Early last October, I found myself standing in line to enter a federal courtroom in Portland, Oregon, 100 miles from my home in the college town of Eugene. The scene was an emergency hearing, convened by a judge appointed by Donald Trump, to consider the administration’s plan to “federalize” units of the Oregon National Guard and—against the protests of the state’s governor and the city’s mayor—turn them loose on Portland’s streets to block protests in front of the ICE facility in the Southwest waterfront neighborhood.  

Trump had proclaimed that the city of some 650,000 was “war-ravaged” and that the U.S. Armed Forces were needed to control “rioters.” 

The hearing was a blend of hyperpolitical legal argument and high drama. Both the judge and lawyers understood that this was the opening shot in a long battle over local control of our streets and freedom from military rule.  

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Soon after, Judge Karin J. Immergut issued an injunction against the administration, ordering them to keep federal troops off the streets. As is often the case, the Department of Homeland Security deliberately disobeyed that order, sending one unit of National Guard Military Police to the facility. The judge asked why, and the government—in essence—shrugged.  

I also found myself later that day, standing in front of that ICE facility, watching as my fellow Oregonians pranced up and down the street dressed in animal costumes. A few days later, the protesters held salsa dances and aerobics classes in the street, while the costumed critters were joined by bicyclists who, as part of an “Emergency Naked Bike Ride,” wore rain ponchos or nothing at all.  

These fellow Americans—outraged but peaceful and humorous—were the “threat.” They were the “war.” To paraphrase Walt Kelly’s Pogo, Donald Trump met the “enemy within,” and he is us.  

The Portland lawsuit—Oregon v. Trump—is ongoing.  

A few weeks after my visit to Portland, I was in the fishing village of Newport, Oregon, where Homeland Security had taken a way a rescue helicopter needed by fishers plying the most dangerous fishery in the U.S. Though DHS didn’t explain why it was removing the helicopter the people of Newport had fought for, it soon became clear that the plan was to convert the air station into an ICE detention center—one that would, according to official plans, generate 10,000 gallons of human waste a day. The plan has so far hit a major roadblock—it is opposed not only by local government but also by a formidable force called Newport Fishermen’s Wives, “a non-profit corporation of fishermen’s wives, mothers, daughters, and friends, supporting a strong sense of community helping to further the causes of industry, safety, seafood education, and family support.”  

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I have felt lucky this fall and winter to be present at these skirmishes in the battle for the soul of our country. Trump plans to convert cities and towns all across the country to prison sites for his planned mass deportation. He wants troops on the streets to oversee our public life and our elections. But in communities everywhere in America—red states and blue—ordinary people are standing up and saying no to mass arrests and secret detention camps. It is groups like the Fishermen’s Wives in Newport, or the Portland World Naked Bike Ride and Doctors For Democracy in Portland. Their battles are being fought nonviolently in federal trial courts, city councils and county commissions, state legislatures and planning agencies, and on the streets, where ordinary citizens are keeping alive the cherished American right to protest.  

To appropriate a sometimes misused phrase, these people are doing politics right.  

I have the privilege of following these battles day after day. As Legal Affairs Editor of The Washington Monthly, I am trying to monitor these local battles. Fortunately, they are being fought at a time when hearings, filings, and opinions are available online. So I spend much of my day hunched over a computer reading legal prose in small type. I have been in and around journalism, man and boy, for half a century; never have I seen stories as crucial, as easy to cover, and (alas) as under-reported as these.  

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And after speaking with Washington Monthly Editor-in-Chief Paul Glastris, we have agreed that these will be my focus for much of the next 12 months. The cases will work their way through the courts. Appeals will be decided, and what is crucial is how trial judges stand up to shameful attacks by the MAGA movement, and how successfully ordinary people organize themselves and turn out for public forums and government hearings.  

I spent ten years covering the U.S. Supreme Court before joining the Monthly in a part-time gig as Legal Affairs Editor. That once-proud Court (as I wrote in a cover piece for the magazine in 2022) seems more and more like a fashion accessory to Emperor Trump’s New Clothes. That story is well covered, but allegiance to the law has not disappeared—brave immigration lawyers, state and federal judges, local officials, and members of Congress—still hold the Constitution and the rule of law in their hearts. And that is what counts—that is what I would like the Monthly to help nurture in the year ahead.  

“I often wonder whether we do not rest our hopes too much upon constitutions, upon laws, and upon courts,” the great Judge Learned Hand wrote in 1944. These are false hopes; believe me, they are. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it. While it lies there, it needs no constitution, no law, no court to save it.” 

In the past weeks, I have seen that spirit alive in the safety-minded wives of fishermen, in the rubber frog costumes and revealing ponchos of street protesters, and in the courage of federal judges who refuse to bend the knee. I am immensely grateful to the magazine—and to you, our readers—for the chance to see and admire that spirit as it lives across America today. 

The Washington Monthly depends on readers like you. Without your support, we can’t produce the kind of independent journalism you’ve come to expect. Please help us. For $50, your tax-deductible contribution will get you a year of the print magazine.  

We thank you. 

The post Troops on the Streets. Democracy in Peril  appeared first on Washington Monthly.

A month after President Donald Trump abruptly ended trade talks with Canada over an anti-tariff ad featuring former President Ronald Reagan, the two countries have yet to resume negotiations. 

Earlier this week, Canadian Prime Minister Mark Carney said he’ll restart talks “when it’s appropriate,” telling Reuters that “he did not have a pressing issue to address with President Donald Trump.” Instead, Carney has been courting US rivals China and India to lessen Canada’s dependence on the United States, and the country has set a goal of doubling its non-US exports by 2035, according to the Washington Post.

The rift between America and its ally to the north is “the worst in modern history,” says former US Ambassador to Canada James Blanchard. And it’s no wonder. Trump has threatened to annex Canada as the “51^st state,” and mocked former Prime Minister Justin Trudeau as its “governor.” He’s blamed the country for flooding America with fentanyl and illegal immigrants, though neither charge bears resemblance to reality. And he’s levied punitive tariffs on Canadian steel and aluminum, among other exports, all the while accusing Canada of “cheating” on trade. 

Canadians, meanwhile, have rallied to the cry of “Elbows Up” and boycotted American products. Canada-US travel is down by nearly a third compared to a year ago, resulting in billions of dollars for US companies. They also elected Carney this spring, in part for his anti-Trump views, and rejected Trump-lite conservative candidate Pierre Poilievre, who also lost his seat in Parliament. 

Even after Trump’s eventual departure from office, these wounds will be hard to heal, says Blanchard, who served as Ambassador to Canada under President Bill Clinton. Blanchard also served two terms as governor of Michigan and four terms in Congress. 

This transcript has been edited for length and clarity. The full interview is available at Spotify, YouTube and iTunes. 

***

Anne Kim: You were the U.S. Ambassador to Canada during the Clinton administration—in fact, during the ratification of NAFTA, which was incredibly crucial time in the relationship between our countries. And before then, you served two terms as governor of Michigan, a state that also has deep ties to Canada. How would you characterize the current state of US-Canada relations, especially as compared to what you experienced as ambassador?

Amb. Blanchard:  US relations with Canada are the worst in modern history, and there’s no one who has studied it that would disagree with what I’ve said, especially the Canadians. It’s tragic. It’s not just trade disputes, it’s the rhetoric of the president—whether he wants to refer to them as the “51st state” or to say they’re nasty or, you know, Vice President Vance saying the Canadians have treated us very badly these last few decades. He hasn’t even lived long enough to know that. Or Howard Lutnick’s foolish statements. It’s the tone and the attitude which has Canadians losing total faith in us and wondering what’s going on in the United States.

I do a lot of Canadian interviews, and I mentioned to Canadians that most Americans consider Canada our best friend and ally and partner, and they should disregard the rhetoric from the top. 

Garrett Epps: I think a lot of people in this country got a kick out of the elections in Canada and the idea that the slogan was “Elbows Up”—which of course Americans didn’t know what it meant until then. But the question is whether “Elbows Up” is going to work for Canada in the long term, and whether they really can withstand what’s coming at them. We have a situation where a president, if he doesn’t like a commercial on TV, tries to slap a 10 percent tariff on all your goods. The United States is obviously economically much more powerful than Canada. How is this going to play out?

Amb. Blanchard:  Well, it’s hard to know. Let me backtrack just one moment, though, to say relations were very good during the Clinton years. The Canadians didn’t know him when he got elected, and they were a little worried he was a Southerner. And they really liked Bush and Reagan. But their natural inclination is to be liberal, and once they got to know Clinton, they loved him. So it was great being his ambassador there. We dealt with NAFTA, we dealt with Open Skies, we dealt with the Quebec referendum. It was a critical time, and Clinton was fabulous. It was probably the golden era now that we look back. 

By the way, I love the Reagan commercial. And I think if they don’t get a deal, they ought to start playing it again in some key markets because that obviously was getting the Republicans in Congress rattled. 

We have an integrated economy with Canada. It’s not just autos. It’s energy, it’s agriculture, it’s steel and aluminum, it’s everything. And we actually have a surplus on trade with Canada on almost everything really except energy. And we need that energy. We’re the largest producer of crude oil on the planet now, but our refineries can’t use our new light crude, so we export it.

Our refineries are set up for Canadian heavy crude, so we’re dependent on Canada for energy. Canada could cause power outages in New England if they pulled Hydro-Quebec back. So they have cards to play, but they don’t want to do that. I mean, they’re 10 percent of our population. We simply have a lot more leverage than they do, and that makes it hard.

Anne Kim: What has been the impact of the tariffs on the Canadian economy? My understanding is that the Canadian economy is actually suffering fairly badly and that U.S. automakers are beginning to move production out of Canada back into the United States. What is the impact you’re seeing and is that going to affect the strategy long term for Canadians?

Amb. Blanchard: Well, I think it’s causing inflation in Canada and here, despite what the president says. There may be some movement from Canada to the U.S. There’s always shuffling back and forth. But when you have a totally integrated economy in terms of parts and suppliers, as well as assembly, a lot is still going to happen in Canada.

I don’t think you’re going to see any auto company wanting to build a new plant in the United States at the expense of Canada, because it takes several years, and the president, Mr. Trump, is not going to be there. It’s hard to believe any future president would be so foolish to deal with our number one customer that way. It’s just unrealistic. We’re too integrated.

And that’s not going to change. Geography is not going to change. Manufacturing is changing, but the major reason for the reduction in auto workers has been automation and to some degree bad management. It wasn’t nearly as much trade.

Garrett Epps: For all of the negative effects, Trump has really benefited some people. For example, Jimmy Kimmel, I think, is extremely grateful to the president. And another one might be Mark Carney, who was considered not to be a very strong candidate until Trump decided to involved himself in Canadian affairs. How do you rate his performance as prime minister in dealing with what is obviously a very serious crisis for that country?

Amb. Blanchard: It’s hard to find fault. “Steady as you go” is probably his motto, and I think that’s what Canada needs to do—not overreact to every little thing that comes up. It’s true he would not be prime minister but for Trump’s attacks on Canada. The Liberal Party last December was slated for a major defeat, and whoever was going to succeed Trudeau in the Liberal Party was going to lose by 20 points. 

But then Mr. Trump started attacking Canada and making jokes, saying they’re a national security threat—which of course is baloney—and all these other stupid remarks. Then Mark Carney gets the nomination at the Liberal Convention and his numbers just skyrocket. 

I don’t think there would have been a Liberal prime minister in Canada, but for Trump’s craziness. How’s he doing? He’s got a weak hand actually, just because we’re 10 times bigger, but I think he’s doing okay. I’m not sure I would have apologized, however privately, about the Reagan commercial because [Ontario Premier] Doug Ford has been his ally.

On the other hand, if they don’t get an agreement, they could start running that ad in New York and Florida and Texas and all over. It’s devastating, and they know it. I almost wish they would, but I think wiser minds say to let things cool off. 

