Trump White House Tests Supreme Court Loyalty With Increasingly Crackpot Legal Arguments

“Thank you again. Won’t forget it,” 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 committed during and outside of office.

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 convention.

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:

But after the Court greenlighting the explicit argument “the president can use SEAL Team 6 to assassinate a political rival,” who can really blame him for trying?

This argument — about one step removed from “ain’t no laws while drinking Claws” in terms of recognized legal weight — began when Deputy Chief of Staff Stephen Miller and Homeland Security Secretary Kristy Noem sold a couple planeloads of detained migrants 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.

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

But here’s the problem with sending people to the Gulags based on “allegations” from ImmDef:

To sidestep the criminal justice process that might require the DOJ to present “evidence,” the White House’s 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 unconstitutional as a justification for rounding up people from countries the U.S. isn’t even at war with.

SECTION 1. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, 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…

Not to get all textualist or anything, but note that there’s no declared war and gang members are not a foreign government.

That’s 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’t have to comply because — as explained in Axios:

What international body of water were they over? The Gulf of… America? HMMMMMM.

Whenever maritime law comes up, you’re probably venturing into crackpot territory. This is a hallmark of the sovereign citizen movement who claim the United States can’t legally make laws because the flags in courtrooms have gold fringe. And, frankly, that might be the next argument advanced by the DOJ — the term is still young!

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 violating a United States court order simply because the plane — still fully within the command of the United States government — has ventured into the Gulf of Mexico. The Court order applies to the government and the government is still very much here.

Which raises the question, who is the “advice of counsel” who came up with this one? Was it ChatGPT?

A second administration official said Trump was not defying the judge whose ruling came too late for the planes to change course: “Very important that people understand we are not actively defying court orders.”

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.

They didn’t actually set out to defy a court order. “We wanted them on the ground first, before a judge could get the case, but this is how it worked out,” said the official.

Yeah, see, that still violates the court order.

The government would still have to return the prisoners to run through the existing justice process here even if they’d been assigned bunks in El Salvador’s 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!

But not to be outdone by this “we take our legal cues from the plot of Money Plane” 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 “lock her up” Liz Cheney.

The autopen is the presidential electronic signature, and while an ardent originalist might claim the Framers couldn’t foresee such a thing, the George W. Bush administration put out a whole opinion on this subject and settled the question 20 years ago:

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 “sign” leads us to conclude that Article I, Section 7 permits the President to sign a bill by directing a subordinate to affix the President’s signature
to it.

And not for nothing, would the Framers actually be confused by this? Thomas Jefferson invented a copy machine!

But electronic signatures aside, I’m not sure Trump wants to pull the thread about whether pardons issued by a president suffering dementia are valid.

The White House welcomes that fight. “This is headed to the Supreme Court. And we’re going to win,” a senior White House official told Axios.

And they might. Chief Justice Roberts knows how to help out his people.

Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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