Interference at the Polls: Trump could send ICE agents or other law enforcement officers to the polls to intimidate voters. Last week, the Administration took the unprecedented step to try to send over 1000 federal monitors to all 50 states. Ostensibly, to enforce Civil Rights laws, the DOJ also said that these monitors would interview voters who appeared “frustrated.” Thankfully, Washington and Pulaski Counties in Arkansas turned down the DOJ request. But other states will allow them. Expect these monitors work in coordination with ICE and other federal law enforcement.

The administration has not ruled out deploying ICE agents or troops to the polls if they are carrying out regular duties.This past weekend a federal court ordered federal officials to stop threatening election officials.

Interference with Certifications: Expect challenges to the certification of any Democrat’s win. We saw this play out unsuccessfully in 2020 but now many election deniers occupy positions where they can interfere with or even stop the certifications of the results.

The Administration has set the table to challenge results by not only casting doubt generally but also preemptively challenging in court California and Alaska’s voting. Even if these lawsuits fail, they provide the basis for further challenges especially in Alaska.

Interference with counting votes: This is the nightmare scenario. Trump could invoke emergency powers or statutes like the Insurrection Act to stop post election day vote counting. Some of his allies have urged him to do so and Trump’s prime time speech invoked the specter of foreign interference. As recently as mid-October, he refused to rule out using these powers. He may send law enforcement to stop counting votes and seize ballots and voting machines. Remember in January of this year, his DOJ seized 2020 voting records in Fulton County, Georgia.

Interference with seating Representatives: Trump’s allies in Congress could try to prevent Democrats from taking their seats in Congress. The Constitution gives each chamber the power to make its own rules. The Senate seat certified winners. But the Senate will not seat someone until their election win is officially certified. In 2008, a Minnesota Senate seat remained unfilled for six months while the candidates fought it out in Court. A similar result could occur for any of the close elections. Expect Republicans to throw the kitchen sink at any result they don’t like to try to delay certification as long as they. This is likely to happen in Alaska.

The House is different. The House ceases to exist until the members are seated. They aren’t seated until the Clerk reads the roll. There is fear that the Clerk will refuse to read the names of Democrats with contested results. That would leave a Republican majority in the House who would then vote not to seat those Democrats at all. Many experts poo-poo this scenario but after what happened on January 6, 2021, we can’t be so naive as to think it can’t happen.

Bottom Line: Many of these things may not happen or, if they do, they will be stopped in court. But expect a few frenzied months following the election on November 3. Let’s hope that we don’t repeat the lawlessness of Januar6, 2021. We need to steel ourselves for all of the possibilities. Our activism cannot end on election day. We have to be prepared to work hard to not only wrest democracy back from the authoritarians holding it hostage but also to preserve that victory. That might require a massive mobilization to put pressure on every secretary of state and every member of Congress. Nothing less than our democratic system of government is at stake.

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• Overturned Roe v Wade (Dobbs)

• Gave Trump immunity from criminal prosecution (Trump v Vance)

• Gutted the Voting Rights Act (Louisiana v Callais)

• Made it virtually impossible to regulate firearms (Bruen)

• Gave Trump almost complete control over independent agencies like the FCC (Trump v Slaughter)

• Allowed ICE to use race and ethnicity to stop and detain people (Noem v Vasquez Perdomo)

• Used the emergency docket to bless major portions of Trump’s assault on the executive branch (e,g, allowing third country deportations, giving the go ahead to use voter information, giving the OK to withhold billions of appropriations, etc)

Each of these deserves a long post on its own, especially the abuse of the Emergency Docket. For example, through March 1, 2026, SCOTUS issue 32 emergency rulings, 24 of which favored the Administration.

But that discussion is for another day. For now, let’s just lay out the big cases on the horizon and hold our breaths that the damage will be limited.

Second Amendment & Firearms

• Viramontes v. Cook County & Grant v. Higgins

  • The Issue: Whether the Second and Fourteenth Amendments protect the right to possess semiautomatic, AR-15-style rifles.

  • What’s at Stake: Challengers are appealing lower court rulings that upheld local bans on assault weapons. A decision in favor of the gun owners could strike down assault-style weapon bans nationwide under the Bruen historical-tradition framework. Bruen only allows firearms regulations if the government can show that something very much like it existed in 1789 or 1868.

First Amendment & Religious Liberty

• St. Mary Catholic Parish v. Roy

  • The Issue: Whether states violate the Free Exercise Clause by excluding religious institutions from taxpayer-funded public pre-K or voucher programs if those institutions enforce faith-based admissions or employment policies.

  • What’s at Stake: Tests the reach of recent decisions (Carson v. Makin, Fulton) regarding state funding and non-discrimination mandates. In other words, the religious plaintiffs want access to government money without any strings attached that they don’t like. If they win, it will turn the First Amendment completely on its head.

Voting Rights & Elections

• Republican National Committee v. Mi Familia Vota

  • The Issue: The enforceability of state laws requiring physical documentary proof of citizenship to register to vote in federal elections, and whether federal voter registration law permits states to conduct citizenship purges on voter rolls close to an election.

  • What’s at Stake: Sets national boundaries for state proof-of-citizenship requirements under the National Voter Registration Act (NVRA).

Environment & Federal Preemption

• Suncor Energy (U.S.A.) Inc. v. County Commissioners of Boulder County

  • The Issue: Whether local and state government tort lawsuits seeking climate-related damages from fossil fuel companies are preempted by federal law.

  • What’s at Stake: Determines whether energy companies can be held liable in state courts for global warming impacts, or if such claims are exclusively the domain of federal legislation and executive policy.

Civil Rights & Education

• Crowther v. Board of Regents of the University System of Georgia

  • The Issue: Whether Title IX provides educational institution employees an implied private right of action to sue for sex discrimination in employment, or if such claims must be brought exclusively under Title VII of the Civil Rights Act.

These are only the cases that the Court has on its docket right now. They will undoubtedly add more during the year as well as handing more “emergency” rulings. Stay tuned.

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First Amendment law is sprawling, complicated, and nuanced. Here’s what you need to know to make sense of whatever ruling comes down today.

Restrictions on speech come in two forms. First, the government can try to restrict speech based on its content. Think fighting words, threats, or speech that is part of the crime itself like bribery. On the other hand, the government almost never can restrict speech because it does not like the viewpoint of the speaker. The government must have a compelling reason to do so and that restricting speech is the only way to protect that interest. Think about the laws prohibiting the dissemination of information that harms our national security. This will be important in the case today.

Second, the government can try to restrict speech based on its time, place, or manner and has more leeway here. Think noise ordinances, parade permits, quiet areas around hospitals, and closing parks at sunset. Still, the rules must be content and viewpoint neutral, have good reasons supporting them, must not restrict more speech than necessary, and allow alternative channels for first amendment activity.

Finally, these rules apply in different ways depending on whether or not the government is limiting speech on public or private property. This is called the “Public Forum Doctrine” and it balances the first amendment interests against the interests of the government as a property owner. The First Amendment issue in the CNN case will turn on the question of what restrictions may be placed on access to government property.

The courts divide government property into three fora: Traditional, Limited, and (confusingly) Non-public. The White House is not a Traditional public forum. That designation is reserved for places that have, as SCOTUS said, have allowed first amendment activity for “time immemorial.” Think of the steps of the state capitol. The government cannot limit access to or restrict speech based on its content unless it has compelling reasons.

The news organizations are arguing that even though the President doesn’t have to give the Press access to the White House, once he does he cannot restrict access because he doesn’t like what the Press say or their viewpoint.

The President is arguing that he can decide who gets access to his private spaces like the Oval Office and, in any event, he can deny access to the news organizations because their reporting harms national security. (They reported on the Iran War’s effect on weapons supplies.)

Most legal observers, including me, think the ban is unconstitutional as a violation of the First Amendment. There is ample evidence Trump impulsively issued this ban because he doesn’t like the reporting.Whenever he says the reporting is “unfair” or “untruthful” he is really saying “they said bad things about me.”