The problem is that we have people around Trump who feed him so much misinformation. It’s crackpot economics. Trump is still out there trying to tell people that other countries pay the tariffs when of course we pay the tariffs as consumers.

He’s also still trying to act like Canada is a national security threat, which nobody believes. Or that the European Union was formed to take advantage of the U.S., which of course is not true. So, we have a problem.

Garrett Epps: Well, imagine what the trade situation would be today if the Blue Jays had won the series. 

Amb. Blanchard: Trump would have gone crazy. He would have called up the commissioner and asked him to remove the Blue Jays from the MLB. He would have gone nuts.

Garrett Epps: Exactly. He’d also ask for a recount. He’d say, you know, they counted the runs wrong.

Amb. Blanchard: It’s sad. It’s humorous. It’s tragic. I tell Canadians, you feel bad? What do you think we feel here in the United States? We have a guy who is not well. And even when he was well, he was acting crazy all the time. He doesn’t speak for us.

Anne Kim: How do you see the end game for the trade relationship, at least with the US and Canada? During his first term in office, Trump renegotiated NAFTA into what’s now USMCA, the US-Mexico-Canada Trade Agreement. That agreement expires in 2036 unless the three countries agree to extend it next year for an additional 16 year period. Given everything that’s happening, what’s your expectation about the fate of those negotiations next year and the USMCA in general?

Amb. Blanchard: Well, no one really knows. The responsible officials, including our trade rep, know better. But it’s the whims of the people who prod Mr. Trump that are the problem. I think they’ll settle down and get what is a similar agreement to what they currently have. I think they will cite some U.S. auto companies who say they’re expanding in the U.S. And they’ll announce several billions of dollars of investment that he will hold up as a major victory, even though they probably were going to make those investments anyway. And we’ll get back to what I hope will be the normal trading relationship, which is very positive and very productive.

The big thing would be for them to drop the tariffs on steel and aluminum currently because all that’s doing is adding costs to the auto companies and car prices. It’s totally unnecessary. 

Garrett Epps: Are these tariffs helping anybody in the United States? Let’s leave Canada for one side because supposedly, we’re America first. The tariffs, from what you said, are not helping the auto industry. Is anybody benefiting?

Amb. Blanchard: No, they’re not helping consumers or the auto companies at all. And they’re probably going to end up hurting the auto workers because sales will drop and then layoffs will occur. I have heard from respected sources that steel workers, perhaps in Pennsylvania and elsewhere, will gain some thousands of jobs. But that will be offset by hundreds of thousands of layoffs and increased costs elsewhere. It’s bad. 

But I think Trump has convinced himself these foreign countries actually pay the tariffs, not us. 

Anne Kim: What will it take to rebuild the US-Canada relationship? Will the departure of Trump be enough to flip a switch so we’re back to the way things were? And what would your advice be to the next president, assuming it’s not JD Vance and that the restoration of US-Canada relationship is one of their goals?

Amb. Blanchard: The next president is going to have to get on a plane right away and fly to Ottawa, and say, “We’re back.” Now, Biden tried to do that with Europe right after he won, but people were worried that he would be the aberration, not Trump. 

And unfortunately, Canadians and Europeans and all of our friends everywhere are saying they’re worried about the American voter. We can have the best president on the planet go up there in three years, and they’re going to say, “We believe you, we love you, we’re glad you’re back, but we’re still going to worry about your voters until we see some continuity here of policy.” They loved Biden, but it’s the voters they worry about. 

The post US-Canada Relations Have Hit Rock Bottom appeared first on Washington Monthly.

As if the gerrymandering arms race weren’t already approaching DEFCON 1, a pending Supreme Court ruling this year could tempt more states to join the fray.

Last month, the Court heard oral arguments in Louisiana v. Callais—a case that could spell the end of Section 2 of the Voting Rights Act, the bedrock federal law that bars racial discrimination in voting. At issue is the constitutionality of Louisiana’s Congressional map and its two majority-Black districts (the result of a legal challenge to the original map, which had just one majority-Black district for a state that is one-third Black). 

White voters who brought suit claimed the new districts to be unconstitutional racial gerrymandering. The Court, however, has decided to look at an even broader question: whether Section 2 might be unconstitutional as well. 

As voting rights expert Joshua Douglas explains, the Court is unlikely to strike down Section 2 outright. That’s a headline this Court doesn’t want. But the Court could still gut Section 2—by allowing the disenfranchisement of minority voters as partisan gerrymandering, not racial discrimination. 

The result could be a fresh wave of redistricting efforts aimed at eliminating majority-minority districts like the one in question in Louisiana. While 34 percent of House districts were majority-minority in 2024, states like Tennessee, South Carolina, and Indiana have just one majority-minority seat. The loss of these districts would mean the loss of minority representation—and the loss of 60 years of progress toward racial equality. 

Joshua A. Douglas is a law professor at the University of Kentucky J. David Rosenberg College of Law. He is the author of The Court v. The Voters: The Troubling Story of How the Supreme Court Has Undermined Voting Rights and is working on a new project on voter turnout and nonvoters. He is the host of the award-winning Democracy Optimist podcast and writes the Democracy Optimist Substack. 

This transcript has been edited for length and clarity. The full interview is available at Spotify, YouTube and iTunes. 

***

Garrett Epps: Josh, as our readers know, you are our go-to guy on volatile voting questions, and we also love talking to you because you’re the “Democracy Optimist,” as you’ve described yourself. But I’m not sure you’re optimistic about a current case called Louisiana v. Callais. Could you tell us a little bit about that?

Josh Douglas: First, I’d like to point out that being a “democracy optimist” doesn’t mean I think everything’s great. It means I think there’s hope for the future. 

I’m not particularly optimistic about this case we’re going to discuss, but I think of democracy in the long term and what can we do to help sustain democracy, even given the troubled and turbulent times that we’re living through right now.

But let’s talk about Louisiana v. Callais, because I do think this could be the potential for a not great outcome at the US Supreme Court for the future of minority voting rights. 

Louisiana has six Congressional districts, and it’s got a population that’s about 33 percent Black individuals—so about one third minority. When Louisiana redrew its Congressional lines, it drew the lines such that only one of the six districts would be majority Black. So in the language of the lawsuits and the law, only one district out of the six would give minority individuals an opportunity “to elect a candidate of their choice.” 

A lower court said this dilutes minority voting strength and was a violation of the Voting Rights Act. So Louisiana drew a new map with two of the six districts being majority Black. It also did some funny line drawing to protect some of the incumbents—Mike Johnson, Speaker of the House, in particular. 

They passed a new map that was fairer in terms of minority representation, but then some white plaintiffs sued and said, “Hold up, Louisiana, when you drew this new map that has two of six majority Black districts, you thought about race too much.”

Separate from cases involving Section 2 of the Voting Rights Act, there’s another line of cases under the Equal Protection Clause of the 14th Amendment that basically says race can’t be the predominant overriding concern in redistricting. If Louisiana comes back and says, “We had to think about race to ensure that we were complying with Section 2 of the Voting Rights Act,” the plaintiffs can argue that this makes the Voting Rights Act itself unconstitutional. 

So this is a long windup to say that this case could stand for a very important proposition about the constitutionality of Section 2 of the Voting Rights Act. If the Court finds that the reason the state drew the map the way it did with two Black districts was to comply with the Voting Rights Act, and that that is in and of itself thinking about race too much, then the Court could say that the Voting Rights Act itself is unconstitutional.

Garrett Epps: Just so our listeners catch up, the “effects” test under Section 2 means that it doesn’t have to be intentional discrimination to be violation of the Voting Rights Act. Is that a fair statement?

Josh Douglas: Right. There are two ways to think about discrimination. First, there’s intentional discrimination—when someone decides to draw the lines purposefully in a way that will make it harder for Black individuals to elect a candidate of their choice. That would be smoking gun intent. 

The second is “effect.” In 1982, Congress updated the Voting Rights Act in response to a previous Supreme Court decision, City of Mobile v. Bolden. The Court in that case construed the prior version of Section 2 to only reach intentional discrimination. And Congress immediately responded, “No, what we want is Section 2 to reach effects.”  

One way to think about this in a more concrete manner outside of redistricting is a voter ID law. When states pass a photo identification requirement for voting, they’re usually at least  not trying to intentionally discriminate against minority individuals. But we know just based on living conditions, structural inequalities, the economy, that Black individuals are less likely to have an ID that qualifies. In some states, depending on the nature of the photo ID law, a photo ID requirement might have the effect of discrimination on the basis of race, even if the state legislature was not trying or even thinking about race in doing so. 

The lawsuit over the initial Louisiana map argued that even if you weren’t trying to make it harder for Black people to elect a candidate of their choice with only one majority Black district, the effect of the map violated Section 2.

Garrett Epps: And “candidate of their choice” is important because people sometimes hear these discussions and believe that you’re entitled to majority Black districts or majority Latino districts. That’s not exactly right. It’s something called “opportunity districts,” if I recall correctly. Could you talk a little bit about that?

Josh Douglas: We say “candidate of choice” because we don’t mean that Black people get to vote for Black candidates or that we measure a map as to whether it has the effect of discrimination by looking at the population of the area and then comparing it to the percentage of Black individuals who are elected. 

One good way to think about this is who was the “candidate of choice” for many Southern black Democrats in 2020? It was Joe Biden—a  white individual, right? It so happened that Joe Biden had policies and a message that really called to a majority of Black individuals, particularly in places like South Carolina. That is a good example of a white candidate who was the “candidate of choice” for Black individuals in those places.

We  don’t care how many minority individuals are in the legislature. We care whether those individuals were elected by minority people. Did they have the opportunity to choose someone that collectively they supported? It’s often going to be someone of the same race, but that’s not the test. 

Garrett Epps: You listened to the oral argument for Callais. I did too. I have a feeling a lot of it went over my head that didn’t go over yours. What was your feeling about the oral argument in that case?

Josh Douglas: I think it seems pretty clear that there are going to be five votes to cut back on the Voting Rights Act, Section 2, in some way. 

Now, the Court is probably going to want to avoid the headline of “US Supreme Court Strikes Down Voting Rights Act.” Chief Justice Roberts might want to do something that looks more mild, even though he has a long history of advocating against the Voting Rights Act. 

What the Solicitor General argued was that if the state can say that it’s trying to achieve a political end and not just a racial end, the map is valid. That is to say, under a Section 2 lawsuit, a valid defense would be politics, not race. The Court already adopted this basic standard in a case out of South Carolina from just a year or two ago, Alexander v. South Carolina State Conference of the NAACP, where the Court basically said that if Black people challenge a map because the state thought about race too much in drawing the lines, the state can justify it by pointing to politics. 

The U.S. Solicitor General suggested incorporating the same idea into the Voting Rights Act, Section 2, as a valid defense, and my suspicion is that’s where we’ll end up on this question.

Garrett Epps: That leads us into this whole issue of partisan gerrymandering. And to me, the weird turn that the Court has taken on that, in a case called Rucho v. Common Cause, is that they basically said that if all you’re trying to do is rig the system so that your candidates win, that’s okay. That’s partisan gerrymandering. If you’re trying to rig it so race is not dominant, well, that’s a different thing. We’ve now got this novel idea that if you’re trying to set up the system so that one party always wins, that’s okay. Where did this idea come from and how has it developed?

Josh Douglas: In that Rucho case in 2019 out of North Carolina, the Court referred to “constitutional partisan gerrymandering,” and I have always thought that phrase is very strange. How can partisan gerrymandering be constitutional under an understanding of the Constitution that protects equality, that protects democracy, and that preserves the idea of democracy being derived from the consent of the governed? 

