Zones of lawlessness

Justice Jackson’s relatively brief dissent in Trump v. CASA gets right to the fundamental conceptual error at the heart of Amy Taney Barrett’s opinion:

The majority’s assertion that District Courts did not have the authority to enforce universal injunctions because this is not consistent with the equity powers of the 18th Century High Court of Chancery in England is, as Sotomayor points out at length, unpersuasive on its own terms. But there is the additional problem that the Constitution of the United States did not establish a monarchy. Even if the majority’s characterization of the equity power of Enlgish courts was correct, it cannot be dispositive when considering how the federal courts of the United States can respond to lawless actions by the executive branch.

And the consequences in this case will be particularly subversive of explicitly granted constitutional rights:

This patchwork, needless to say, is precisely what the 14th Amendment foreclosed through unambiguous language. The majority has essentially re-established the Dred Scott dual citizenship regime the core purpose of the 14th Amendment was to avoid. It’s lawlessness multiple times over.

For the second term in a row, the Supreme Court has concluded the term by attempting to re-establish the form of government the American Revolution was fought against. Donald Trump is the cause (and the Court’s cause,) but he is also a symptom.

Juan Linz to the courtesy phone please.