Monday, April 21, 2025

Part I

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Are We Approaching a Constitutional Crisis? If So, It’s Been a Long Time in the Making, But the Potential Collision Between the Executive and Judicial Branches is Dangerous for the U.S.

Are the executive and judicial branches of the United States government about to run into a massive collision? That is at least what some people are expecting. It’s what others are fearing as you look at an impending set of collisions between the Trump administration and the federal courts.

Now, this is not something entirely new and it certainly is not unexpected because even as President Trump entered into his second term with a great deal of energy, much of that energy has basically been directed towards massive change in a demonstration of executive power and a claim of executive authority that everyone inside and outside the Trump administration knew would bring judicial scrutiny.

Now, one of the things I pointed out weeks ago on The Briefing shortly after President Trump entered his second term is that a part of the administration’s strategy, this term is to try to demonstrate the limits or test the limits of executive authority through executive actions, executive orders, DOGE, you just go right down through the agenda, the Trump administration and dare lawsuits to come, dare other entities to sue. And furthermore, their strategy seemed to be to flood the federal courts with so many cases simultaneously that it would be almost impossible for a lot of this to be adjudicated at least well into the President’s second term.

Now, just as every middle school student knows–or at least should know–the American government at the federal level is divided into three co-equal branches, at least in theory, the executive, the legislative, and the judicial. Constitutionally, it’s the legislative that comes first. And you understand that each of these three branches of government is watching the other, engaging the other. The Constitution of the United States gives certain authority and prerogatives to each, but they have to work together in one way or another.

Over the course of the American experience, you’ve had expanded powers taken by the federal courts, an outsized role now taken by the federal courts when compared to the role of the judicial system and the judicial branch going back to the founding era. We are now in a very litigious society, a great deal of the political instinct, the political energy in this country right now is directed towards heading to court in order to achieve or to block what you could not achieve or block by legislation.

Going all the way back to the midpoint of the 20th century, but even earlier in a sense, the federal courts have become a battleground for so many of the most contentious issues of the day, but we also observe that at least at certain political seasons, the dance isn’t equal. So we have a very energetic president right now and we have a Congress with both chambers under the same party’s control. You have a Republican president, you have a Republican majority in the house and in the Senate.

But in the house it’s a very, very thin majority. And a lot of the energy right now is not between the president and Congress, but between the president and the judiciary, and that includes the entirety of the federal judiciary. The district courts, the circuits, the courts of appeal, all the way up to the Supreme Court of the United States.

It generally takes some time for a lot of these issues to arrive at the Supreme Court. But at least on some of these issues, it became clear at the end of last week that the moment of that arrival is coming pretty quickly. In the most urgent action that comes to our attention, on Saturday, just over the weekend, the Supreme Court of the United States issued a temporary block on efforts by the Trump administration to deport a group of Venezuelan migrants. The administration charges with being members of a gang or involved in gang activity.

The Supreme Court order said this, “The government is directed not to remove any member of the putative class of detainees from the United States until further order of this court.” The order released by the court was unsigned, but it also indicated that Justices Clarence Thomas and Samuel Alito, both conservatives, dissented. The White House didn’t respond immediately, but it’s going to have to respond pretty quickly and at this point you have an approaching showdown between the Supreme Court and the White House.

It doesn’t have to be that, but it appears that it very well might be that. Also just going into the weekend, late on Thursday, Judge Harvie Wilkinson of the Fourth Circuit Court of Appeals rejected the Trump administration’s request to stay a lower court’s attempt–as the Wall Street Journal says–to implement the Supreme Court’s guidance in the case of Mr. Abrego Garcia, that is Kilmar Armando Abrego Garcia, the man that the administration now admits was improperly deported to El Salvador. But even as the Supreme Court said that the administration should facilitate very interesting word, facilitate his return, the administration has said that they see this as something outside the scope of their possible activity because he’s not currently in US custody.

And they say the administration has no authority to tell El Salvador that it must release this person, return him to the United States. So it’s a standoff and it’s a standoff right now between the Trump administration and the federal courts. In particular, the Fourth Circuit Court of Appeals in Virginia, Judge Harvie Wilkinson of that court joined by two others, issued an opinion on Thursday warning the Trump administration that it was in danger of a direct collision with the judiciary with the entire judicial branch.

Judge Wilkinson said in his opinion, “Now the branches come too close [that’s the legislative and executive branches]” “come too close to grinding irrevocably against one another in a conflict that promises to diminish both. The judiciary will lose much from the constant intimations of its illegitimacy, to which by dent of custom and detachment, we can only sparingly reply. The executive [that’s the president] will lose much from a public perception of its lawlessness and all of its attendant contagions.”