Partisan gerrymandering had been challenged for years, and when the US Supreme Court had faced the issue, the Court has said, “Well, partisan gerrymandering or least some level of partisan gerrymandering, is unconstitutional, but we haven’t figured out how we tell the difference between something that’s perfectly fine and legal and something that goes too far.”  Anytime a legislature does anything, that’s inherently partisan, right? We kind of expect that. We expect when the legislature passes tax laws that it’s going to be partisan in nature. And if you don’t like the laws that the legislature passed, well, the solution is to vote the bums out.

So the Court has struggled with this idea that if everything a legislature does is partisan, and that the US Constitution gives state legislatures the authority to dictate the times, place and manner of federal elections, including the authority to draw the maps, how do we tell when that action is normal politics or politics gone too far?

The North Carolina map was clearly a far, far outlier. The map drawers didn’t hide what they were doing. They had 14 congressional districts, and they drew a map that was 10 strong Republican districts and four Democratic districts. And when the key Republican lawmaker who drew the map was asked why did you draw a map that was 10-4, he said, “Well, I couldn’t figure out a way to make it 11-3 and still comply with the “one person, one vote” standard. So it was implicitly partisan in terms of what they were doing, and the US Supreme Court basically said that’s fine. 

There are many problems with this—the first being that this is letting the politicians choose their voters instead of the other way around. 

You wish the number one goal of state legislators is to serve the people well, but their number one goal is to win reelection and keep their job. And what better way to do that than to draw the lines in such a way that it basically makes it impossible for the other side to win?

So that’s problematic in and of itself. But I think the problem has become supercharged in these cases involving race. Not only did the US Supreme Court say, “We’re not going to police partisan gerrymandering,” we’re now seeing states use politics as their defense to every other potential claim against their maps. And we’re seeing the Supreme Court essentially still defer to the legislature when using politics as the defense. 

In the Alexander case, the argument was that the state drew the map to pack as many Black voters in as few districts as possible, so that white people could control the rest of the state. That was the claim. The state was able to say, “Well, there’s a political reason for why we did this.” And the US Supreme Court said, “Okay, that defeats the plaintiff’s claim.” I fear a similar standard is going to be set out in Louisiana v. Callais.

The headline would be that the Court “guts” Section 2 or cuts back on it but doesn’t strike it down. But the practical effect would be that it would be extremely difficult to bring a Section 2 claim against a map if the state could justify it based on its partisanship and partisan arguments.

Garrett Epps: As you look at what Louisiana did or South Carolina did, how far have we come from that period when the Voting Rights Act was needed to hold back legislators who were going to explicitly discriminate? 

Josh Douglas: This is where my democracy optimist viewpoint will come in a little bit, which is to say that we’re definitely way better off in terms of equality in voting in representation since the early 1960s. That’s kind of undeniable, right? We don’t have explicit literacy tests anymore. Registration rates between minority individuals and white individuals have come a lot closer. It’s not exactly on par, but the registration gap is not as big. The turnout gap is not as big. It still exists, but it’s not as big. So I think we can say that we have come a long way, but that doesn’t mean we’re done. And just saying there’s been progress doesn’t mean that progress is finished. 

If the Voting Rights Act gets cut in these ways, that’s going to set us back. But my democracy optimist mind sees that longer history and sees that, okay, we need to find different tactics or new ways to tackle the problem of what Justice Ginsburg referred to as “second generation barriers” to voting. I think we’ve cleared and fixed many of the first generation barriers—the explicit attempts to defeat minority voter opportunity and representation. But that doesn’t mean we’re done.

The post How the Supreme Court Could Turbocharge Gerrymandering appeared first on Washington Monthly.

“On a chilly Saturday, December 13, 1952,” the historian Jill Lepore recounts in her new book, We the People, “the nine justices gathered in the first-floor conference room of the Supreme Court Building to begin their deliberations in Brown v. Board.” 

That judicial conference would eventually produce a blockbuster decision—one that set the tone of constitutional law for generations—but many Americans might have thought the justices were missing the real action that day, which was nearby at the National Archives: “twelve police motorcycles and four soldiers carrying submachine guns, followed by a bayonet-wielding honor guard, two military bands, two armored tanks (one of which broke down en route), and thirteen hundred servicemen and women.” At the center of this display, riding in their very own tank, were the parchment copies of the Declaration of Independence and the U.S. Constitution. The documents remain on display in the National Archives today, reverently viewed by visitors, much as Mao Zedong sleeps in his tomb in Tiananmen Square.

Lepore’s lively book makes clear what should be obvious: Whatever the U.S. Constitution is, it is not that heavily guarded parchment, and not even what is written on it. Nor is it, really, the amended text after 27 post-ratification changes, the most recent in 1992. The Constitution is a protean and elusive text, not simply because it has been formally changed but perhaps even more powerfully because it has been imagined and reimagined by generations of Americans; it is a collection of sacred wisdom understood—if at all—as much by reference to truths it does not speak as by the 7,500 words it actually contains, an object of reverence, fear, and superstition, not susceptible of final and authoritative interpretation by any citizen or judge. Some generations see it as on the point of death; others see it as bursting forth renewed by flame. 

No one, however, quite agrees on what it is. 

Lepore—one of the most graceful, talented, and original American historians writing today—retells a story told before in books like Akhil Reed Amar’s America’s Constitution. But she tells it differently. Lepore suggests that the nature of the Constitution is to be sought not in what it says, or even what it doesn’t say, but rather in what it could say if it were changed. Change, she argues, is its enduring nature and the essence of its revolutionary spirit: “By far the most radical innovation of the U.S. Constitution, and of state constitutions, was the provision they made for their own repair and improvement by the people themselves.” Lepore thus tells the story of the Constitution not simply through the changes that have been made in it, but through the failed attempts that have been made to amend it and the complex aftereffects of those failures.

The result is generous, highly original, and consistently fascinating—de-emphasizing the stories of the so-called Founding Fathers, and the amenders, and forwarding those of ordinary people, some of whom made constitutions of their own, from the multiplicity of state constitutions to the constitutions of Native nations like the Cherokee to the people of American colonial possessions like Puerto Rico and Hawaii. We the People is also, as a matter of constitutional discourse, profoundly, indeed joyously, subversive. 

Lepore fires a devastating volley at the foundation of most legal scholarship and the subtopic within it called “Constitutional History”—the successful restriction of “valid” source material to an easily managed set of sources, mostly bound in matching sets of court reporters. That narrowing makes the construction of arguments within the field tidy and quick, centering the writings of long-dead judges. (Think of Justice Samuel Alito, in his savage attack on abortion rights cheerfully citing Henry de Bracton’s 13th-century De Legibus et Consuetudinibus Angliae while tiptoeing, with daintily pursed lips, past the voluminous record of American women’s actual experience over two and a half centuries.) Lepore savages the ongoing constitutional mummery that its adherents call “originalism”—the philosophy that reigns, at least when convenient, over the Supreme Court and an increasing share of the legal academy. Lepore defines “originalism” as “insistence that the only way to interpret the Constitution is to read it the way a probate judge reads a dead man’s last will and testament.”

“Originalism follows rules of evidence that no historian could accept,” she writes, quoting Robert Bork’s edict that private writings by the powerful and the powerless “count for nothing.”

“For the historian, unpublished documents written by less powerful people do not ‘count for nothing’; in fact, they count for rather a lot.” 

With that, Lepore opens the door to a cornucopia of sources, characters, and stories that even the best constitutional histories often omit—documents like the 18th- and 19th-century constitutions written by Native nations; the forward-looking constitutions written by the biracial Reconstruction governments after the Civil War; Ke Kumukānāwai a me nā Kānāwai o ko Hawai’i Pae ‘Āina, the written constitution decreed by Hawaii’s King Kamehameha III in 1840, altered by his successor Kamehameha V, and forcibly replaced in 1887 by the white colonialist “Bayonet Constitution”; and La Constitución del Estado Libre Asociado de Puerto Rico, which was written for the American colony by a convention legally barred from even discussing independence and which cannot be amended without Congress’s approval. 

The complex history of amendment begins even before the Constitution was ratified, because state conventions that approved the new constitution did so while loudly demanding the immediate adoption of a bill of rights. When James Madison produced a proposal for one in the First Congress, the members held a consequential debate that Lepore characterizes as “incorporationists” versus “supplementalists”; the two sides differed on how amendments should be treated. Madison wanted amendments to appear as changes to the document itself; opponents insisted that they should appear at the end of the document, leaving the original text inviolate. “The supplementalists prevailed,” she writes, “apparently because they threatened to reject the amendments if the incorporationists didn’t stand down.” Two centuries later, this mistake (and mistake it was) looms large in our history—because, among other things, the Second Amendment would seem like a different animal if it were written into Article I, Section 8, Clauses 11–16—setting out in detail the extent, and limitation, of Congress’s powers over the militia. That context would suggest to any reader that “the right of the people to keep and bear arms” also concerns the militia, not Antonin Scalia’s imaginary free-floating individual right. 

A lot of dead people might be alive today if Madison had won that fight. Constitutional debates are almost always matters of life and death. (Brown v. Board, for example, did lead directly to blood on southern pavements and armed soldiers desegregating schools.)

After that beginning, We the People tells the story of the fight for amendments from 1789 to 1992. Poignantly enough, the most recent successful amendment—concerning congressional pay—was one proposed by Madison himself, which took two centuries to glean the necessary three-quarters approval of states. But the book does the signal service of making this old story new, and peopling it with characters who have been recognized only dimly, if at all, from the Founding: Sconetoyah (Cherokee), Tobocah (Choctaw), and Muckleshamingo (Chickasaw) represented Indigenous populations who knew something was up in Philadelphia (they arrived during the Constitutional Convention to ask politely for inclusion, and got none). From the Civil War era: Francis Lieber, the farsighted German immigrant who foresaw that slavery would tear the Union apart and that constitutional amendments would be needed to restore it; and Maria Henrietta Pinckney, described by her contemporaries as “a woman of masculine intellect” and a stalwart defender of slavery and constitutional nullification. From the Progressive Era: Charles Beard, whose 1913 book, An Economic Interpretation of the Constitution of the United States, pointed out that the men who drafted the Constitution had adroitly protected their own interests before anyone else’s—and became “the most influential and most controversial book ever written about the Constitution.” And from the 1950s, Ethel Payne, “five foot three, and indomitable,” who as a reporter for The Chicago Defender witnessed the oral argument in Brown and the birth of the movement to amend the Constitution to repeal the decision—and then, like a kind of journalistic Zelig, jetted off to Bandung, Indonesia, to cover the historic conference that she called “a summoning of the darker people of the world.” Payne’s story is paired with that of David Mays, the quiet lawyer from Richmond, Virginia, “a child of the Lost Cause” who devoted much of his life to advocating for the reversal of Brown, and laid the foundation for the dawn of originalism.

Most haunting to me is Lepore’s poetic invocation of Lydia Kamakaeha Lili’uokalani, the last monarch of independent Hawaii, who for the crime of seeking to restore the kingdom’s true constitution spent the last years of her reign “locked in an upstairs bedroom in the royal palace as if she were Rapunzel” and was denied any reading material, except what could be smuggled in disguised as wrapping for flowers. 

We the People in outline follows the main channel of American history—the battle over federal power, then over slavery and Reconstruction, then over regulation of the economy and finally over civil rights and human equality. The book also recounts the story of successful amendments—1913, for example, brought us the elected Senate and the income tax, both adopted by overwhelming popular mobilization. She also narrates some lost ones that fit the master narrative—the proposed Thirteenth Amendment of 1861, passed by a desperate Congress and endorsed by a desperate Abraham Lincoln, which bargained the South’s remaining in the Union for a guarantee that slavery could never be outlawed. The failure of the Equal Rights Amendment, despite overwhelming support, supplies a mournful chapter. I regret the omission of some that represent digressions from the master narrative—most notably yet another lost Thirteenth Amendment, proposed by the two houses of Congress in 1810, which would have stripped citizenship from any American who accepted a noble title or pension “from any emperor, king, prince or foreign power.” (Though never ratified, this amendment was mistakenly included in a number of printed copies of the Constitution; to this day, I sometimes meet folk from the Pacific Northwest mountains who assure me that this amendment renders lawyers unconstitutional.) I wish, too, that We the People gave a fuller account of the popular mobilization that pushed the Seventeenth Amendment (popular election of senators) through a reluctant Congress, and mentioned my favorite “Founding Father,” Joseph Bristow of Kansas, who sponsored the popular-election amendment in 1911.

