In Mary Shelley’s book, Frankenstein, an aristocrat creates an “abhorrent monster” who ends the life of the aristocrat and his family. The question that must now be haunting U.S. Supreme Court Justice John Roberts is whether he has created a presidency so powerful that it can simply refuse to enforce the court’s orders, and thus render the authority of his court a dead letter.
The word “created” is not too strong. The Roberts court has enhanced the power of the presidency in novel ways. When President Donald Trump was charged with aiding the January 6, 2021 assault on Congress, the Supreme Court concocted a unique immunity that protected him from prosecution for criminal misconduct. In other decisions the court has enhanced the president’s ability to engage in spoils system politics by crippling long-established safeguards erected by Congress to shield public officials from arbitrary firing. The court has said that the “separation of powers” doctrine requires these things to give the executive branch “energy.”
That claim is far-fetched. Neither the text of the constitution nor the expressed intent of those who wrote it supports these innovations. James Madison deliberately decided not to include a separation of powers requirement in the constitution. Unlike some Supreme Court justices today, he believed that the branches of government should have “partial agency” over each other. In other words, Congress could write laws that governed the operation of the executive branch headed by the president.
There are also no earlier court decisions to support the Roberts’ court’s campaign to augment presidential power, with one modest exception. The exception is a 1926 opinion from Chief Justice Taft, a former president, that relied on an analysis of an early 19th century debate which as the court subsequently held in 1935, really didn’t decide anything.
Nor does history offer examples of problems the president’s supposed lack of “energy” has caused, other than a fight President Andrew Johnson, a confederate sympathizer, had with Congress after the Civil War. The conflict arose when Congress wanted to, and eventually did, stop the virtual re-enslavement of African Americans in the south.
Instead, as detailed in Jane Mayer’s 2016 book, Dark Money, the creation of an imperial presidency has long been the desire of a group of right-wing billionaires. They believe Franklin Roosevelt’s New Deal, including its Social Security system, regulation of business, and protection of organized labor, was a mistake. They know that the public supports those programs. So they have looked for a sympathetic president strong enough to defy Congress and the courts and get rid of anything that stood in their way. The billionaires now appear to have their wish.
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Recent events now test whether the “energized” presidency will defy its creator. The government deported a Maryland man, Albrego Garcia, to a prison in El Salvador because of what the government admitted was a mistake. A federal trial judge ordered the government to bring him back. The Supreme Court said the government should at least “facilitate” his return. Perhaps the court thought an order to “facilitate” was one the president might actually agree to follow.
If so, the court appears to have been mistaken. President Trump invited the president of El Salvador to the White House. Trump stood by as his aides said the United States has no power to get Garcia back. No doubt he thought that, if anyone was going to be held in contempt, it wasn’t going to be him. The president of El Salvador then made the preposterous statement that he was not going to “smuggle” a “terrorist” into the United States. No court has ever said Garcia is a terrorist, and ‘smuggling” was not the issue.
No doubt those in the room thought this Alphonse and Gaston act was funny. Alphonse and Gaston were the comedians whose mutual excuses made it impossible for them to get through a door. The president, after all, made his first real money as an entertainer playing a businessman on TV.
But their obvious contempt for the Supreme Court and its modest order could not have been more plainly expressed. This is, after all, a president who has displayed nothing but contempt for the more than 60 court decisions that said he lost the 2020 election.
So now the trial court will conduct discovery to determine exactly who is giving the orders to the lawyers who are telling the court that there will be no “facilitation.” An appellate court has agreed that “facilitate” is an active verb that requires action, not inaction. If there is no action, the responsible official will be held in contempt. If the president then pardons the offender, Chief Justice Roberts’ monster will have destroyed the legal system that created him, and the nation will be in the worst constitutional crisis since the Civil War.
Luther Munford is a Northsider.
