Anthony Romero, the A.C.L.U.’s executive director, talks about what he thinks could happen if the Trump Administration defies the authority of the courts.
||| FROM THE NEW YORKER |||
In less than a month, Donald Trump has come through on his promise to exact retribution on his enemies and to set about overhauling the federal government. Whole agencies are potentially being tossed, to use Elon Musk’s heedless language, into “the wood chipper.” To understate matters radically, Trump has sparked many debates. One of them is how close is the United States to a constitutional crisis: Are we headed toward one, on the brink, or already there?
If there is going to be a concerted resistance to Trump’s blizzard of executive actions, it will likely play out largely in courts across the country and, ultimately, in the Supreme Court. And if the Administration spurns court orders, what happens next will conceivably determine the fate of democracy and the rule of law in our time. Chief Justice John Roberts himself said in December, as the Biden Administration began closing shop and the incoming Trump Administration made its intentions increasingly clear, that in our current politics, we now live with the “specter of open disregard for federal court rulings.” And what would such a conflict look like with MAGA loyalists like Pam Bondi leading the Justice Department, Pete Hegseth leading the Department of Defense, and Kash Patel leading the F.B.I.? Some legal scholars recommend a keep-your-powder-dry attitude for the time being. But there has arguably not been such a potentially dramatic test of the country’s constitutional order since the Civil War era.
The American Civil Liberties Union, a major player in this drama, has been quick to file lawsuits on, among other issues, birthright citizenship, which the Administration seeks to eliminate. Anthony Romero, who is fifty-nine and grew up in public housing in the Bronx and later in New Jersey, has been the executive director of the A.C.L.U. since 2001. I spoke with him recently for The New Yorker Radio Hour. His sense of resolve and confidence were all in evidence. But if things go south and Trump defies the courts, he said, “we’ve got to shut down this country.” What does that mean? Our conversation has been edited for clarity and length.
Let’s begin with the most essential question, legal and political. Are we—less than a month into the Trump Administration—on the brink of a constitutional crisis?
I think we could very well be there. We’re at the Rubicon. Whether we’ve crossed it is yet to be determined.
Well, describe what the Rubicon is.
The Rubicon is the flagrant disabuse of judicial power. If the Trump Administration decides to run the gantlet and openly defy a judicial order, in a way that is not about an appeal, it’s not about clarifying, it’s not about getting a congressional fix, but open defiance to a judicial order, then I think we’re there.
What are the issues where that’s a possibility?
Well, there are forty cases, so many of the issues could be the one that precipitates the Rubicon moment. There have been a bunch of lawsuits around the Department of Government Efficiency, and whether or not the DOGE and Elon Musk have overextended their power. There are some who say that they’re violating the Privacy Act; that they’re accessing personal identifiable information on American citizens—their Social Security numbers, their tax returns, all sorts of information that are in the government data banks. Now, whether or not they’ve actually accessed that, whether there’s harm, whether or not the individuals who are bringing cases have standing, those things are all to be determined by the judges.
Then there’s all the questions around shutting down, or the closure of grants from the federal government, from U.S.A.I.D. and other agencies. And there’s the “fork in the road” litigation.
And just to be clear, this is considered illegal by legal experts because—
Because Congress appropriates the money. It’s not in the President’s power to rewrite the appropriations from Congress.
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This is a decent online news source. If it becomes a screechy polital rag, I am out.
It might be useful to actually read the constitution. the whole thing not cherry picked portions.
It means what it says and says what it means, Article II, Section 1 vests executive power in the President, no other entity is cited elsewhere. Neither the authority of the courts, Article III, or the congress Article I trespass on that authority. The “executive departments” Article II, Section 2 report to the President. Despite the hopes and dreams of progressives for us to be ruled by “the best and brightest” an autonomous administrative state is not contemplated by the constitution and the Supreme Court has consistently rejected administrative over-reach.
So where is the Rubicon? The Rubicon is the flagrant ABUSE of judicial power at the district level, power applied by partisan political judges to hijack “our democracy” and settle authority on departments of government. That’s where the true coup is and that’s where it must be stopped. Ergo the Presidents emergency appeal to the Supreme Court.
