DEMOCRACY WATCHHow to Get Away with Violating Court Orders | The American and Russian Right Are Aligning | Big Law’s Big Capitulation, and more

We Are Uncomfortably Close to 1933  (Jeffrey Herf, Persuasion)
Acquiescence by Republicans to Trump’s agenda is reminiscent of the Reichstag’s collapse.

The American and Russian Right Are Aligning  (Economist)
MAGA men are warming to anti-liberal ideas emanating from Moscow.

The Judges Trump Scorns Should Stand Their Ground  (Economist)
The rule of law is at stake.

How to Get Away with Violating Court Orders  (Benjamin Wittes, Lawfare)
A guide for the lawless.

The Meaning of Article II and ‘Executive Power’ to Trump  (Nick Bednar, Lawfare)
President Trump has cited Article II to justify everything from deportations to firing civil servants—these assertions present a challenge to constitutional order.

Unilateral Disarmament in the Information Wars(Benjamin Wittes, Lawfare)
It’s easy to understand why Trump is destroying Voice of America.

Trump Move to Eliminate VOA, RFE/RL Ignores Lessons of Global Power  (Mark Pomar, Just Security)
As China and Russia flood the world with their propaganda and disinformation, and weaponized media and cyberattacks seek to destroy any vestiges of truthful, fact-based journalism —and therefore hasten the decline of democracy and any rules-based order —the world needs the experience and know-how of Voice of America and Radio Free Europe/Radio Liberty (RFE/RL) broadcast and online outlets more than ever.

The Trump Administration’s Recent Removals to El Salvador Violate the Prohibition on Transfer to Torture  (Rebecca Ingber and Scott Roehm, Just Security)
Several of our colleagues have already provided excellent analyses of the fast-evolving legal and factual questions presented by President Donald Trump’s pretextual and abusive invocation of the Alien Enemies Act to transfer to El Salvador 238 Venezuelan men who it alleges are members of the Tren de Aragua gang. (See posts by Steve Vladeck, Ryan Goodman, and Marty Lederman.) We are writing to flag a separate issue that this case has created, one that applies to anyone removed from the United States under any authority: the administration is sending people to a country where there is a quite significant risk they will be abused. Whatever the authority the administration might claim over their removal, the United States is nevertheless bound by the principle of non-refoulement, which prohibits the removal or transfer of human beings under such conditions. In sending the men at issue in this case to detention in El Salvador, a country and prison system with a known history of torture and other serious human rights violations, in addition to the facts that are already emerging about their treatment, the Trump administration has plainly violated the prohibition on refoulement.

The Courts Can Stop Abuse of the Alien Enemies Act – the Political Question Doctrine is No Bar  (Katherine Yon Ebright, Just Security)
This past weekend, President Donald Trump invoked the Alien Enemies Act of 1798, a wartime authority, as a part of his mass deportation agenda. The president’s use of the law for deportations was promptly blocked by a judge who questioned the appropriateness of invoking the authority — which requires a declared war, “invasion,” or “predatory incursion” perpetrated by a “foreign nation or government.” In issuing his emergency order, however, the judge said that it was a close call on whether the challenge to the president’s invocation was ultimately likely to succeed. He noted that judges generally do not second-guess the president on sensitive “political questions” regarding the national security.
Notwithstanding the deference that judges owe the president on national security matters, the political question doctrine does not bar the courts from reviewing Trump’s invocation of the Alien Enemies Act based on a supposed “invasion” or “predatory incursion.” When the Supreme Court formalized the political question doctrine in Baker v. Carr, it was clear that the judiciary is “not at liberty to shut its eyes to an obvious mistake” and “will not stand impotent before an obvious instance of a manifestly unauthorized exercise of power.” And before Baker v. Carr, the Court established that the judiciary can review executive actions in a supposed military emergency if those actions are not “conceived in good faith” or fall beyond the executive’s “permitted range of honest judgment.”

Donald Trump Is Testing More Than America’s Constitution  (Economist)
The country’s very idea of itself is under stress.

What the Press Got Wrong About Hitler  (Timothy W. Ryback, The Atlantic)
Journalists accurately reported that the führer was a “Little Man” whom the whole world was laughing at. It didn’t matter.

Big Law’s Big Capitulation  (William Kristol, Andrew Egger, and Jim Swift, The Bulwark)
In the Trump era, the lawyers have chosen to pay, not fight, the mob boss.

How an Autopen Conspiracy Theory About Biden Went Viral  (Ken Bensinger and Steven Lee Myers, New York Times)
A specious theory on pardons had help from the conservative Heritage Foundation before President Trump and right-wing influencers amplified it.