The book ends with the melancholy story of the end of amendment and the rise of originalism—the replacement, in the American mind, of a “living document” with Scalia’s Constitution that is “Dead, dead, dead!” Originalism emerged in 1971, around the time that entrenched partisanship made formal amendment impossible. As the nation lost the will and creativity to remake the Constitution (for example, by abolishing the Electoral College), it began to shake itself to pieces, and has reached a crisis that looks as if it may be its death agony.

Lepore is an American, though, and optimism is the fundamental American creed. She ends the book, not in despair—“a philosophy of doom is an undemanding doctrine, and doomsday books are easy to write”—but with a call for a fundamental remaking of the Constitution not simply to democratize our policy but to include among its constituents the natural world itself:

Americans might learn again to amend, or else they could invent a new instrument to guarantee liberty, promote equality, nurture families, knit communities, thwart tyranny, and avert the destruction of a habitable earth. Constitutions began with stones and seashells, with old books and oak trees, with sheepskin and goose feathers. From the burning, scorched earth, new ideas might arise once more, seedlings, sprouting, tendrils winding to the sun.

The post Constitution in Progress appeared first on Washington Monthly.

Last week, Donald Trump dropped virtual “bombs” on American citizens, demolished a prized symbol of American democracy and leadership, and demanded $230 million in reparations from taxpayers for what he calls unlawful attacks on him.

Contrary to conventional wisdom, Trump does not wish to rule as a king or impose an authoritarian regime. People around him very much want the latter. He may think that this is his aim. But it is not.

Some have suggested that the MAGA movement is creating a civil war between the red and blue states. But not Trump.

The president is at war with the United States—the entire country—all of us. He seeks not to rule but to destroy.

What inspires such malice? This country has, in Trump’s mind, brutalized him. In 2020, Trump found Joe Biden to be such a flimsy candidate that he was in terror of being defeated by him. Trump’s unconscious mind is never far from his tongue. On October 16, 2020, he confided in a rally audience that he was terrified of losing to Biden: “Running against the worst candidate in the history of presidential politics puts pressure on me. Could you imagine if I lose? My whole life, what am I going to do? I’m going to say I lost to the worst candidate in the history of politics. I’m not going to feel so good. Maybe I’ll have to leave the country. I don’t know.”

He did lose. He has tried to rewrite history, but he knows who won in 2020, which makes him furious.

Not only did he lose to a candidate he regarded as a zombie, but he also has memories of 2016, when he lost the popular vote against Hillary Clinton by 2 percent, nearly 3 million votes. Twice, then, his fellow Americans had preferred others over him. And in 2024, his dream of a majority of the popular vote against Kamala Harris was just out of reach. Harris held him to 49.8 percent.

For all his talk about “an unprecedented and powerful mandate,” Trump knows that three times he has gone up against candidates he despises—a white woman, a Black woman, and a superannuated old-style pol—and that three times he has failed to secure a decisive win. Twice, in fact, he has, by some measure, lost.

Trump has a long memory for slights. He remains angry and resentful over the Academy of Television Arts and Sciences’ failure to give an Emmy to The Apprentice two decades ago. “The Emmys are all politics, that’s why, despite nominations, The Apprentice never won—even though it should have many times over,” he told The Washington Post in 2016. His rage extends not only to his enemies (whom he wants jailed and perhaps executed) but even to some who have helped him over the years. His unwittingly comic legal Complaint against The New York Times cites, as one example of the Grey Lady’s gross libels, the mere statement that the producer who brought Trump onto The Apprentice had helped create that TV franchise. No indeed—according to his lawyers, sole credit for the show must go to Trump’s “global profile and charisma.”

Trump spends an extraordinary amount of time whining about how this or that person owes him an apology, and perhaps should be jailed for not giving it. His mental world is bleak, a haunted mansion of anger and grievance.

How can we expect such a person to forgive his fellow Americans for preferring someone else to him?

Trump’s fury with the country explains many otherwise puzzling facts about his conduct in office during his second term. Media coverage and his rhetoric suggest that his animus is directed toward blue states, while his love embraces the red. But love is as love does, and Trump’s policies have been as adverse to his allies as to his foes. His assault on the federal government has been indiscriminate, taking in federal disaster relief and cancer research, both of which benefit all Americans. He has shut down the government rather than extend health-care subsidies that rural and red-state residents rely on for medical and hospital care. In particular, the sweeping tariffs he has attempted to impose threaten devastation to agricultural areas and agricultural states—consider that he has not only managed to cut American farmers’ soybean exports to China to near zero, but is now sending $40 billion to Argentina, which has stepped in to supply the Chinese at market rates. His immigration jihad is also directed disproportionately at agricultural workers, whom Trump-loving farmers depend on to bring in the crops.

He has deliberately crippled the national security and intelligence apparatus that protects the nation against foreign and terrorist attacks. An authoritarian would nurture these; an enemy wipes them out.

As Christmas approaches, not even American children escape his unwinking malice—“Maybe the children will have two dolls instead of 30 dolls, you know? And maybe the two dolls will cost a couple of bucks more than they would normally,”—making him almost certainly the only American president to come out against Santa Claus.

He has begun preparing our military to flood the streets of American cities in a war against “the enemy within,” who is, as Walt Kelly’s immortal Pogo once said, us. During the 2024 campaign, he told a rally that “The crazy lunatics that we have—the fascists, the Marxists, the communists, the people that we have that are actually running the country . . . are more dangerous—the enemy from within—than Russia and China and other people.” Lest this seem like mere campaign rhetoric, just a year later, Trump—no longer a candidate but the commander in chief—told the assembled generals and admirals of the defense establishment that “America is under invasion from within. We’re under invasion from within, no different than a foreign enemy, but more difficult in many ways because they don’t wear uniforms.” He added ominously, “George Washington, Abraham Lincoln, Grover Cleveland, George Bush, and others all used the armed forces to keep domestic order and peace.”

The administration is now in court seeking authority to deploy the National Guard at any spot the president proclaims to be in “rebellion.” And Trump has threatened to invoke the Insurrection Act against dancing frogs and other First Amendment protests, which would allow him to deploy heavily armed regular troops on city streets. This may seem like preparation for a red vs. blue civil war, but he is also gearing up to deploy in red states. Those red states have blue cities that are also filled with enemies within who don’t support him.

And once the Democrats are conquered, there will be the RINOS. After that, who knows?

The important thing about Trump is that he lacks aims or plans. What drives him are tropisms, relentless unconscious movements like those of a heliotrope turning toward the sun. Trump cabinet meetings offer clinical proof that there is not enough love and worship in the universe to fill the gaping hole in his psyche. The man is an ocean of need; no victory is enough. There will always be enemies.

Since October 18, Trump has done something no one has done since the British burned Washington in 1814; he has gleefully depicted himself doing to peaceful Americans what the Japanese empire in 1941 did to Pearl Harbor; and he has demanded the kind of reparations that the Allies extracted from Germany at the end of World War I. (Germany did not finish paying off those World War I reparations until 2010.)

That Trump is at war with the country—with all of us—lies in plain sight. On January 6, 2021, his army of brigands attacked the U.S. government in his name. They sought to destroy its government and replace it with a Trump dictatorship.

Trump pardoned the traitors.

His war of conquest has just begun. He may need them again.

The post Trump is a Wartime President appeared first on Washington Monthly.

On the night of June 21, 1942, a Japanese submarine surfaced near the mouth of the Columbia River at the border between Oregon and Washington. The vessel, I-25, fired 17 shells from its 5.5-inch deck gun at Fort Stevens, an Army artillery post, then slunk away, having done no damage to its target.  

The following month, I-25 returned to the attack, launching its floatplane, flown by Warrant Flying Officer Nobuo Fujita, on September 9 and September 29. The aircraft dropped four incendiary bombs on wooded areas, hoping to set fire to Oregon’s vast forests. That mission failed, too.  

In response to the Japanese attack, in September 2025, President Donald Trump federalized the Oregon National Guard.  

Does that make sense?  

The claim that the National Guard must be federalized in 2025 to repel Japanese bombardment in 1942 makes as much sense as the government’s actual explanation of why, on September 29, the administration ordered the Oregon Guard placed under federal control. With the relatively straight faces that distinguish Trump administration lawyers, the government told the Ninth Circuit Court of Appeals, that the federalization—an aggressive takeover of state resources allowed by statute only in extreme circumstances—was required because there had been scattered violence at demonstrations in Portland three months earlier, a fatal shooting on September 24 in Dallas (2,300 miles from the Rose City), and a violent demonstration on September 26 in Chicago (2,100 miles away).  

On Monday, this facial disfigurement spread to the federal bench, as a three-judge panel of the Ninth Circuit Court of Appeals proclaimed that these events—some remote in time, others remote in space—formed a basis for Trump to invoke 10 U.S.C. 12406, which permits the president to take command of state militias in the event of foreign invasion, “rebellion against the authority of the United States,” or disorder that renders them “unable with the regular forces to execute the laws of the United States.”  

The majority recites the record in Portland with the breathlessness of a Fox & Friends host; I could dispute it in detail, but to do so would be to dignify the panel majority’s per curiam opinion. There was no foreign invasion; there was no “rebellion;” there has been nothing to prevent Trump from protecting the small federal building that is the center of a one-block area where protesters have gathered nightly since June, in demonstrations that, having started violently, subsided by July.  

There is no excuse for the panel’s conclusion that Trump’s order “reflects a colorable assessment of the facts and law within a ‘range of honest judgment’” that the “regular forces” couldn’t keep order in that one-block area of Portland. This blindness can’t be blamed on partisanship alone. True, the two members of the panel who voted to uphold Trump’s order—Ryan D. Nelson and Bridget Bade—were nominated by Trump; but consider that the pair were reviewing a detailed opinion by District Judge Karin J. Immergut, who was also appointed by Trump and is nobody’s Democrat.  

In that opinion, Judge Immergut, a George W. Bush-nominated U.S. Attorney and a veteran of Ken Starr’s investigations, showed herself to be what lawyers pretend we want judges to be—a thorough and careful analyst who applies the law as it is to the facts as they are presented. In this case, the law consists of the “range of honest judgment” test, which was announced earlier this year by a different panel of the Ninth Circuit. In Immergut’s opinion, the facts did not relate to Dallas or Chicago or June 2025 or the Japanese failed bomb run over Fort Stevens, but to the situation of confronting Trump in September. On October 4, Immergut wrote that the administration’s orders were “untethered to the facts.” She added, “this is a nation of Constitutional law, not martial law.” 

Since that order, of course, a reign of terror has spread in the Rose City. ICE can certainly handle regular Americans, such as the 84-year-old Vietnam veteran and his 84-year-old spouse, both taken to the hospital after its agents knocked them to the pavement on October 3. But the protests have now swollen to encompass terrifyingly inflatable frog, unicorn, dinosaur, shark, and squirrel suits. (There’s even an inflatable suit that deceitfully makes a human standing upright appear to be a clown dancing on his hands.) The Unpresidented Brass Band, several dozen strong, marched in front of ICE headquarters dressed as bananas. Ever-alert ICE officers bowled over the band and busted a clarinetist. And of course, in what House Speaker Mike Johnson called “the most threatening thing I’ve seen,” hundreds of bicyclists on October 12 rode by the ICE outpost wearing no clothes at all.  

