Keeping in mind that Judge Easterbrook was considered a possible successor to the late Justice Scalia, and is a long time leader of The Federalist Society, a highly conservative group with a special interest in the judiciary, no one can mutter Damn liberal judges! at this report:
In a jaw-dropping opinion issued by the 7th U.S. Circuit Court of Appeals in Chicago on January 23, Judge Frank Easterbrook—a longtime speaker for the conservative Federalist Society and someone whom the late Justice Antonin Scalia favored to replace him on the U.S. Supreme Court—rebuked Attorney General William Barr for declaring in a letter that the court’s decision in an immigration case was “incorrect” and thus dispensable. Barr’s letter was used as justification by the Board of Immigration Appeals (the federal agency that applies immigration laws) to ignore the court’s ruling not to deport a man who had applied for a visa to remain in the country. [Politico]
Barr sounds like quite the authoritarian, doesn’t he? The report goes on to explain:
“We have never before encountered defiance of a remand order, and we hope never to see it again,” Easterbrook wrote. “Members of the Board must count themselves lucky that Baez-Sanchez has not asked us to hold them in contempt, with all the consequences that possibility entails.”
Given Trump’s record of defiance, Barr’s maneuver is predictable—but it is a shocking break with more than 200 years of constitutional and legal precedent.
Etc. And then author Wehle brings up one of the central problems that sometimes bothers me late at night:
The question looming over the presidency today is not what the law says, but what happens when the executive branch violates established law. As we saw with the impeachment debacle, without consequences, laws lose their force and become optional. In remanding the Baez-Sanchez case for a second time, Easterbrook insisted that the immigration judge’s waiver decision remains “in force,” and that “[t]he Executive Branch must honor that decision.”
What will happen, then, on the inevitable day that Trump’s administration refuses to honor a judicial decision? That scenario beggars belief, too. Courts enforce contempt through the U.S. Marshals Service, a team of federal police officers that is ultimately within the president’s chain of command. Will U.S. Marshals side with the judge over the president or vice versa? And if they get that choice wrong, what branch of government stands ready to hold them accountable to the people?
I suspect we’d see how the Army feels about democracy, and that would leave a bloody, pus-filled gash that wouldn’t heal for a generation or two. Much to Russia and China’s delight.
But this is just the next step in the inevitable Trump legacy. The prior step was the Betrayal of the Evangelicals. That was not betrayal in the traditional sense; rather, it was the enticement of the evangelical movement into a completely compromised position, and done with such delicacy that I suspect most evangelicals don’t even realize they have become one of the most immoral groups in the United States – not only for their use of the mendacious Trump to achieve their goal of pressuring abortion rights, but also for the concomitant corruption of the leadership of evangelicals, and for doing this all in the name of a dubious intellectual position.
This next step is more along the lines of a traditional betrayal, though. There is no doubt the moderate conservatives thought there would be some reasonable line Trump and his minions wouldn’t cross, but now they’re finding out that Trump’s vision of the United States is not the common one of the moderate conservatives, which, as distasteful as a committed progressive might find it, is a reasonable view, committed to long-term American bedrock principles.
I won’t say Trump is a committed authoritarian. I don’t think he has that much consciousness about himself; reports of his behavior paint a mercurial, grasping, obsessive man, whose desire for wealth & prestige has completely submerged any respect he has, or may have had, for democracy. That is, he seems little more than a very crafty child.
And he’s used the conservatives to approach his goals, whether they’re just money, or the prestige of building Trump Tower in Moscow, or he’s being blackmailed. The evangelicals are one peg in the wall he’s climbing, so is the GOP. Barr is one of his latest pegs, who, from the evidence, thinks he’s fighting a quasi-holy war with the supposedly Godless liberals, with Trump as his Holy Emperor; soon enough, unless he’s absolutely committed to toadyism, he’ll be on the ash heap of history – and on the wrong side, too.
Right next to Easterbrook and all the other conservatives who thought Trump was the golden path to conservative dominance over the coming decades, despite demographics being against them. Barrs ridiculous statement show them they don’t know where this path is going, but they’re not going to like it.
