While Attorney General Barr’s hearing before the House Judiciary Committee got all the headlines, the real story yesterday was the Trump administration’s decision to cross the Rubicon and openly defy a federal court order involving DACA. That decision, combined with some of Barr’s openly authoritarian statements during the House hearing, presented a dark day for democracy and a glimpse into just how dangerous the next few months will be.
The Supreme Court’s decision that struck down the Trump administration’s rescission of DACA was hailed as a victory for liberals when, in fact, it was merely a temporary delaying action. The Court was very clear that “the dispute before the Court is not whether DHS may rescind DACA…all parties agree that it may”, and the only reason the rescission was stuck down was because the Trump administration did not follow the proper procedures for implementing the rescission and relied on the faulty assumption that DACA itself was illegal. As Leah Litman noted, it was “not that liberals won. It is that conservatives did not get everything they wanted. Not yet, anyway”. In fact, the Trump administration immediately announced that it intended to make another attempt to rescind DACA by refiling the proper paperwork and issuing a new executive order.
In order to implement the Supreme Court decision striking down the rescission, a federal judge ordered the Trump administration to revert to the DACA policy that existed prior to the rescission. That policy included processing new DACA applications, a two-year renewal period for existing DACA recipients, and the permission to travel outside the US. DHS refused to follow that judicial order, instead maintaining that it would refuse any new applications or renewals, as well as banning external travel. Last Friday, the federal judge overseeing the case excoriated DOJ attorneys for brazenly flouting his order and again demanded that the prior policy be reinstated in full. The judge fumed that the administration had created “a feeling and a belief that the agency is disregarding binding decisions” from the Supreme Court and that the administration’s position that new applications were merely “on hold” was “a distinction without a difference to say that this application has not been denied”.
The response to the judge’s order from last Friday came yesterday when Acting DHS Secretary Chad Wolf issued a new policy that again refuses any new applications and only issues renewals for one year, not two, and only on a case-by-case basis. Incredibly, the administration is again flagrantly violating the judge’s order and, by extension, the Supreme Court’s decision ruling striking down the DACA rescission. As Mark Joseph Stern writes, “This new policy is nothing less than brazen defiance of a federal court ruling. Grimm [the federal judge on the case], and the Supreme Court itself, ordered DACA’s full resuscitation, which requires the acceptance of new applicants and the conferral of two-year renewals. There is simply no legal basis for DHS’s zombie version of the program…Now the administration has crossed that line [of defying the Supreme Court]-sprinted past it, really, without any apparent hesitation. It is true that SCOTUS allowed the Trump administration to take another stab at rescinding DACA. But Wolf’s memo does not purport to initiate a new process of winding down the program. Rather, Wolf presented these new rules as ‘interim changes’ while DHS decides how to repeal DACA legally…But neither the Supreme Court’s decision nor Grimm’s order gave Wolf the power to ‘limit [DACA’s] scope in the interim.’”
For those who have often wondered over the last three-plus years whether Trump would ever defy the Supreme Court, they have their answer. And, while not nearly as troubling as open defiance of the Supreme Court, some of Attorney General Barr’s answers at his hearing yesterday posed additional challenges to our democracy. Barr stated that it might be OK for a candidate to solicit or accept foreign assistance in a campaign, depending on “what kind of assistance” it was. When pressed, he retracted that opinion. When asked if he would leave office if Trump lost the election, his response contained a disturbing caveat. Said Barr, “If the results are clear, I will leave office”. Barr insisted that mail-in voting was subject to widespread fraud but admitted he had no evidence to back up that claim. He stated he would not open an investigation into the President even when presented with evidence that Trump had committed a crime. He refused to admit that a person who is detained without probable cause, forced into an unmarked car that they can not leave, taken to an unknown location, and then questioned, has even been arrested. He refused to say whether he would follow DOJ’s guidelines against releasing politically volatile information right before an election. He admitted he had discussed the President’s re-election because he was a “member of the Cabinet”, implying the Cabinet was an integral part of the re-election campaign.
Barr claimed Antifa “was heavily represented in the recent riots” but could provide no data to back that allegation up and admitted that Antifa was not even an organized group. Finally, in what was probably his most striking autocratic claim, Barr declared, “When people resist law enforcement, they are not peaceful”. As Steve Vladeck summarizes, “The Attorney General of the United States testified today that there’s no such thing as peaceful resistance of law enforcement…we ought not to lose sight of how incredibly offensive a statement that is from the nation’s chief law enforcement officer”.
Meanwhile, the Trump administration’s general assault on our civil liberties continues. Following up on Barr’s theory that there is no such thing as peaceful resistance to law enforcement, protestors in Portland are being arrested for the minor infraction of “failure to obey a lawful order”. But their release from jail is then conditioned on their surrendering their First Amendment rights. As ProPublica reports, “‘Defendant may not attend any other protests, rallies, assemblies or public gathering in the state of Oregon,’ states one ‘Order Setting Conditions of Release’ for an accused protester, alongside other conditions such as appearing for court dates. The orders are signed by federal magistrate judges. For other defendants, the restricted area is limited to Portland…In at least two cases, there are no geographic restrictions; one release document instructs, ‘Do not participate in any protests, demonstrations, rallies, assemblies while this case is pending.’”
These restrictions are so broad that they would cover something as benign as a family picnic in the park. As one ACLU lawyer noted, “Release conditions should be related to public safety or flight. This is neither”, adding the conditions are “hilariously unconstitutional”. It would be funny it it weren’t so serious.
What’s remarkable is how inured we have become to these constant threats to our democracy and how much has already been whittled away. The New York Times put the story about DACA on page 13 with the misleading headline “Trump Delays Effort to End Protections for Immigrant ‘Dreamers’”. Yet, in the fourth paragraph they write, “The announcement appears to directly contradict an order by a federal judge, who ruled last month that the administration must immediately begin accepting new applications for the program. It will most likely face immediate legal challenges” and then cite a lawyer who declares, “It was illegal the first time, and now it’s a constitutional crisis. It’s as if a Supreme Court decision was written with invisible ink”. You’d think defying the Supreme Court and precipitating a constitutional crisis might be front page material with a headline that accurately describes what is happening. And even though Barr’s hearing makes the front page, the initial focus of the story is about the combative nature of the hearings rather than Barr’s authoritarian views.
Trump’s decision to now openly defy the Supreme Court seems to indicate that he realizes there will be nothing to restrain him between now and election day. He can continue to defy the courts and appeal decisions all the way back up to the Supreme Court which will not hear the cases until well after the election. With Barr in his pocket, there is little that the courts can do to actually enforce their decisions. Barr is indicating that even peaceful resistance to his stormtroopers is, by definition, illegal. Between Michael Cohen and the Portland protestors, the DOJ is intent on restricting our First Amendment rights. And there are still nearly 100 days for Trump and his henchmen to continue and expand their assault on the Constitution before our last chance to save our democracy.
Originally published at https://thesoundings.com on July 29, 2020.