The panel’s per curiam opinion upholds a militarized response to this civic impudence by noting that the Department of Homeland Security had to bring in some out-of-state personnel to handle the June demonstrations. It also relies on—I am quite serious—a brutal “Notice of Zoning Violation” issued to DHS by the City of Portland on September 18 because DHS had illegally boarded up windows at its Portland facility. 

This is judicial “deference” to the executive that has lapsed into obsequious behavior. As I read it, I am embarrassed to be a lawyer.  

It’s hard to escape the conclusion that the aim of the troop interventions in California, Chicago, and Portland is a massive shifting of the civil liberties goal posts. To this administration and its supporters, protest itself is “violence” and “rebellion.” Vets using walkers, animal suits, naked bikers, non-military musicians, Molotov cocktails—each is a violent threat to order and the proper power of government; all must be met with what Trump called “full force.” There is no right to protest in public, and those who try it, regardless of military record, inflatable costume, or woodwind instrument played, should expect to be gassed, pepper-sprayed, beaten, and arrested—and perhaps, to hear Trump and Defense Secretary Pete Hegseth tell it, shot.  

That, at least for the moment, seems to be the law in the nine states of the Ninth Circuit, but the battle is not done. Judge Susan Graber (the lone Oregonian on the panel) wrote a stinging dissent: “today’s decision is not merely absurd. It erodes core constitutional principles, including sovereign States’ control over their States’ militias and the people’s First Amendment rights to assemble and to object to the government’s policies and actions,” she wrote. She also pointed out that, formally at least, the panel’s decision did not free the government to deploy the Oregon Guard on the streets. That’s because Judge Immergut had issued two temporary restraining orders—the first applied only to the Oregon Guard, and (when the administration tried to bypass the first by bringing in the California Guard) the second applied to any deployment of any Guard from anywhere. The government (and the panel majority) only appealed the first order. Still, in their briefing, they expressed the belief that negating the first order requires Immergut to negate the second one (or, perhaps, frees the government from complying).  

I hope Judge Immergut feels no haste in lifting the second order. That’s because the panel’s opinion may not be the last word of the Ninth Circuit on the issue. In her dissent, Graber notes the availability of en banc review. This is a procedure by which a majority of the active judges in the circuit can vote to “vacate” a panel opinion and grant re-hearing in front of a bench consisting of Chief Judge Mary H. Murguia and ten other randomly selected judges of the circuit. There are currently 29 active Judges on the circuit—16 Democratic appointees and 13 Republican choices, including 10 nominated by Trump.  

Those seemingly polarized numbers may not represent the actual odds: Immergut, a Trump appointee, contemplated facts and law and ruled against the administration—the way we teach in law school that a good judge must sometimes do. Her pains, however, earned her the accusation from Trump aide Steven Miller of “legal insurrection” and (weirdly enough) “the latest example of unceasing efforts to nullify the 2024 election by fiat.” Such rhetoric is undoubtedly part of a campaign to intimidate federal judges, Republican or Democratic. And of course, some judges are predisposed to obeisance: Judge Nelson of the panel wrote in a separate opinion that, as far as he is concerned, no court has jurisdiction to review Trump’s order ever, no matter what. Whether it is in response to a Japanese attack or an outbreak of cheating at marbles, the president can seize state militias and deploy them for any reason he pleases.  

This naked leader worship is, in its way, more honorable than the pretense that a zoning dispute over window treatments is the equivalent of the attack on Fort Sumter. But judicial complaisance should alarm us all. In her dissent, Judge Graber wrote,  

We have come to expect a dose of political theater in the political branches, drama designed to rally the base or to rile or intimidate political opponents. We also may expect there a measure of bending—sometimes breaking—the truth. By design of the Founders, the judicial branch stands apart. We rule on facts, not on supposition or conjecture, and certainly not on fabrication or propaganda. I urge my colleagues on this court to act swiftly to vacate the majority’s order before the illegal deployment of troops under false pretenses can occur. Above all, I ask those who are watching this case unfold to retain faith in our judicial system for just a little longer. 

I was raised in that faith, and I will try to do as Judge Graber asks—at least, as reporters covering the courts have learned to say, for now.  

The post Ignoring Case Law and the Constitution, Court Greenlights Trump’s Portland Troop Surge  appeared first on Washington Monthly.

Few Americans are aware of the Wilbur J. Cohen Federal Building, two blocks from the U.S. Capitol on Independence Avenue. Fewer still know of the masterpieces housed inside. The building, opened in 1940, features grand New Deal-era murals by Ben Shahn, Philip Guston, Seymour Fogel and other esteemed 20^th-century artists—all of which could be lost forever.  

Since 1954, the building has been the home of the Voice of America, which was targeted by Elon Musk’s DOGE and President Donald Trump for cancellation. The building now stands empty and is up for sale. As Washington Monthly contributing editor Timothy Noah reports in a two-part series for The New Republic, the building’s buyer is unlikely to preserve the building’s New Deal art, despite its significance.  

This interview has been edited for length and clarity. The full interview is available on Spotify, YouTube, and iTunes.

** 

Anne Kim: Tim, tell us more about this art and what is going on. 

Timothy Noah: The art is in a building called the Wilbur J. Cohen Federal Building, built by Franklin Roosevelt during the New Deal. It was built to house the Social Security Administration, then called the Social Security Board.  

It actually never ended up housing the Social Security Board, but since that was the intention, it was loaded up with all sorts of very inspirational art about the mission of Social Security. The signature piece of art in there is a series of frescoes by Ben Shahn, whose star has faded a little bit, but he was a great artist who was highly celebrated in the last century, and he produced what he himself described as some of the best work of his career.  

There’s also art by Philip Guston, who is another well-known painter from that period. The National Gallery of Art had a big exhibition a couple of years ago. Meanwhile, hardly anybody knew that hiding behind a blue curtain, two blocks to the south, was this really lovely Guston mural that he painted for the then-Social Security building. There are also notable artworks by others. One preservationist I spoke to, the founder of a group called The Living New Deal, calls the Cohen building the “Sistine Chapel of New Deal art.”  

But the building is for sale. Trump is determined to sell it by the end of 2025, and there is no evidence that any effort is being made to preserve the building or to preserve the artworks therein. And the staff at the General Services Administration, who ordinarily would be in charge of making sure these things get attended to, were all laid off by DOGE last winter. A few of them have trickled back, but it’s not clear they have the capability or will be allowed the capability by the White House. I think the GSA itself has voters’ best interests and the public’s best interests at heart here, but I don’t know that they will be allowed to do their job, as is so often the case under Donald Trump. 

Garrett Epps: There’s background here that I am familiar with because of my generation. I grew up hearing my parents talking about the WPA and the WPA Artists Project. I knew older writers who worked for it. But tell our listeners a little bit about the background that this whole school of public art comes out of. 

Timothy Noah: These particular artworks were not produced by the WPA, but there were several different programs in the federal government at the time to sponsor public art. The WPA art program did sort of produce all sorts of fantastic art, a lot of it in Washington, but also all across the country.  

A lot of great writers were supported by the WPA. There were number of guides that were produced to the states that were written by subsequently famous writers like John Cheever and others. There was theater. Orson Welles had a theater project that was supported by the WPA. He put on an all-black production of Macbeth that was supported by the WPA. 

So yes, there was an ethos of “artists have to work too” and everybody was out of work. Artists were suffering along with everybody else, and so there was a push to support artists. The murals in the Cohen building arose from a related ethos, which was that our public buildings ought to have beautiful art that celebrated working people as all of these murals do.  

It’s all tracked very carefully by a wonderful organization, a nonprofit based in Berkeley called The Living New Deal. They actually crowdsource. There’s so much of this stuff that they had the ingenious idea of having people all over the country identify New Deal art—particularly in post offices. They have on their website a map of where these projects are all over the country, and they are attempting to preserve them wherever possible. 

Anne Kim: Can you tell us a little bit more about the artist, Ben Shahn? You said his star has dimmed a little bit, but it was very bright at one point, and he has a really fascinating story.  

Timothy Noah: He was out of the school of Social Realism, which acquired currency in the teens and ‘20s and ‘30s and ‘40s. In the 50s, it was eclipsed, especially in New York, by abstract expressionism.  

I think we’re starting to see a Shahn revival. There’s a wonderful retrospective in New York at the Jewish Museum that’s on until October 26th of Shahn’s work. He started out doing a lot of paintings about Sacco and Venzetti, who were two anarchists found guilty of having committed a murder that they almost certainly did not commit.  

It became a huge cause celebre among progressives around the country, and Shahn did some really wonderful paintings, very angry paintings. And he persisted in this kind of Social Realist style through the ‘30s.  

He did a lot of work for the federal government. The Farm Security Administration had its own photography project, and he did a lot of photographs for them. He also did a lot of poster art. He was a painter, but he was also a graphic artist, and he spilled over from the academy into doing popular works. He was big lefty, but in the ‘50s, we had a very different corporate culture, and he was commissioned to do a lot of work for corporations, all presenting this political or humanist message to the public. He did  graphic art for labor unions. He did some work for the Office of War Information during World War II. But his star did start to fade a bit, so you don’t hear as much about him from about the ‘70s going forward.  

But as I say, I think he’s coming back. He was the first artist ever asked to deliver the Charles Eliot Norton lectures at Harvard. And those lectures were just republished by Harvard University Press with a lovely introduction by Adam Gopnik, who said we really are due for a revival. 

Garrett Epps: He was kind of the Zelig of American art there for a period of time, as you note this very seminal photography work that he was involved with. He ended up working with Diego Rivera when Rivera came to New York to work on the Rockefeller building. He was everywhere. 

Timothy Noah: That’s a wild story in itself. Nelson Rockefeller, young heir to the Rockefeller fortune and a huge art enthusiast, worshiped Diego Rivera and hired him to do a mural for the lobby of the Rockefeller Center. I think it was 30 Rock.  

Shahn was working on the project with Rivera and he puts a portrait of Lenin in there. And Nelson Rockefeller says, no, you can’t have Lenin in there. And he says, I’m not taking it out. So they destroyed this beautiful work of art. We could have had a beautiful Diego Rivera in the Rockefeller Center, but they destroyed it.  

He was very left. He was anti-communist, but in the ‘40s, he was very much against both Harry Truman and Dewey, and he did a famous poster of the two of them where Truman is playing the piano and Dewey is sort of leaning against it like a chanteuse. The idea is that they’re both sort of singing the same song, so you should instead vote for Henry Wallace, which in fact was not a very good idea. But it’s a beautiful piece of art nonetheless. 

Later he got very concerned about the threat of nuclear war, and he did a great deal of work on that. He was also Jewish and got a little bit into Jewish mysticism in some of his later works. He just had this very distinctive style—these  thick lines and very powerful stuff. 

Anne Kim: Well, let’s start to take a look at some of his art, then. Tim, can you explain what we’re looking at and their significance?

Timothy Noah:  I’m describing to you some art I have not seen myself. This all started out with me just trying as a civilian to get in to see the art because I found out about it at this Ben Shahn exhibit in New York and I couldn’t get in. And then I found out the building is for sale.  

And I should say that the law to sell the building was passed at the end of the Biden administration. It was an amendment snuck into a water resources bill by Senator Joni Ernst. Now, why a senator from Kansas wanted to sell off a particular federal building—I’m sure there’s a story there, and probably not a very savory one. But it happened the actual sale was arranged and passed by Congress in January. And at the same time, the GSA was preparing a very elaborate, ambitious, wonderful plan to refurbish the building.  

I have not seen the murals, but as I understand it, there is a whole corridor. It’s huge. One side of the hallway depicts life without Social Security. And that’s where you see a guy with crutches and people suffering.  

And then the other side of the hallway is people thriving with Social Security through labor. 

