{"id":110662,"date":"2025-03-17T17:02:53","date_gmt":"2025-03-18T01:02:53","guid":{"rendered":"https:\/\/xira.com\/p\/2025\/03\/17\/trump-white-house-tests-supreme-court-loyalty-with-increasingly-crackpot-legal-arguments\/"},"modified":"2025-03-17T17:02:53","modified_gmt":"2025-03-18T01:02:53","slug":"trump-white-house-tests-supreme-court-loyalty-with-increasingly-crackpot-legal-arguments","status":"publish","type":"post","link":"https:\/\/xira.com\/p\/2025\/03\/17\/trump-white-house-tests-supreme-court-loyalty-with-increasingly-crackpot-legal-arguments\/","title":{"rendered":"Trump White House Tests Supreme Court Loyalty With Increasingly Crackpot Legal Arguments"},"content":{"rendered":"
\"\"
Are you there, Donald? It\u2019s me, John. (Photo by Jabin Botsford \u2013 Pool\/Getty Images)<\/figcaption><\/figure>\n

\u201cThank you again. Won\u2019t forget it,\u201d Donald Trump told Chief Justice John Roberts<\/a>, a not-even-a-little-bit-subtle reference to the Chief applying Grand Theft Auto <\/em>cheat codes to enshrine a magic new standard of presidential power<\/a> alleviating presidents of legal liability for crimes committed during and outside of<\/em> office. <\/p>\n

It seems Trump has indeed not forgotten the gesture as his administration spent the last few days advancing increasingly goofy legal arguments, confident that the Roberts Court has zero qualms rubberstamping arguments historically laughed out of a pro se<\/em> convention.<\/p>\n

So now Trump is making the argument that court orders evaporate over international waters, an argument more at home as a Simpsons gag than in a federal courtroom:<\/p>\n

\"\"
<\/figcaption><\/figure>\n

But after the Court greenlighting the explicit argument \u201cthe president can use SEAL Team 6 to assassinate a political rival<\/a>,\u201d who can really blame him for trying?<\/p>\n

This argument \u2014 about one step removed from \u201cain\u2019t no laws while drinking Claws\u201d in terms of recognized legal weight \u2014 began when Deputy Chief of Staff Stephen Miller and Homeland Security Secretary Kristy Noem sold a couple planeloads of detained migrants<\/a> to the government of El Salvador. The United States will pay El Salvador to hold the prisoners as slave labor in what is essentially that underground hell-prison from The Dark Knight Rises<\/em>.<\/p>\n

Whatever you might think about the idea of outsourcing convicts to countries where human rights are advisory, the people sent to El Salvador were \u201calleged\u201d gang members. While the administration talks up getting rid of \u201cthe bad guys,\u201d they did not export adjudicated bad guys but rather planeloads of innocent until proven guilty migrants that the government accuses of being bad guys. <\/p>\n

But here\u2019s the problem with sending people to the Gulags based on \u201callegations\u201d from ImmDef: <\/p>\n

\"\"<\/a>
<\/figcaption><\/figure>\n

To sidestep the criminal justice process that might require the DOJ to present \u201cevidence,\u201d the White House\u2019s new legal gambit invokes the Alien Enemies Act of 1789 to cover members of criminal gangs who hail from Venezuela. While the law was probably unconstitutional as a justification for sending Japanese-Americans to prison camps after Pearl Harbor, it is definitely<\/em> unconstitutional as a justification for rounding up people from countries the U.S. isn\u2019t even at war with.<\/p>\n

\n

SECTION 1. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled<\/em>, That whenever there shall be a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion shall be perpetrated, attempted, or threatened against the territory of the United States, by any foreign nation or government\u2026<\/p>\n<\/blockquote>\n

Not to get all textualist or anything, but note that there\u2019s no declared war and gang members are not a foreign government.<\/p>\n

That\u2019s why this decision ended up in front of a federal judge who correctly ordered the detainees returned to the United States to face the American justice system. But the Trump administration decided it didn\u2019t have to comply because \u2014 as explained in Axios:<\/p>\n

\"\"
<\/figcaption><\/figure>\n

What international body of water were they over? The Gulf of\u2026 America<\/em>? HMMMMMM.<\/p>\n

