The decision by the acting attorney general is a remarkable rebuke by a government official to a sitting president that recalls the dramatic “Saturday Night Massacre” in 1973, when President Richard M. Nixon fired his attorney general and deputy attorney general for refusing to dismiss the special prosecutor in the Watergate case.
That case prompted a constitutional crisis that ended when Robert Bork, the solicitor general, acceded to Mr. Nixon’s order and fired Archibald Cox, the special prosecutor.
.. Aides to the president backtracked on Sunday, saying that lawful, permanent residents of the United States would not be barred by the order. But White House officials said the president had no intention of backing down from the order, which continues to shut the borders to refugees and others.
Trump Could Threaten U.S. Rule of Law, Scholars Say
Donald J. Trump’s blustery attacks on the press, complaints about the judicial system and bold claims of presidential power collectively sketch out a constitutional worldview that shows contempt for the First Amendment, the separation of powers and the rule of law, legal experts across the political spectrum say.
Even as much of the Republican political establishment lines up behind its presumptive nominee, many conservative and libertarian legal scholars warn that electing Mr. Trump is a recipe for a constitutional crisis.
.. David Post, a retired law professor who now writes for the Volokh Conspiracy, a conservative-leaning law blog, said those comments had crossed a line.
“This is how authoritarianism starts, with a president who does not respect the judiciary,” Mr. Post said. “You can criticize the judicial system, you can criticize individual cases, you can criticize individual judges. But the president has to be clear that the law is the law and that he enforces the law. That is his constitutional obligation.”
.. Randy E. Barnett, a law professor at Georgetown and an architect of the first major challenge to President Obama’s health care law, said he had grave doubts on both fronts.
“You would like a president with some idea about constitutional limits on presidential powers, on congressional powers, on federal powers,” Professor Barnett said, “and I doubt he has any awareness of such limits.”
.. Several law professors said they were less sure about Mr. Trump, citing the actions of another populist, President Andrew Jackson, who refused to enforce an 1832 Supreme Court decision arising from a clash between Georgia and the Cherokee Nation.
“I can easily see a situation in which he would take the Andrew Jackson line,” Professor Epstein said, referring to a probably apocryphal comment attributed to Jackson about Chief Justice John Marshall: “John Marshall has made his decision; now let him enforce it.”
..
“He owns Amazon,” Mr. Trump said in February. “He wants political influence so Amazon will benefit from it. That’s not right. And believe me, if I become president, oh do they have problems. They’re going to have such problems.”
The Supreme Court: The Nightmare Scenario
A year without a justice is the least of our worries. We could be in for a full-scale constitutional meltdown.
.. But suppose Hillary Clinton wins the presidency and the Republicans keep control of the Senate. There’s every reason to think that the Senate’s refusal to confirm a Democratic nominee would continue.
.. And if the Senate continues to refuse to act, that means that the President would have to play a card higher than the one the Senate is playing.
.. At some point, someone in the White House counsel’s office will notice that the Constitution doesn’t actually say that the Senate needs to vote to confirm a judicial nominee. The Constitution says that appointments shall be made “with the advice and consent” of the Senate. Traditionally, we have thought that the Senate’s “consent” is signaled by an affirmative vote. But voting on the nominee is just a convention—a shared understanding among the players in the game that we do things a certain way.
.. This is where the fragility of conventions comes into play. Just as there’s no rule that the Senate needs to consider the nominee quickly, there’s no clear reason why the Senate’s consent to a nomination must be signaled with an affirmative vote.
.. In many areas of the law, silence signifies consent. One could perfectly well read the Constitution to mean that the Senate has consented to a nominee if it remains silent for some reasonable period of time—in fact, it might make a lot of sense to read the consent requirement that way.
.. it’s important to realize that the history of judicial appointments over the last few decades is a history of one convention after another being tossed out. The political parties have been escalating their conflict over judicial personnel for years.
.. On January 20, 2017, she nominates a Deputy Secretary of Agriculture, and three weeks later, when the Senate has done nothing, President Clinton mentions at a press briefing that if ninety days go by from the date of nomination and the Senate still hasn’t acted, she will take that to mean that the Senate has no objection and has consented to the appointment.