It’s very didactic, it is very 1930s, but it’s also very beautiful. The colors are just so vibrant and  it speaks to what I think what all three of us would agree was a truly glorious moment in American politics where the federal government, in the person especially of Franklin Roosevelt, really revered the common man. That’s opposed to the sort of posturing you see these days from MAGA types about the common man, portrayed as just someone who is perpetually angry at everything coming out of Washington and ungenerous. This is the opposite. This is a very generous view of humanity. It also bespeaks a humanism that is also sort of weirdly out of fashion today, but I think that’s coming back. 

Anne Kim: And there are other artists there too. You mentioned in your piece a couple of friezes by other artists. 

Timothy Noah: Yes, there were some friezes on the exterior of the building that are all kind of allegorical. You see the husband going off to work with his lunch pail and plucking fruit, sort of harvesting the fruits of his labors.  

It’s very moving art. And I think a couple of them were done by a woman artist at a time when there were not a lot of women artists receiving public commissions like that. 

The building is loaded with distinctive art. It’s also got some interesting historical aspects that are worth preserving. I was talking to somebody at VOA—the Voice of America—which is headquartered there. Perhaps I should say was headquartered there because Trump has now fired everybody who works for VOA. 

In any case, somebody had worked at VOA said there are an unbelievable number of bathrooms. And she said because it was built when the civil service was still racially segregated. So you see two men’s rooms side by side and two ladies’ rooms side by side and the same with water fountains.  

And you know, there is some value in preserving that architecture, so you can remember this happened less than a century ago. They didn’t desegregate the civil service until 1948. That’s meaningful history. 

But in any case, the building is on a fast track to be sold. It’s a terrible time to be selling any large office building in Washington, DC. We’re still in the midst of a post-COVID slump in demand for commercial real estate. In that neighborhood, which is Southwest, you’ve got a vacancy rate of about 15 percent, and anything above 10 percent is bad.  

Plus, Trump is trying to sell four buildings in Southwest all at the same time. This one and a Marcel Breuer building built for HUD and a couple of others. And they want to do it in 2025. Russell Vought is pushing hard on this.  

It doesn’t make sense, not only because of the art treasures, although that’s the main reason to be concerned, but it’s also situated in an absolutely ideal spot that any federal agency would kill for. It’s across Independence Avenue from the National Museum of the American Indian, and it’s two blocks west of the Capitol. 

That is prime real estate at a time when you’ve got a lot of agencies being pushed out to the suburbs because supposedly there’s no place to put them in Washington, and that’s just not true.  

But as I say, my main concern is the art. I talked to one person who was one of the people who was fired at GSA and he said, there’s no way a private buyer is going to keep that building. It’s too expensive to renovate. It hasn’t been renovated since 1940. It would cost really more than the private sector can cough up to really preserve that building.  

So what does that mean? That means whoever wants to buy it is going to want to buy it and to tear it down and build whatever on the Mall. I imagine that there will be some restrictions on what you can build. It’s not on the Mall itself, but it’s across the street from the Mall and that whole area is protected by the National Capital Commission to some extent. But will the art be saved? I wouldn’t count on it. They don’t have the staff to deal with that.  

The Shahn murals are also really big, and they’re on the ground floor. So that is a difficult engineering task. I’m not saying it can’t be done, but it would have to be done very expensively. And we have an inkling of what Donald Trump’s views of art preservation are from the famous Bonwit Teller story. When Trump was building Trump Tower in 1980, Bonwit Teller had its flagship store on Fifth Avenue, and it was being torn down to make way for Trump Tower. And the Metropolitan said, “Hey, Donald, do think you could save these lovely bas-reliefs that are on there, these art deco bas-reliefs on the building? We’d like to have them.” And he said, “Sure.”  

Then the day came when it was time to deal with this, and he said, screw it. He just demolished them because it was too much trouble. That’s the attitude. It’s a familiar attitude. You’re not surprised to hear this story. He is indifferent. He doesn’t keep his promises.  

And as I say in my piece, these were bas-reliefs of lovely naked women. How do you think he’s going to feel about frescoes of sweaty laboring masses? I think he’s not going to want to concern himself with that. 

Garrett Epps: Could we sneak in and coat it with gold really quickly? 

Anne Kim: I had the same thought. He’s gilding the White House—can we gild these frescoes? 

Timothy Noah: Good plan! There are lovely brass railings in front of them to protect them. But yeah, a little gilt in there would be good.  

Look, there’s a lot going on right now. There’s a lot for people to be concerned about, but nobody else has written about this except me, and I’m really trying to kind of get the word out to the rest of the press and also to preservationists, because I think unless some preservationist organization sues GSA demanding that they follow what relatively meager protections there are involved with regard to this art, then we’re not going to see any effort made to preserve it.  

There are some court decisions, including one this year, that said New Deal art belongs to the public. It actually gets more protection than other public art, which is a little strange. Art that was built by the CETA program in the ‘70s doesn’t get as much protection. But the New Deal art, for some reason, does. But we also know how Trump deals with court decisions. 

Anne Kim: I can’t help but think that there’s some symbolism here with these historic murals about Social Security being demolished by this administration as well. The “One Big Beautiful Bill” is in fact doing that in real life. By 2034, we’re going to be staring down some pretty significant cuts in Social Security. Life imitates art, or vice versa. 

Timothy Noah: Absolutely. And if I may go on a Washington Monthly-esque road, part of the story is just the screwy way the federal government handles its buildings, where almost every federal agency does not own its own building. The Pentagon does, the Defense Department does, but most of them don’t. They pay rent to GSA.  

So as a consequence, you have to have a big budget in order to maintain decent maintenance. It’s like in the private rental market, right? You get a cheap apartment, it’s going to be maintained in a lousy way. You get an expensive apartment, and at least theoretically, it’s going to be maintained better. Since the ‘50s, the Cohen building has been inhabited by the Voice of America, which has a tiny budget. And as consequence, the GSA has not spent a lot of money maintaining it. 

Anne Kim: Do you have any advice for ordinary citizens? Is there anything that we can do out here to try to save this art? 

Timothy Noah: Contact your Congressman. D.C. preservation groups are going to have to be energized here and are going to have to take the Trump administration to court. Seems like everything Trump does requires a lawsuit. But this is another one and there’s a time consideration because they are trying to do this by the end of the year. 

They’ve already emptied out the building, which is the first step towards putting it on the market. We could see a sale quite soon. It’s on the National Register of Historic Places, but once a private owner owns something on the National Register, he can demolish it. He has to give up certain tax breaks he would otherwise get, but if he gives those up, he’s free to do whatever he wants with that building. It’s really up to the GSA to impose restrictions now, and best of all would be to cancel the sale. That’s going to be harder because the law has already passed affecting it, but it was a bad decision. 

The post The New Deal Treasures Slated for Demolition  appeared first on Washington Monthly.

“Freedom,” wrote George Orwell in Nineteen Eighty-Four, “is the freedom to say two plus two make four. Once that is granted, all else follows.”

But what if the test is whether a president can add two and two and get in the neighborhood of four? What if the president says 2+2=10,000?

Is that close enough for government work?

Federal Judge Karin J. Immergut of the District of Oregon, 64, confronted this question—which is of a quality strange to laypeople with common sense but, alas, all-too-familiar to lawyers—in a hearing Friday in the case of Oregon v. Trump, a challenge by the state of Oregon and the city of Portland to Trump’s commandeering of 200 members of the Oregon National Guard for the purpose of subduing Portland. The case calls to mind a different Orwell quote: “To see what is in front of one’s nose needs a constant struggle.”

What is in front of our noses is that Portland, Oregon, is an average American city, or I think, a city where, for many people, the living is better than in an “average city.” Despite some classic urban problems—persistent homelessness, the high cost of housing, a falling crime rate that ranks 56^th in the nation but makes some neighborhoods unsafe, traffic, and political divisions that sometimes become street brawls—the only profound difference between Portland and where you live is that the chief executive of the United States has declared war on this city and ordered federal forces to invade it. Trump has done that under a statute that requires two plus two to equal four; anyone with eyes can see that he is proclaiming that zero plus zero equals Defcon One.

Many Americans, including the eager Fox News watcher in the White House, are convinced that Portland is a hellscape of arson and violence.

It’s not. Over the weekend, Portland’s 50-year-old Saturday Market unfolded as usual on the banks of the Willamette River; 9,000 people ran the Portland Marathon; the Portland Thorns soccer team beat the Bay Football Club 2-1 in front of a nearly 17,000 fans, and Powell’s City of Books, perhaps the world’s greatest bookstore, was jammed full of readers scanning bestsellers while sipping lattes and kombucha. True, Treebeerd’s Taproom did not open until 2 p.m. on Friday, but on investigation, it was determined that Treebeerd’s Taproom never opens until 2 p.m. Also on Saturday night, several hundred protesters marched to the city’s ICE headquarters to decry the treatment of immigrants. ICE personnel handled the protest just fine with tear gas, and even managed to send two 84-year-old demonstrators to the hospital after beating them to the ground.

And after being served with a federal court order forbidding him from taking over Oregon National Guard troops and sending them in, Trump, as he often does, decided to go to court by sending in California Guard troops to do the same work.

Could President Trump really think Portland is Hell? Or to put it differently, could a reasonable Donald Trump, if such a thing can be imagined, really think it is?

The issue is important because Trump’s order to commandeer the Oregon guard personnel is based on 10 U.S.C. 10246, a statute that grants the president power to “federalize” a state Guard when the nation has been “invaded or is in danger of invasion by a foreign nation;” when “there is a rebellion or danger of a rebellion” against the federal government; or “the president is unable with the regular forces to execute the laws of the United States.”

In this situation, those conditions are the equivalent of George Orwell’s sum of four. But what is in front of one’s nose is that, despite some pretty wild claims by President Trump, Attorney General Pam Bondi, and Secretary of Homeland Security Kristi Noem, they do not prevail—and indeed, that nothing like them prevails—on the streets of Portland.

That parallax—the disjuncture between the world as it is to any reasonable observer and the world as proclaimed by Trump—was at issue in Courtroom 15a of the Mark O. Hatfield United States Courthouse on Friday, October 3, before Judge Karin J. Immergut. (Hatfield was a Republican U.S. Senator from the before times.) One feels compassion for any judge maintaining a straight face when exposed to the impudent mummery U.S. government lawyers have displayed during the second Trump administration.

Judge Michael Simon, a Democratic appointee whose wife, Suzanne Bonamici, is a Democratic member of the U.S. House, had only the day before been asked by the federal government to recuse himself to avoid the “appearance of partiality.” Judge Immergut, a former U.S. Attorney appointed by George W. Bush, was appointed to the bench by Donald Trump, which (given that he was a named party in the case) might also call for recusal; the state of Oregon did not request it. The last minute substitution gave Immergut 24 hours to master a record totaling several hundred pages of declarations, and then apply the only decision in American history construing Section 12406, a 10,000-word blockbuster from the Nineth Circuit announced less than three months ago, in a challenge by California Governor Gavin Newsom to a similar order from Trump sending National Guard soldiers onto the streets of Los Angeles.

The heart of the Ninth Circuit’s decision in Newsom v. Trump was that the judge had to decide not whether 2+2 makes four but whether it makes, in essence, roughly four—not whether the drastic conditions of the statute actually exist, but whether a reasonable president might think they exist: Whether, that is, a presidential order federalizing the Guard “reflects a colorable assessment of the facts and law within a ‘range of honest judgment.’”

Anybody but Trump probably would agree that right now there is very little danger that Portland will be invaded by a “foreign nation.” But is there “a rebellion or danger of a rebellion” because a small group of protesters has occasionally blocked ICE vehicles? Is the president “unable with the regular forces to execute the laws of the United States” because the Department of Homeland Security has had to tap law enforcement personnel from other cities? Does Portland need federalized National Guard because—well—a shooter attacked an Immigration and Customs Enforcement facility in Dallas?