Now, some conservative Christians hearing that are going to say, “Well, there’s another liberal federal judge in action.” The problem with that is that Judge Harvie Wilkinson is no liberal. He is a long-standing conservative who at several points has been considered a leading candidate for a conservative Republican president to appoint to the Supreme Court of the United States. That’s not going to happen at this point, but Harvie Wilkinson is a constitutional conservative. And it is in essence a conservative warning that he is issuing here.

You’ll notice it’s not a threat, it is a warning. And it’s not just a warning to the executive branch, it’s a warning to the judicial branch as well. He said that the constitutional system is in danger right now because the two independent branches of government are coming “too close to grinding irrevocably against one another. Anyone ought to say in that sentence and a conflict that promises to diminish both.”

Now, you hear many people on the Left warning that we are now in the midst of or right on the threshold of a constitutional crisis. I think by any historical measure that’s overblown, but we are entering into dangerous territory here and a standoff between the White House and the Supreme Court, is something this nation should seek to avoid. It’s something the court and the White House should commonly seek to avoid, and yet it could become inevitable if these cases arise and eventually the Supreme Court has to rule on them.

Now, remember, the current majority on the Supreme Court is conservative, but let’s remember as conservative Christians that there is a wide range that comes under the label of “conservative.” In the main, in the judiciary, conservative means that the more conservative instinct is opposed to judicial intervention and to, let’s just say, creativity when it comes to constitutional and statutory interpretation. That creativity is very much a part of the liberal, leftist, progressivist interpretation of statutory law, and in particular the Constitution of the United States where you had liberal judges and justices saying the text is simply too binding.

They inserted what they called the theory of the living Constitution. It’s in a process of evolution and development, of course, at the hands of the judges and justices themselves it was believed. The conservative correction on the court that started with President Ronald Reagan in particular in the 1980s, that conservative correction to the court replaced that idea of a living constitution with some form of called textualism, which is to say the text is the text.

It is a judge’s responsibility not to find a way to use the words in the text to make a creative liberal argument, but rather for jurists to be constrained by the actual words and grammar of the text. And so this conservative way of looking at the text was called originalism, strict constructionism, textualism. But inevitably, over a course of decades you have different justices all appointed by Republicans as conservative justices. You have in that conservative majority different ways of applying textualism or originalism depending upon the brand someone wants to use.

And you also have a different disposition towards this kind of behavior in the executive branch. This is a good warning to Christians who sometimes think, if we can just get people on our team in the right office, everything is going to be resolved. It just doesn’t work out that way. You can’t make progress if you don’t have people from your own team put into these positions, all three branches of government. But quite frankly, there are divisions even on one team or the other team when you’re looking at the polarization in American politics, the two different parties.

When you look at liberals going on the court, yes, they’re liberals, but what kind of liberal are they? That’s a case by case basis. Some are more proceduralist. Some are more ideological. The same thing is true on the conservative side. Now it’s less true on the conservative side simply because the conservatives are so intent upon the text. But still, when you’re looking at a text like the US constitution, there are different ways of interpreting the text, all of which claim to one degree or another to be originalist in terms of the understanding, textualist or even conservative.

And so we are looking at a mess right now. If there is a direct confrontation between the Trump administration and the Supreme Court, it is going to be a mess. Now, looking at many of these issues, I think the Trump administration is right. I think the administration’s argument that for example, district court judges shouldn’t have the ability to issue rulings as district court judges that supposedly have a nationwide power or authority. That doesn’t make any sense. A district court judge should not be able on a coast-to-coast basis to bind the executive branch. 

On the other hand, at some point you do have a face-off between the judiciary and the executive. And when that happens, I think Judge Wilkinson is right. It is the American people and the American constitutional system, which are the losers. All that to say it’s going to be an interesting week because almost assuredly there will be further actions in the federal courts. And of course there are going to be further announcements from the White House.

And it is also clear that when it comes to the case of this single individual, well, just about everyone in the United States seems to have an opinion.

Part II

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Liberalism, Conservatism, and Kilmar Abrego Garcia: The Major Debate on How to Apply Due Process of Law in This Case

But at this point, let’s shift away from the judiciary and just look at the case and the publicity about the case of Kilmar Abrego Garcia. This is the man who was deported to El Salvador. A United States senator, Senator Chris Van Hollen, Democrat of Maryland, claimed to be acting on behalf of one of his constituents and went down to El Salvador in order to demand a meeting with Kilmar Abrego Garcia.