The national security claim is a fig leaf, hastily and cynically made up AFTER Trump banned the news organizations. (National security is having a big week in the Trump White House. First the new ball room and now the Trump Arch are now vital national security assets.) In any event, if the President can block the Press from reporting information that DOD made public and that’s of vital importance to the American people, it would be the end of free speech.

There is an escape hatch. A press pass is like a license. It is a form of property. The Due Process Clause prevents the government from depriving anyone of their property unless the government gives the holder prior notice why it is being taken away and an opportunity to present their side of the matter.They didn’t do that and the court may want to avoid the First Amendment issue and take the Due Process route. That’s what happened during the first Trump administration when they tried to ban Jim Acosta. They gave up after that ruling because they knew they could not win.

Trump’s lawyers belatedly sent out a notice yesterday to the news organizations telling them to reply by Friday.This is a transparent attempt to justify the ban AFTER the fact and head off an adverse ruling today.They will probably argue that the District Court should hold off on any ruling until after Friday.

So I think two rulings are possible: The court 1.) will grant a TRO (probably on the Due Process issue) and then make it a Preliminary Injunction so everyone can appeal or 2) will put off any decision until after the Due Process claim matures. I think the first is more likely because this is the same Trump-appointed judge who ruled against Trump and in favor of Jim Acosta.

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This case was part of the Court’s “shadow docket” for emergency procedures. There are a lot of problems with the way SCOTUS has managed its “shadow docket.” But they got it right here. It was a no brainer – the President has no power over elections and he can’t back door his way there by exploiting whatever power he has over the post office.This case also showed us that for Justices Alito and Thomas have no problem manipulating the shadow docket to allow Trump to gut the Constitution.

Here’s some law. Litigants often ask courts to freeze the status quo with a temporary restraining order (TRO) or a Preliminary Injunction (PI) when they file a lawsuit. The idea is simple: don’t let the government implement this change until the court can decide if the government’s action is lawful. A TRO or a PI are not final rulings on the merits. Rather, they are judgments by the court that the case is serious enough to stop things before they go any further.

When a court decides whether or not to grant a TRO or a PI, it weighs several factors. The most important are 1) which side is most likely to win at trial and 2) whether a party will suffer harm that cannot be fixed by a final ruling and 3) which side will be harmed more by granting or denying a TRO or a PI.

Now here’s the thing: A TRO or PI are entered BEFORE any of the facts are developed. There’s no discovery and no trial. They are not supposed to be final rulings although a PI is usually seen as the likely outcome. If the moving party gets a TRO or a PI, the other side can appeal and ask a higher court to lift the “stay” on the proceedings. A higher court re-weighs the same factors the trial does.

That’s the context for this week’s mail in vote ruling. A lower court granted a PI to stop the rule from being put in place and the Government asked SCOTUS to lift it. SCOTUS refused and in a short order said that the Government was likely to lose at trial and the other factors (irreparable harm, balance of equities) did not favor the Government.

Still three justices said they thought Trump could pull this off. Justice Kavanaugh wrote that the President would probably win at trial but it was too late to enforce the rule for the upcoming elections. Justices Alito and Thomas dissented with Justice Alito in vintage form. Unlike previous cases where Alito demanded specific and explicit authority for agency rules, in this case the Post Office’s “broad authority” was enough for him.

He blamed the litigants who filed suit against the rule when it came out in April. Let that sink in: the states would have had lots of time to prepare if people had just let the President undermine mail in voting. Of course, he failed to note that the Trump Administration issued this rule when it became clear that Congress was not going to pass the SAVE Act from which these mail in voting rules came.

But wait, there’s more. He took a swipe at the liberal justices for having the temerity to write dissents in an earlier iteration of the case which delayed the government’s attempt to undermine mail in voting.

So according to Justice Alito, the people and the states who challenged this rule and the liberal SCOTUS justices are the problem. He is just fine with the President dong an end run around the Constitution by unlawfully expanding his authority six months before an election. And Supreme Court justices who disagree should just shut up and let the President get on with it!

If any case exposed Alito and Thomas as naked partisans, this might be the one. All of the lower courts ruled against the government. The law he helped develop was against the government and six of his colleagues voted against the government. But the law and the facts be damned when it’s time for Sam and Clarence to bring it on behalf of the Trump administration.

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He said he didn’t see me. It was about an hour after sunrise and he said the sun was in his eyes. Still, that’s no excuse for not properly and carefully controlling a vehicle. If I had been in a car, he undoubtedly would have been given a ticket for failing to yield the right of way or careless driving. But he did not receive any citation for a moving violation. (he was cited for expired tags.)

Recently, I started to cross an intersection when the light turned green but two cars ran the red light narrowly missing me. Once again, I survived by a second. If I hadn’t fumbled clipping in, I would have been hit.

The tragedy in North Carolina brought these memories back to me. It appears that the driver was high, speeding, and tailgating all at the same time.

How many cyclists must be injured or die before the authorities start taking our safety seriously? It starts with enforcing traffic laws like speeding, tailgating, running red lights, etc. But it must go beyond that. We need better cycling infrastructure on all roads, not just in the city for commuters: Wider shoulders (frankly any shoulder), slower speed limits that are enforced, no rumble strips in the shoulder, covered rail crossings, better road maintenance etc.

And yet - the Trump DOT has cut out hundreds of millions of dollars for cycling and pedestrian safety grants because they are “hostile to motor vehicles” and impede traffic capacity. By the way, this is money that Congress authorized.

Cyclists can and do take many precautions. We wear bright colors, have flashing lights, avoid rush hour and busy roads, but it doesn’t matter. Each of my near misses happened on Sunday mornings on lightly traveled roads at the time.

The answer, my friends, is not blowing in the wind. It’s in using whatever political, economic, and social pressure we have to demand that local, state, and national governments take our safety seriously. It starts with getting DOT to reverse course and release the money but it also means that local authorities can no longer excuse drivers who injure cyclists.

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In Calais v Louisiana, the United States Supreme Court “updated” its interpretation of Section 2 of the Voting Rights Act of 1965, (VRA), the section that makes it illegal for states to put in voting policies that discriminate on the basis of race. Although the decision claims it does not eliminate Section 2 claims, the result is to make them virtually impossible to prove.

The Calais decision is cynical, disingenuous, illogical, and, at bottom, racist. It will allow Southern states to eliminate any vestige of Black voting power.

It betrays not only the letter and the spirit of the VRA, but it also betrays the generations of African Americans who fought and died for the right to vote.

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At the beginning of her dissent in Calais, Justice Elena Kagan asks us to consider a hypothetical state: it’s rectangular with a cluster of African Americans in the center. The state has a long history of racial discrimination with effects on housing, wealth, and politics. Voting is almost entirely along racial lines. The state has 6 representatives in the House of Representatives, and it slices the state like a pie into six pieces in a way that disburses the Black voters among the 6 districts thereby guaranteeing that black votes are diluted and cannot elect a candidate of their choice.

Suppose that same state decides, given its history, it wants to ensure that black voters have a chance to elect a representative of their choice, so it draws a district in the center with a black majority to go along with the 5 white majority districts.

According to the Supreme Court, there is no problem with the map that dilutes Black votes even though the state knew that it was diluting black votes but the map protecting black voters is illegal.

Translation: The Supreme Court said that states could effectively lock African Americans out of political power but are barred from doing anything to remedy to effects of slavery and Jim Crow.

How did we get to this Alice-in-Wonderland point?

In 1870, the country adopted the 15^th amendment banning racial discrimination in voting and it gave Congress the power to enforce the Amendment by “appropriate legislation.” The Republican sponsors of that amendment believed that it completed the process of emancipation by guaranteeing that the freedmen would be able to exercise political power to protect their rights and advance their interests.

It didn’t work out that way. After Federal troops withdrew from the Southern states in 1876, those states systematically used race neutral measures to prevent blacks from voting. Things like literacy tests, poll taxes, and grandfather clauses along with racial gerrymanders virtually eliminated black voters in the South. By 1900, the project seemed complete. Black voter registration was almost non-existent and there were no black members of Congress until 1930 – but not from the South. By 1960, there were only four black members of Congress, none of whom came from the South.

