How to rein in the abnormal judiciary (04-10-2025--Hour3)

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[00:00:29] Mark Sherman reporting for the Associated Press that the Supreme Court allowed the Trump administration to use the 18th century wartime law, the Alien Enemies Act, to deport Venezuelan migrants, but said they must get a court hearing before they are taken from the United States.

[00:00:53] That was on, what, Monday? That ruling came down? In a bitterly divided decision, because that's one of the things also, whenever there is a divided decision, split decision on the court, it's always bitterly divided. You never hear any other divide except the bitter ones.

[00:01:13] I don't know how they judge the bitterness scale. Maybe there is a scale. I don't know, like the hotness scale for, you know, for hot peppers, whatever. But all divisions are bitter. Okay, so it's a bitterly divided decision. The court said that the administration must give Venezuelans, who claim, who the government claims are gang members, quote, reasonable time to go to court. But the conservative majority said the legal challenges must take place in Texas instead of a Washington courtroom.

[00:01:43] The court's actions appear to bar the administration from immediately resuming the flights that last month carried hundreds of migrants to a notorious prison in El Salvador. Notorious prison. The flights came soon after President Donald Trump invoked the Alien Enemies Act for the first time since World War II to justify the deportations under a presidential proclamation calling the Trende Aragua gang an invading force.

[00:02:13] Trende Aragua, by the way, not to be confused with that guy that's been swimming against the women in the college. That's a, that's Trendeagua. It's different. It's a whole different thing. The majority said nothing about those flights, which took off without providing the hearing that the justices now say is necessary.

[00:02:35] In the dissent, the three liberal justices said that the administration has sought to avoid judicial review in the case and the court, quote, now rewards the government for its behavior. Justice Amy Coney Barrett, one of Trump's appointments, the conservative appointment, joined portions, not the entire, but portions of the dissent.

[00:02:59] The case, the Associated Press reports, has become a flashpoint amid escalating tension between the White House and the federal courts. It's the second time in less than a week that a majority of conservative justices has handed Trump at least a partial victory in an emergency appeal after lower courts had blocked parts of his agenda.

[00:03:21] Several other cases are pending, including over Trump's plan to deny citizenship to U.S.-born children of parents who were in the country illegally. The, quote, birthright citizenship, the anchor baby issue. Trump praised the court for its actions. The original order blocking the deportations to El Salvador was issued by U.S. District Judge James E. Boasberg. I think that's how he pronounces that.

[00:03:47] The chief judge at the federal courthouse in D.C. The ACLU attorney, Lee Gellert, said the critical point of the ruling was that people must be allowed due process to challenge their removal. Quote, that is an important victory. OK, so it's a little bit for all sides, right? Little bit for you and a little bit for you. And everybody's a little bit happy, a little bit sad, whatever.

[00:04:14] Boasberg imposed a temporary halt on deportations and also ordered plane loads of Venezuelan immigrants to return to the U.S., but that did not happen. The judge held a hearing last week over whether the government defied his order to turn the planes around. The administration has invoked a state secrets privilege, refusing to give Boasberg any additional information about the deportations. All right. So that was Monday.

[00:04:43] Next, what is the fallout? Right. Because the Supreme Court made its ruling and now we're getting the fallout. So the federal judges, two of them, one in Texas and one in California. Using the order that came down from the Supreme Court.

[00:05:07] They in challenges to deportations of alleged Trende Aragua organized crime members. They issued stays against the deportations. Again, a judge in Texas, one in California independently. Stayed the deportations. So said you can't you can't do it. Looking at the Supreme Court ruling, you can't deport these people. Because.

[00:05:38] The Supreme Court says they have to have due process. And that's always been that's always been even for conservatives, people who want the deportations want to, you know, want this, you know, this mass program implemented. The deportations of people identified as criminal gang members by the government. That has raised concerns because simply because the government says it doesn't make it so.

[00:06:08] Right. They could scoop up people who are not Trende Aragua, who are not MS-13 or whatever, and put them on a plane and send them to another country. And they were not gang members. So they get to challenge the deportation. A federal judge in Manhattan on Wednesday temporarily blocked the deportation of any purported Venezuelan gang member detained in the Southern District of New York without them first receiving notice and an opportunity for a hearing.

[00:06:37] This is in Manhattan. U.S. District Judge Alvin Hellerstein suggested his decision was meant to define the parameters that were set by the Supreme Court. That involves two detainees who just got sent back to New York after being held in Texas. That's where a separate judge in Texas followed suit shortly afterwards.

