Here’s the latest installment of Bill Maher’s comedy-and-politics segment of “Real Time”; this one’s called “New Rule: Democracy’s Last line of Defense.”
The last line of defense is in fact the Supreme Court, which is supposed to be a “check on executive power”. Maher asserts that while Trump has lost a ton of cases (82 out of 87) in lower federal courts, he’s been victorious in 17 straight cases. And while the Court did in fact rule against Biden repeatedly, they’re bowing before Trump (I’m not sure about which 17 cases Maher’s referring to). Trump apparently has, to override limitations on his powers, declared nine national emergencies, which you can see here.
The definitive decision, says Maher, will involve Trump’s levying of tariffs, which are taxes on imports; and the imposition of taxes is limited to Congress. Even if tariffs can have good results, the President still does not have the Constitutional right to levy them. Maher analogizes the Constitution to the Bible, something that can, at least for Trump, be ignored if he doesn’t like its stipulations.
The guests are Kenny Chesney, Rep. Jared Moskowitz (D), and Bill O’Reilly.
This is a serious bit, lacking the usual humor, but it should quiet down those people who still demonize Maher for having dinner with Trump at the White House and, worse, finding the President to be a genial host. (Remember that Maher went after Trump’s policies during that dinner.)
I am still hoping that the Justices will take seriously their duty to uphold the Constitution, but my confidence is wavering. . . .
If he lost 82 out of 87 in the lower courts, obviously not all those went to the Supreme Court. So winning 17 at the Supreme Court level, while losing far more at the lower court level, doesn’t necessarily prove the courts have gone Trump’s way. Also, if you do a little research, you will find that some of those Trump wins at the Supreme Court have been marginal or provisional (i.e. he didn’t get everything he wanted or he got it only temporarily).
I urge you to examine a few of the EO lawsuits that went to SCOTUS — a few that Trump won and a few he lost — and chat with a constitutional scholar to determine whether SCOTUS correctly decided each case. The number of lawsuits filed by Ds against Trump EOs this year is a record. You have to examine the details to determine if this is more bogus D harassment of legitimate Executive Power vs. Trump abusing Executive Power. The numbers do not and cannot answer that question.
If the Supreme Court has the unfettered power to interpret the Constitution, then the Constitution is whatever the Supreme Court says it is. There is no sense in which the Court can “fail to uphold” the Constitution. What would happen if the Court did so fail? Popular uprising, sack the justices, and decide everything with Peoples’ Courts? That would be fun! Tariff misery would have nothing on that.
If it rules that the President has the authority to levy tariffs in the circumstances he is levying them, contrary to a lay reading of the Constitution by B. Maher, partisan entertainer, then that is what the Constitution permits. Those who think the President should not have the power to levy tariffs by executive order will then have to amend the Constitution to make that explicitly clear.
If the Court rules against the President on tariffs, there is no way he can ignore that stipulation just because he disagrees with it. Never mind that he hasn’t ever ignored or defied the Court up to now. He can’t personally collect any tariff and the civil service won’t obey his instruction to collect illegal tariffs….at least, as a resident of a country that exports to the United States, I hope it won’t.
It’s a simple matter to declare the Supreme Court “political.” All one must do is count the judges and ask which party appointed them, determine whether they rule in one’s desired manner, and “Voila,” one has an unfailing answer to explain the legal proceedings. Call me simplistic and naive, but I think the reason Democrat-appointed judges tend to rule in ways that Democrats like—and Republican-appointed judges do the opposite—is because presidents appoint judges who share their parties’ prevailing assumptions about the role of the courts and the manner of legal interpretation. It’s about ideological sorting—not political favors and payback—but perhaps I am blind to these types of conspiracies.
As to Maher’s counting of district court cases that went against Trump, I wonder whether he has ever heard of judge shopping. (And why don’t we hear about the many lower-court cases that went in Trump’s favor rather than the cherry-picked 82/87 from within a limited timespan?) If we are going to accuse the Supreme Court of being political, might we also consider whether Democrat-appointed judges in liberal districts are being political? I know, silly me, presumed political bias only runs one direction. When will I learn?
That said, many Republican-appointed judges have also ruled against Trump—just as we are likely to see in the tariff case before the Supreme Court. And for those who lament the powers that the Supreme Court has “given” Trump, I fully expect that you will back any future Democratic president’s refusal to use any of those powers. As a matter of principle, of course.
As to the Constitution being “pro-slavery,” it would be more accurate to say it accommodated slavery—and with good reason. There would have been no federal government or “United” States if it hadn’t. Perhaps Maher would like to ask himself how it is that the Northwest Ordinance was passed in 1787—the same summer in which the Constitution was drafted. Just as a reminder: that ordinance banned slavery from being established in what are now Illinois, Michigan, Ohio, Indiana, and Wisconsin. Its language stemmed from an impulse shared by many at the Constitutional Convention and was later recrafted to give us the 13th Amendment. What will Maher do next? Embrace the canard that the Constitution declared slaves only 3/5ths human?
I’m sorry, but this was one of Maher’s weaker moments (and I have been a fan for quite some time—and share his desire to rein in Trumpian excess).
The 17 victories for Trump are the petitions for administrative stays (staying the lower court injunctions or decisions pending resolution of appeal to the Supreme Court). They are not decisions on the merits. The tariff case is the first merits argument I believe.