Former Scalia clerk complains lower courts are bucking Trump 'like feudal lords'

31 July

SCOTUS opens the door to dictatorship

Harvard professor Cornelius Vermeule is alarmed at lower-court moving against the conservative-dominated Supreme Court.

“District Court judges, and in some cases even appellate courts, have either defied orders of the court outright or engaged in malicious compliance and evasion of those orders, in transparent bad faith,” Vermeule tells the New York Times.

Vermeule argues lower court judges like Brian Murphy, of the Federal District Court in Massachusetts, recently defied the Supreme Court's support of transferring migrants to third countries and offsite facilities. After the Supreme Court issued a temporary order to stay Murphy’s injunction against off-siting migrants, Vermeule says Murphy decided that his order enforcing the injunction against shipping off migrants remained in effect. Murphy based his judicial rebellion on the dissent of Supreme Court Justice Sonia Sotomayor in that decision.

Vermeule also cites a Federal District Court judge in Oregon, which ruled that the Department of Homeland Security could not engage in mass terminations of parole status for a class of migrants based on lower-court decisions that had blocked similar executive action in the past. But Vermeule said the Oregon judge omitted a Supreme Court decision that had neutralized those lower court orders.

Yet another judge used “bad-faith evasion”, according to Vermeule, by ignoring a Supreme Court decision that the Trump administration could indeed disqualify transgender individuals from military service. Vermeule argues the Supreme Court even had come back and issue a stay against the district court so the Defense Department could follow through with what critics call a blatantly bigoted policy of exclusion.

Vermeule, who clerked under conservative justice Antonin Scalia, argues that these lower courts have “almost no accountability.”

“They are like feudal lords who lay down the law in their local courts,” he argued. “If they are reversed, at least they will have stymied for some time the implementation of presidential policies they find objectionable.”

Vermeule added that since there is not enough consensus in our deeply divided Congress to return to a 1950s era three-judge District Court the president should simply be able to snub judicial orders.

“The basic theory of departmentalism is that while the Supreme Court has the authority to exercise its Article III ‘judicial Power’ in cases or controversies before it,” Vermeule argued, citing Harvard colleague Jack Goldsmith. “the President’s Article II duty to ‘take care that the law be faithfully executed’ gives him an independent power to determine what ‘the law,’ including the Constitution, means, for purposes of exercising executive power.”

“By ignoring such an order, the president, far from defying the judiciary as such, would be supporting the authority of the Supreme Court — the only court created by the Constitution itself,” Vermeule said.

Read the full New York Times report at this link.

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