Whenever maritime law comes up, you\u2019re probably venturing into crackpot territory. This is a hallmark of the sovereign citizen movement who claim the United States can\u2019t legally make laws because the flags in courtrooms have gold fringe. And, frankly, that might be the next argument advanced by the DOJ \u2014 the term is still young!<\/p>\n

As you might imagine, no, this is not how the law works. While a private individual might be able to take a boat into the middle of the ocean to sell trafficked panda meat or something, there is no legal basis for the United States government<\/em> violating a United States court order<\/em> simply because the plane \u2014 still fully within the command of the United States government<\/em> \u2014 has ventured into the Gulf of Mexico. The Court order applies to the government and the government is still very much here.<\/p>\n

Which raises the question, who is the \u201cadvice of counsel\u201d who came up with this one? Was it ChatGPT<\/a>?<\/p>\n

\n

A second administration official said Trump was not defying the judge whose ruling came too late for the planes to change course: \u201cVery important that people understand we are not actively defying court orders.\u201d<\/p>\n<\/blockquote>\n

The Active\/Passive distinction is not particularly relevant when it comes to defying court orders. The knowing\/unknowning distinction and the administration officials talking to Axios could not avoid bragging that they constructed this situation in an effort to passively but knowingly evade the courts.<\/p>\n

\n

They didn\u2019t actually set out to defy a court order. \u201cWe wanted them on the ground first, before a judge could get the case, but this is how it worked out,\u201d said the official.<\/p>\n<\/blockquote>\n

Yeah, see, that still violates the court order. <\/p>\n

The government would still have to return the prisoners to run through the existing justice process here even if they\u2019d been assigned bunks in El Salvador\u2019s slave camp. Because, contrary to administration claims that this is about foreign affairs, this is an immigration issue and until these people are actually CONVICTED of something, the government can only detain them for immigration processing and deport them. They cannot, for example, sell defendants to a foreign prison system!<\/p>\n

But not to be outdone by this \u201cwe take our legal cues from the plot of Money Plane<\/em>\u201d international waters argument, the president personally expounded on a new theory of presidential pardon power based on using physical ink that somehow allows him to \u201clock her up\u201d Liz Cheney.<\/p>\n

\n
\n
\n

every time I wake up in the middle of the night I regret looking at my phone because something insane has happened, exhibit 293973829<\/p>\n

\u2014 Anna Bower (@annabower.bsky.social)<\/a> 2025-03-17T04:56:46.527Z<\/a><\/p><\/blockquote>\n<\/div>\n<\/figure>\n

The autopen is the presidential electronic signature, and while an ardent originalist might claim the Framers couldn\u2019t foresee such a thing, the George W. Bush administration put out a whole opinion<\/a> on this subject and settled the question 20 years ago:<\/p>\n

\n

Under this well-settled legal understanding, an individual could sign a document by directing that his signature
be affixed to it by another. Opinions of the Attorney General and the Department of Justice have repeatedly applied this understanding in various contexts to conclude that Executive Branch officials, including the President, may satisfy statutory signing requirements in this manner. This settled understanding of the meaning of \u201csign\u201d leads us to conclude that Article I, Section 7 permits the President to sign a bill by directing a subordinate to affix the President\u2019s signature
to it.<\/p>\n<\/blockquote>\n

And not for nothing, would the Framers actually be confused by this? Thomas Jefferson invented a copy machine<\/a>!<\/p>\n

But electronic signatures aside, I\u2019m not sure Trump wants to pull the thread about whether pardons issued by a president suffering dementia are valid.<\/p>\n

\n

The White House welcomes that fight. \u201cThis is headed to the Supreme Court. And we\u2019re going to win,\u201d a senior White House official told Axios.<\/p>\n<\/blockquote>\n

And they might. Chief Justice Roberts knows how to help out his people.<\/p>\n

\n

\"Headshot\"Joe Patrice<\/a>\u00a0is a senior editor at Above the Law and co-host of Thinking Like A Lawyer<\/a>. Feel free to\u00a0email<\/a> any tips, questions, or comments. Follow him on\u00a0Twitter<\/a>\u00a0or Bluesky<\/a> if you\u2019re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search<\/a>.<\/em><\/strong><\/p>\n

