It's going to be helpful, in coming days, for reporters who write about executive orders to have an informed lawyer on speed dial to help them report accurately on what the President can and can't do by executive order.
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Shock and awe. But they'll realize cabinets nor agencies will have a clue how to manage all of this "awe". Plus...Trump doesn't know what he's signing and he'll be undermining them by tweet and press conference Jan 21. DOJ is gonna be busy as hell too.
I mean, I don't feel all that confident that I know what Trump can and can't do via executive order at this point. Then again, I'm not an admin law expert. So reporters, don't call me up.
That’s interesting but academic unless Congress would meaningfully respond to an unlawful EO.
The real limits seem practical, not legal. Like an EO changing Tuesday to Trumpday, or nationalizing Google: How? Or closing the Mexican border entirely. Is that remotely feasible?
Sorry- I meant the reporters, as to what would be their motivation for conferring with lawyers. This is the way it’s going- complete normalization of any crazy thing he wants:
I talk to reporters from time to time about the legal side of news stories, and they seem primarily interested in reporting the stories in proper context.
True. But, of course, Trump doesn't care about that. Neither do his aides and advisors. And the Republican Six on SCOTUS has already shown a willingness to go supine whenever Trump wants.
Not true re SCOTUS. They unanimously upheld Biden's election in 2020. Roberts & Barrett recently upheld Trump's criminal conviction in NY. Roberts stopped many of the Trump 45 administration's actions. Easy prediction: Roberts & Barrett won't rubber stamp Trump's every action.
SCOTUS denied certiorari in the Texas-filed 2020 election case and heard no others on that, either. They made no decision. Nor did SCOTUS make any decision on the merits in Trump's NY criminal case. And single justices temporarily granting stays is not a decision of SCOTUS. Nor is two votes.
Denial of certiorari = refusal to help Trump when the conservatives had the votes for Bush v. Gore 2.0. Same w decision on Trump's criminal conviction. Whether the outcome is a decision seems to narrow the goalposts from your original statement about "go supine whenever Trump wants."
Well, I can see how that might be read that way. I was actually referring mostly to Trump v. U.S., the infamous, ahistorical, and extraconstitutional immunity decision.
Oh I agree. Horrible decision and justification for it. But it would have applied to Biden or Harris had either won. And there are other decisions where Roberts bucked Trump. The census question decision of 2020 comes to mind.
Congress won't stop him, he controls both houses of congress.
The SC 'might' stop him but it becomes unlikely as they have taken the position he can do whatever he wishes, without fear of judicial consequences, and that impeachment is the only remedy should he get to far out of line.
Precisely. A lot of time, the only restraint is a congressional impeachment. Since that's not a threat, we have to depend on ethical execution of the law.
Assuming standing is met, an Executive Order that is not supported by the executive power of the Constitution or by any lawful delegated power by Congress may be subject to injunctions by a U.S. District Court.
See, e.g., Executive Order 13768; see ex parte Merryman, 17 F. Cas. 144.
This is slightly outside my previous research on EO, but I would imagine (in an extreme step) would be a court issuing a writ of mandamus or a show cause order against the party not implementing the court's ruling. (It's an area, from what I am assuming, did not occur in modern history)
*show cause orders are somewhat common-ish in other types of trial, but I never heard of one being ruled as a result of the government refusing to abide by the court's injunction against a presumed unlawful EO (I could be wrong)
No worries. Just be careful that most news coverage of legal matters are quite bad, so take any speculations offered by the media with caution. (Lawyers have their own news sites, like Law360 and Bloomberg Law News, which has a hefty paywall)
Isn’t this whole thing more about Trump testing the waters of what he can get away with, and who will or won’t just roll over, rather than the specifics of the executive orders.
"It's going to be helpful, in coming days, for reporters who write about executive orders to have an informed lawyer on speed dial to help them report accurately on what the President can and can't do by executive order"
yes - I expect a nearly instant plea to courts for every EO that is revealed
PROBLEM: Legalities won't stop Trump. He owns the supreme court. Many of his lackeys are in the lower courts and will declare whatever it is he wants to do as legal.
Look to Marc Elias, Joyce Vance, Law Dork, all on Substack. They and others there will be giving us a blow by blow, and interpretation of the law and filings.
The Ukraine war will end tomorrow. Trump promised multiple times in his election campaign that he would end the war on day one of his presidency. We know he doesn't lie, so does anyone know what time tomorrow it will be?
So many comments are missing the point. Kerr isn’t suggesting responsible reporting will by itself stop Trump; he is posting what news outlets ought to be doing. It is naive to think just because many media outlets have not done solid reporting on Trump that the role of journalism is not important.
I’m not going to hold my breath hoping that US district courts actually enjoin against executive orders. Legit question: what is to prevent the executive branch from explicitly ignoring injunctions? I guess only the president is essentially immune from criminal prosecution for official acts….
is going to to be helpful, in coming days, to reach out to influential people, especially conservatives who know where this is going and know better, and convince them to actually take a stand against this
I can't be, it's true, the world is too ridiculous, and everything people once said about their values seems to have been tossed out the widow overnight
I think recent history has shown that the incoming President can do whatever people won’t stop him from doing. With every passing day that has less and less to do with the law.
That would be good. All presidents issue EOs that achieve little or nothing, in my experience. Many just die in workgroups or end with promotional pamphlets. Here, I'm worried they'll be used as pretext to fire fed workers who can't achieve expected "results."
You're assuming these reporters will be trying to get their stories right.
Given the conduct of many if not a majority of them over the last 8 years, I think you're really optimistic.
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Social media brought us to this point and it damn sure isn't going to stop. It's all about the monetization now.
Like, you say he “can’t” do something, but what entity can enforce that if the House, Senate and SCOTUS won’t stop him?
What he can and can't do probably won't be decided according to law, is my sense. Majority will go along w his bullshit, save the courageous minority.
Good for them! 👍
The real limits seem practical, not legal. Like an EO changing Tuesday to Trumpday, or nationalizing Google: How? Or closing the Mexican border entirely. Is that remotely feasible?
Can’t do,
And can’t do legally but might try to do anyway
What if they don’t?
Congress won't stop him, he controls both houses of congress.
The SC 'might' stop him but it becomes unlikely as they have taken the position he can do whatever he wishes, without fear of judicial consequences, and that impeachment is the only remedy should he get to far out of line.
Uh oh
See, e.g., Executive Order 13768; see ex parte Merryman, 17 F. Cas. 144.
For the ignorant layman, it all just kind of seems like if people don’t agree to follow the law then none of this really matters 🙃
yes - I expect a nearly instant plea to courts for every EO that is revealed
I am not a lawyer at all.
But I can tell you exactly what the president can do by executive order:
Anything he damn well pleases...
... unless there is someone willing and able to stop him.
Thanks for coming to my Ted Talk.
Given the conduct of many if not a majority of them over the last 8 years, I think you're really optimistic.