Galvanized by the brutality in Selma, Alabama on Bloody Sunday, a bi-partisan Congress passed the Voting Rights Act (VRA) in 1965. The act outlawed specific tactics like literacy tests and poll taxes but it also set up more lasting protections.

Section 5 of the Act required mostly Southern jurisdictions with a history of racial discrimination and low minority voter registration to get approval – called preclearance – from the Justice Department before implementing any changes to their voting procedures. This included drawing district lines. This preclearance ensured that states could no longer use ostensibly race neutral means to restrict minority group voting.

In addition, Section 2 of the VRA allowed lawsuits against any jurisdiction that engaged in racial discrimination in voting. The Courts applied an effects test to Section 2 cases. i.e., challengers could win their cases if they showed that a change in voting rules had a disproportionate effect on a racial minority.

The VRA worked. Black voter participation and office holding increased especially in the South. By 2025, there were 41 African Americans in Congress with 18 of them from the South.

But the Supreme Court in 1980 said Section 2 challengers had to prove that states made changes because of the state’s racial bias or intent and not just by showing their effects. A bi-partisan Congress amended Section 2 to allow challenges to any voting change that had a racially disparate effect. They knew proving intent is a nearly impossible task because State officials can disingenuously cloak their racism in neutral language.

To make sure that law smoked out these efforts, Congress included factors for Courts to consider when deciding if the state law deprived racial groups of an equal chance “to elect representatives of their choice.” The meaning of the1982 amendment is the central issue in Calais.

Enter Chief Justice John Roberts.

One of his main projects at the Justice Department was to oppose the 1982 Amendment. By all accounts, he took on the task with zeal. He wrote multiple memos crafting the arguments against an effects test. He was displeased when the Reagan Administration did not oppose the amendment more forcefully and publicly.

Roberts distanced himself from those memos at this confirmation hearing by claiming he was only doing a job for his client. His behavior on the bench proves otherwise.

Roberts famously said Justices should only “call balls and strikes” and not let their personal opinions dictate their decisions. But that was, to put it mildly, a lie when it came to voting rights cases. He had the VRA in his sights all along.

Roberts killed the pre-clearance provision in Shelby County v Holder, a 2013 case, claiming that racial discrimination was no longer prominent because “things have changed” making the formula Congress used to choose which jurisdiction needed preclearance outdated. This was despite Congress repeatedly renewing the VRA with overwhelming bi-partisan support, most recently in 2006 by a vote of 390-3 in the House and 98-0 in the Senate!

Let me put this plainly: Roberts decided that he knew better than the elected representatives of the people and eliminated a provision of the law that had received nearly unanimous support from Congress for decades.

Southern states, now freed from their pre-clearance obligations, immediately enacted waves of restrictive voter laws. And if black voters still found their way to the polls, these states attacked those pathways by restricting early voting, mail in voting, drop boxes, polling places, ID requirements, even prohibiting the distribution of water to voters waiting in line.

In Shelby County, Roberts promised that even though pre-clearance was a dead letter, Section 2 was still available nationwide to challenge illegal voting restrictions. But this was at best disingenuous and, at worst, a deliberate deception. The Roberts Court didn’t wait long to weaken and destroy Section 2.

So what did the Calais decision do?

In its simplest terms, it made it almost impossible to prove that a government violated the voting rights act. How? By requiring challengers to jump through a series of hoops to show a Section 2 violation.

Because Justice Alito cloaked the radical nature of this case in bland prose, I’ll try to explain the Calais decision, but I will need to translate it every so often to show just how radical the decision is.

Justice Alito “updates” Section 2 but essentially reads it into non-existence. Section 2 is violated when the political process is “not equally open to participation by” members of a racial group “in that [they] have less opportunity than other members of the electorate to ... elect representatives of their choice.” Recall Justice Kagan’s example of a state denying Black voters a chance to elect their chosen candidate by dispersing them among several White-majority districts. For Alito, that’s perfectly fine because Black voters get “whatever opportunity results from the application of the State’s combination of permissible districting criteria.”

In other words, Black only get what White politicians allow them to have.

According to Justice Alito, states violate Section 2 only when “circumstances give rise to a strong inference that intentional discrimination occurred.” But didn’t Congress amend Section 2 in 1982 to do away with the intent requirement and put a results test in its place? Justice Alito says that would not be “appropriate” legislation because the 15^th Amendment only bans intentional discrimination and Congress can’t rewrite the Amendment.

Our history shows that States used seemingly neutral methods to deny minority racial groups the right to vote. The whole point of the 1965 Voting Rights act and the 1982 amendments were to allow challengers to smoke out the underlying racial discrimination!

But it gets worse.

You might think that when district boundaries map almost exactly over racial lines, that would be evidence of a racial gerrymander – but, according to Justice Alito – you would be wrong. To win, a challenger must produce an alternative map that does not “use race as a districting criterion in drawing illustrative maps, and … meet[s] all the State’s legitimate districting objectives, including traditional districting criteria and the State’s specified political goals.”

Translation: In a case alleging racial discrimination, the challengers cannot use race to prove racial discrimination.

Because the Court previously said that it would not interfere with partisan gerrymanders, a State can draw its lines to guarantee that only members of the favored party get elected. Thus, to win, a challenger must produce a map that “disentangles” race from politics, produces a different racial distribution among the districts, but still satisfies the State’s political goals including partisan ones. But how can you do that when, in most of the country but especially in the South, the races divide almost perfectly along party lines – Blacks overwhelmingly vote for Democrats, Whites overwhelmingly vote for Republicans.

Another translation: Justice Alito is saying is that it’s OK for a state to only allow Black voters to elect Republicans.

But wait, there’s more and it gets worse.

Here’s the more: Justice Thomas concurred and wrote that Section 2 doesn’t even apply to redistricting. This is a signal for future arguments against whatever remains of Section 2.

Now let’s return to Justice Kagan’s hypothetical jurisdiction. It describes the way Republicans have gerrymandered Pulaski and Jefferson Counties to ensure that their black votes are diluted among white voters. A three-judge panel rejected a challenge to the federal districts using an analysis remarkably like Justice Alito’s.

Here’s where it gets worse. Even though a local federal district court found that the state probably violated Section 2 when it drew the state legislative districts, he threw the case out because he believed that only the Justice Department could bring VRA lawsuits, not individuals.

Again, let me translate: According to current conservative jurisprudential thinking, states are free to use partisan gerrymanders to eliminate black voting power, and individuals should not be able to challenge that decision. And, perhaps in the future, the VRA would not apply even when states openly discriminate on the basis of race even when the Federal Government files the lawsuit.

After Calais came down, Southern states immediately began eliminating Black majority districts. Tennessee wants to eliminate the single democratic seat in its Congressional delegation by splitting the Black voters of Memphis among white majority districts while Louisiana halted its upcoming primaries to get rid of the one remaining black majority district. Of course, Arkansas can stand pat having never elected an African American to Congress and having already ensured its Black voters would not have that opportunity for the foreseeable future.

And the hits keep coming.

SCOTUS waived the usual 32 day waiting period before its decisions went into effect to facilitate Louisiana’s racial gerrymander. This sparked an unusually sharp exchange between Justices Alito and Jackson. Waiving the 32-day period would prevent Louisiana from holding an election using an “unconstitutional” map. But four years ago, the Court allowed Alabama to use a map that discriminated against African American voters because it was too close to an election to make any changes. In other words, maps that discriminate against Black voters are not so important as maps that, according to the Court, discriminate against White voters.

In 1960, there was not a single African American member of Congress from the South. Today, there are 18. But after the Calais decision and the other developments I see on the horizon, we may soon return to 1960 numbers.

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The recent DOJ indictment of James Comey is a travesty. If it stands, it will be one more nail in the coffin of Free Speech and one more step toward fascism.

The indictment claims that posting a picture of seashells as the numbers 86 47 was a threat of violence against President Trump.

Here’s the picture Comey posted:

DOJ claims that “86” – which means “get rid of” in restaurant lingo – threatens violence against the President (“47”). They argue that it is a “true threat” and, therefore, not protected by the First Amendment.