The post Trump White House Tests Supreme Court Loyalty With Increasingly Crackpot Legal Arguments<\/a> appeared first on Above the Law<\/a>.<\/p>\n

\"\"
Are you there, Donald? It\u2019s me, John. (Photo by Jabin Botsford \u2013 Pool\/Getty Images)<\/figcaption><\/figure>\n

\u201cThank you again. Won\u2019t forget it,\u201d Donald Trump told Chief Justice John Roberts<\/a>, a not-even-a-little-bit-subtle reference to the Chief applying Grand Theft Auto <\/em>cheat codes to enshrine a magic new standard of presidential power<\/a> alleviating presidents of legal liability for crimes committed during and outside of<\/em> office. <\/p>\n

It seems Trump has indeed not forgotten the gesture as his administration spent the last few days advancing increasingly goofy legal arguments, confident that the Roberts Court has zero qualms rubberstamping arguments historically laughed out of a pro se<\/em> convention.<\/p>\n

So now Trump is making the argument that court orders evaporate over international waters, an argument more at home as a Simpsons gag than in a federal courtroom:<\/p>\n

\"\"
<\/figcaption><\/figure>\n

But after the Court greenlighting the explicit argument \u201cthe president can use SEAL Team 6 to assassinate a political rival<\/a>,\u201d who can really blame him for trying?<\/p>\n

This argument \u2014 about one step removed from \u201cain\u2019t no laws while drinking Claws\u201d in terms of recognized legal weight \u2014 began when Deputy Chief of Staff Stephen Miller and Homeland Security Secretary Kristy Noem sold a couple planeloads of detained migrants<\/a> to the government of El Salvador. The United States will pay El Salvador to hold the prisoners as slave labor in what is essentially that underground hell-prison from The Dark Knight Rises<\/em>.<\/p>\n

Whatever you might think about the idea of outsourcing convicts to countries where human rights are advisory, the people sent to El Salvador were \u201calleged\u201d gang members. While the administration talks up getting rid of \u201cthe bad guys,\u201d they did not export adjudicated bad guys but rather planeloads of innocent until proven guilty migrants that the government accuses of being bad guys. <\/p>\n

But here\u2019s the problem with sending people to the Gulags based on \u201callegations\u201d from ImmDef: <\/p>\n

\"\"<\/a>
<\/figcaption><\/figure>\n

To sidestep the criminal justice process that might require the DOJ to present \u201cevidence,\u201d the White House\u2019s new legal gambit invokes the Alien Enemies Act of 1789 to cover members of criminal gangs who hail from Venezuela. While the law was probably unconstitutional as a justification for sending Japanese-Americans to prison camps after Pearl Harbor, it is definitely<\/em> unconstitutional as a justification for rounding up people from countries the U.S. isn\u2019t even at war with.<\/p>\n

\n

SECTION 1. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled<\/em>, That whenever there shall be a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion shall be perpetrated, attempted, or threatened against the territory of the United States, by any foreign nation or government\u2026<\/p>\n<\/blockquote>\n

Not to get all textualist or anything, but note that there\u2019s no declared war and gang members are not a foreign government.<\/p>\n

That\u2019s why this decision ended up in front of a federal judge who correctly ordered the detainees returned to the United States to face the American justice system. But the Trump administration decided it didn\u2019t have to comply because \u2014 as explained in Axios:<\/p>\n

\"\"
<\/figcaption><\/figure>\n

What international body of water were they over? The Gulf of\u2026 America<\/em>? HMMMMMM.<\/p>\n

Whenever maritime law comes up, you\u2019re probably venturing into crackpot territory. This is a hallmark of the sovereign citizen movement who claim the United States can\u2019t legally make laws because the flags in courtrooms have gold fringe. And, frankly, that might be the next argument advanced by the DOJ \u2014 the term is still young!<\/p>\n

As you might imagine, no, this is not how the law works. While a private individual might be able to take a boat into the middle of the ocean to sell trafficked panda meat or something, there is no legal basis for the United States government<\/em> violating a United States court order<\/em> simply because the plane \u2014 still fully within the command of the United States government<\/em> \u2014 has ventured into the Gulf of Mexico. The Court order applies to the government and the government is still very much here.<\/p>\n