He was denied that by the government, but before he could leave, the government eventually did set it up and it was a staged event. No question about it. It was a staged event. And you asked the question, who was the big winner of the staged event? Was it Kilmar Abrego Garcia? That remains to be seen. It certainly must have been on the mind of Senator Chris Van Hollen that he was himself conducting a publicity stunt. And when he came back, he certainly was basking in the publicity.

But this is a situation in which you have all kinds of competing interests. There are constitutional arguments to be made for sure and we’re going to look at those in just a moment. But there’s also just the reality that when a United States senator inserts himself into this kind of thing, certainly a senator from the opposing party, it becomes a publicity stunt.

And in this case, I think a dangerous one at least for this particular senator and for his party because that means they just associate their own cause with a man. And the Trump administration seems to be absolutely convinced that when the American people look closely at this individual, they are not going to want him back into the country. But that then gets to another question. It is the question underlying legal conflict. It’s much of the language that’s being used all around us.

You have the opinion handed down by Judge Wilkinson who said that the key issue is that this man cannot be deported or must not have been deported without due process of law, that his due process rights have been denied. Well, what in the world are due process rights? Well, when we talk about certain legal language, we say it’s very old, it’s venerable. It’s very traditional.

How old is the due process language? It goes back to the Magna Carta clause 39 in the year 1354. So very early in the English speaking tradition of what we will now call constitutional law, you have the phrase due process. Clause 39 of the Magna Carta is revised in the year 1354 says, “No man of what state or condition he be shall be put out of his lands or tenements nor taken, nor disinherited, nor put to death without he be brought to answer by due process of law.”

You got to love the old English. By the way, how’s this for equivalent, a list in which you can be disinherited or put to death in just a matter of proximity of words? You get the point however, due process was a new thing when it was asserted in the year 1354. And you have the king here bound by the Magna Carta, the great charter that says that any individual, regardless of his state, his status, his class who is a citizen of Britain, or in this case of England, he shall have right not to be deprived of his life or property without due process of law.

That’s where the phrase comes from, due process, the process of law that is owed him. But what’s interesting about that is that in the earlier form of the Magna Carta, in the same clause this was issued in 1215, King John of England promised, “No free man shall be seized or imprisoned or stripped of his rights or possession or outlawed or exiled or deprived of his standing in any other way, nor will we proceed with force against him or send others to do so except by the lawful judgment of his equals by the law of the land.”

Just imagine how consequential these developments in the law actually were. You’re looking at centuries ago. In the English speaking tradition, this revolution in the law that says that regardless of status or class, no citizen can be deprived of property or of life. That includes also bodily imprisonment without due process of law.

Now, you look at the year 2025. In the United States, the phrase due process of law taken from the Magna Carta clause 39 is still in effect. Not so by the way, in Britain. For the sake of time, we’ll have to let the British explain the British condition. But in the United States that Magna Carta declaration in clause 39 due process of law was taken directly into US constitutional law, and it is a cherished part of it. And that means that you have to have a process, a legal process whereby some action can be taken against a citizen, and that means either in terms of a civil case or a criminal case, it has to follow the procedure, the process of the law. It is due to the citizen.

Now, interestingly of course, when you’re looking at Kilmar Abrago Garcia, he’s not a citizen, but the Supreme Court of the United States has stated that the due process of law is owed at least to some degree, to every person bodily in the territory of the United States of America. And so here’s the collision. You have the White House saying he’s not a citizen, and you also have the advocates for Kilmar Abrago Garcia and his family who are saying it doesn’t matter whether he was a citizen or not. In this case, he deserves the due process of law.

Now, here you have a liberal conservative conflict and it’s not being addressed directly in the national media. I think it’s a good thing that we do so here. The liberal argument is that you should have the most expansive definition of the due process of law imaginable. Basically, the authorities never get to take any action because the due process just grinds on and on and on and on. And that is to a considerable extent, the liberal or progressivist strategy.

Just keep things in the courts forever. And when it comes to Kilmar Abrago Garcia, that is exactly what has taken place. He is a textbook example. No one denies that he entered the country illegally, but over the course of different judicial turns and court actions and legal arguments, this has just been in the courts all this time. The conservative argument is not against due process of law. It is twofold.

Number one, citizens have more due process rights than non-citizens. That category of citizenship is very important, constitutionally, legally and morally. The second thing is due process is not indefinite. Due process should be a finite set of legal processes and legal determinations that should end in some kind of approximate justice in the short term, not just in infinity.