[00:07:06] And this one may be more problematic for the Trump administration. This case involves, well, the U.S. District Judge Fernando Rodriguez Jr., who is a Trump appointment. Okay. He issued a TRO, a temporary restraining order that prevents the administration from removing those migrants subject to President Trump's proclamation invoking the wartime law from a detention facility in Texas.

[00:07:33] According to ABC News, his order will remain in place through April 23rd or until he issues a subsequent order. And a hearing has been scheduled for tomorrow. All right. So what's going on? Are these judges, have they gone rogue?

[00:07:50] Ed Morrissey, writing at HotAir.com, says that the Supreme Court ruling from, what, Monday, punted entirely on the Alien Enemies Act. It only reversed Judge James Bosberg's TRO, the temporary restraining order, on the basis of venue or jurisdiction. That's what they used to make their ruling.

[00:08:19] They did not settle anything regarding the Alien Enemies Act. It also emphasized that even the Alien Enemies Act detainees have the right to a habeas hearing, habeas corpus, a habeas hearing. A point which the Trump administration actually conceded, they agreed to, in the appeals process.

[00:08:42] So both judges now issued their own halts on deportations to allow for a period of time so these plaintiffs or these illegals can file petitions with the court. So they get their due process.

[00:09:04] Rather than adopt Judge Bosberg's national injunction approach, both judges limited the jurisdiction of their rulings just to their district. Although both also enjoined the government from moving detainees in their jurisdictions to others. So in other words, they stopped the government. So they didn't want, they didn't want the administration to come in.

[00:09:29] Like if I'm the judge in Texas and I'm like, okay, this guy has to have some time so he can file his petition. And that's going to apply this. My ruling is going to apply to everybody in my jurisdiction. Because that's what got them booted from the Supreme Court when the, when Bosberg tried to make it apply across the country. It was a jurisdiction matter. So now he's like, all right, we're focused only on my jurisdiction.

[00:09:51] And I don't want the government coming in and moving detainees out of this jurisdiction, sending them someplace else where they don't have this kind of a ruling yet. So look, make no, make no mistake about it. This is going to slow the whole process down. It is. Everyone's got to get their due process. Everyone's got to be able to file their petitions. Government's got to provide some sort of evidence that these guys were, you know, these individuals on an individual basis were MS-13. We're Trendearagua.

[00:10:21] Not Trendeagua. Different. All right. If you're listening to this show, you know I try to keep up with all sorts of current events. And I know you do too. And you've probably heard me say, get your news from multiple sources. Why? Well, because it's how you detect media bias, which is why I've been so impressed with Ground News. It's an app and it's a website and it combines news from around the world in one place so you can compare coverage and verify information. You can check it out at check.ground.news slash Pete.

[00:10:51] I put the link in the podcast description too. I started using Ground News a few months ago and more recently chose to work with them as an affiliate because it lets me see clearly how stories get covered and by whom. The Blind Spot feature shows you which stories get ignored by the left and the right. See for yourself. Check.ground.news slash Pete. Subscribe through that link and you'll get 15% off any subscription. I use the Vantage plan to get unlimited access to every feature.

[00:11:20] Your subscription then not only helps my podcast, but it also supports Ground News as they make the media landscape more transparent. Reading from a piece by Ed Morrissey at HotAir.com.

[00:11:32] Regarding the deportations and now the impact of the Supreme Court ruling, the ruling will force the government to present evidence of Trende Aragua activity for every defendant that they are trying to deport under those charges. Right. You can't just say they're TDA, throw them on a plane and take them away. That's what they're now being forced to run them through. And I know what you're thinking.

[00:12:01] If they're here illegally, why are you even like, why does this even matter? That will not be the sole point of challenge for these detainees during the proceedings either. In both of the courts, the federal courts could well decide that the Alien Enemies Act cannot apply during peacetime.

[00:12:21] Even under Trump's declaration that the TDA made a planned hostile incursion in concert with the hostile regime of Nicolas Maduro in Venezuela. Venezuela. The Supreme Court explicitly stepped around the AEA application, leaving that to the district courts to decide. So once again, this has been the case as far as I've been or as long as I've been following the U.S. Supreme Court.

[00:12:49] They never miss an opportunity to punt on stuff. And it creates a lot of these problems and these rulings. They just punt away like, oh, there's this really important question that the case is looking to solve. And then they find some like tangential issue and they make that the ruling and they ignore the bigger part. And that can have different impacts.

