Transcript: Trump’s Threats to Defy
Courts Suddenly Get More Dangerous
As Trump’s intent to override the
courts get more obvious, a legal commentator who closely observes MAGA
lawlessness explains why the Trump-MAGA strategy here is darker than you
thought.
Greg
Sargent: This is The Daily Blast from The
New Republic, produced and presented by the DSR network. I’m your
host, Greg Sargent.
President
Donald Trump is very unhappy with how things went at the Supreme Court when it
comes to his effort to end birthright citizenship. He uncorked two angry epic tirades about
the High Court, essentially putting it on notice that it had better rule his
way on this and other matters coming before it or else. This may look like
typical Trumpian bullying and threats, but we think there’s a game going on
here that people are missing. It’s that Trump is, in a very real
sense, playing chicken with the Supreme Court. He’s trying to bluff the
justices into constraining themselves from putting limits on Trump’s power.
We’re going to explore how this really works today with one of our favorite
legal commentators, Matthew Seligman, a fellow at Stanford Law School. Matt,
thanks for coming back on, man.
Matthew
Seligman: Thanks for having me.
Sargent: So Trump erupted twice at the Supreme Court on Truth
Social. In one of his tweets, he said, “The Radical Left
SleazeBags” are “PLAYING THE REF” at the Supreme Court. “They
lost the Election in a landslide.... I hope the Supreme Court doesn’t fall
for the games they play. The people are with us in bigger numbers than ever
before.” Matt, it’s a complete lie that Trump won in a landslide. It was
one of the most narrow victories in memory in an environment that took down
incumbent parties all over the world. But the key thing there is that he’s
putting the Supreme Court on notice that the people are with him, so the court
had better not stop him. What’s he trying to do with that?
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.
Sargent: In fact, his second tweet was even more direct along these
lines. He said, “THE SUPREME COURT IS BEING PLAYED BY THE RADICAL LEFT LOSERS
... THE PUBLIC HATES THEM, AND THEIR ONLY HOPE IS THE INTIMIDATION OF THE
COURT, ITSELF.” I think this is actually designed to put the court on
notice in another way saying if it rules against him in any of these cases,
Trump will attack the court by saying it caved to left-wing pressure. I think
what set him off though was the Supreme Court’s proceedings on birthright citizenship.
Can you give us a quick overview of what happened there?
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.
Now,
the issue before the Supreme Court actually wasn’t that. The issue was a
procedural issue. This issue has come before several trial courts around the
country and he’s lost everything. And these trial courts have issued what
are called “nationwide injunctions.” Those injunctions say, Hey, not
only can you not strip the particular plaintiffs in this case of their
citizenship, you can’t do it to anyone. And that makes a lot of sense
because otherwise we’d have to have 20 million different lawsuits for each
individual kid. Now, the issue before the court is the Trump administration
wants to say that you can’t do those nationwide injunctions. And in the process,
it wants to make it impossible for people to challenge his underlying
attack on their constitutional rights.
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?
Seligman: On the substantive constitutional issue, I think it
is absolutely clear that the Trump administration is wrong. Just on basic
principles, an executive order cannot overturn the Constitution. And the
meaning of the Constitution here is very clear: that anybody born in the
physical territory of the U.S.—again, except for these really specific
exceptions like the children of ambassadors—are citizens of the United States.
The historical evidence, the originalist evidence that conservative
justices tend to look to is absolutely overwhelming on this point. I can’t say
that it would be 9–0 because we live in an era where even the most seemingly
obvious constitutional principles end up getting decided 7–2. I do think that
there is essentially no chance that the Trump administration would win on the
merits here.
Sargent: That’s good to hear. What about on the injunctions?
Seligman: That’s a more complicated issue. Part of the reason
why the Trump administration is fighting hard on this procedural
injunction issue is because it, I think, recognizes it is probably going to
lose on the substantive issue. So if you play out the game theory here, if they
win on the nationwide injunction issue, it becomes virtually impossible for
people to actually have their constitutional rights vindicated. Because again,
you would have to have 20 million different lawsuits for each individual child. And
lawyers are expensive, and something else we’ve seen is there are attacks on
law firms. And so now big law firms are refusing to do pro bono work on
immigration issues. That’s a way to de facto strip people of their
constitutional rights, even if in substance or in theory, those constitutional
rights are still there.
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.
Sargent: Matt, let me ask you this. So what happens if the court
rules with Trump on the nationwide injunctions, essentially suspends the
nationwide—or reverses—the nationwide injunctions on birthright citizenship,
but then later rules against the administration on the substance? It seems like
they’re trying to buy some time to do some damage in that interim, revoking a
whole bunch of citizenship rights from people in the hopes that maybe those
people don’t try to reclaim them. It’s hard for me to really fathom what the
game is, but can you explain it?
