Constitutional collision on judges, law, and Trumpism

This has been brewing for a long time and now we reap the whirlwind

The last time Congress made a major change to U.S. immigration law was 1986. When President Ronald Reagan signed that law, William H. Rehnquist had been sworn in as Chief Justice of the Supreme Court only 41 days prior, taking over from the retiring Warren E. Burger. The Burger-Rehnquist courts spanned 36 years, from 1969 to 2005, when Rehnquist died and President George W. Bush nominated John G. Roberts to be Chief Justice. What has marked the Roberts court is its devotion to and fierce protection of the Supreme Court as an institution. Now that protection has extended to the entire court system, which is under attack by the wave of Trumpism overtaking our government.

The Supreme Court as composed June 30, 2022 to present. Front row, left to right: Associate Justice Sonia Sotomayor, Associate Justice Clarence Thomas, Chief Justice John G. Roberts, Jr., Associate Justice Samuel A. Alito, Jr., and Associate Justice Elena Kagan. Back row, left to right: Associate Justice Amy Coney Barrett, Associate Justice Neil M. Gorsuch, Associate Justice Brett M. Kavanaugh, and Associate Justice Ketanji Brown Jackson. Credit: Fred Schilling, Collection of the Supreme Court of the United States

In the past 16 years, federal courts have generally issued judgments favoring enforcement over protection of immigrants. In the matter of how law is implemented, rulings like United States v. Hansen have upheld laws prohibiting the encouraging of illegal immigration in exchange for financial gain, held up against the First Amendment rights of those doing the encouraging. Kansas v. Garcia upheld states’ rights to prosecute identity theft by illegal immigrants, and Chamber of Commerce v. Whiting upheld Arizona’s law revoking business licenses of firms that hire unauthorized workers.

In the years that Donald Trump has been president, however, the courts have blocked his orders, favoring the rights of immigrants versus the power of the government. Most recently, Trump has been fighting a war with the judiciary over his use of the Alien Enemies Act of 1798 to deport Venezuelan gang members. In 2018, in Sessions v. Dimaya, the Supreme Court ruled that “crime of violence” was vague and unconstitutional, as the standard for deportation. In 2020, SCOTUS upheld DACA, calling Trump’s actions to rescind it “arbitrary and capricious.” This doesn’t even cross over into the absurd proclamations Trump has made in executive orders like his day one recision of birthright citizenship, guaranteed by the 14th Amendment.

It’s the job of Congress to make immigration law. It’s the job of the executive branch to enforce that law, and even to lead the country by proposing new law and being the “whip” of Congress, led by the party in control, to pass those laws. The last time this was tried was the “Gang of Eight” legislation on border security, in 2013, which failed to pass, and has haunted people like Secretary of State Marco Rubio ever since. You might even argue that the failure in 2013 can be directly tied to the popularity of Donald Trump in 2015, when he descended that golden escalator and declared war on illegal immigration.

When Mexico sends its people, they’re not sending their best. They’re not sending you. They’re not sending you. They’re sending people that have lots of problems, and they’re bringing those problems with us. They’re bringing drugs. They’re bringing crime. They’re rapists. And some, I assume, are good people.

Trump never really had the votes in Congress to make new immigration law. For 30 years, Congress could not get that passed, by either party. Democrats wanted to make every illegal immigrant a citizen, in the 2010 DREAM Act, but Republicans blocked it in the Senate with a filibuster. So President Obama instituted DACA via executive order.

The nation voted for Trump, narrowly, but with a majority, in 2024. They voted knowing what Trump wanted. They voted knowing that deportations would happen. This means families broken apart. It means there would be “harm” to illegal immigrant families, fear in the illegal immigrant community, and mass deportations based on various standards. The media that stands against those things has not held back any ink to make the immigrants into victims.

Judges have continued to rule against Trump and ICE. And now, Trump is giving the three finger salute to the courts, saying he has the authority to do what he’s doing. The White House has challenged the orders, citing differences between the verbal and written versions, and refused to answer Judge James E. Boasberg’s questions. The Justice Department sent a letter to the federal appeals court, asking for Judge Boasberg’s removal from the proceedings.

When President Trump said the judge should be impeached, it drew a rebuke from Chief Justice Roberts, who made a rare public statement, “Impeachment is not an appropriate response to disagreement concerning a judicial decision.” It takes a simple majority in the House and a 2/3 majority in the Senate to impeach a federal judge. Given Trump’s narrow congressional majorities, it won’t happen. But the war goes on.

This is obviously not how we should conduct government in the United States. But this whirlwind has been sown for decades. As for impeaching judges, in 2024, Rep. Alexandria Ocasio-Cortes introduced articles of impeachment against Justice Clarence Thomas. You could easily argue that Justice Thomas issued many rulings that Ocasio-Cortes disagreed with. She had plenty of pretext to cover her motivation, and was aided by the friendly media.

There was talk of President Joe Biden “packing the court.” There was all kinds of talk about how the Supreme Court had lost its reputation and became invalid as an institution. Chief Justice Roberts did what he could to defend the Court. Now watch the same people rise up in defense of SCOTUS, because it stood up to Trump.

This constitutional collision is really unnecessary, because we are talking about immigration, which the majority of the country thinks is important enough to reject Kamala Harris and elect Donald Trump, who will take care of it with the precision of a chainsaw.

Kneejerk judicial reaction to Trump’s sweeping moves will only escalate this crisis. Congress really needs to act, but can’t because it’s hopelessly gridlocked, unless we’re talking about cataclysmic events like a government shutdown. Instead, we have judges issuing orders to counter unilateral moves by the Trump administration, to protect people who are here illegally and need to be either given citizenship or deported. People will be harmed by their removal from the United States. Families will be broken up.

But this is what we dealt ourselves over the decades when nothing was done since 1986, and when partisanship alone has determined who gets to listen to judges and who calls for their impeachment.

Our government is messy at its best, but this mess is beyond that. The dysfunction can lead to a breakdown of all institutional authority other than the one by people with guns. I don’t like where it’s going, and I think even the Supreme Court justices are concerned. They should be.

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