That was perhaps the weakest argument proffered Friday by Eric Hamilton, the attorney sent from the Justice Department to explain that a condition of chaos, war, or rebellion prevails in Portland that is so bad that military force is needed to—to what? Trump, by contrast, has promised that the troops will attack “paid agitators” with “full force” and “when we go there, if we go to Portland, we’re gonna wipe ’em out. They’re gonna be gone and they’re gonna be gone fast. . . .”

That sounds pretty bad. In front of our noses is a call for blood in the streets.

What could justify a military assault on an American city—admittedly, a blue city in a blue state, but according to the Constitution as heretofore construed, a part of the United States inhabited by Americans? Do these facts support “a colorable assessment of the facts and law within a ‘range of honest judgment’: that the Republic is on the verge of collapse?

Again, an ordinary American not impaired with a law degree might say that “honest judgment” and “Donald Trump” fit together uneasily in one phrase. Still, again, the judge’s task is to imagine a reasonable Donald Trump and apply the “honest judgment” of such a mythical beast. It was the job of Hamilton, the lawyer sent from the DOJ, to defend the deployment and that judgment as, if not reasonable, at least not barking mad.

Immergut asked Hamilton how a court could determine Trump’s “colorable assessment.” Hamilton pointed to a Truth Social Post by Trump on September 27:

At the request of Secretary of Homeland Security, Kristi Noem, I am directing Secretary of War, Pete Hegseth, to provide all necessary Troops to protect War ravaged Portland, and any of our ICE Facilities under siege from attack by Antifa, and other domestic terrorists. I am also authorizing Full Force, if necessary. Thank you for your attention to this matter!

Immergut instead mildly asked whether a social media post could count as a presidential assessment. Her questions at the hearing reflected a somewhat tighter definition of “colorable assessment of the facts” than has been adopted by the Administration, When she asked Hamilton to show how the facts on the ground in Portland fit the statute’s standard of disorder, he pointed out among other things that there had been violence in California and an armed attack on an ICE facility in Dallas.

Immergut asked how events between 1,000 and 2,000 miles from Portland could justify sending troops to Portland? For that matter, how could the actual events in Portland—sporadically unruly demonstrations before the ICE facility near the city’s waterfront—justify deployment when they had happened months before the order?

Hamilton’s response was a dire warning: “violent and cruel radicals” were at work, and their activities amounted to a rebellion against the government that any president would seek to snuff out. As for the rest of his explanation, I haven’t heard the word “agitator” used so often since the 1960s, when James J. Kilpatrick, the editor in my hometown of Richmond, Virginia., loosed his poison pen on Dr. Martin Luther King Jr. Judge Immergut did not point out that being an “agitator”—or indeed that “agitation” itself—not does not constitute a prerequisite to invoking Sec. 10246 but is actually First Amendment activity protected by the Constitution. But I suspect she figured it out—because the day after the hearing, she ruled federalizing the Guard was illegal.

Considering the events allegedly justified the order, she noted that they had occurred three months before the order. And in addition, they did not seem to endanger the safety of the state:

“The first involved protesters setting up a makeshift guillotine to intimidate federal officials; the second involved four people shining overpowered flashlights in the eyes of drivers; the third involved someone posting a photograph of an unmarked ICE vehicle online; and the last involved additional drivers having flashlights shone in their eyes.”

These events were “inexcusable” but “nowhere near the type of incidents that cannot be handled by regular law enforcement forces.” And Trump, she wrote, was using this flimsy pretext to violate the principle of equal “sovereignty under the Constitution” proclaimed by Chief Justice John Roberts in Shelby County v. Holder. In that case, “equal sovereignty” allowed an Alabama county to burden minority voting rights; under the goose-gander principle, it also allowed Oregon to police “agitators” on its own streets.

The answer is four, she seemed to be saying. Protests, even unruly ones, are not “invasion” or “rebellion”; for a president to be “unable” to enforce federal law, the evidence must show something more than inconvenience to law enforcement, which the government could barely establish. Social media posts are not reasoned determinations; events in June are not a September crisis, and Dallas murders do not turn Oregonians into outlaws.

Immergut’s opinion was polite, but to a reader, it evoked a quote from the late Federal Appeals Court Judge Henry Friendly: “Judges are not required to exhibit a naivete from which ordinary citizens are free.”

DOJ may pretend that Trump’s incoherent ravings are colorable, but…four, goddamnit!!

They are not close to four but do embody a different principle. To quote Orwell again, “The solid world exists, its laws do not change. Stones are hard, water is wet, objects unsupported fall towards the earth’s centre.”

And as surely as stones are hard, this president grasps power and brushes aside the law.

And he lies. Oh, Mercury, patron of thieves, does he lie, over and over and over, daring those who hear him to note that his lies are not only not consistent with each other but don’t even make any sense.

When a judge like Immergut dares to defy him, Trump blusters and threatens and attacks. After Immergut’s decision on Friday, he said, she “ought to be ashamed of herself” because “Portland is burning to the ground.” He added, Poor baby, “I wasn’t served well by the people that picked the judge.” And any time a decision goes against him, he has his minions work around it. As of Sunday night, Immergut held an emergency hearing on the state’s request that she extend her order to ban the California Guard from occupying Portland as well.

At 8 p.m. PDT, Immergut extended her temporary restraining order to cover deployments of California and Texas Guard troops as well. She did not seem best pleased with DOJ’s Hamilton: “You have to have a colorable claim that Oregon conditions warrant deploying the National Guard, but you don’t. We went over it.”

As Adam Klasfeld, the editor-in-chief of allrisenews, reported on Bluesky, Immergut asked Hamilton whether changing the Guard unit being sent complies with her order. Hamilton responded, “I’m not a policy-maker.” “You’re a lawyer,” the judge replied.

She did not add “for now.”

Judges are given independence precisely so they need not exhibit the naivete required to believe that Donald Trump ever means what he says or even understands what he is saying.

Admittedly, some judges are that naïve or cynical.

Six sit on the nation’s highest court.

Thankfully, there are still federal judges who can perform simple addition. We will find out if that integrity will do her, or those of us who live in Oregon, any good at all when up against this administration’s lawless thuggery.

The post The Judge Standing up to Trump’s Portland Invasion appeared first on Washington Monthly.

This summer, the Supreme Court issued an order in Noem v. Vasquez Perdomo, an “emergency docket” decision permitting Immigration and Customs Enforcement (ICE) agents to continue detaining individuals in Los Angeles, based on their race or ethnicity, proficiency in Spanish, and suspicious presence near Home Depot, Beverly Hills lawns, and other hotbeds of criminal activity. Judge Maame Ewusi-Mensah Frimpong, of the federal District of Central California, had enjoined the practice on July 11. Her opinion asked and answered the question, “Is it illegal to conduct roving patrols which identify people based on race alone, aggressively question them, and then detain them without a warrant, without their consent, and without reasonable suspicion that they are without status? Yes, it is.” She issued an order forbidding ICE to detain Angelenos without “reasonable suspicion” that they—as individuals—are unlawfully present in the U.S., without relying on broad criteria like race and ethnicity, speaking Spanish, speaking English with an accent, or nearness to sites where undocumented workers gather.

Department of Homeland Security Secretary Kristi Noem had rushed an “emergency” appeal to the Supreme Court, warning of dire consequences if DHS were to miss a day of its Los Angeles sweeps. On Monday, the Court, 6-3, granted Noem’s request. Though the Court made no explanation of its ruling, the ever-helpful Justice Brett Kavanaugh explained, drawing on information no doubt acquired from thorough discussions at the Yale Club, that individuals not legally in the United States had no “particularly substantial” interest in not being arrested based on race or ethnicity alone. At the same time, actual citizens who are stopped because of their appearance, language, or work will suffer no inconvenience because “the questioning in those circumstances is typically brief, and those individuals may promptly go free.”

It was a masterful display of Kavanaugh’s empathy with ordinary Americans and the scrupulous practices of ICE and other federal agencies. Here is one encounter between ICE and a citizen that Kavanaugh relied upon:

* * *

THE SCENE: A shaded boulevard in the City of Angels, where Americans of all races, colors, creeds pass freely, their happy expressions demonstrating that they enjoy their God-given liberty protected by the U.S. Constitution and the ever-vigilant courts.

ENTER DUDLEY FREEZERIGHT, a highly trained ICE operative protecting Americans from being murdered in their beds or crowded out of lucrative dishwashing jobs by the invasion of aliens. FREEZERIGHT spies a Hispanic Appearing Person strolling near a car wash.

FREEZERIGHT (DF): Well met, Hispanic appearing person! May I converse with thee?

HISPANIC APPEARING PERSON (HAP): Of course, my dear chap! It is not as if I have something to hide or if I might resent being briefly detained in a fashion that may make me late for work simply because of how I look, which even I must admit has a certain raffish subtropical quality. I know your intention is noble, and this could never end with me being sent to a supermax prison in a third country. What is the nature of your inquiry?

DF: I am an operative of ICE, an agency of which you are undoubtedly an admirer..

HAP: I surmised as much from the mask obscuring your features and the body armor you wear, even though the temperature is quite pleasant.

DF: Would it, by chance, be the case that you are a foreign national present in the United States without appropriate documentation? Perhaps you engage in work that is not otherwise permitted by your visa status?

DF: I am so glad you asked, nameless officer with black tape covering his name. Thank you for your service! As it happens, I am, like most real Americans, carrying my citizenship documents and my passport, which, as you will see, indicate that I am an American citizen by birth.

DF: Such appears to be the case for now, though I encourage you to keep a wary eye on our Supreme Court.  Who knows what those scamps will get up to about birthright citizenship later in the Term?

BOTH: Ha! Ha! Ha!

DF: At any rate, you appear to be blameless as far as illegal presence in the U.S. is concerned. I say, would it be unreasonable of me to ask you to remain where you are while I take care of an administrative matter?

HAP: Not at all, my friend. It is, after all, nothing short of my civic duty to cooperate with your benevolent operation.

DF: Quite so.

DF BRIEFLY EXITS TO SMASH A CAR WINDOW, DRAG A TEENAGER OUT, AND HUSTLE HIM INTO AN UNMARKED VAN.

DF: Now, where were we? Oh, yes, I wish to subject you to a harmless and not-at-all threatening interrogation during our brief encounter.

HAP: It is good of you to ask. In what way can I help?

DF: Is any member of your immediate family or household in such a compromised status that it might behoove me and my fellow officers to pay them a visit?

HAP: Indeed, not so, we are Americans with nothing to hide.

DF: Naturally, I will take your word. Before we conclude this pleasant interaction, would you excuse me? One of my colleagues has been cruelly lashed with a Subway sandwich, and we must arrest the miscreant for assault with a deli weapon and intent to cause grievous bodily ham.

HE EXITS, THROWING THE SANDWICH FLINGER INTO THE SAME VAN, HOPING A GRAND JURY WILL INDICT THE SUSPECT AND HIS HAM SANDWICH, PROVING THE OLD MAXIM TO BE TRUE

DF: Well, that concludes this pleasant encounter. We at ICE thank you for your patriotism and hard work, and encourage you to report any suspicious activity or undocumented persons.

HAP: I shall not fail in my duty.

BOTH CONTINUE ON THEIR RESPECTIVE PATHS. FREEZE-RIGHT PAUSES BRIEFLY TO KNOCK A GRUBHUB DELIVERER OFF HIS BICYCLE.

ENTER NATIONAL GUARD TROOPS DISPATCHED FROM LOUISIANA WHO HAVE LITTLE ELSE TO DO DURING ITS HURRICANE SEASON. THE GUARDSMEN MAKE SURE THAT NO CAR WASH ON WILSHIRE BOULEVARD IS HARBORING A FUGITIVE. ALL IS WELL.

The post Brett Kavanaugh Hits the Street! appeared first on Washington Monthly.

In what’s become an increasingly common practice in recent months, the Supreme Court recently used its “emergency docket” to lift a lower court injunction barring the use of racial profiling by federal immigration officials. The Court’s order allows ICE officers in Los Angeles to continue aggressive “roving patrols” and detention practices based on a person’s appearance. While the Court’s order was unsigned, it was accompanied by a rare concurring opinion by Justice Brett Kavanaugh, who argued on both procedural and substantive grounds that the raids are legal. 