[00:13:16] But that's like, that's why we didn't get a Second Amendment directive, basically. Like, does the Second Amendment allow you the right to bear arms? Like something as simple as that. It took the Heller case. How long, right? And how many court cases have there been? There have been a bunch of them. But the U.S. Supreme Court constantly punted away on the issue. This is what the Alien Enemies Act says.

[00:13:45] I've gone over this before, but let me just state it again real quick. The first part of it says, Whenever there is a declared war between the United States and any foreign nation or government, comma, or any invasion or predatory incursion is perpetrated, comma, attempted, comma, or threatened against the territory of the United States by any foreign nation or government, and the president makes public proclamation of the event, then you can deport.

[00:14:14] And so the discrepancy here is in the way it's written, and as I said the last time I went over this, it's in the commas. Because the way I read this, it says, Whenever there is a declared war between the U.S. and any foreign nation or government, comma, or any invasion or predatory incursion is perpetrated by any foreign nation or government. Okay?

[00:14:42] It still requires a foreign nation or government. So, like, making the connection between TDA and the Venezuelan government, that's the key. Right? That's the key. And so all the government has, our government has to do in these proceedings is to say, here's our evidence of the connection, and here's this guy's membership in TDA. And that should check the boxes, I think. Ed Morrissey thinks,

[00:15:12] The rush of TDA organized crime figures into the United States over the last four years is clearly a predatory incursion, and Congress gave the president the authority to expel those who participated in such an incursion. He says, But that's my opinion, and that's my reading of the statute. And this week's order from the Supreme Court does nothing to prevent a different conclusion.

[00:15:36] We can safely predict that federal judges will reach a variety of conclusions in these cases. And what happens when that occurs? You get different opinions from the lower courts, and then they go up to the U.S. Supreme Court because there is conflict in the rulings. So the Supreme Court will eventually have to actually address the use of the Alien Enemies Act

[00:16:03] probably in the near future, says Ed Morrissey. And then our friend Kurt Schlichter, retired colonel, writing over at townhall.com, The Agony of John Roberts. Kurt Schlichter is a trial lawyer in California. And I thought he did a really good job of sort of laying this out,

[00:16:32] that Judge Roberts, Chief Justice John Roberts' problem is that he wants to return to something like regular order in the judiciary, but what we have is highly irregular order. And so far, he doesn't seem willing, able, or interested in trying to bring these courts into line. So, Schlichter says, pity poor John Roberts. No, he's not corrupt or compromised.

[00:16:59] He's simply a man who has found himself at a pivotal time and place in a position of great responsibility for which he is utterly unsuited. He's not a dumb man. He is, in fact, a very smart man. Hugh Hewitt, the radio guy out in California, knew him personally in the Reagan administration and testifies to that. I have no doubt it's true. I know many smart people who have similar flaws. As objectively intelligent as John Roberts is,

[00:17:29] he is unwise. And he is endangering the institution he wants to preserve because he does not understand human nature or the times he finds himself in. If he had the capacity to lead that he so manifestly lacks, John Roberts could save his institution with decisive and bold action. But that's not who he is. Understand what John Roberts wants.

[00:17:56] He's an institutionalist who has always wanted to protect the judiciary branch. He wants it to be a fully co-equal branch that is respected by all. But the very actions he has chosen to take or not take in response to the current crisis of out-of-control subordinate courts are guaranteeing that it will fall. The judiciary as a co-equal, respected by all branch, it will fall.

[00:18:26] Article 3 of the Constitution, that's the one that sets up the judicial branch. It does not expressly provide the judiciary with any powers other than those that it earns in the eyes of the other two branches. It cannot self-enforce its decrees. Right? That's the old line. Was it from Jackson who said, you know, he made his ruling, now let's see him enforce it. Article 1 creates the Congress and the legislative branch has the power of the purse.

[00:18:55] They have the power to impeach. They have the power to impeach the judiciary. Article 2 establishes the presidency. But the Constitution does not specify its checks and balances over the court. But that power is implied. The implied powers for the executive who runs the machinery of the federal government, including the cogs and gears that carry guns, you know, they can simply say no to an out-of-control judiciary.

