Experts in autocracies have pointed out that it is, unfortunately, easy to slip into normalizing the tyrant, hence it is important to hang on to outrage. These incidents which seem to call for the efforts of the Greek Furies (Erinyes) to come and deal with them will, I hope, help with that. As a reminder, though no one really knows how many there were supposed to be, the three names we have are Alecto, Megaera, and Tisiphone. These roughly translate as “unceasing,” “grudging,” and “vengeful destruction.”
What with all of us being scared – or at least we should be, because he is scary indeed – by the appointment of John Bolton as National Security Adviser (leaving us hoping he won’t accept, but if he does, hoping desperately that Agent Orange will treat his advice like all other advice he gets – i.e., ignore it), something else brewing in the Trump regime should have us all scared in another direction – that if we survive a real or potential World War III, we won’t have a nation any more in which to enjoy it.
You may remember that, when a Federal judge in Hawai’i blocked the proposed travel ban, Jeff Sessions went onto talk radio and said, “I really am amazed that a judge sitting on an island in the Pacific can issue an order that stops the president of the United States.” And we all laughed at his ignorance and were thankful that the Constitutional system of checks and balances had averted ONE catastrophe at least.
But Sessions, and the rest of the Trump regime, were dead serious. They have asked the Supreme Court to find that “the global injunction against the travel ban was overly broad.” And the Court has agreed to consider the issue.
Its ruling, expected in June, could affect not only the administration’s immigration crackdown but the ability of future presidents to keep their controversial—and possibly unconstitutional—agendas in place while they’re being challenged in court.
If you think, for a moment, of the variety of Trumpian abuses that the courts have stopped, just in the last year and two months – sanctuary city (and state) crackdowns, protections for Dreamers, as well as multiple attempts at travel bans – if you think that “Murrka” already displays vast abuse of its most vulnerable residents, think what it might be like if a Federal Court injunction would only be valid in the state which brought the lawsuit, or possibly, in the Federal District in which the Court was located. Because that’s what this regime wants to do.
The government is entering a debate that has largely played out in academic circles. Several legal scholars, mostly conservatives, have argued that nationwide injunctions are beyond the constitutional authority of the judicial branch. “I think the injunction should protect the individual plaintiffs who are suing,” says Samuel Bray of the University of California-Los Angeles School of Law, whose work has shed light on the increasing frequency with which courts have issued broad injunctions in recent years.
On the left, lawyers and scholars believe nationwide injunctions protect civil rights and are a critical tool to prevent government overreach. The debate is “really about what you think the role of the courts should be,” says Amanda Frost, a constitutional law expert at American University’s Washington College of Law. “My view is the courts need the power to curb or check the power of the executive branch.” What if a state passed an illegal voter restriction law right before an election and got sued by a disenfranchised voter? Without the nationwide injunction as a tool, she says, that could affect the outcome of an election; it wouldn’t make sense to restore voting rights to just the one person who sued.
Basically, what is at stake is the authority of the entire Federal Court system. Just as it was at stake in Marbury v. Madison. And, if that doesn’t scare you – if you think that the Court will not rule to increase their own workload by orders of magnitude, for example – be aware that the DOJ has a second case, this one currently before the 7th District Court of Appeals, which is being prepared in even greater detail to revisit the same issue of “judicial overreach” (that any injunctions should only apply to the parties in a case). So, if they lose with the Supreme Court this time, there will be a next time.
Groups such as the ACLU protect our liberties with object cases which demonstrate that something is wrong, and they go to court to get rulings that something is wrong, in order to make things right everywhere. They resources are already extremely strained. If they are going to have to go to court fifty times – in every state – or even in every Federal District – they will not be able to protect anyone or anything.
Alecto, Megaera, Tisiphone, please help us prevent our nation from degenerating into a phoberidzocracy (my feeble attempt at coining a word which ought to mean “government by bullying.”) Please strengthen the backbones of the Supreme Court justices to rule correctly in this case – and then strengthen them some more if and when the next case comes up. Because, if something is unconstitutional in one state, it is unconstitutional everywhere.
The Furies and I will be back.
Cross posted to Care2 HERE.
