JOSH BLACKMAN ON JUDICIAL SUPREMACY:

Fourth, speaking of President Trump, there is a big difference between Little Rock and CECOT. During the Civil Rights Era, the clash was between the Supreme Court and the states. President Eisenhower, perhaps begrudgingly, backed up the judiciary. Today we have a conflict of a very different nature between the Supreme Court and the executive. The better analogy is whether James Madison would have actually delivered Marbury’s commission, or whether President Lincoln would have ordered the release of Merryman. Here, no one will call the 101st Airborne to help Chief Justice Roberts or Judge Boasberg. To the contrary, I think most Americans would shrug their shoulders about whether aliens who are otherwise subject to removal spend their days in CECOT.

Fifth, I worry about the risk of the Supreme Court issuing an order truly out of its bounds in the separation of powers, and that order is ignored. Much of the criticism focuses how on that effort would empower Trump. But I think the even more compelling concern is how it would weaken the Court, perhaps irreparably. A court that issues a ruling that can be disregarded is no longer a court. That premise should inform the sorts of orders that are issued against the executive branch. Justice Alito stated the issue plainly: “Both the Executive and the Judiciary have an obligation to follow the law.”

Indeed they do.