But they are wrong even under the most generous of the relevant precedents.

True threats are exceptions to the general rule protecting free speech. To be a true threat, the speaker must “direct[ ] a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.” [1] The language must appear to a reasonable person to be a threat but it’s enough if the speaker acted recklessly by consciously disregarding the substantial risk that the speech would be threatening.[2]

First, the numbers “8647” would not appear threatening to any reasonable person (by definition partisans are not reasonable.) This is what the law calls an objective standard. It doesn’t even matter what the target thinks.

Second, even if those numbers might threaten violence in some contexts, Comey was not reckless in posting the picture. At best, their meaning is ambiguous and not widely known. Comey himself immediately took the post down when he heard that some people associated it with violence.

Finally, Comey did not direct the threat toward Trump. He didn’t tag Trump, didn’t mention him, and didn’t comment other than to say ““Cool shell formation on my beach walk.”

In short, the indictment is blatantly unconstitutional and should not survive a motion to dismiss. It is so weak that it’s obvious this is a politically motivated selective prosecution. But the actual law doesn’t matter to Trump’s DOJ. Just like the similarly weak and politically motivated indictment of the Southern Poverty Law Center, it is a performance meant to intimidate Trump’s critics. Even if these indictments fail, (as I expect them to), perception is reality and the perception Trump wants people to have is “Liberals and my critics are criminals.”

Tell me again who has weaponized the justice system!

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[1] Virginia v Black, 538 U.S. 343, 347 (2003).

[2] Counterman v. Colorado, 600 U.S. 66 (2023).

You might think that conservatives would be similarly interested in confining unilateral Presidential war-making to its original meaning. But aside from a few notable exceptions, you would be wrong. Most have greeted President Trump’s unconstitutional and illegal war on Iran with enthusiasm.

So as a public service to those so-called originalists, here is a somewhat deep dive into how the framers and those of their era wanted to prevent the President from being able to take the country to war without involving Congress. This is largely taken from my article, “Nuclear Weapons, the War Powers, and the Constitution: Mutually Assured Destruction?

The Framers gathered in Philadelphia in the Spring of 1787 against the backdrop of the inefficiencies of the Articles of Confederation. Among them were the problems associated with national defense and foreign policy. Fearing disunion, they opted for a stronger national government and a President but sought to balance those powers with respect for the states and the fear that President would become a king.

They said little on war/peace issues until later in the summer.[1] The early comments show a fear of lodging unlimited war/peace powers in the President.[2] During a debate about whether the executive should be one or several persons, Pinckney, Rutledge, & Wilson expressed similar sentiments against giving the executive war/peace powers.[3] Pinckney feared that these powers would make the Presidency “a monarchy, of the worst kind, to wit an elective one”[4] while Rutledge and Wilson expressed the less sanguine notion that the power of war and peace were “of a Legislative nature.”[5] Madison agreed with both Wilson’s delineation of Executive and Legislative powers and Pinckney’s characterization of an elected monarch, added that any powers given to the executive should be “confined & defined”.[6]

The convention made little progress on the war/peace question until August.[7] At that time, the convention dispatched the Committee of Detail to put the finishing touches on a draft constitution.[8] On August 6th, the Committee, through John Rutledge, reported to the Convention.[9] The Committee gave the legislature the power “to make war.”[10] In addition it gave the Legislature the powers “to make rules concerning captures on land and water; to declare the law of punishment of piracies and felonies committees on the high seas... and of offenses against the law of nations; to subdue a rebellion in any state, on the application in any state, on the application of its legislature; to raise armies; to build and equip fleets to call forth the aid of the militia, in order to execute the laws of the Union, enforce treaties suppress insurrections, and repel invasions... .”[11] The Committee also proposed creating an executive who “shall be commander-in-chief of the Army and the Navy of the United States and of the Militia of the Several States.”[12]

The Convention considered each clause of the Constitution in turn.[13] On August 17, they reached the “make war” clause.[14] The question before the Convention was whether to substitute “declare” for “make”.[15] The debate was remarkably short; Madison’s notes on it take up barely more than a page and a half.[16]

Pinckney opposed giving the power to the whole legislature.[17] Rather, he favored giving it to the Senate, “it being more acquainted with foreign affairs, and most capable of proper resolutions.”[18] Pierce Butler responded that the Senate had the same infirmities as “the whole Legislature.”[19] He was for vesting the power in the President, “who will have all the requisite qualities, and will note make war but when the nation will support.”[20]

None of the other delegates showed Butler’s faith in executive restraint.[21] Eldridge Gerry remarked that he never expected to hear in a republic “a motion to empower the Executive alone to make war.”[22] George Mason was “against giving the power of war to the Executive, because not (safely) to be trusted with it”.[23] Madison and Gerry moved to substitute “declare” for “make”, leaving the Executive the power to repel sudden attacks.”[24] Sherman seemed to speak against the motion.[25] He favored leaving the language as it was because the proposed substitution narrowed what he saw as the already existing power of the president to “repel and not to commence war.”[26]

Ellseworth spoke of the difference between war and peace.[27] He wanted to make it easier to get into war than out of it because “[w]ar...is a simple and overt declaration [while] peace is attended to with intricate & secret negotiations.”[28]

Mason spoke against the Ellseworth notion.[29] Mason was in favor of “clogging rather than facilitating war; but for facilitating peace”.[30] He favored the substitution of “declare”.[31]

At this point, the Convention voted on the motion. Madison’s records diverge from the official journal.[32] Madison records one vote, initially seven for, two against, and one absent.[33] The journal, however, shows a vote four in favor and five against.[34] Madison noted that after his sole recorded vote, Mr. King remarked “that ‘make war’ might be understood to ‘conduct’ it which was an executive function.”[35] King’s remark apparently satisfied any concerns Ellseworth had to the motion, as Madison says “Mr. Ellseworth gave up his objections (and the vote of count was changed to - aye.)”[36] The journal shows that a second vote on the motion was taken.[37] This time the vote was eight to one - the same tally as Madison’s second vote.[38] Some other maneuvering occurred.[39] Pinckney unsuccessfully tried to strike the actual clause.[40] Butler moved to give “the Legislature the power of peace, as they were to have that of war.”[41] “I seconding the motion”, Gerry noted that as few as eight senators could “exercise the power of that body... and may consequently give up part of the United States”.[42] In spite of these arguments, the motion failed to gain even one affirmative vote.[43] The convention then adjourned for the day.[44] It did not return to the declaration clause.[45]

The literature on this debate is extensive but a fair consensus on several points has emerged among the commentators. The majority of scholars concede that the framers intended to give Congress and not the president the power to initiate the use of the armed forces.[46] Indeed, this principle seemed self-evident among the Framers.[47] Charles Lofgren notes that the Committee on detail “had little trouble in allocating the war-making power.”[48] Clearly, as the committee sensed the will of the convention on these points-points which, it must be remembered had scarcely been debated-“war making fell almost automatically to Congress.”[49]

The ratifying conventions also interpreted the war powers of Congress broadly.[50] Reveley concluded that “the Ratifiers generally equated Congress’s power to declare war under the Constitution with its power to determine a war under the Articles of Confederation.[51] Robert Livingston stated that the powers of the Confederation Congress and the new Congress were “... the very same... [including] the power of making war...”[52]

James Wilson argued that the new Constitution would not “hurry us into war... [because] the important power of declaring war is vested in the legislature at large:this declaration must be made with the concurrence of the House of Representative.”[53] Like the Philadelphia convention, the ratifying conventions engaged in little debate over the declaration of war clause.[54] This “inattention... must have stemmed from the unanimous expectation that it left the President no independent war-making authority.”[55]

Thus, it is obvious that the original meaning of the Constitution’s war powers gave the President the power to act to defend the country in an emergency but intended to prevent the President from being able to unilaterally commit the nation to war. Compare that to Trump’s justifications for attacking Iran. He recites past grievances but details no imminent threat or emergency. Congress can act but, honestly, how likely is that the Republicans who control will stand up to Trump. And even if they were so inclined, would they really vote to cut off funds to our military in the field? And is it likely that this President would even comply.

