Greg Sargent: This is The Daily Blast from The New Republic, produced and presented by the DSR network. I’m your host, Greg Sargent.
Matthew Seligman: Thanks for having me.
Seligman: What he’s trying to do is to invoke this false idea of a popular mandate. He did win, but as you know, it was a very narrow victory. And he’s trying to invoke that idea of a massive popular mandate to intimidate the Supreme Court into ruling in his favor. And this is part of a long history of Trump’s attitude toward the courts. Even going back to his first term, he attacked the courts on regular basis in a way that was far outside the bounds of what presidents normally do. And it prompted the chief justice to release a really unprecedented statement saying that there were no Trump judges, there were no Obama judges, there are just judges. And that was really an extraordinary moment for the judiciary that almost never—almost never—steps outside of judicial opinions to defend itself against the political branches. And now Donald Trump is doing it again. And he’s raising the temperature on this even higher.
Seligman: Yeah, and obviously this is one of the issues that is central to Donald Trump’s political identity and political movement. The question with birthright citizenship is right upon taking office, Trump issued an executive order that purported to say that the children of undocumented immigrants, even if the children were born in the territory of the United States, aren’t citizens. Now, the problem with that is that the Fourteenth Amendment says that anybody born in the U.S. and subject to the jurisdiction thereof is a citizen of the U.S. So it’s been settled law for almost 150 years that that means that anybody who was born in the territory of the U.S. except the children of ambassadors and a couple of other minor cases are citizens of the U.S. And he’s trying to reverse that constitutional principle by executive order.
Sargent: Well, there are two things at issue in the birthright citizenship case, right? There’s that—whether the nationwide injunctions against the administration’s effort to revoke it will stand—and whether Trump can actually succeed in ending birthright citizenship permanently. That may get litigated a little later. Where do you see the court going on both of these?
Sargent: That’s good to hear. What about on the injunctions?
Now, the actual procedural issue here is a little bit more complicated though. The reason is because both conservatives and liberals have used these nationwide injunctions. What we saw in the oral argument yesterday is that the justices are really frustrated with the frequency of the use of nationwide injunctions, but they do recognize that at least in certain types of circumstances ... and I think even some of the conservative justices like Justice Gorsuch recognize that this is one of those circumstances where nationwide injunctions really have to be appropriate.
Seligman: Well, I think it’s even worse than what you just said, because what would happen in that case ... If the court rules that, No, the nationwide injunctions, even in this situation, are not OK, then what we’re left with is that there’s a handful of plaintiffs who have sued in court, their citizenship isn’t going to get stripped. But the other millions of people, their citizenship will be stripped until they bring a suit in court. And that means that there are going to have to be millions of lawsuits. And that means there are going to have to be millions of lawyers who are defending the constitutional rights of all of these American citizens who were born in the U.S.
Sargent: Well, we should clarify that the people who would lose their citizenship are the ones who don’t have a parent who’s a legal permanent resident or a citizen. But Matt, let’s say the court rules substantively at the end of the day against the administration. What happens to those millions of people? Do they still have to go to court to recoup that citizenship or does it revert to them automatically? This is what I don’t get.
Sargent: In other words, the citizenship does not revert to them. Matt, I think it’s worth digging deeper into what Trump is trying to do here. He’s not just trying to bully the Supreme Court into ruling his way. I think the game is more subtle if that’s the right word for something Trump does. He and his people are deliberately creating this drumbeat around the idea that maybe, just maybe, Trump will defy a high court ruling soon enough. The intent is to maybe bluff the high court into thinking that if it rules against Trump, he might actually go through with defying them, take the plunge into the abyss, which would then render them powerless, right? The idea is to give the justices an incentive to take a refuge in middle-ground rulings that give Trump more wiggle room than he otherwise might have. Is that right? What do you think?
Now we’ve already seen from the administration an unprecedented level of, if not outright defiance, just bad faith evasion of lower court orders. It hasn’t quite come to the point where the administration has said, We recognize that you court have ordered us to do something and that it’s a lawful order, but we’re just not going to do it. We haven’t had that confrontation yet. And it hasn’t come from the Supreme Court yet either. But that’s where this looks like it’s going. If the Supreme Court ends up issuing an order that is crystal clear and there’s not enough wiggle room for Trump and the administration to evade it without outright explicitly defying it, then we’re going to come to this real Rubicon moment—the end of the many, many Rubicons—where the administration is going to have to make a choice. Do they want to say we are not bound by a crystal clear order of the Supreme Court? And that’s the moment where the rule of law in America is really, really at stake.
Seligman: Well, I think the history of people who have tried to come to peace with Donald Trump shows pretty clearly that he’s always going to come back for more. We see this in the way that law firms folded to his threats, universities folded to his threats, politicians ... There’s just a long line of fallen political careers from people who tried to make a deal with Donald Trump. And I think the exact same thing would happen here. If the Supreme Court tries to come to some middle-ground understanding, he’s just going to push further. I don’t think that we’re going to end up at a place where that confrontation isn’t going to happen.
Sargent: This concept of anticipatory obedience on the part of the Supreme Court is really interesting. We should talk a little more about it. If I understand you correctly, you’re basically saying that, OK, Trump is going to try to bluff, or is already trying to, bluff the court into constraining itself with these fuzzy middle-ground rulings. But even if they do that, it’s not going to satisfy Donald Trump and especially the people around him like Stephen Miller, the full-blown fascist, who want a full confrontation. This is the thing, right? So the court—maybe if they were to give Trump this wiggle room, the people around Trump who want a grandly decisive and final confrontation with the court will keep pushing him toward that. Do you think we’re going to get that? And what happens then?
Now, there’s also reason to fear that that’s not going to happen. And the reason is because with tariffs, it seems like he’s the one ... and Peter Navarro is the one guy in the administration who really believes in tariffs along with him. Everybody else around him, all of the business community, all Republicans really—they don’t believe in tariffs. So there’s really no support around him from within his own world to support that position. But with immigration and defying the courts, there is that robust support system pushing him to go even further than maybe his instincts would be. And the primary mover there is Stephen Miller, who is, I think, ruthless, intelligent. And I don’t mean those as compliments; I mean that as a way of saying he’s extraordinarily dangerous. He might be the most dangerous man in the administration. And with Miller and so many other people around Trump pushing him toward that confrontation, pushing him not to back down in a confrontation [with] the courts, I think that we may be headed toward a much more dangerous outcome in this confrontation than in the trade context.
Seligman: I think this implicates an important distinction between Trump as an optical authoritarian versus Vance and Miller as substantive authoritarians. Trump wants the trappings of authoritarianism. He wants everybody to talk about how he’s the most powerful person, and he wants it to look like he’s in charge.
Seligman: Exactly. He wants the big parade. He wants the tanks rolling down Pennsylvania Avenue, but he actually doesn’t care as much about the substance. Which is why he’s happy to get into these trade confrontations with other countries and then get some minimal or nonexistent concession from Mexico or Canada and then declare victory. He wants the optics of authoritarianism power, but he doesn’t actually really care about exercising power all that much outside of a few small contexts. Whereas Miller and Vance, I think, are much more committed to substantive authoritarianism. They actually want to exercise the power. They actually want to degrade the rule of law because they actually want to impose this particular vision—very dark vision—of America’s future on the country. And so for them, the optics aren’t enough. It’s not enough for them that it looks like the Trump administration has prevailed over the Supreme Court. They actually have to break the power of the Supreme Court to put any substantive constraints on their will.
Seligman: Thanks for having me.
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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