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SCOTUS’ Timidity Triggers Constitutional Crisis


By: Margot Cleveland | April 14, 2025

Read more at https://thefederalist.com/2025/04/14/scotus-timidity-triggers-constitutional-crisis/

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The Supreme Court’s continuing failure to define lower courts’ authority is wreaking havoc on the reputation of the courts — and our constitutional order.

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The Supreme Court has interceded six times in less than three months to rein in federal judges who improperly exceeded their Article III authority and infringed on the Article II authority of President Donald Trump. Yet the high court continues to issue mealy-mouthed opinions which serve only to exacerbate the ongoing battle between the Executive and Judicial branches of government. And now there is a constitutional crisis primed to explode this week in a federal court in Maryland over the removal of an El Salvadoran — courtesy of the justices’ latest baby-splitting foray on Thursday.

On Thursday last, in Noem v. Garcia, the Supreme Court issued a short two-page order on President Trump’s application asking the justices to vacate an injunction issued by Maryland federal judge Paula Xinis. That injunction, issued on April 4, 2025, ordered the Trump Administration “to facilitate and effectuate the return of Plaintiff Kilmar Armando Abrego Garcia to the United States by no later than 11:59 PM on Monday, April 7, 2025.” The lower court further held that the “preliminary relief is issued to restore the status quo and to preserve Abrego Garcia’s access to due process in accordance with the Constitution and governing immigration statutes.”

After the Fourth Circuit refused to stay Judge Xinis’ order, the Trump Administration filed an application with the Supreme Court seeking an immediate stay followed by vacatur of the injunction. In its application, the Trump Administration acknowledged that Garcia had been wrongly removed to El Salvador, agreeing that there was an order barring Garcia’s return to his native homeland. However, the Trump Administration stressed that the order also concluded Garcia, as an alien illegally present in the United States, was subject to removal under federal law — just not to El Salvador. The immigration judge also rejected Garcia’s petition for asylum and for withholding of removal under CAT, or the Convention Against Torture. The Board of Immigration Appeals upheld those decisions.

Further, while Garcia had been wrongly removed to El Salvador, the Trump Administration argued that Judge Xinis lacked the authority to order him to “facilitate and effectuate” Garcia’s return. First, it was not for a federal judge to tell the Executive branch how to engage in diplomatic relations. And second, the president lacks the ability to control a foreign sovereign, making it impossible for him to “effectuate” Garcia’s return to the United States. Finally, Judge Xinis’ order improperly directs the Trump Administration to admit Garcia even though he is a member of MS-13, which has been designated a terrorist organization.

Chief Judge John Roberts granted the Trump Administration an administrative stay, thereby nixing the April 7, 2025 deadline for the president to have “effectuated” Garcia’s return to the United States. Then on April 10, 2025, the Supreme Court entered an order stating the Trump Administration’s “application is granted in part and denied in part, subject to the direction of this order.”

But what precisely were those directions? Well, first, there was the deadline, which had already come and gone, and so the Court stated: “[T]he deadline imposed by the District Court has now passed.  To that extent, the Government’s emergency application is effectively granted in part and the deadline in the challenged order is no longer effective.”

The Supreme Court then said that “[t]he rest of the District Court’s order remains in effect but requires clarification on remand.” Here, the high court explained what parts of the lower court order it believed proper, namely to “require the Government to ‘facilitate’ Abrego Garcia’s release from custody in El Salvador and to ensure that his case is handled as it would have been had he not been improperly sent to El Salvador.” However, “[t]he intended scope of the term ‘effectuate,” the Supreme Court explained, is “unclear, and may exceed the District Court’s authority.” The Supreme Court ended by stating “[t]he District Court should clarify its directive, with due regard for the deference owed to the Executive Branch in the conduct of foreign affairs.” But “the Government should be prepared to share what it can concerning the steps it has taken and the prospect of further steps,” the Supreme Court added.

What exactly does any of that mean?

To Judge Xinis it meant she merely needed to clarify what “effectuate” means. But rather than do that, the Barack Obama appointee just dropped that directive from her injunction, amending her order “to DIRECT that Defendants take all available steps to facilitate the return of Abrego Garcia to the United States as soon as possible.” 