In short, this President is fulfilling the worst fears of our Framers and, in the process, rendering the Constitution meaningless. This is not drill!

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[1] Edward Corwin, Total War and the Constitution, at 701, (1947).

[2] Letter from James Madison to Thomas Jefferson (Oct. 17, 1788), in 11 The Papers of James Madison 295 (Robert A. Rutland et al. eds., 1977).

[3] Madison’s Debates, http://avalon.law.yale.edu/18th_century/debates_601.asp. See also John Yoo, The Continuation of Politics by Other Means: The Original Understanding of War Powers, 84 Calif. L. Rev. 167. (1996)

[4] James Madison, Notes Of Debates In The Federal Convention Of 1787, at 600 (Gouverneur Morris) (Ohio Univ. Press rev. ed. 1984). See also Madison’s Notes (June 1, 1787) http://avalon.law.yale.edu/18th_century/debates_601.asp

[5] Id, Yoo, supra note 274, at 258

[6] “Powers of the Executive, [1 June] 1787,” Founders Online, National Archives, version of January 18, 2019, https://founders.archives.gov/documents/Madison/01-10-02-0011.

[7] James Madison’s Report of the “Debates in the Federal Convention of 1787” [House Document No. 398, 69th Congress, First Session, entitled “Documents Illustrative of the Formation of the Union of the United States of America.

[8] Yoo, supra note 274, at 258.

[9] Id. Madison’s debates, supra note 274, at http://avalon.law.yale.edu/18th_century/debates_806.asp (August 6, 1787)

[10] Id. See also The Records of the Federal Convention of 1787 64-65 (Max Farrand ed., 1911).

[11] Id.

[12] Id.

[13] Clara Shortridge Foltz: Constitution-Maker, 66 Ind. L.J. 849, 895.

[14] Farrand, Records of the Federal Convention at 318-20 (2011)

[15] Reveley, supra note 266, at 76-77.

[16] Madison’s Debates, supra note 274, at http://avalon.law.yale.edu/18th_century/debates_817.asp. Farrand, supra note 285, at 319.

[17] Id.

[18] Id.

[19] Id. See also Reveley, supra note 266, at 240.

[20] Id.

[21] Id.

[22] Id.

[23] Id. See also Francis Dunham Wormuth, To Chain the Dog of War: The War Power of Congress in History and Law (1989).

[24] Id.

[25] Id.

[26] Id. see also Sidney M. Milkis, The American Presidency: Origins and Development, 1776-2011 (2011).

[27] Id.

[28] Id.

[29] Id. See also Alexander M Bickel, Congress, The President, and the Power to Wage War, 48 Chicago-Kent Law Review 131 (1971).

[30] Madison’s Debates, supra note 274, at http://avalon.law.yale.edu/18th_century/debates_817.asp

[31] Id.

[32] James Madison to Thomas Jefferson, 2 April 1798, in The Founders’ Constitution, vol. 3, Philip B. Kurland and Ralph Lerner, eds. (1987). See also Louis Fisher, Presidential War Powers 6 (3^rd ed. Rev 2013).

[33] Id.

[34] Madison’s Debates, supra note 274, at http://avalon.law.yale.edu/18th_century/debates_817.asp

[35] Reveley, supra note at 266.

[36] Id.

[37] See Eliot, supra note 298, at 133.

[38] Id..

[39] Eliot, supra note 298.

[40] Reveley, supra note at 266.

[41] Madison’s Debates, supra note 274, at http://avalon.law.yale.edu/18th_century/debates_817.asp

[42] Id.

[43] See. E.g., Conflicts, supra note 5. Undeclared War, supra note 229, at 36.

[44] James Madison to Thomas Jefferson, 2 April 1798, in The Founders’ Constitution, vol. 3, Philip B. Kurland and Ralph Lerner, eds. (Indianapolis: Liberty Fund, Inc., 1987).

[45] Id.

[46] See e.g., Louis Henkin, Foreign Affairs and the Constitution 80-82 (1972); William Van Alstyne, Congress, The President, and The Power to Declare War: A Requiem for Vietnam, 121 U. Pa. L. Rev. 1, 18-19 (1972); Leonard G. Ratner, The Coordinated Warmaking Power--Legislative, Executive and Judicial Roles, 44 S. Cal. L. Rev. 461, 465 (1970); Harold Hongju Koh, The National Security Constitution: Sharing Power After the Iran-Contra Affair 81 (1990); see also Harold Hongju Koh, Why the President (Almost) Always Wins in Foreign Affairs: Lessons of the Iran-Contra Affair, 97 Yale L.J. 1255 (1988); John Hart Ely, War and Responsibility: Constitutional Lessons of Vietnam and Its Aftermath 3 (1993); see also John Hart Ely, Suppose Congress Wanted a War Powers Act That Worked, 88 Colum. L. Rev. 1379, 1386 (1988); Michael J. Glennon, Constitutional Diplomacy 3-8, 77-78 (1990); Francis D. Wormuth & Edwin B. Firmage, To Chain the Dog of War: The War Powers of Congress in History and Law, 53, 61-67 (2d ed. 1986); Peter Raven-Hansen, Constitutional Constraints: The War Clause, in The U.S. Constitution and the Power to Go to War 28, 43-45 (Gary M. Stern & Morton H. Halperin, eds., 1994); Louis Fisher, Point/Counterpoint: Unchecked Presidential Wars, 148 U. Pa. L. Rev. 1637, 1663-64 (2000); David Gray Adler, The President’s War-Making Power, in Inventing the American Presidency 119, 140-41 (Thomas E. Cronin ed., 1989); Jane E. Stromseth, Rethinking War Powers: Congress, The President, and the United Nations, 81 Geo. L. J. 597. Fisher, supra note 5. And see Louis Fisher, supra note 303, at 4 (“On numerous occasions the delegates to the constitutional convention emphasized that the power of peace and war associated with monarchy would not be given to the President.”)

[47] Id.

[48] Charles A. Lofgren, War-Making Under the Constitution: The Original. Understanding, 81 Yale L.J. 672 (1972).

[49] Id.

[50] Reveley, supra note 266, at 101 (For a discussion concluding that the anti-federalist position provides support for congressional primacy, see O. Kistler, The Anti-Federalists and Presidential War Powers, 121 Yale L.J. 459, 461 (2011).

[51] Id.

[52] Lofgren, supra note 319, at 675 (1972).

[53] The Debates in the Several States Conventions on the Adoption of the Federal Constitution 528, 685 (Jonathan Elliot ed., 1836).

[54] Id.

[55] Reveley, supra note 266, at 102 (1974).

Telling Donald Trump to obey the law is something like commanding the sea to retreat. Still, it’s worth the effort, at least for the record.

The Constitution makes the President the “Commander in Chief” but it unambiguously gives Congress the sole power to “declare war.” In the remarkably short debate on the matter, the Constitutional Convention chose to give Congress, as opposed to the President, the war-making power. One participant remarked that he never expected to hear in a republic “a motion to empower the Executive alone to make war” while another stated he was “against giving the power of war to the Executive, because not (safely) to be trusted with it.”1

In short, the Constitution does not give the President the power to unilaterally start a major military conflict. The framers wanted democratic buy-in if the country would be put on a war footing.

To be sure, the President has limited powers to defend Americans and our property. The Framers believed that meant responding to “sudden attacks.” But that limited power does not mean that the President wage all out war.

Prior to the Iraq and Afghanistan wars, the Presidents Bush came before Congress and asked for authorization for military action. (Put aside the weaknesses and other issues with its presentation. The key is that they followed the Constitutional procedure.) We had a full and public debate.

Trump has not done this. Indeed, had he asked Congress, it likely would have approved given the Republicans supine acceptance of the entire Trump agenda. But acting as though Congress doesn’t matter, acting unilaterally, indeed dictatorially, is the essence of Trump 2.0.

