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Merrick Garland comes out swinging

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In the day and a half since the Tennessee Republican state legislature shockingly expelled two Black Democrats, there have been frantic calls for Attorney General Merrick Garland and his DOJ to “do something!” That’ll end up happening. In the meantime, after a rogue judge issued a ridiculous yet widely expected ruling outlawing the abortion pill nationwide, Merrick Garland reminded us of what the DOJ actually does.

Barely an hour after the judge’s ruling came down, Garland announced that he strongly disagreed with the ruling, and he had his DOJ file an appeal, which should see a response from the U.S. Court of Appeals within days. The reason the DOJ was able to move so quickly in this matter was that it knew this bad ruling was likely coming, and so it was able to construct an appeal in advance, so it could file immediately thereafter.

It’s all a good reminder that yes, Merrick Garland’s DOJ is doing plenty, yes it moves as swiftly as it’s able to, and yes its role in situations like these is to convince the courts to order changes. Much as he might wish he did, the Attorney General does not have a magic lever for simply reversing or overruling these kinds of things. He and the DOJ can only get the courts to do such things.

If the DOJ does take action in Tennessee – and it should – it’ll come in the form of a well constructed legal case that can convince the courts to intervene. The DOJ cannot just announce “we’ve overturned the Tennessee legislature.” That’s not anything. It’s now how the law works. The DOJ has to convince the court to overturn the Tennessee legislature’s decisions. The court will only act if the DOJ brings it a convincing enough legal case. And since no one saw these expulsions coming more than a few days in advance, it’ll take the DOJ a hot minute to put such an appeal together. Convincing the federal courts to intervene in an elected state legislature’s business is not easy. It’ll take one heck of a legal argument from the DOJ.

So while the “everything is done by magic wand” types on social media are busy yelling “where’s the DOJ” with regard to Tennessee, the answer is pretty obvious. The DOJ is looking at every legal angle in this Tennessee situation and determining what arguments it can sell to the courts.

Garland can hold a press conference in the meantime, but the most he’d be able to announce at this point is that he disagrees with the expulsions and that the DOJ is looking into the potential illegality of what happened and determining what action to take. Maybe he should get up and say that. But it’s all he can say. Because his job isn’t to say things. It’s to do things. In court.


Remember, the Attorney General is your lawyer. His job is to go into court and win legal battles for you, in the way that the courts allow legal battles to be won. The Attorney General is not your publicist. He’s not your cheerleader. He’s not your protest leader. He’s just your lawyer. He’s already taken immediate action in court on the abortion pill thing. He’ll take action in court on the Tennessee thing as well, if he can find the legal grounds to go into court and do so.

Yet even as we see Merrick Garland taking immediate action in the abortion pill ruling, and even as we see the Garland DOJ aggressively winning hard fought court battles to obtain the grand jury testimony of everyone around Donald Trump so it can indict him, there’s still this popular notion that the “DOJ is doing nothing.” There’s still this notion that Garland has a magic wand that will allow him to do anything he wants, but he’s just refusing to wave it. Maybe we should spend less time scrutinizing Garland, and more time scrutinizing the motives of those in the media and pundit class who keep falsely portraying what the Attorney General’s role and powers even are, just so they can bash him. Those people are doing real harm to the public discourse.

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