They keep saying that this is a nation of laws. But is it? Congress passes laws that are co-signed by the President. The Constitution is intended to be ‘the highest law of the land’. But if the plain meaning of those laws are ignored by the Executive Branch with no reasonable checks, then are we truly being ruled by those laws?

Let’s take some recent rulings by the Supreme Court. Some rulings by the court involve extensive hearings and expansive written decisions, explaining the law and and their decisions for all future courts to regard in future rulings (precedent). But there is an ever-expanding avenue of law-making at the SC under the auspices of the emergency docket (also known as the ‘shadow docket’) – these rulings may entail a written decision or not, may show how the Justices voted or not, and may give guidance to lower courts or not. They create an end-run around the Federal court system, often skipping the Appellate courts entirely, for the sake of expedience (or in the case of the Trump administration, to venue shop to a court where his appointees control the court). Instead of being a method for rulings in the rarest of cases, it has become the fast-food court of the Judicial Branch. Ten years ago, the Executive Branch might have filed one or two emergency docket appeals a year. Even during the first Trump term, about 40 filings occurred over 4 years. In the first 6 months of this term, the administration has filed 21 emergency docket requests – exceeding the total number filed during the entire Biden administration.

Is there greater clarity with all of this activity? Decidedly not. How can lower courts interpret decisions that lack any written reasoning. When the court chooses to ignore the plain language of statutes regarding the removal of commissioners from independent regulatory agencies (NLRB and CPSC), as opposed to allowing the lower courts to stay the matters pending judicial review, they ignore the plain intent of the law (and without quorums in those agencies, those agencies no longer function as required by law). When the court stayed the injunctions of lower courts regarding the termination of parole for a half-a-million people from various countries (many here for decades), they ignored the harm to these individuals (usually the primary factor in granting stays, other than the merits of the case) and, in the words of Justice Jackson, “renders(sic) constraints of law irrelevant”. Essentially, if the Executive Branch is given free hand to do what it pleases until the courts exhaust all appeals, then the laws of the land may be disregarded in the interim (which generally means years).

But are we likely to see the Supreme Court act the same way when lower courts make decisions (not simply apply injunctions)? My suspicion is that they will offer injunctive relief to the Executive Branch in these cases. The most recent test will be the decision by the US Court of International Trade that ruled the ‘Liberation Day’ tariffs imposed by President Trump (on the basis of there being a ‘national emergency’) were contrary to law and unconstitutional. An appeals court will hear the case this week. Meanwhile, damage is already being incurred by small importers (not to mention large multinational companies). How many times will the courts need to say that tariffs are in the purview of the Congress for these tariffs to end?

Meanwhile, the Executive Branch continues to provide relief from the law to criminals. Pardons have been the most direct route for relief, illustrating that political fealty is more important than the felonies committed. But this administration has proven that this isn’t the only way to put felons back on the street. When the Trump Administration exchanged some Venezuelans being warehoused in a prison in El Salvador (without due process) with jailed Americans in Venezuelan prisons, among them was Dahud Anid Ortiz. Mr. Ortiz, who returned to Texas, was convicted of brutally murdering 3 people in Madrid. There is little doubt regarding his guilt – he admitted to doing it. Yet the ‘law and order’ Trump Administration has released him back among the rest of America – law be damned. This is right up there with the insurrectionists pardoned by the President who are facing a variety of criminal charges (some committed after their pardons), including plotting the murder of FBI agents, child sexual assault, and reckless homicide while driving drunk – kinda makes the Willie Horton debacle look like child’s play.

Is this what law and order looks like now?

And the national disgrace continues…