She further directed the Trump Administration to file “a supplemental declaration from an individual with personal knowledge, addressing the following: (1) the current physical location and custodial status of Abrego Garcia; (2) what steps, if any, Defendants have taken to facilitate Abrego Garcia’s immediate return to the United States; and (3) what additional steps Defendants will take, and when, to facilitate his return.” 

Late Thursday, Judge Xinis ordered the Trump administration to file that declaration by 9:30 a.m. on Friday, even though the Supreme Court’s order only dropped Thursday evening around 7:00 p.m. The Maryland-based federal judge then denied the government’s motion for extension of time until Tuesday to file the declaration, but she gave them an additional two hours.

Unsurprisingly, 11:30 a.m. came and went without the declaration being filed. Soon after, the Trump Administration filed a response to the court’s amended injunction, noting it was “unable to provide the information requested by the Court on the impracticable deadline set by the Court hours after the Supreme Court issued its order.” The government’s response continued:

“Defendants are not in a position where they ‘can’ share any information requested by the Court. That is the reality. Defendants received the order late in the evening last night. They are reviewing the order and actively evaluating next steps. It is unreasonable and impracticable for Defendants to reveal potential steps before those steps are reviewed, agreed upon, and vetted. Foreign affairs cannot operate on judicial timelines, in part because it involves sensitive country-specific considerations wholly inappropriate for judicial review.”

Rather than re-evaluate her position, Judge Xinis doubled down, finding “Defendants have failed to comply with this Court’s Order,” and stating, “Defendants made no meaningful effort to comply.” She then entered a further order requiring the Trump Administration to file daily, on or before 5:00 p.m., “a declaration made by an individual with personal knowledge as to any information regarding: (1) the current physical location and custodial status of Abrego Garcia; (2) what steps, if any, Defendants have taken to facilitate his immediate return to the United States; (3) what additional steps Defendants will take, and when, to facilitate his return.” 

Judge Xinis added that if plaintiffs wanted any additional relief, they should file a motion by Saturday at 5:00 p.m. Garcia’s attorneys filed the suggested Motion on Saturday, asking the court to grant “three additional types of relief.” 

First, the El Salvadoran’s lawyers asked the Court to order the government to, by end of day on Monday: (a) request “its agents and contractors release Abrego Garcia from custody in El Salvador pursuant to the contract or arrangement providing for his detention there at the Government’s direction; (b) dispatch personnel to accompany Abrego Garcia upon his release from [the El Salvadoran prison] to ensure his safe passage to the aircraft that will return him to the United States; (c) [p]rovide air transportation for Abrego Garcia to return to Maryland, because he may not be in current possession of sufficient identification to board a commercial flight; and (d) “[g]rant Abrego Garcia parole” and “prepare all paperwork and forms required to allow him to reenter the United States.”

Second, Garcia’s attorneys asked for the Court to grant their client discovery including production of the Trump Administration’s contract with El Salvador concerning detentions at the prison. The illegal alien’s attorneys further requested the court direct the Trump Administration to produce witnesses for the hearing scheduled for Tuesday. Specifically, Garcia’s attorneys wanted to question representatives from the Department of Homeland Security, the Department of Justice, and the Department of State, concerning:  “(i) Abrego Garcia’s current physical location and custodial status; (ii) what steps, if any, the Government has taken to facilitate Abrego Garcia’s return to the United States; (iii) whether the Government has informed officials at CECOT that it wishes Abrego Garcia to be released into U.S. custody;  and (iv) what, if any, additional steps the Government intends to take, and when, to facilitate Abrego Garcia’s return.”

Finally, the plaintiff’s attorneys requested the court order the government to show cause why they should not be held in contempt for violating the Court’s command that they file a declaration by Friday at 11:30 a.m.