[00:19:21] This implied power or defiance is as much a check and balance as any enumerated one, anything that's written down. Right? The executive has the guns and without it, you would have an unchecked judiciary with hundreds of district court judges presuming to micromanage the legitimate actions of the executive branch. You know, kind of like what's happening now. Here's a great idea. How about making an escape to a really special and secluded getaway

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[00:20:50] 828-367-7068 or check out all there is to offer at cabinsofashville.com and make memories that'll last a lifetime. All right, so Kurt Schlichter, attorney, lawyer guy out in California, townhall.com columnist, retired U.S. Army colonel, and he's writing about the, what he calls the agony of John Roberts, saying that we have highly irregular order

[00:21:19] right now, and Roberts wants a return to something approximating regular order in the judiciary. Schlichter says, you non-lawyers need to understand that all these temporary restraining orders, all of these injunctions and so forth, they are insane. This is not how law is done, either procedurally or substantively. He says,

[00:21:49] I did litigation for 30 years, including in federal courts, up to arguing in front of the Ninth Circuit, and never saw anything remotely like these antics. So that's the first step, is to recognize where we are. This is not normal. All of these lawsuits and such, this is not normal. Abnormal times call for

[00:22:18] abnormal responses, but that is not how John Roberts works. Remember, he's a bushy. Right? Dubya, the kind of soft Republican who sees his job less as fixing our broken government than managing its gentlemanly decline. He wants the judiciary to be held in respect and obeyed, but he doesn't want to do the hard, stern work of disciplining his underlings

[00:22:47] that makes that possible. I know there was talk about impeachment, right? Various judges issuing these rulings, but Schlichter says that practically speaking, we're probably not going to impeach anybody. That's probably not going to happen. Right? It takes 67 senators. That's not going to happen. Democrats are going to protect those, you know, activist judges on the bench.

[00:23:17] In normal times, the response to a judge over one dumb decision is the appeals process. But again, rule number one, right? We are not in normal times. So, these are not one dumb decision. These are dozens of dumb decisions. And the answer is now not the appeals process, because the appeals process is long. It's drawn out.

[00:23:46] It's deliberative. Right? The goal of this lawfare campaign is to use that delay of the appellate process to strip Trump of his ability to govern. Right? That's the point. The purpose is to delay. They know that this stuff isn't going to carry the day. But they just throw as many lawsuits into the gears as possible,

[00:24:17] and, you know, it'll gum up the works for a while, and it'll slow Trump's role, and that's good enough because then he'll be out. To that end, Schlichter says, these leftists have sought to wrap Trump up in a web of orders and injunctions that will prevent him from doing the things that he was elected to do. Eventually, the Trump administration will win most of these cases through the appellate process because they

[00:24:46] are procedurally and substantively ridiculous. But the purpose is not to fulfill the letter of the law. The purpose is to create friction that improperly prevents political actions that Trump as the executive has the right to take. In other words, Trump may live in the White House, but he can't actually be president. that disenfranchises the people who elected him.

[00:25:17] I thought that was a great line, that Trump may live in the White House, but he can't actually be president. Procedurally, John Roberts needs to lead the charge to stop the imposition and the use of these bizarre nationwide orders and injunctions by giving the circuit courts and the courts of appeal clear guidance to end the nonsense procedurally.

[00:25:47] Now, substantively, he needs to direct the circuit courts to issue stays on district courts and their orders which far exceed the scope of their power. And if the circuit courts of appeal refuse to do that, then the Supreme Court needs to issue the orders to enforce its will, even if that means issuing dozens and dozens of orders. The Supreme Court only takes, here's a good question for you,

[00:26:17] how many cases do you think the U.S. Supreme Court takes every year? 50. About 50 cases, so like one a week. With over 100 lawsuits against the Trump administration as part of this lawfare campaign, that workload no longer works. what John Roberts is risking by refusing to put an end to these abuses is the Trump administration putting an end to these abuses himself by exercising his own implied power

[00:26:47] under the Constitution to check an out-of-control judiciary. If an order is issued and no one enforces it, is it really an order? It's a fair question. The constitutional crisis, the judicial crisis we are in right now is the making of the leftists. This is the purpose, destabilization,

[00:27:16] erode trust in the institutions that have formed our civil society, and slow Trump from attempting to end the abuses of out-of-control judiciary and end and out-of-control executive branch. All right, so spring is here, a time of renewal and celebrations. You've got graduations, weddings, anniversaries, and the special days for mom and dad. Your family's making memories that are going to last a lifetime. But let me ask you,

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[00:28:44] how did we get Donald Trump? and at the time, a fellow by the name of Ilya Shapiro, legal scholar guy, wrote at Cato.org, a libertarian institute and website, and you know what he argued at the time, nine years ago, he said, John Roberts beget Donald Trump,

[00:29:15] which I find to be interesting now looking at where we are and looking at how Roberts, I just have the image of him grasping at the dirt and sand in his judiciary, and the tighter he squeezes to hold on to its respect and its reverence, that the tighter he squeezes, the more it

[00:29:45] slips through his fingers. Ilya Shapiro, how John Roberts beget Donald Trump from nine years ago, 2016. He talked about, in this piece, he talked about Obama and George W. Bush before him, the GOP elite, Nancy Reed, or sorry, Nancy Reed, no, Harry Reed and Nancy Pelosi,

[00:30:15] nihilists, demographic shifts, globalization, host of other forces, have brought us to where we are, he said. But I have to point to a moment that spawned the current rise of Donald Trump. This was May of 2016, so before Trump had beaten Clinton. And he says it would have to be John Roberts' vindication of Obamacare. June 28, 2012.