Which raises the question, who is the \u201cadvice of counsel\u201d who came up with this one? Was it ChatGPT<\/a>?<\/p>\n

\n

A second administration official said Trump was not defying the judge whose ruling came too late for the planes to change course: \u201cVery important that people understand we are not actively defying court orders.\u201d<\/p>\n<\/blockquote>\n

The Active\/Passive distinction is not particularly relevant when it comes to defying court orders. The knowing\/unknowning distinction and the administration officials talking to Axios could not avoid bragging that they constructed this situation in an effort to passively but knowingly evade the courts.<\/p>\n

\n

They didn\u2019t actually set out to defy a court order. \u201cWe wanted them on the ground first, before a judge could get the case, but this is how it worked out,\u201d said the official.<\/p>\n<\/blockquote>\n

Yeah, see, that still violates the court order. <\/p>\n

The government would still have to return the prisoners to run through the existing justice process here even if they\u2019d been assigned bunks in El Salvador\u2019s slave camp. Because, contrary to administration claims that this is about foreign affairs, this is an immigration issue and until these people are actually CONVICTED of something, the government can only detain them for immigration processing and deport them. They cannot, for example, sell defendants to a foreign prison system!<\/p>\n

But not to be outdone by this \u201cwe take our legal cues from the plot of Money Plane<\/em>\u201d international waters argument, the president personally expounded on a new theory of presidential pardon power based on using physical ink that somehow allows him to \u201clock her up\u201d Liz Cheney.<\/p>\n

The autopen is the presidential electronic signature, and while an ardent originalist might claim the Framers couldn\u2019t foresee such a thing, the George W. Bush administration put out a whole opinion<\/a> on this subject and settled the question 20 years ago:<\/p>\n

\n

Under this well-settled legal understanding, an individual could sign a document by directing that his signature
be affixed to it by another. Opinions of the Attorney General and the Department of Justice have repeatedly applied this understanding in various contexts to conclude that Executive Branch officials, including the President, may satisfy statutory signing requirements in this manner. This settled understanding of the meaning of \u201csign\u201d leads us to conclude that Article I, Section 7 permits the President to sign a bill by directing a subordinate to affix the President\u2019s signature
to it.<\/p>\n<\/blockquote>\n

And not for nothing, would the Framers actually be confused by this? Thomas Jefferson invented a copy machine<\/a>!<\/p>\n

But electronic signatures aside, I\u2019m not sure Trump wants to pull the thread about whether pardons issued by a president suffering dementia are valid.<\/p>\n

\n

The White House welcomes that fight. \u201cThis is headed to the Supreme Court. And we\u2019re going to win,\u201d a senior White House official told Axios.<\/p>\n<\/blockquote>\n

And they might. Chief Justice Roberts knows how to help out his people.<\/p>\n

\n

\"Headshot\"Joe Patrice<\/a>\u00a0is a senior editor at Above the Law and co-host of Thinking Like A Lawyer<\/a>. Feel free to\u00a0email<\/a> any tips, questions, or comments. Follow him on\u00a0Twitter<\/a>\u00a0or Bluesky<\/a> if you\u2019re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search<\/a>.<\/em><\/strong><\/p>\n","protected":false},"excerpt":{"rendered":"

Are you there, Donald? It\u2019s me, John. (Photo by Jabin Botsford \u2013 Pool\/Getty Images) \u201cThank you again. Won\u2019t forget it,\u201d Donald Trump told Chief Justice John Roberts, a not-even-a-little-bit-subtle reference to the Chief applying Grand Theft Auto cheat codes to enshrine a magic new standard of presidential power alleviating presidents of legal liability for crimes […]<\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"_et_pb_use_builder":"","_et_pb_old_content":"","_et_gb_content_width":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16],"tags":[],"class_list":["post-110662","post","type-post","status-publish","format-standard","hentry","category-above_the_law"],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/110662","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/comments?post=110662"}],"version-history":[{"count":0,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/110662\/revisions"}],"wp:attachment":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/media?parent=110662"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/categories?post=110662"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/tags?post=110662"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}