I’m frankly surprised where I find myself. But I don’t see another move.
> even if it is in the form of retaliation
The most important part is messaging the expectation of retaliation ex ante: If you break habeus, we—too—will use that power. (And it won’t be our moderates who will be the first to seize it!)
Otherwise, we have a two-party system where one team seizes advantage through force while the other pudges along hamstrung by norms only they respect. Also: once a norm is eroded, it’s impossible to regain it through norms alone. (I don’t recall any historical example of norms escalation being peacefully rolled back. It takes a shock for people in the moment and in the future to be able to point to for why that norm is necessary. Somehow the Nazis, Japanese internment and the Argentinian economy aren’t enough anymore.)
Unfortunately, the norms being violated now probably require a Constitutional amendment to reïnstate. So I’m pessimistic about an off-ramp versus this being the new status quo. Maybe both sides being clear about what suspending habeus really means is the kick in the ass America needs to restrict pardon powers and/or give the Congress and courts limited direct enforcement authority. (Or maybe, as it was with Jackson, it will be Trump’s economic ineptitude that brings the shock.)
> even if it is in the form of retaliation
The most important part is messaging the expectation of retaliation ex ante: If you break habeus, we—too—will use that power. (And it won’t be our moderates who will be the first to seize it!)
Otherwise, we have a two-party system where one team seizes advantage through force while the other pudges along hamstrung by norms only they respect. Also: once a norm is eroded, it’s impossible to regain it through norms alone. (I don’t recall any historical example of norms escalation being peacefully rolled back. It takes a shock for people in the moment and in the future to be able to point to for why that norm is necessary. Somehow the Nazis, Japanese internment and the Argentinian economy aren’t enough anymore.)
Unfortunately, the norms being violated now probably require a Constitutional amendment to reïnstate. So I’m pessimistic about an off-ramp versus this being the new status quo. Maybe both sides being clear about what suspending habeus really means is the kick in the ass America needs to restrict pardon powers and/or give the Congress and courts limited direct enforcement authority. (Or maybe, as it was with Jackson, it will be Trump’s economic ineptitude that brings the shock.)