Increasingly, President Trump doesn’t bother, in the words of the Constitution, to “take care that the laws be faithfully executed.” In the immigration context, the administration now plans, by regulatory fiat, to step away from a court agreement limiting its ability to detain immigrant children for more than 20 days. The Post reports:
The changes proposed by the Department of Homeland Security and the Department of Health and Human Services would attempt to terminate the Flores Settlement Agreement, the federal consent decree that has shaped detention standards for underage migrants since 1997.
The maneuver is almost certain to land the administration back in court, while raising the odds that the government eventually could petition the Supreme Court to grant the expanded detention authority lower courts have denied.
U.S. District Judge Dolly M. Gee, who oversees the Flores agreement, has rejected the government’s requests to extend the amount of time migrant children can be held in immigration jails beyond the limit of 20 days. The administration’s new proposal does not set limits on the amount of time children could be held in detention.
Lawyers for the Flores plaintiffs will challenge the administration in court as they have repeatedly been forced to do when the administration sought to wriggle out of the court-imposed limitations. Trump, you see, has no patience nor concern with the laws, court orders and due process procedures. In search of more red meat to throw at the base, he’ll try any outlandish gambit his advisers can come up with to show how tough he is on migrants fleeing for their lives. (Apparently the “steady state” was not able to head off this effort to undermine the courts.)
Trump’s adversarial stance toward the legal system he is supposed to be enforcing is on full display as he continues to dodge an interview with special counsel Robert S. Mueller III. The Associated Press reported: “President Donald Trump will not answer federal investigators’ questions, in writing or in person, about whether he tried to block the probe into Russian interference in the 2016 election. . . . Trump lawyer Rudy Giuliani said questions about obstruction of justice were a ‘no-go.'”
Giuliani, who is as unreliable as Trump, then backpedaled, saying Trump might agree to answer questions in writing. However, Trump is so unreliable his lawyers ultimately may refuse to allow him to answer in writing, which they can edit. They simply don’t trust him to give them a truthful account that they can then fashion in the most favorable way possible to respond to the special counsel. He’s that untrustworthy.
This should surprise no one. The president portrayed in Bob Woodward’s book and in the anonymous New York Times op-ed is incapable of telling the truth, giving coherent and consistent testimony, or even understanding when he is incriminating himself. That was his (now-former) lawyer John Dowd’s conclusion, one borne out by his lies and delusions uttered over the last 18 months. And now that he is in a frenzy over those who betray him, one imagines he’d do even worse under pressure.
As Judge Brett M. Kavanaugh refuses in his confirmation hearing to provide any indication he sees significant restrictions on presidential power, we do seem to be sliding toward that constitutional blowup. (“There have to be some limits to executive power,” Republican Sen. Jeff Flake of Arizona remarked plaintively at one point in Thursday’s hearing. If only he had some way to ensure a critical Supreme Court seat would be filled by someone who believed that too.)
The special counsel will issue a subpoena, Trump will refuse to abide by it (as Richard Nixon did with regard to the Watergate tapes), the case will go up through the federal courts and ultimately Kavanaugh will sit in judgment, maybe as the decisive vote on the Supreme Court. A more vivid example of refusing to take care that the laws are faithfully executed would be hard to come by. A more alarming example of stacking the highest court with a home court referee we have not seen.
In sum, whether it is the fate of hundreds of immigrant children or his own frantic attempt to avoid legal accountability for his actions, we have a president who acts not as chief of the executive branch charged with implementing the laws but as a menace to the rule of law. With an out-of-control president and a Supreme Court that may well falter in its role to check the executive branch, now would be a very good time to have a strong Congress determined to restrain the president. It’s a good thing the midterms are less than two months away.