[00:30:46] I remember it. I was shocked. It was so clear even this non-lawyer radio guy could understand the arguments as to why Obamacare needed to fall. It was a tax. You're taxing people. Roberts recognized that the Affordable Care Act was unconstitutional, yet he saved it. he saved it out of a devotion, a misbegotten

[00:31:15] devotion to judicial restraint under the guise of deferring to the people. And that's not the way it's supposed to work. I knew it then, and a lot of other people did too. Sure, the Chief Justice cleverly wrote his opinion so it wouldn't increase Congress' power to regulate interstate commerce, and even cut it back under the Necessary and Proper Clause. He also ultimately

[00:31:46] upheld the individual mandate only by rewriting it into a sort of unicorn tax, a creature of no known constitutional providence that will never be seen again. It's the only tax that isn't a tax in America ever. But you reap what you sow, you know? By refusing to follow his own logic, to go where even Justice

[00:32:16] Anthony Kennedy's full-throatedly went, he would do it. Roberts ended up creating the cynicism and the anger at the very conservative judicial philosophy that he now tries to save. Right? This play by the rules attitude conservatives have had. Decreased respect for institutions across the board because of the Roberts ruling.

[00:32:46] His twistifications drove the Tea Party into the arms of the populists or made it easy for their populist instincts to trump their constitutional ones. Pun intended, but fitting. I mean, why bother with the Constitution? Even when you're right, you lose. How many times you hear that argument? How many times have you said that argument? This has been one of the biggest

[00:33:15] issues. I've had this article in my files since it was published nine years ago because what he's arguing, I think, is correct because I have heard this from so many people over the last nine years. Trump fights. That's the summary of what Ilya Shapiro is arguing,

[00:33:45] that he fights. And, you know, we're tired of just getting beat all the time and so gloves are off, we're going to play by their rules, same standard, all of that. Because even when you're right, you lose. If Justice Kennedy had joined the liberals in their view that there are simply no structural limits on federal power, there would have been disappointment. But it would have been understandable given the conventional left-right rubric, right?

[00:34:15] But to lose in a wholly extra-legal way, that was the sucker punch. Betraying the idea, or belying the idea, I should say, that there's a difference between law and politics and that the judiciary is an anti-majoritarian check on the excesses of the political branches. The scales fell from the eyes. Roberts told the soon-to-be

[00:34:45] future Trump supporters not to bother with the courts. Don't bother the courts with these important issues. If you want to beat Obama, you got to get your own strongman complete with a pen and a phone, right? and maybe some contempt for the Constitution thrown in. So, they did. That is exactly what happened. They went and got their own guy, their own fighter,

[00:35:15] bypassing several flavors of constitutional conservative in favor of a populism that knows nothing but winning. It's such a shame, he says, and deeply ironic, a constitutional moment had actually arrived in 2010. Remember, the people had risen up against crony capitalism, against bailouts, against out-of-control government in every aspect of our lives. That was the Tea Party, folks. Real

[00:35:44] constitutionalists were sent to Congress. I mean, Massachusetts, remember, elected Scott Brown in an effort to stop Obamacare. State legislatures turned Republican based on opposition to federal overreach. North Carolina flipped Republican in this time frame. Like, there was this huge wave. This opposition to the

[00:36:13] overreaching federal government and the poster child was Obamacare. And the last domino, the White House, poised to fall too, would have already had any A-list constitutional head run in 2012 with the most talented and intellectually vibrant GOP primary field since Ronald Reagan. But then Roberts ushered in the Trump tornado. Constitutional conservatism simply could not survive judicial conservatism. Ilya

[00:36:43] Shapiro blames, credits, whatever you want to say. All of this stuff we're seeing now is the backlash to John Roberts, who we are all now reaping what he sowed. All right, that'll do it for this episode. Thank you so much for listening. I could not do the show without your support and the support of the businesses that advertise on the podcast. So if you'd like, please support them too and tell them you heard it here. You can also become

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