedures for designating what country you're going to be deported to.”
The Trump administration also keeps finding itself stretched thin when trying to stave off hundreds of lawsuits.
According to a new report by Reuters, two-thirds of the Justice Department lawyers tasked with defending the Trump administration’s policies have quit. Frequently, senior Justice Department officials — including the political leadership — wind up fighting the cases themselves in court.
One of the Justice Department lawyers who left this term told Reuters: “Many of these people came to work at Federal Programs to defend aspects of our constitutional system… How could they participate in the project of tearing it down?"
Due to technical difficulties, Wang’s feed disconnected from the live-stream mid-interview, but our conversation covered a lot of ground before then, including birthright citizenship, third-country deportations, and the Supreme Court’s emergency docket.
Watch the full video at the top of tonight’s newsletter.
Here are links to some of the source materials guiding our discussion: the Supreme Court’s education ruling, the Washington Post’s reporting on the ICE memo, and the Reuters report on the Justice Department’s exodus.
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