I think it’s important from a Christian perspective to say the due process of law is a part of recognizing what we owe each other just as human beings and especially as citizens of the same country. And so I’m speaking of citizenship here. Citizenship means a compact and a part of the citizenship compact in this country is that we owe each other certain considerations and we have equal standing in the courts. When it comes to persons in the United States who are not citizens, I think most Americans think there ought to be a distinction.

It’s not that those who are not citizens should have no due process rights. I don’t know anyone who’s basically arguing that. The issue is how do you define those due process rights as you look at the current situation in which honestly, the federal government has shown itself to be completely inept at dealing with persons who are in this country illegally.

I think there is another way of putting this just succinctly, and that is I think on the Left, they want process. Due process of law. Whereas on the other side, on the conservative side, we like the words do and law. That is the law and the judgment that is due. Some process, yes, but not an infinite grinding of the process at the delay of any ultimate action.

Part III

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America’s Rebellion, 250 Years Later: The 250-Year Anniversary of the Founding of the American Revolution

But finally, for today, here we are on Monday, April the 21st, 2025. We need to look back two days ago, 250 years ago. On Saturday, the United States marked the 250th anniversary of the battles of Lexington and Concord. That began what we know as the War for Independence, commonly known as the Revolutionary War. That isn’t the war as we think of declared in formal terms, but it was the beginning of the war as we know it, and the struggle for American independence.

Those patriots who began the fight against the British Empire and British forces for American independence. By the way, it’s debatable the extent to which they knew exactly what they were doing or what would be the final outcome. Nonetheless, those battles are now in American historical imagination, the very beginnings of the War for Independence. Lexington and Concord, two of the most famous place names in the United States because of these very famous battles.

Now, to call them battles also indicates that these are big military actions, but of course, they really weren’t that. They were more skirmishes, but they were skirmishes that on the battlefield of history turned out to be of enormous importance. So Saturday was a semiquincentennial. That is the 250th anniversary of those battles. And did you know that the federal government has at work right now a Semiquincentennial Commission that was created by Congress back in 2016 to commemorate and to plan commemorations of the nation’s independence?

And especially all this is focused mostly on what will take place on July the 4th of the year, 2026, which will be for the nation when the Declaration of Independence is recognized. It will be the 250th anniversary or the semiquincentennial of the United States of America. Happy Birthday USA 250 years. But right now, 250 years since it all began.

Allen C. Guelzo, I think one are the most important historians of the American experience. He’s currently distinguished research scholar at Princeton University. I’ve done several Thinking in Public programs with him. He points to the American Revolution and says, “There was a revolution, and the commanding reason why we should pay attention to it is that it represented a fundamental break in the way human politics and societies in the west thought of themselves.”

He went on, “For centuries stretching back to classical times, peoples and nations were constructed as hierarchies. God in heaven, kings on Earth, nobility beneath kings and commoners beneath them all. Power and authority flowed downward. Obligation and unity flowed upward. But then Professor Guelzo writes, “The 18th century enlightenment offered a different notion of political life. Kings and nobles, they were merely accidental creations at moments of necessity. Real political authority began with the commoners, and if kings and nobles failed to satisfy the common people’s needs, the commoners were justified in heaving them aside and inventing a more satisfying form of government.”

Two incredibly powerful paragraphs from Allen Guelzo in a piece that he ran in the weekend edition of the Wall Street Journal. Professor Guelzo also points out that the success of the American Revolution set off a mounting tide of resistance to hierarchy in France, in Latin America, across Europe, and eventually around the world. Then he says this, “Unlike most revolutions, this one didn’t lapse into dictatorship.” That’s a very important point. One we’re going to need to ponder as we think about our observation of the semiquincentennial, and that is, what was it about the American Revolution that led more to a reformation than a revolution and to order liberty rather than chaos?

In contrast, just consider the revolutionary trajectory of France. It’s not enough to look at America’s founding documents and say that’s where it starts, because we as Christians understand there is a worldview underneath those documents, and we’re going to need to look there very, very closely. What we will see in weeks and months ahead is that indeed, it was the Christian worldview that had so much influence on the formation of the American character, the understanding of the American Revolution and the shape of our constitutional system.

As you look across the span of world history, just think about beginning in the Old Testament. Just think about that. The American experience now of us approaching 250 years, that makes America still a very young nation. But as we close today, consider this: the US Constitution is the world’s longest operating constitutional document in human history. No small achievement, but as the headlines we’ve even had to deal what today remind us it is an achievement we have to re-achieve every generation.

The word for the day is “semiquincentennial,” and you’ll get extra credit if you can spell it or use it in a sentence.