Although he is not the first President to abuse his military power, Trump has aggressively dismantled other parts of our Constitutional system. In his hands, further erosion is inevitable. In fact, I wouldn’t be surprised to see him use his status as a “war-time President” to further intrude on our liberties including a crack-down on dissent and, perhaps, control of the upcoming mid-term elections.

I have been saying this since the start of Trump 2.0; This is not a drill!

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There’s a lot going on in this case but here are some things we should not overlook.

1. The case prevents the President from using the broad emergency statute to impose tariffs but it does not prevent him from using other statutes that allow the President to impose tariffs.

2. The difference is that those laws a) are narrow, i.e., they apply to specific products or circumstances, b) require him to establish a factual basis for the tariff beyond his say-so, and c) follow certain procedures.

3. There is a majority only for the conclusion that the statute did not authorize the tariffs. In other words, it’s a statutory interpretation ruling, not a constitutional one. Presumably, that issue would be presented if Congress amended the IEEPA and delegated this broad, unfettered tariff power to the President.

4. The opinion is 170 pages. Justice Gorsuch wrote a concurrence that is longer than the majority opinion. He spends his time explaining why the “Major Questions” doctrine applies and trashing his 6 colleagues who disagree with him! In turn, the concurrences and the Kavanaugh dissent spend time replying to him. But - there was no majority on the major questions issue.

5. Justice Thomas’s dissenting opinion tries to distinguish between “core” legislative powers (which cannot be delegated to POTUS) and other legislative powers which can be “totally and forever” delegated to POTUS. I expect that he will also have an opinion on how many angels can dance on the head of a pin.

6. Justice Kavanaugh’s dissent basically says, “Don’t worry! Be happy!” POTUS has lot of power in foreign affairs and it doesn’t matter if he wants to abuse it.

All in all it’s not a shock except that it came from the Court that gave Trump almost absolute criminal immunity and blessed a good deal of his agenda this past year. But, hey, take the W when you get one.

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It’s not a great piece of literature. The writing is clunky, the characters are one-dimensional, and the narrative is unevenly paced. But it contains enough parallels to Trump 2.0 to raise the hair on the back of your neck.

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Lewis tells the story of the 1936 Presidential election in which a populist candidate wins election by vanquishing old guard candidates. The candidate lacked any coherent political philosophy but showed an uncanny ability to tap into the national zeitgeist. His campaign fused religion with an explicitly nativist and populist platform railing against enemies within and without.

He attacked big business especially banks and promised to send $5000 checks to every citizen while at the same time getting people off welfare and back to work.

Things went South quickly after his election, however. The new President quickly consolidated power in himself and his party arguing that conditions in the country were so bad that only a strong, powerful ruler could fix things.

The media (in 1936 this primarily meant Newspapers) were attacked, universities were taken over, and non-profits were gutted. Gradually, these institutions capitulated to the President and his minions and became loyal and fervent supporters.

He deployed a private police force of supporters to crack down on dissent and to put minority groups in their place. Eventually, this “private” group received increasing amounts of government money until they became a fully functioning, well organized government police force. They root out pockets of resistance and placed any unwelcome people in camps.

The country became increasingly militarized and oppressive. Sham arrests occurred, due process was ignored, and vindictive prosecutions – especially of political enemies - followed.

His administration never took on the banks but instead made life comfortable and profitable for them. And those $5000 checks never arrived. In the end, the new President – who ran on an isolationist platform – talked about invading Mexico as resistance took shape across the country.

The book’s title is sarcastic and ironic. It argued that indeed fascism can happen here if enough people are selfish, complacent, and misinformed. Sound familiar? Trump 2.0 parallels most of the items catalogued in Lewis’ book even if they are not identical.

When the protagonist claimed that the new President will bring “a real Fascist dictatorship!” his friend (who eventually becomes a true believer) replied,

“That couldn’t happen in America, not possibly! We’re a country of freemen.”

To which our protagonist countered, “[T]he hell it can’t! Why, there’s no country in the world that can get more hysterical – yes, more obsequious! – that Americans.”

After listing things like the post WWI Red Scare, the rise of the KKK, lynchings, religious and ethnic bigotry, and anti-evolution campaigns, he concluded, “Why, where in all of history has there ever been a people so ripe for a dictatorship as ours! We’re ready to start a Children’s Crusade – only of adults – right now and [religious leaders] are all ready to lead it!”

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Lewis’ vision didn’t happen in the 1930’s. We fought WWII to rid the world of fascism. But today, fascism has arrived in the United States. Trump ticks all of Lewis’s boxes:

· Strong man rule

· Fake populism

· Fusion of big business and government power

· Imperial adventurism (as either a strategy or a distraction)

· Explicit racism and nationalism

· Wedding religion and his movement

· Use of a private police force against undesirables

· Crackdown on dissent

· Persecution of political rivals

· Normalization of violence

In Greek mythology, Cassandra warned the Trojans about the horse that the Greeks left at their gates. “Don’t open the horse,” she warned. “Whatever you do, don’t open the horse.” But the Trojans wouldn’t believe her. “It’s not that bad. It looks kinda nice and, anyway, nothing bad can happen here. We’re smart people.”

Cassandras are screaming right now to the American people: “Wake up! It can happen here. If we don’t take this threat seriously – if we open that horse – we may not recover our democracy and our way of life for years – if ever!”

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When a NYT reporter asked Donald Trump whether there were any limits to his power in international affairs, he replied. “My own morality. My own mind. It’s the only thing that can stop me.”

This would be laughable if it were not so scary. Sadly, it captures the essence of the Unitary Executive Theory. The theory posits the President can act unilaterally and with impunity in foreign and domestic affairs. I have written previously about this theory and the way it has organized Trump 2.0.

But today I want to discuss morality. What is laughable is that Trump has no morality or at least any recognizable one.

At best, his moral code is intensely utilitarian – i.e., the end justifies the means. That accounts for the way he has obliterated all the guardrails and norms hedged around Presidential power especially post-Watergate. His utilitarianism is also intensely personal: whatever benefits him is the right thing to do.

At worst, his moral code amounts to might makes right. In 2019, Trump said “I have an Article II, where I have the right to do whatever I want as president.” This is the animating principle of his current administration. Stephen Miller gave the game away when he said to Jake Tapper:

“We live in a world in which you can talk all you want about international niceties and everything else, but we live in a world, in the real world, Jake, that is governed by strength, that is governed by force, that is governed by power. These are the iron laws of the world since the beginning of time,”

This latter “morality” (if it can be called such) is on display in domestic affairs, too. It is no better seen than in the way that ICE projects force. They don’t respect the law or human decency.

And the killing of Renee Good exposed this ugly truth. Immediately, administration officials and the President smeared her character and defended the ICE agent’s actions. Defenders of the administration went so far as to say,

“If you impede the actions of our law enforcement as they seek to repel foreign invaders from our country, you get what’s coming to you. I do not feel bad for the woman that was involved. It’s time for Americans to say ‘enough,’ and if you get in the way of the government repelling a foreign invasion, you’re gonna end up just like that lady did yesterday.”

Perhaps the hottest place in hell belongs to VP J.D. Vance. Vance, who prominently displays his Catholicism on his sleeve, doubled and tripled down attacking the victim and defending the agent calling her a “deranged leftist” responsible for her own death and demanding that we thank the ICE agent for his work.

Vance’s repugnant attacks on the victim and repeated gaslighting did not go unnoticed. The National Catholic Reporter wrote:

“The vice president’s comments justifying the death of Renee Good are a moral stain on the collective witness of our Catholic faith. His repeated attempts to blame Good for her own death are fundamentally incompatible with the Gospel. Our only recourse is to pray for his conversion of heart.”

Notice that after school shootings, Vance is with the “thoughts and prayers” clan, but when someone is gunned down by a government agent, he offers no prayers, just venom. As the NCR points out, that is a stain on his faith.

But Vance has another agenda. The NCR goes on to say,

“As a Catholic, Vance knows better than to peddle this brand of gaslighting and agitation. Vance knows that, by virtue of her humanity, Good was endowed with inherent dignity, made in the image and likeness of God. Vance knows that only God can take life. Vance knows that protesting, fleeing or even interfering in an ICE investigation (which there is no evidence that Good did) does not carry a death sentence. Vance knows that lying and killing are sins.

