The Supreme Court’s ruling on Friday against the Trump administration on Venezuelan deportations provides an occasion to explore the theoretical possibility that both the Trump administration and the Supreme Court might have a clash in which both act unconstitutionally (or otherwise illegally). It’s tempting to assume that when the Court preliminarily enjoins the Trump administration from doing something, either (1) the Court has acted rightly in enjoining action that is probably illegal, or (2) the Court has acted wrongly in enjoining action that is probably legal. But a third possibility is that the Court has acted wrongly in enjoining action that is probably, or even certainly, illegal.
That third possibility would, I believe, be what happened if we assume for the sake of argument that Justice Alito’s dissent, joined by Justice Thomas, is correct. Alito’s dissent rests on his understanding of limits on the Court’s jurisdiction and on its power to grant injunctive relief. There is nothing in his dissent that remotely implies that he believes that President Trump’s Alien Enemies Act proclamation is lawful or that the Trump administration provided the Venezuelan detainees the due process that all nine justices, in the Court’s ruling in early April in Trump v. J.G.G., agreed that they were entitled to—namely, to “be afforded [notice] within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs.” I do not mean to imply any criticism of Alito’s dissent by making these observations. On the contrary, it is entirely proper of him not to address these matters in his dissent.
But those of us not constrained by the judicial role have no such excuse. For my part, I believe that Trump’s Alien Enemies Act proclamation is unlawful, for the reasons that various judges have already set forth and that John Yoo and Robert Delahunty, proponents of robust executive power, explained in this National Review essay. (No one here is contesting the constitutionality of the Alien Enemies Act. The question instead is whether the Act provides Trump the authority he is asserting.) I likewise think that the Trump administration brazenly denied the Venezuelan detainees the due-process protections that all nine justices, just a dozen or so days earlier, said that they were entitled to.
I am not going to argue that two wrongs make a right. That is, if we continue to assume for the sake of argument that Alito’s dissent is right, I am not going to argue that the blatant illegality of the Trump administration’s actions would justify or excuse the majority’s injunction. But if we are going to assign relative blame, I would place much more blame on the Trump administration for its entire Alien Enemies Act folly, which quite predictably triggered an unnecessary and unproductive clash with the courts. Others might well disagree. But I wish that those who are aggressively condemning the Court would also offer their judgment on what the Trump administration has done.
Again, without arguing that the Trump administration’s various unconstitutional actions would justify or excuse judicial excesses, I do not find it surprising that they would trigger such excesses. So another reason to condemn those unconstitutional actions is that they predictably generate bad law that expands judicial power.