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TRUMP WHITE HOUSE TESTS SUPREME COURT LOYALTY WITH INCREASINGLY
CRACKPOT LEGAL ARGUMENTS  
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Joe Patrice
March 17, 2025
Above the Law
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_ Trump has not forgotten the John Roberts decision removing
presidents from legal liability for committing crimes while in office.
So who can blame Trump for making increasingly goofy arguments in
court while defying court orders? _

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“Thank you again. Won’t forget it,” Donald Trump told Chief
Justice John Roberts
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a not-even-a-little-bit-subtle reference to the Chief applying _Grand
Theft Auto _cheat codes to enshrine a magic new standard of
presidential power
[[link removed]] alleviating
presidents of legal liability for crimes committed during _and
outside of_ office.

It seems Trump has indeed not forgotten the gesture as his
administration spent the last few days advancing increasingly goofy
legal arguments, confident that the Roberts Court has zero qualms
rubberstamping arguments historically laughed out of a _pro
se_ convention.

So now Trump is making the argument that court orders evaporate over
international waters, an argument more at home as a Simpsons gag than
in a federal courtroom:

But after the Court greenlighting the explicit argument “the
president can use SEAL Team 6 to assassinate a political rival
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who can really blame him for trying?

This argument — about one step removed from “ain’t no laws while
drinking Claws” in terms of recognized legal weight — began when
Deputy Chief of Staff Stephen Miller and Homeland Security Secretary
Kristy Noem sold a couple planeloads of detained migrants
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the government of El Salvador. The United States will pay El Salvador
to hold the prisoners as slave labor in what is essentially that
underground hell-prison from _The Dark Knight Rises_.

Whatever you might think about the idea of outsourcing convicts to
countries where human rights are advisory, the people sent to El
Salvador were “alleged” gang members. While the administration
talks up getting rid of “the bad guys,” they did not export
adjudicated bad guys but rather planeloads of innocent until proven
guilty migrants that the government accuses of being bad guys.

But here’s the problem with sending people to the Gulags based on
“allegations” from ImmDef:

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To sidestep the criminal justice process that might require the DOJ to
present “evidence,” the White House’s new legal gambit invokes
the Alien Enemies Act of 1789 to cover members of criminal gangs who
hail from Venezuela. While the law was probably unconstitutional as a
justification for sending Japanese-Americans to prison camps after
Pearl Harbor, it is _definitely_ unconstitutional as a justification
for rounding up people from countries the U.S. isn’t even at war
with.

_SECTION 1. Be it enacted by the Senate and House of Representatives
of the United States of America in Congress assembled_, That whenever
there shall be a declared war between the United States and any
foreign nation or government, or any invasion or predatory incursion
shall be perpetrated, attempted, or threatened against the territory
of the United States, by any foreign nation or government…

Not to get all textualist or anything, but note that there’s no
declared war and gang members are not a foreign government.

That’s why this decision ended up in front of a federal judge who
correctly ordered the detainees returned to the United States to face
the American justice system. But the Trump administration decided it
didn’t have to comply because — as explained in Axios:

What international body of water were they over? The Gulf
of… _America_? HMMMMMM.

Whenever maritime law comes up, you’re probably venturing into
crackpot territory. This is a hallmark of the sovereign citizen
movement who claim the United States can’t legally make laws because
the flags in courtrooms have gold fringe. And, frankly, that might be
the next argument advanced by the DOJ — the term is still young!

As you might imagine, no, this is not how the law works. While a
private individual might be able to take a boat into the middle of the
ocean to sell trafficked panda meat or something, there is no legal
basis for _the United States government_ violating _a United States
court order_ simply because the plane — still _fully within the
command of the United States government_ — has ventured into the
Gulf of Mexico. The Court order applies to the government and the
government is still very much here.

Which raises the question, who is the “advice of counsel” who came
up with this one? Was it ChatGPT
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A second administration official said Trump was not defying the judge
whose ruling came too late for the planes to change course: “Very
important that people understand we are not actively defying court
orders.”

The Active/Passive distinction is not particularly relevant when it
comes to defying court orders. The knowing/unknowning distinction and
the administration officials talking to Axios could not avoid bragging
that they constructed this situation in an effort to passively but
knowingly evade the courts.

They didn’t actually set out to defy a court order. “We wanted
them on the ground first, before a judge could get the case, but this
is how it worked out,” said the official.

Yeah, see, that still violates the court order.

The government would still have to return the prisoners to run through
the existing justice process here even if they’d been assigned bunks
in El Salvador’s slave camp. Because, contrary to administration
claims that this is about foreign affairs, this is an immigration
issue and until these people are actually CONVICTED of something, the
government can only detain them for immigration processing and deport
them. They cannot, for example, sell defendants to a foreign prison
system!

But not to be outdone by this “we take our legal cues from the plot
of _Money Plane_” international waters argument, the president
personally expounded on a new theory of presidential pardon power
based on using physical ink that somehow allows him to “lock her
up” Liz Cheney.

The autopen is the presidential electronic signature, and while an
ardent originalist might claim the Framers couldn’t foresee such a
thing, the George W. Bush administration put out a whole opinion
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settled the question 20 years ago:

Under this well-settled legal understanding, an individual could sign
a document by directing that his signature
be affixed to it by another. Opinions of the Attorney General and the
Department of Justice have repeatedly applied this understanding in
various contexts to conclude that Executive Branch officials,
including the President, may satisfy statutory signing requirements in
this manner. This settled understanding of the meaning of “sign”
leads us to conclude that Article I, Section 7 permits the President
to sign a bill by directing a subordinate to affix the President’s
signature
to it.

And not for nothing, would the Framers actually be confused by
this? Thomas Jefferson invented a copy machine
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But electronic signatures aside, I’m not sure Trump wants to pull
the thread about whether pardons issued by a president suffering
dementia are valid.

The White House welcomes that fight. “This is headed to the Supreme
Court. And we’re going to win,” a senior White House official told
Axios.

And they might. Chief Justice Roberts knows how to help out his
people.

_JOE PATRICE [[link removed]] IS A SENIOR
EDITOR AT ABOVE THE LAW AND CO-HOST OF THINKING LIKE A LAWYER
[[link removed]]. FEEL
FREE TO EMAIL
[[link removed]] ANY
TIPS, QUESTIONS, OR COMMENTS. FOLLOW HIM ON TWITTER
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INTERESTED IN LAW, POLITICS, AND A HEALTHY DOSE OF COLLEGE SPORTS
NEWS. JOE ALSO SERVES AS A MANAGING DIRECTOR AT RPN EXECUTIVE SEARCH
[[link removed]]._

_Above the Law [[link removed]] takes a behind-the-scenes
look at the world of law. The site provides news and insights about
the profession’s most colorful personalities and powerful
institutions, as well as original commentary on breaking legal
developments. Above the Law is published by Breaking Media
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* SCOTUS
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* Donald Trump
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* John Roberts
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