Vance knows. He doesn’t care. Vance’s twisted and wrongheaded view of Christianity has been repudiated by two popes. His Catholicism seems to be little more than a political prop, a tool only for his career ambitions and desire for power.”[i]

And there it is. Vance deploys his faith only to gain political advantage. It is a convenient prop to ingratiate himself with parts of his base and to insulate him from criticism.

If Trump’s own (lack of) morality guides domestic and foreign policy, the NCR offers an alternative one. Because human beings are made in the image and likeness of God each one of us has a dignity and a value that is inestimable. Catholicism calls us to treat every interaction with another person as though it were an encounter with the Divine.

This morality has broad implications for our personal conduct and our public policy. But in this context its meaning is clear: treat migrants with respect even if they are not authorized to be in the country. Don’t demonize people you don’t like.

And don’t kill young mothers who are trying get out your way.

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[i] https://www.ncronline.org/opinion/ncr-voices/catholic-vice-president-vance-takes-social-media-justify-killing-renee-good

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It’s delicious that the District Judges’ order cites to the opinions of conservative Supreme Court justices, to Justice Scalia’s book on statutory interpretation, and to Judge Cannon’s decision last year finding Jack Smith’s appointment as Special Prosecutor invalid.1

US attorney appointments must be ratified by the Senate. When a vacancy arises, a federal law allows the President to appoint an Interim Attorney for 120 days. When that time expires, if the Senate has not confirmed a new appointee, the judges in the judicial district may appoint a person to serve as US Attorney until a Senate-confirmed nominee becomes available.2

The US Attorney for this district resigned in January and Trump appointed Erik Siebert as Interim. When his interim period expired in May, the judges of the district, pursuant to federal law, appointed him to continue. Trump fired him (or he resigned) when he refused to indict Comey and James. Trump then posted his famous rant on Truth Social ordering the Attorney General to appoint Halligan.3 The AG did and Halligan dutifully, corruptly, and incompetently got indictments against the two just days before the statute of limitations expired on Comey’s case and within shouting distance of it in James’ case.

The judge found Halligan’s appointment violated the federal law I mentioned above and the Constitution’s Appointment Clause.4 That made all of her actions invalid. The judge dismissed the case “without prejudice” which means that the government can try to get a new indictment.

But there are two problems: 1) the statute of limitations has expired in Comey’s case (and perhaps James’ as well). The law may give the government six months to seek a new indictment. (In technical terms, it “tolls” the statute of limitations for six months) But some cases cut against that argument. and, in any event, 2) the judges will have to appointment a new US Attorney who is unlikely to take the corrupt route followed by Halligan and 3) this issue is separate from the vindictive prosecution claims Comey and James have made in a another motion pending before their trial judge. The government would face the same problem even if they somehow got a second indictment.

The case is far from over, however. The government can seek to “stay” the order while appealing the decision. They are likely to get it. They will argue on appeal that 1) the federal law allowed the President to appoint an interim whenever there is a “vacancy” which happened when Siebert resigned or was fired, and 2) allowing judges to appoint US Attorney is unconstitutional because it intrudes on the President’ power to appoint executive officials. (There’s our old friend the Unitary Executive Theory again.)

The incomparable Joyce Vance and Preet Bahara have a good explainer of the decision here.

Civil Discourse with Joyce Vance

Explanation: The Comey and James Prosecutions, Dismissed Without Prejudice

Today, federal District Judge Cameron Currie dismissed the indictments President Trump had ordered his Attorney General Pam Bondi to obtain against people he had decided were his political enemies, former FBI director James Comey and New York Attorney General Letitia James…

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a year ago · 414 likes · 54 comments · Joyce Vance and Preet Bharara

Drama surrounding the political manipulation of US Attorneys played out in 2006-20075 with an Arkansas connection.6 Top White House and DOJ officials developed a plan early in the second Bush administration to replace a substantial portion of the incumbent US Attorneys with appointees who were more loyal to the administration. They scaled back the plan to ease the “shock to the system.” Eventually they removed 11 US Attorneys including Bud Cummins, the US Attorney for the Eastern District of Arkansas.

A President has the authority to fire US Attorneys at will. But the Bush Administration announced that the removals were performance-based even though several of the USAs had received good performance reviews. In fact, the Bush Administration removed some USAs they believed did not sufficiently pursue Democratic politicians or voter fraud allegations. In some cases, they were displeased about investigations into Republican politicians. Finally, in other cases they simply wanted to clear the field for upcoming conservative politicians. That appeared to be the case in Arkansas where Karl Rove’s aide, Tim Griffin, replaced Bud Cummins. Griffin has gone on to a prominent political career in Arkansas first becoming Lt. Governor and currently Attorney General.

Ironically, the Bush Administration used a loophole in the Patriot Act that allowed Presidents to repeatedly assign interim USAs effectively cutting the Senate out of the process. Congress repealed this provision in June 2007 and replaced it with the law at issue in Comey and James cases.

This scandal blew up in the Administration’s face. A DOJ inspector general investigation concluded that most of the firings were improper and politically motivated. DOJ officials stonewalled a Congressional investigation and contempt of Congress resolutions fell by the wayside. There also claims that DOJ officials may have lied to Congress or the IG but there was not enough evidence to indict anyone. In the end, 9 officials including the Attorney General resigned because of their involvement.

It almost seems quaint that at the time Democrats and Republicans protected the integrity and independence of the DOJ. The Comey and James case show how far we’ve fallen into the abyss.

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Here is a primer on the cases, the legal arguments, and what to listen for in the oral arguments.

Tariff Authority

Congress used to determine tariffs. Indeed, the Constitution gives Congress gives Congress, not the President, to “lay and collect Taxes, Duties, Imposts and Excises”3 and to “regulate Commerce with foreign Nations”.4 One of the first acts of the first Congress was to enact a tariff law. Tariffs were the primary source of federal revenue until the 16^th Amendment authorized income taxes.

But early on Congress realized that it could not anticipate every circumstance in which tariffs might be useful or necessary. Thus, it gave the President authority to impose tariffs under certain conditions often subject to Congressional veto. Gradually, Congress gave more tariff authority to the President. Trump used these statutes to impose tariffs in his first administration.

But he did not use those laws to impose the tariffs at issue in the SCOTUS case. Rather, he used a law5 doesn’t mention tariffs but gives the President broad powers over international trade when the President declares a national emergency.

The Arguments against these Tariffs

1. It’s not an emergency - don’t expect to hear much from the plaintiffs on this. SCOTUS has historically been reluctant to second guess the President’s factual determinations especially in the areas of foreign policy and national security. Expect to here the Government play this up big time.

2. Unconstitutional Delegation of Power - the idea here is that Congress cannot delegate its legislative power to the President unless it gives the President an “intelligible principle” to guide the President’s discretion. The Court has used this principle only once in a New Deal case involving sick chickens6 It was thought to be moribund but recently conservative justices have hinted at reviving it. Expect the plaintiffs to make a splash with this argument.

3. The Major Questions Doctrine - this is a Court-created rule that says the President needs clear authority from Congress to enact rules that have significant social or economic impacts.7 The Court has used this doctrine in recent years to undo a number of Democratic initiatives most recently striking down the Biden Administration’s Student Loan Forgiveness program. Expect much of the plaintiffs’ argument to focus on this doctrine.

The Arguments for the Tariffs

1. “No,they’re not!” - expect the government to argue that the statute authorizes the tariffs because it’s not an unconstitutional delegation of power and the major questions doctrine does not apply.

2. “The President Reigns Supreme” -this is the Trump card (pun intended) for every argument. It is the foundation of each defense and it is the response to every attack: the President has unreviewable power in matters of national security and foreign affairs. The Court is open to this claim. It can say that Courts should not get involved in these matter especially because Congress can always legislate the tariffs away or change the emergency powers law.

3. “It will be an economic mess if the President Can’t Impose Tariffs.’ - much of the President’s legal brief consists of this policy argument. It’s another way of saying to the Court, “Hey,! You folks are not equipped to make economic policy. Leave it to the branches who are accountable to the people through elections.”