Shortly after Garcia’s motion hit the docket, the Trump Administration filed its first required daily declaration. That declaration attested that, based on official reporting from our Embassy in San Salvador, “Abrego Garcia is currently being held in the Terrorism Confinement Center in El Salvador.” “He is alive and secure in that facility,” the declaration continued, adding: “He is detained pursuant to the sovereign, domestic authority of El Salvador.” The second daily declaration, filed yesterday, stated the government’s declarant had nothing to add to those facts.

Judge Xinis has not yet ruled on the plaintiff’s motion, but given her refusal to respond reasonably to the Trump Administration’s request for an extension of time to file the declaration, her utter failure to show any deference to the Trump Administration’s handling of foreign affairs, and that the declarations said nothing of efforts by the Trump Administration to obtain Garcia’s release from prison, it seems likely she will grant Garcia much of what he requests. 

Yet, those requests, as the Trump Administration pointed out yesterday in its response brief, directly infringe on the president’s Article II authority. “The federal courts have no authority to direct the Executive Branch to conduct foreign relations in a particular way or engage with a foreign sovereign in a given manner,” the Trump Administration wrote. Rather, “[t]hat is the ‘exclusive power of the President as the sole organ of the federal government in the field of international relations.’”  

While the Supreme Court has declared that “[s]uch power is ‘conclusive and preclusive,’ and beyond the reach of the federal courts’ equitable authority,” given her orders to date, Judge Xinis is unlikely to stand down. Rather, expect the Obama appointee to enter another scathing order demanding details and actions. But with its core executive powers at stake, the Trump Administration cannot comply.

The justices should have foreseen this standoff and defused the situation last week by clearly defining the limits of the lower court’s authority. The Supreme Court’s continuing failure to do so is wreaking havoc on the reputation of the courts — and our constitutional order.

Margot Cleveland is an investigative journalist and legal analyst and serves as The Federalist’s senior legal correspondent. Margot’s work has been published at The Wall Street Journal, The American Spectator, the New Criterion, National Review Online, Townhall.com, the Daily Signal, USA Today, and the Detroit Free Press. She is also a regular guest on nationally syndicated radio programs and on Fox News, Fox Business, and Newsmax. Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prize—the law school’s highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals. Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time. Cleveland is also of counsel for the New Civil Liberties Alliance. Cleveland is on Twitter at @ProfMJCleveland where you can read more about her greatest accomplishments—her dear husband and dear son. The views expressed here are those of Cleveland in her private capacity.

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Leftists Want Direct Democracy Because It’s Easy to Manipulate the Masses


BY: CASEY CHALK | JANUARY 03, 2024

Read more at https://thefederalist.com/2024/01/03/leftists-want-direct-democracy-because-its-easy-to-manipulate-the-masses/

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“American democracy is cracking,” warns Washington Post Chief Correspondent Dan Balz in a recent column that presents some ideas to repair it. His suggestions include, among other things, proportional representation, diminishing the power of the Senate, and eliminating the Electoral College. What these three suggestions have in common is a desire to remove any intermediary institutions between the will of the people and government action — otherwise known as “direct” democracy. 

These proposals are not new. Indeed, even the framers of the Constitution were familiar with them. But the reasons why such suggestions would significantly erode the republican government envisioned by our Founding Fathers are not new either. 

Given Biden’s low approval ratings — especially in important swing states with critical Electoral College votes — as well as broader Democrat fears of a Republican takeover of the Senate, we will likely hear a renewed chorus of voices calling for direct democracy. After all, masses of individuals are much easier to manipulate than smaller families, communities, or even states. Conservatives would do well to arm themselves with the best arguments against such initiatives.

Founders Worked to Curb Direct Democracy

The framers of our Constitution felt quite strongly that direct democracy was something to avoid. In Federalist 10, for example, the Father of the Constitution James Madison warned of “the superior force of an interested and overbearing majority” on a government, or what has come to be called the “tyranny of the majority,” in which a majority of the population exerts great coercive power over minority factions.

Again in Federalist 51, Madison wrote: “[I]n the federal republic of the United States … all authority in it will be derived from and dependent on the society, the society itself will be broken into so many parts, interests, and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority.” 