Barring affirmation of Executive Authority solely with the President, there will be a crisis reminiscent of one two hundred years ago when Andy Jackson famously said ” John Marshall has made the law, now let him enforce it.”
Only in your dreams–
American Bar Association – Constitution and Separation of Powers
“The reason we have three branches of government is so that each of these branches, which are also called powers, is responsible for different jobs. The U.S. Constitution created a system called checks and balances to make sure that each of these three branches are also responsible for checking on the actions of other branches. The U.S. wanted to make sure that no one branch was too powerful or controlling, because that would be unfair.”
https://www.americanbar.org/groups/crsj/about/initiatives/civil-rights-civics-institute/constitution-separation-powers/
The Hartmann Report 2/10/25– “The Supreme Court is corrupt, Congress is a Rubber Stamp, and the President is Lawless.” Thom Hartmann
https://hartmannreport.com/p/the-supreme-court-is-corrupt-congress-87a?utm_source=post-email-title&publication_id=302288&post_id=156809556&utm_campaign=email-post-title&isFreemail=true&r=24t3av&triedRedirect=true&utm_medium=email
The economic prosperity of our country is built on a foundation of adherence to the rule of law and the checks and balances inherent in our Constitution. The Chaos that is descending on our society will affect most people negatively. How is destroying the “Deep State” that keeps our electrical grid functioning or our air traffic safety system functioning, or our food safety system functioning a good thing?
Once again, Phill, you are cherry-picking the Constitution. What about the “Take Care” clause in Article Ii, Section 3:
“He shall take Care that the Laws be faithfully executed.”
And the sole power to establish these Laws is granted to the Congress in Article I.
The President does not make the Laws. He (or she) executes them. That’s the meaning if executive power. And the courts interpret the Laws.
You’re half right Dr. Riordon, but the Supremacy Clause subordinates all other laws, statutes, ordinances etc, thus Article II Executive Power cannot be circumvented by inferior “law”, to wit, many “laws” have been declared “unconstitutional”. To be clear, the sole check on executive authority resides with Congress to impeach and remove the executive if his actions are egregious. The judiciary has no constitutional role in that save for the Chief Justice presiding over the Senate’s trial proceeding. That being said, majorities in both houses of Congress are working in conjunction with the executive which challenges any notion of improper executive action.
As for the courts; In colonial America the courts were a mere extension of the King and Parliament, not the protector of liberty or justice. The Founders had substantial mistrust for what we now term “judicial activism”, thus the judicial branch is, by design, the weakest branch of government with primary focus on applying the law, not “interpreting” it. The plain meaning of the constitution, within the context of the legislative intent that underlies it needs little “interpretation” and if clarification is needed the proper course of action is provided in Article V.
In addition, executive authority includes sound management.What we are discovering on a daily basis is an appallingly corrupt, fraudulent and abusive bureaucracy, the executive has not only the authority, but a DUTY to stop that upon discovery. Unfortunately any disruption, Ms. Alderton, results from past abuse, and current impacts that inevitably follow are correctable upon discovery, if properly managed. Allowing current conditions is simply unacceptable.
Mr. Johnson, you live in a “sound bite echo chamber”, I have nothing to discuss with you.
Phil, I almost hate to think that we’re more closely aligned in thought than you see… certainly more so than others on this page. Like some on this post I’m a democrat that normally votes Green Party, (I’m also a Bernie supporter). But unlike some, I also think that both the democratic party and the republican party are both corrupt. I think that the Military Industrial Arms Complex has taken a lead role in our foreign policy, and that the Dept. of USAID, as well as other U.S. agencies have an immense amount of fraud, and that it is long past time to deal with them, (not shut them down, but deal with them).