Linda Greenhouse has a good piece in the NYT8 about the dilemma this case poses for the conservatives on the Court. They have greenlit nearly everything Trump wanted to do this year with the frequent short and unexplained emergency docket decisions. In addition, they have wielded the major questions repeatedly against democratic initiatives like Covid vaccine mandates9 and student loan forgiveness.10 And they have openly pined for the return of the Unconstitutional Delegation doctrine. If they are honest, this should be an easy case.

But I don’t expect that from them. I expect that they will use the unitary president theory to create a national security exception to each doctrine. Perhaps that is why the administration was so eager to get this case to SCOTUS. I believe they want a broad and unreviewable declaration of presidential power to use in other areas like deploying troops to American cities, extrajudicial killings of suspected drug runners, and, even interfering with elections. It would not take much for Trump declare a national emergency because non-citizens supposedly voted and patrol voting sites, seize voting machines, or even declare the elections (where he or the GOP lost) null and void. He said in the recent 60 minutes interview that when an election’s rigged, “you get to do it over.”

I have repeatedly warned that we are the verge of a dictatorship. If SCOTUS upholds Trumps authority in the tariff cases, we will be there.

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The NYT reports that a leading originalist legal scholar, Caleb Nelson, has concluded that the Constitution gives Congress the power to condition the removal of at least some executive officials. It’s a big deal when an originalist says that the Court’s originalists are getting it wrong. Professor Caleb Nelson is one of the country’s most highly respected originalist scholars. The Court’s originalists have cited his work frequently including 6 citations in one opinion by Justice Thomas.

Professor Nelson, in his recent essay, argued that the there is little evidence that the framing generation gave the President unlimited power to remove every executive branch employee. To the contrary, the evidence suggests that the Constitution gave Congress the power to control the removal of at least some executive branch officials. He rejects the arguments put forward by proponents of plenary removal power. He says neither the text, nor the history, nor precedent compel the conclusion that the President MUST be able to remove all executive officers. Here, I think is his core argument:

At its core, though, executive power entails executing laws and judgments made by others, such as statutes enacted by Congress and judicial judgments rendered by courts. The President is not in charge of the content of those laws and judgments. Nor does the Constitution guarantee the President any particular means of enforcing them. To the contrary, the power to execute the law is itself subject to the law; executive officials are allowed to use only the resources that the law makes available for this purpose, in the way that the law allows them to be used. If Congress were to give the President removal authority under particular circumstances, then a President who exercised that authority would be executing the law. But it does not follow that Congress has to give the President removal authority. Just as the President can have “[t]he executive Power” without being able to structure the executive branch as the President pleases, so too I do not think that the very definition of “[t]he executive Power” includes removal authority.

The Executive Power is the power to … execute, that is, carry out instructions. And where do these instructions come from - Congress.

As Professor William Van Alstyne pointed out many years ago, the Necessary and Proper Clause generally allows Congress to weigh the costs and benefits of giving the President powers and protections that the Constitution does not itself specify but that might help the President carry out his assigned tasks. Usually, then, the fact that such a power could be helpful to the President means only that Congress could confer it on him, not that the Constitution itself does so.

The proponents of plenary removal power seem to forget the Necessary & Proper clause as well as another power of the President : that the President must “take care to faithfully execute the law.” As Professor Nelson points out, it Congress limits the President’s removal power, then following the statutory limitations is “faithfully executing” the law.

I doubt that it will make a difference. Last year the Court decided that the 14th Amendment’s disqualification of insurrectionists from holding federal office could only be determined by Congress in the face of persuasive arguments by leading conservative originalist scholars.

There are lot of reasons not to like originalism: it suspiciously seems to support every conservative political position, it seems to be exceptionally elastic (sometimes tradition matters, sometimes it doesn’t), and it turns Federal Judges into historians while ignoring the conclusions of , you know, real historians. But, in my view, it betrays the fundamental aspirations of the founders to write a constitution that, as Chief Justice John Marshal said, was intended to create a governmental charter that was flexible enough to adapt to the unknown challenges of the future and last for the ages. To me, the Constitution not only set out the structure and workings of the Government but it embodied a set of core values. If we mire ourselves in what we think the words meant in 1787, then we mire ourselves in that same year. Unless we interpret the document with those values in mind, we set ourselves up for failure.

Let me give one historical example of what I mean: the infamous Dred Scott decision. Chief Justice Taney’s decision was originalist through and through. He argued that the court’s job was to apply the constitution as it was understood at the time of the framing. Therefore, enslaved people and their descendants could never be citizens. Like modern day originalists, he picked and chose his historical support and ignored any evidence that contradicted him. While claiming to be non-political, he tried to resolve an enormously important and political issue.

Every act of interpretation requires a series of choices. Because we do not have any definitive guide to what people thought in 1787, the originalist judge must find the historical materials, decide which ones are important, and what they mean in the context of the case. Those are not value-free choices especially the latter. At every turn, Chief Justice Taney chose the interpretation that fit his apparently preferred outcome. The modern court has done the same in the second amendment cases. The history about the meaning of the second is exceptionally contentious. Historians and legal scholars have come to different conclusions about every aspect of the amendment’s meaning. Indeed, in the case that established the modern meaning of the amendment by an originalist analysis, Justice Stevens in dissent used the same method to reach the opposite conclusion. Later, the consensus among historians came down on Justice Stevens’ side.

Given the conflicting historical evidence a true constitutionalist should be reluctant to pick a side. Rather, a true constitutionalist should defer to the judgment of the democratically elected legislatures who made the laws and who also take an oath of fidelity to the constitution. Even if an originalist judge picks a side, a faithful originalist should then change her mind when new evidence presents itself.

But that’s not how it works. It’s a one way ratchet that requires any corrections to be done by a future court overruling cases (not a recipe for stability) or by constitutional amendment (an almost impossible task in our current polarized climate).

But in spite of all its flaws, Originalism is the flavor of the month. The way the Court’s originalists use it, though, ot seems designed more to deliver the favored, conservative result than an honest attempt to interpret the Constitution.

Professor Nelson concluded with a warning:

When the First Congress confronted the same ambiguities, more than one member warned against interpreting the Constitution in the expectation that all Presidents would have the sterling character of George Washington. The current Supreme Court may likewise see itself as interpreting the Constitution for the ages, and perhaps some of the Justices take comfort in the idea that future Presidents will not all have the character of Donald Trump. But the future is not guaranteed; a President bent on vengeful, destructive, and lawless behavior can do lasting damage to our norms and institutions. As one member of Congress argued in 1789, we should not gravitate toward interpretations of the Constitution that “legaliz[e] the full exertion of a tyrannical disposition.”

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First, he is wrong. The law clearly recognizes that words cause harm. E.g. , defamation, assault, true threats, incitement to imminent illegal action. Simply because words cause harm does not allow individuals to take action, however. Notice the above situations are face to face and the law balances interests. There are other situations where the law recognizes the individual and social harm words cause. E.g., fighting words, obscenity. But these allow a societal but not individual response.

So the answer is: words can harm people but it does not follow that harmful words justify violent responses. The presumption is in favor of speech even if it causes harm. And it is not incitement to point out the harm that protected speech may cause.

In his column he agrees with me! After once again quoting me and trying to link me to the suspended UALR Law Professor, he concludes that my statement is not incitement and, therefore, constitutionally protected speech.

So if that’s case they what’s his problem? It seems he just doesn’t like what I said or the way I said it. Fair enough. I don’t like a lot things he says or the way he says them either.

If that’s the case, then why does he keep mentioning me? I’m just a retired guy with a modest following on FB who rides his bike a lot. It’s not like I have a newspaper column or anything. Is he trying to harm my reputation built over the course of a nearly 40 year career? or is he sending signals to the University to revoke my emeritus status?

Ironically, each of those would be an example of my point: that words can cause harm. And each of those is an example of an attempt to stifle free speech. That’s a lot of irony for a self professed first amendment columnist to bear.