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.
And
if the legal profession can’t muster those resources—even under the best of
circumstances, that’s just not possible—then you’re going to have a situation
where you’re going to have American citizens deported to countries to which
they have never been because they’ve lived in the U.S. their entire lives, they
were born [here], because they can’t get legal help. And because the court
orders don’t extend to anyone other than the specific plaintiffs who filed a
lawsuit, then you would get a situation where potentially millions of American
citizens would be deported to countries where they have never set foot. That is
the humanitarian disaster and assault on the rule of law and the basic
decency of the American constitutional system that it’s really hard to imagine.
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.
Seligman: Well, that’s the point. And that’s why the
administration is fighting this procedural issue so hard. You can have a
constitutional right—but unless a court issues an order that applies to you, there’s
no enforceable constitutional right. So you could have a situation where
somebody’s getting deported. Now, they can challenge their deportation, but
you’re going to have millions of deportation proceedings. And then without a
lawyer, people are going to have to fight those deportation proceedings
and they may not be able to successfully fight those deportation proceedings
even though they’re American citizens. And that’s where the humanitarian
catastrophe unfolds.
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?
Seligman: I think that’s exactly what he’s doing. I think that he’s
issuing not so veiled threats that he will defy the Supreme Court. And it’s not
just him. It’s people around him as well. So I don’t think we can dismiss this
as just sometimes Trump says crazy stuff, [like] about Canada being the
fifty-first state. You have JD Vance saying that, Well, the Supreme
Court isn’t always the final word on the law, and he’s a highly
educated credentialed lawyer. So I think that there’s a real, if you can call
it intellectual, surrounding support for Trump in his continuing and escalating
push to potentially defy the Supreme Court.
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.
Sargent: Right. So what Trump and I think some of the others around
him are trying to do is bluff the court into not issuing a crystal clear order.
In this scenario, the court maybe offers more vague rulings. Let’s take, for
example, the wrongfully deported Kilmar Abrego Garcia. Maybe the court rules in
a way that splits the difference and says, OK, the administration did
act unlawfully in removing him, but we can’t really intrude on Trump’s foreign
policy negotiations with El Salvador, which could let him get away
with leaving Abrego Garcia there, right? What does it look like if the court
does get bluffed into constraining itself, issuing these middle-ground rulings
to avoid that eventuality you’re talking about?
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.
The
reason why that confrontation is one that Trump or some people around him think
it can win is because the Supreme Court doesn’t have an army. The only way that
its rulings and its orders have force is when the rest of the government
voluntarily complies with it. And Trump is threatening not to do that in
exactly, as you said, an attempt to get anticipatory obedience out of the
Supreme Court. That’s a classic move from the authoritarian playbook, where
authoritarians deride so much of their power by intimidating people, other
aspects of government, the courts, the institutions of civil society, into
obeying in advance. And that’s exactly what he’s trying to do with the Supreme
Court right now.
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?
Seligman: I think that’s the big question. It’s hard to say—and the
reason is because Donald Trump is an authoritarian bully but he’s also a
coward. We see this in other aspects of his “art of the deal” negotiating
style, where just this week he completely folded on tariffs with China. He
talks really big, and then when there are actual consequences, when someone
actually stands up to him, he ends up folding. So there’s some reason to
believe that, well, this is just like the terrorist situation. Yeah, he’s going
to issue these really scary-sounding Truth Social messages suggesting that he
may defy the courts, but when push comes to shove, he’s a coward and so he’ll
back down.
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.
Sargent: Right. At risk of seeming maybe a little soft on Trump for
a passing second, you can see the possibility, at least, that Trump doesn’t
want the ultimate defiance of the court. He doesn’t really crave that
confrontation. He certainly doesn’t seem to crave it the way Stephen Miller
and, I think, JD Vance do, which is the key, right? If you look at someone like
JD Vance, in addition to Stephen Miller, it’s plainly clear that they want this
confrontation because they want to break the Supreme Court completely, right?
The whole point is to break the court’s opposition to Trump to create a
situation in which the authoritarian ruler is carrying out the “pure will of
the people,” the voice of the people—the people being of course only MAGA
America—unfettered by silly little bureaucratic obstacles that are holding
back the greatness of MAGA, right?
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.
Sargent: The parade.
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
authoritarian 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.
Sargent: Matt Seligman, it’s always great to talk to you, man.
Thanks so much for coming on.
Seligman: Thanks for having me.