Our second president, John Adams, called a unicameral legislative body — in which each member is accountable to his constituents — a “tyranny of the majority.” Adams, reflecting the opinion of that founding generation, argued for “a mixed government, consisting of three branches.” The framers took various steps to disburse power among the federal government, dividing it into three competing branches: executive, legislative, and judicial. 

But the founders’ dispersion of governing power also goes beyond the three branches. The 10th Amendment reads: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” In other words, unless the Constitution expressly grants certain powers to the federal government, those powers exist in the states or, even more decentralized, in local communities of Americans. 

Later Generations Understood the Threat

A generation after that founding generation, visiting French aristocrat Alexis de Tocqueville authored an extended survey of American politics and culture, Democracy in America. Tocqueville perceived that the American political system was created to resist the tyranny of the majority, “which bases its claim to rule upon numbers, not upon rightness or excellence.” Thus, Tocqueville writes:

When a man or a party suffers from an injustice in the United States, to whom do you want them to appeal? To public opinion? That is what forms the majority. To the legislative body? It represents the majority and blindly obeys it. To the executive power? It is named by the majority and serves it as a passive instrument. 

In other words, the executive branch, even with its disbursed powers, can be influenced by this tyrannical tendency to reflect the opinions of the majority of the people against minority interests at the state or community level. It was thus only through the states and local bases of power and voluntary associations that this tyrannical tendency could be avoided. 

A century after Tocqueville’s warnings, Supreme Court Justice Louis Brandeis discussed another way to understand our nation’s default desire to resist direct democracy. Brandeis was one of the first to describe the states as “laboratories of democracy.” In his New State Ice Co. v. Liebmann opinion, he explained how “a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”  

State and local autonomy served as a means of testing laws and policies to evaluate their effectiveness before implementing across a diverse nation of states, localities, and subcultures. If something works at the micro level, other localities or states — and even potentially the federal government — can appreciate and adopt it. 

Constant Temptation of Direct Democracy

Yet such a deliberative process of testing is slow and uneven. And we Americans are often eager for speedy solutions. Political theorists, journalists, and ordinary citizens throughout American history have been frustrated by the Constitution’s manifold methods of distributing power to deter the tyranny of the majority. If a majority of the nation’s populace wants something, they posit, why shouldn’t they be able to get it? After all, as the journalist H.L. Mencken wryly commented, “Democracy is the theory that the common people know what they want, and deserve to get it good and hard.” 

Such demands especially increase at times of heightened political gridlock in which the country obviously has a particular problem or set of problems but constitutionally mandated laws and procedures thwart attempts to resolve them. When we are all vexed with our politicians for failing to act in what we believe to be the interests of the nation (and its voters), it’s easy to be sympathetic to that line of thinking. 

Yet we must beware of this temptation, which reflects what conservative political theorist Russell Kirk calls a manifestation of vox populi, vox dei — the voice of the people is the voice of God. In other words, as long as they constitute a majority, whatever the people want becomes the law of the land. 

Direct democracy thus not only represents a threat to freedom, but it is a political order that rejects hierarchies both natural and spiritual. Although these hierarchies are sometimes abused, they serve as a cautionary brake upon the whims of the masses, which — as many revolutions have demonstrated — can be quite violent and destructive. Just look at the French or Russian Revolutions, which ended up terrorizing those they claimed to represent. Millions of dead across the world reveal the problem with direct democracy.

This is the reason for state representation rather than proportional representation in the lower House, a Senate consisting of equal representation by state, the filibuster, the Electoral College, and powers relegated to the states vis-a-vis the 10th Amendment. All of it is an attempt to slow the destructive force of vox populi, vox dei. 

As that great French observer of American politics Alexis de Tocqueville observed: “If ever freedom is lost in America, that will be due to the … majority driving minorities to desperation…” 

Let’s do everything we can to avoid that scenario.

Casey Chalk is a senior contributor at The Federalist and an editor and columnist at The New Oxford Review. He has a bachelor’s in history and master’s in teaching from the University of Virginia and a master’s in theology from Christendom College. He is the author of The Persecuted: True Stories of Courageous Christians Living Their Faith in Muslim Lands.

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