Greg Sargent: This is The Daily Blast from The New Republic, produced and presented by the DSR network. I’m your host, Greg Sargent.
Leah Litman: Thanks for having me.
Litman: Yeah. This particular case concerns individuals who are detained in that district—so in the Southern District of Texas. And that’s significant, and partially a result of the fact that the Supreme Court held that these challenges to the Alien Enemies Act had to proceed via habeas petitions. And so it’s in part because of that procedural posture that the district court said this ruling just applies to individuals who are being detained in the jurisdiction.
Again, there are so many different immigration detention facilities that the government still has the power to shuffle people around a fair amount. Some of the most recent horrifying expulsions we read about were carried out from Louisiana; those were the instances where the administration sent U.S. citizens to Honduras. But this is just the patchwork landscape that the Supreme Court has created.
Litman: Yeah. That’s super important because it is one of the first cases that actually rules on whether the administration can use the Alien Enemies Act for this group of people at all. Thus far, the vast, vast majority of the rulings on these matters—again, except for that District of Colorado ruling—have been such preliminary relief that the district courts have not yet had occasion to really examine the underlying merits of the claims, that the administration just can’t use the Alien Enemies Act for this reason at all. Thus far, judges have really only been able to nibble around the edges—asking whether the administration has to afford certain process or procedures before expelling anyone, not whether it can even use this statute, this proclamation at all.
Litman: Yeah. So that’s important not just for this case but, I think, across a range of areas. Donald Trump is basically invoking this idea of emergencies and exceptions to assert extraordinary powers. Here, he’s basically claiming there is a foreign invasion and incursion, therefore [he] can use this summary removal deportation procedure to remove and expel people under other processes that are basically less burdensome on the executive branch. In the cases of tariffs, he’s arguing there is some fentanyl crisis that warrants basically crashing the U.S. economy and the global economy. So there are a host of instances where he’s basically saying, There are emergencies that give me extraordinary powers, therefore no one can examine my powers. And this is just one example. And so it is heartening to have a district judge saying, Actually, that’s not how this works.
Litman: There are, as we were discussing, other places that have these temporary interim relief in place. So it’s very possible we will soon get rulings from those judges that review the underlying merits about whether the administration can use the Alien Enemies Act at all in those jurisdiction, at least as applied to those individuals subject to the proclamation. But because the district judge issued a preliminary injunction, in this case the government can appeal that to the Fifth Circuit.
Sargent: Well, you have a lot to say about the Supreme Court. You wrote a book about it. It seems to me that if the Supreme Court were to side with Trump on this matter at the end, then what the judge said in this ruling would come true. Trump would have no limitations on his authority under the Alien Enemies Act. That seems frightening to me. Do I have that right? What do you expect from the Supreme Court on this?
If I can just make like a quick plug for my book, Lawless. This is literally the opening. The conceit of the book is Sam Alito flying the “Stop the Steal” flag while clearing the way for Donald Trump to appear on the ballot and delaying his election interference charges—and then the court just declaring the president above the law in the immunity case. And it’s like, Well, where did the president get this crazy idea that he is above the law and has unreviewable authority? He got it from his daddy Chief Justice Roberts and all of those guys.
Litman: Exactly.
Litman: He said he won’t forget it. He said he won’t forget it.
Litman: Yeah. But I hold out hope, again, that these Alien Enemies Act cases, given the administration basically thumbing their nose at so many different district courts ... They basically had a presser in which they declared they were not abiding by the Supreme Court decision. Donald Trump has essentially admitted it in interview after interview, No, I haven’t asked President Bukele to return Kilmar Abrego Garcia. Sure, I could do it if I wanted to, but why would I? I think the combination of that coupled with the underlying claim of authority, the fact that they are deporting U.S. citizens coupled with the plummeting approval rating of the administration—I think all of that is creating the conditions that make it so much easier for the courts to rule against the administration on this case, on birthright citizenship.
Litman: I think it does. I think the justices care deeply about their own authority. They are accustomed to being the final say and have their decisions respected. To have a decision so wildly mischaracterized, have the administration basically insist they need not do diddly squat that the Supreme Court suggested they did ... The Supreme Court gave them, let’s be clear, a lot of wiggle room and a lot of room to maneuver in which they could argue like, Yeah, we tried to facilitate his release, but we just couldn’t do it. But facilitate doesn’t mean do nothing. And yet the administration has been quite clear that that’s what their position is. So I think the Supreme Court’s commitment to judicial supremacy, and the idea that they get to decide these matters, is absolutely going to be rubbed the wrong way by all of the things Stephen Miller and all of the other Trumpers are doing.
Litman: Yes.
Litman: No, I think that that is a distinct possibility. And I basically think we have to hold these two thoughts in our minds. And one is that there is this distinct possibility that we descend into this anarchy and authoritarianism. On the other hand, their assertions of power are so absurd, they are beatable. Those two things can be both true: that they are overreaching in ways that make it possible and plausible to push back and defeat, but also they might try it and that would be disastrous, catastrophic, and all kinds of scary. I think we should take heart by a lot of the things that are happening as far as the dwindling public support and increasing public pushback on him.
Litman: Yeah. So I do anticipate more lower court rulings ruling against the administration on the Alien Enemies Act. I also think these cases are going to make their way up to the Supreme Court. Maybe this is just horribly naive of me. I don’t usually think of myself as someone that’s naive about the Supreme Court, but if the administration continues on the path it is on—namely, again, imploding the U.S. economy, and doing a bunch of things that make a bunch of people’s lives worse—the Supreme Court will probably rule against them on this matter.
Sargent: Well, it sounds like across the board, in a scenario like that, we end up with something a little bit closer to the rule of law than the other scenario would be. Folks, if you enjoyed this, definitely check out Leah Littman’s new book, Lawless, about the Supreme Court. Leah, thank you so much for coming on with us today.
Sargent: You’ve been listening to The Daily Blast with me, your host, Greg Sargent. The Daily Blast is a New Republic podcast and is produced by Riley Fessler and the DSR Network.
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