I think the Deep State refers to an influential body that operates illegally in conjunction with organized crime both within and outside of our government. That it is an entity that has less to do with keeping “our electrical grid functioning or our air traffic safety system functioning, or our food safety system functioning” than it has to do with using our tax dollars to assassinate people domestically that they deem to be a threat to the status quo, (think JFK, MLK, Jr., Malcolm X), as well as democratically elected leaders abroad in order to instill our own puppet governments, (think everywhere), that it is an entity that interferes in other countries elections, one that creates instability in other countries leading to civil unrest, chaos, and revolt, one who spies on people everywhere (including the heads of state of other countries), one that has been involved in guns for drugs trading scandals (think Ollie North), and one that uses the FBI, the CIA and NATO to strong arm their influence both domestically and around the world.
I think that all of the above is historically accurate, that it is substantiated by facts, and that anyone with a computer can figure this out for themselves if they will simply take themselves out of the bubble that their trapped in, and make an effort to educate themselves outside of the (Democrat / Republican) status quo realm of thinking.
I also think that you watch too much FOX News and that you sound like a raving extreme rightwing lunatic. We can talk all day as far as I’m concerned.
The Deep State (Bill Moyers)– https://www.youtube.com/watch?v=EYS647HTgks
The Deep State explained (Johnny Harris) 3/13/24– https://www.youtube.com/watch?v=tWxh2oS7Ays
MLK, Jr. Wikipedia– “The jury required only one hour of deliberations to reach a unanimous verdict that King was assassinated as a result of a conspiracy. They found Jowers responsible, and also found that “government agencies” were among the co-conspirators. The King family was granted the $100 they requested in damages, and they saw the verdict as vindication.”
https://en.wikipedia.org/wiki/Loyd_Jowers_trial#:~:text=They%20found%20Jowers%20responsible%2C%20and,saw%20the%20verdict%20as%20vindication
Democracy Now– “The Last Honest Man”: James Risen on How Former Senator Frank Church Exposed CIA, FBI & NSA
Veteran national security reporter James Risen joins us for an in-depth look at his new book, The Last Honest Man, about the work of Senator Frank Church to rein in the FBI, CIA and other agencies after the Vietnam War, Watergate and other fiascos had shaken the public’s trust in the U.S. government. Church, a Democrat, chaired a Senate committee that in 1975 began investigating the intelligence community and uncovered numerous abuses, including assassination plots and widespread domestic surveillance. Risen’s book also includes new details about Pentagon Papers whistleblower Daniel Ellsberg’s previously unknown role in the work of the committee. “The Church Committee, I think, is probably the most important congressional investigation in modern American history,” says Risen, who says it marked a “before and after” in U.S. national security policy and helped to limit abuses by the government in the decades that followed.
https://www.youtube.com/watch?v=eWWMg2ArEYc
Scheerpost (Dennis Kucinich) 2/16/25– The Cost of Freedom
“That deep state of permanent governance, entrenched media, think tanks, NGOs, and multi-billion-dollar government contractors, notwithstanding elections, has demanded US taxpayers pay additional TRILLIONS for wars, for subsidizing conflicts in other countries, for secret and not-so-secret arms deals to “rebels” for regime change, subverting governments through the pretext of foreign aid.”
“The government that we have succeeded most in subverting is our own.”
https://scheerpost.com/2025/02/16/dennis-kucinich-the-cost-of-freedom/
RSN ( Sally Denton / Guardian UK) 1/13/22– Why Is So Little Known About the 1930s Coup Attempt Against FDR?
“Business leaders like JP Morgan and Irénée du Pont were accused by a retired major general of plotting to install a fascist dictator.”
https://www.rsn.org/001/why-is-so-little-known-about-the-1930s-coup-attempt-against-fdr.html
What you say about the lower courts may be true, Phil, but it does not apply to the Supreme Court, which is a coequal branch of the US government with Congress and the President. If the Supreme Court rules against the President, for example on the question of birthright citizenship, its ruling has to be obeyed by the President, else we have a Constitutional crisis — now being discussed extensively in the major media outlets. In matters that involve INTERPRETATION of the Constitution, the Supreme Court has supremacy over the Executive Branch, as embodied in its name.
A long life has its benefits, one in my case reading of the Supreme Court’s reversal of President Truman’s act in 1952 of “nationalizing” US steel mills to prevent a steelworkers strike during the Korean War. He acquiesced as he was expected to. It’s interesting to read some of the comments above and learn of the current impetus to put a person, any person, above the law and accept their dictates.