In this episode, Washington Monthly Legal Affairs Editor Garrett Epps speaks with contributing writer Peter Shane about the flaws in Kavanaugh’s reasoning. This transcript has been edited for length and clarity. 

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Garrett Epps: Peter, you posted a very powerful piece entitled, “A Blinkered Supreme Court Blocks Relief from Racial Profiling.” It’s a scathing discussion about the civil liberties aspect of a decision the Supreme Court announced on September 8th called Vasquez-Perdomo. Exactly what was this decision and did the Court actually say anything?

Peter Shane: The Court as a Court did not speak. There was no majority opinion for however many justices supported what the Court did. What the Court did was stay injunctive relief that had been granted by the United States District Court for the Central District of California against the targeting practices of ICE agents based on four criteria—whether the person appeared to be from Mexico or Central America;  whether the person was speaking Spanish or English with a Spanish accent; whether they were in a location where it was suspected that undocumented immigrants might be looking for work; and whether they themselves appeared to be engaged in a low wage occupation. 

I suppose the people who think this is a rational set of criteria might be thinking of a particular parking lot of a particular hardware outlet that is known to be a sort of site for this.

But it was clear this could also be a bus stop. There was no explicit geographic constraint on where people could be targeted. So the lower court was persuaded that these criteria were casting a net so wide that the only reason for singling someone out would be their race or ethnicity.

And we’re talking about a district in California where the court found that 47 percent of residents self-identify as Hispanic or Latino. So this was a net that was going to catch a lot of people who were not appropriately targets. 

So the court issued an injunction that saying ICE can continue to target people but cannot use these four criteria as its exclusive net. There has to be something more particularized to decide to go after a specific individual.

The government appealed that to the Ninth Circuit and asked for a stay of the order. The Ninth Circuit did not stay the injunction. So the Trump Administration followed its now not-so-unusual procedure of going to the Supreme Court using their so-called “emergency docket.” 

They asked the Court to withdraw the injunction or to stay the injunction while the case was being heard on its merits. 

The Supreme Court is not required to issue an opinion when they act on these applications, so what happens is you get a decision which is, “yes, the application for the state is granted or no, the application is denied.” And whether anything is said at all is completely discretionary with individual justices. We’ve seen in a lot of cases with civil liberties or separation of powers implications that there’s often a dissent written by one of the liberal justices. But what’s unusual in this particular instance—and I guess this counts as a kind of public service—is that Justice Kavanaugh wrote an opinion concurring in the denial of the application.

Strictly speaking, we don’t know whether all the other five conservatives voted for the application. It only takes five votes. There might have been another dissenter in there who decided not to join the dissent. We don’t know. And we don’t know what the other five justices and the six justices supermajority were thinking. But we do know what Justice Kavanaugh is thinking. 

Garrett Epps: Let me ask you about that opinion by Justice Kavanaugh, because he makes some fairly interesting factual statements. And you can take his opinion and compare those statements to the actual record that’s even available on the court’s own website. And I want to read something from the Ninth Circuit opinion. This is the Ninth Circuit discussing why it is affirming the lower court’s injunction:

“Plaintiff Jason Brian Gavidia is a U.S. citizen born and raised in East Los Angeles. He identifies as Latino. On the afternoon of June 12th, he stepped onto the sidewalk outside of a tow yard in Montebello, California, where he saw agents carrying handguns and military-style rifles. One agent ordered him to stop right there. Another ran toward him. The agents repeatedly asked Gavidia whether he was an American. They repeatedly ignored his answer. I am an American. The agents asked Gavidia what hospital he was born in. He explained he did not know which hospital. The agents forcefully pushed him back against the metal gate, put his hands behind his back and twisted his arm. An agent said again, what hospital were you born in? He again explained he did not know, but answered East Los Angeles. He then told the agents he could show them his real ID. The agents took his ID and his phone, kept his phone for 20 minutes and never returned his real ID.”

Now, does that match the description that Justice Kavanaugh gives of what’s going on in the streets of Los Angeles?

Peter Shane: It does not, and that’s relevant in two ways. Garrett, as you know, one of the things that the Court is supposed to consider in granting an injunction is the balance of equities: the interests that the government has in avoiding the injunction and the interests that the individuals have in maintaining the restraint on the government. 

The Kavanaugh opinion really minimizes the interests of the individuals. He says, as far as undocumented persons are concerned, their interests are minimal, if any, in resisting interrogation. And as for citizens, the only thing that they’re risking is what he describes as a “brief interrogation.”

So that  makes it sound—and I think you and I have joked about this—as if there’s this of polite, “Excuse me, sir, might I interrupt your stroll down the street for just a moment while I inquire into your citizenship status?” And that picture, the record shows, is completely unrealistic.

Kavanaugh recognizes that this is not exactly an accurate description of the typical encounter by acknowledging there are allegations of force involved, but then he also says that this issue is not technically before the Court. 

And I know Justice Roberts takes great umbrage when this is mentioned in the same breath as any discussion of his Court, but what came to my mind immediately was Korematsu, where Fred Korematsu was arrested and charged with violating what was technically an exclusion order in California that was issued as part of the campaign to intern Japanese American citizens during World War II. The order started not with “Thou shalt be interned,” but rather, “We’re creating an exclusion zone, and you have to remain outside.” And the only place you could go outside was the transportation center to take you to the internment camp. So he’s challenging his conviction on the basis that this is a racially bigoted unconstitutional violation of his rights to due process under the Fifth Amendment.

And the Court says, we’re being tasked here as if what we’re being asked to do is to sign off on some program about the internment of American citizens. That’s not our issue. Our issue is the validity of this exclusion order, and that’s the only issue technically before us. Technically, okay. But it blinks reality in just a completely irresponsible way, not to recognize or acknowledge the fact-finding that’s happened in the courts below—fact- finding to which the Supreme Court is supposed to be deferential. It’s shocking.

Garrett Epps: In addition to this discussion about the record, Kavanaugh does something else that is potentially very dangerous for other cases of this sort, and that is to apply a sort of unusual approach to what we lawyers call “standing”—or the right to bring a lawsuit. 

The fact that I happen to disapprove of the new ballroom in the White House doesn’t mean I have the right to sue. I’d have to show that somehow it’s injuring me. 

Kavanaugh’s opinion has a fascinating discussion about standing—can you talk a little bit about that? 

Peter Shane: What you say is correct, both about the importance of standing and Kavanaugh’s unusual treatment of it. It’s not just that you have to show that you’ve been injured, although that’s obviously key. In the ballroom example, it’s perfect. What the Court would say is that maybe you were injured as a taxpayer, although Trump insists that no public funds are being used.

But that injury is not different from anybody else who’s offended by the ballroom, so that’s not an individuated enough injury to have standing. But the other thing you have to show is that the relief you’re asking for would actually make you better off. And what Justice Kavanaugh says is that this case is like an earlier case in which the Supreme Court denied standing, partly, to an individual who challenged the way the Los Angeles police was encountering potential suspects. 

That case is City of Los Angeles versus Lyons, and it involved a motorist, Adolf Lyons, who was stopped by police and told to get out of his car. The record indicates he didn’t resist, but he was subjected to a chokehold that rendered him unconscious and damaged his larynx. 

He sued as an individual on the ground that he was entitled to damages for the injury he sustained. But he also asked for an injunction against future police misconduct using a chokehold. And the Court said, well, you can sue for damages if you prove your case, and

the damages will repair the injury you have suffered. But you don’t have standing to bring the case for a future injunction unless you can show that you are likely to be subject to or potentially subject to a chokehold again that this injunction would protect you from. And of course, he couldn’t show that. So they said he had no standing for the injunction.

What immediately occurred to me is that this is not a good precedent for dismissing standing here. 

Why do I say that? So the plaintiffs in this case were actually asking for certification as a class action, which would have potentially reached a great many more people. The lower courts hadn’t dealt yet with the certification question. So we’re not concerned in this case about what’s going to happen to a single individual who would have to be as lucky as the lottery winner who got two tickets or as unlucky as the person struck by lightning twice. We’re talking about a group of people, all of whom pretty much share exactly the target criteria that ICE is going after.

What the Supreme Court knew by the time the Lyons case was argued is that the LA police department had already adopted an explicit policy against chokeholds. So the justices might have said, “Look, not only does Mr. Lyons have to be the unluckiest person in the world to get choke held twice, but given the background policy context, there’s every reason to think that what he’s asking for he’s getting voluntarily from the department already, which is a promise not to do this again.”

 In this case, Secretary Noem of the Department of Homeland Security has called the district judge an idiot. She and ICE executive in Los Angeles have doubled down on their right to do what they’re doing. Noem said they’re not changing anything, and there is no reason to think that the agency is at all chastened by its repeated mistakes in terms of who it’s targeting and how they’re treating people. In fact, as is often said of this administration, cruelty seems to be the point.

Garrett Epps: The core of what has happened in this case is that from now on, until there is a resolution on the merits, ICE can go around the streets of this district and stop people, shake them down in the way we described, purely on the basis of their race, their appearance, clothing, the way they talk, and maybe their vicinity to low wage work.

If those are the criteria that can be used to create the opportunity for a search or detention, that’s a real change from what this Court has claimed to be a bedrock principle of constitutional law. 

Peter Shane: I don’t walk around life day by day as an angry person, but there are some cases that really get to me. And a case that really got to me from some years ago is called Parents Involved in Community Schools v. the Seattle School District. And it’s a case in which the Supreme Court was asked to review the constitutionality of voluntary affirmative action plans or student assignment plans in Seattle and Louisville, Kentucky, that were intended to maintain a reasonable likelihood of racially-integrated school experiences.

Neither of these plans was particularly aggressive in the use of race. If a child wanted to transfer from their neighborhood school to another school, school authorities would ask if the school to which they wanted to transfer was already a racially identifiable school, and if it was, would this make the problem yet more conspicuous? And if so, the transfer would be stopped. That’s all that was at stake. The dissent in that case said, “You know, this is really not burdening anybody and is commendable educational policy. We should be applauding this.”

 But Chief Justice Roberts writing for the majority said no, that there was no interest at stake adequate to support what the school districts were doing. And he said “the way to end racial discrimination is to stop discriminating by race.” And that quote captures this formalistic view of what it takes to create racial equality. We saw this resurface in Students for Fair Admissions v. Harvardas well. So the majority seems really wedded to that idea if race is being used to provide uplift, even in a relatively non-zero sum kind of situation like Seattle and Kentucky. 

But now let’s say I’m standing at a street corner, wearing jeans and a work shirt. I have a lunch bag. So it looks like I’m not going to the Duquesne Club in Pittsburgh for my next business meeting. And I’m standing next to a brown-skinned, Spanish-speaking individual dressed identically with the same lunch bag. He could be stopped, but I would not be, and the only differentiation is race.

What happened to “the way to stop racial discrimination is to stop discriminating by race”? Suddenly, we don’t care because the people who are targeted are people whose interests we just don’t value. And the other thing to be said is that the Court is also not acknowledging how stigmatic this is. Now it’s kind of okay in the Court’s view, not just for ICE, but for anybody walking around to say, you know, it’s reasonable for me to suspect that the person walking across the street is actually an “illegal.”

This is just an intolerably demeaning way of looking at one another that the Court is implicitly sanctioning. And I would like to have thought it was un-American.

Garrett Epps: Well, apparently not. And it seems to me that what is happening is really eroding the kind of egalitarian foundations of a democratic republic.

Citizenship is now something that is in doubt for millions of people.  The government can simply say, “You know, we think people like you aren’t citizens, so we’re going to start shaking you down.” We’re living in a very different country than we thought that we were living in, and it’s something that people should be outraged about.

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