Well done Mr. Appel and Dr. Riordon! My goal of course was to elicit a more robust discussion of “Constitutional Crisis”.
That being said, please read carefully what I wrote. Two hundred years ago President Jackson bluntly reminded the court that making and enforcing the law were powers vested elsewhere. I specifically cite District Court over-reach as a constitutional concern since application of the law at that level is a primary function, I did not say that it was the only function. Interpretation, if needed, in my opinion should be reserved mainly, and progressively for the circuit courts or supreme court as exemplified by Judge Cannons referral of a question to the circuit court before proceeding with the “Documents” debacle.
Please Dr. Riordon, “the Supreme Court has supremacy over the Executive Branch, as embodied in its name.”. This defies history and any plain reading, which only vests supremacy over the judiciary as the final arbiter of the law. You’re better than that. And I agree with you both, an orderly society depends on acquiescence to the “rules” and, I believe a substantial majority of the people expect the Executive will comply with the courts ruling(s) on matters that may come before it despite the unfounded fears of opposition political hubris.
Birthright citizenship is an arguable matter revolving around the word “jurisdiction”. As I recall the definitive case in 1898, involving Mr. Wong, was predicated on his parents being long time legal residents of San Francisco when he was born. I also recall several other cases in that timeframe were decided denying citizenship where the plaintiffs were born to parents who were not legal residents at the time of birth. Having said that, long time practice holds that the plain wording of the 14th amendment literally applies and I expect that to be upheld. We’ll all just have to wait and see.
Hopefully sharing these insights/perspectives will help inform others the the looming “crisis” may be less the advertised.
If you want to use my name in your comments and replies, Phil, please learn to spell it correctly. It’s right there on the page before you: Riordan. In the academic world from which I hail, such obvious mistakes cast doubt on everything else the speaker or writer has to say.
And please don’t quote my words partially or out of context. I said that “In matters that involve INTERPRETATION of the Constitution,” the Supreme Court enjoys supremacy over the executive branch. It gets the final say on what the laws ACTUALLY MEAN. In addition to Bill’s example of Truman trying to nationalize the steel mills, which occurred when I was a just a toddler, there’s the 9-0 Supreme Court decision that Nixon had to hand over the Watergate tapes in 1974. In both cases, the president thankfully (if reluctantly) obeyed the Supreme Court and complied with its orders.
I can agree that there are still some gray areas in the “birthright citizenship” statute. What happens, for example, if a European tourist bears a child prematurely while visiting the United States? WA Attorney General Nick Brown brought suit in federal district court against Trump’s executive order because that’s the appropriate venue to begin such an action. But I’m sure it will eventually reach the Supreme Court for final adjudication.
My apology for the misspelling. Phillip Pederson, Petersen – I get it all the time too so I understand, mea culpa.
i’m not trying to diminish the role of the courts, most notably the Supreme Court which has been, for the most part a bulwark of personal liberties. I merely want to recognize the history and evolution of our constitutional republic and a legal system that I cherish as partisan lower court judges erode it by issuing orders of national consequence. “Good FaIth” prosecutorial and judicial restraint commensurate with our history is essential if “crisis” is to be avoided, those characteristics seem to have been discarded in recent years, but I see hope, in the last several days four suits been dismissed by District Courts, three of them by Obama appointees, perhaps the “rule of law” may yet survive.
What is also missing from the dialog is a recognition the our current president is transactional, he’s clearly laid out some big markers to force the judicial and legislative action simply to clear the air, and I believe he has every intention of abiding by the resultant decisions. I’m simply unable to understand the visceral hatred harbored by some for the person, that would lead them to undermine the office.
As for the 14th Amendment, Section 5 potentially gives congress latitude to resolve any dispute or “clarify” any questions, as it did with the Civil Rights Act to reinforce the Equal Protection Clause.
In any case, I’m merely a student of the Constitution, not an expert so I appreciate perspectives that transcend sound bites, one liners and spin.