The president of Israel, Reuven Rivlin, resisted political pressure to pardon Yitzhak Rabin’s assassin because “he never apologized for what he did.” Donald Trump has abused his prerogative, granting pardons right and left, even to people who never apologized. 

Among the sweeping authorities granted to the president by Article II, Section 2 of the Constitution is the “power to grant reprieves and pardons for offenses against the United States…”  

The power is absolute and unreviewable. According to the Supreme Court, the pardon power is intended as a tool for justice and mercy and to further “the public welfare.” As one federal court has held: “The President, who exercises that power as the elected representative of all the People, must always exercise it in the public interest.”  

On the eve of his 2024 campaign, The Washington Post, following an investigation of all clemency acts during his tenure, concluded: “Never before had a president used his constitutional clemency powers to free or forgive so many people who could be useful to his future political efforts.” This included a record number of pardons for white-collar criminals who would provide political and financial support to the former president. 

It is astounding that Trump has granted clemency to 1,600 people since his January 20 inauguration. Most presidents have granted pardons just before they left the White House. Joe Biden’s 4,245 acts of clemency—including a roster of people serving lengthy sentences for drug offenses, as well as his son—were also rear-ended to his four-year term. By contrast, Trump has issued a spate of head-spinning pardons in the first year of his second term. 

Trump had already exercised the pardon and reprieve power in ways that raised eyebrows. During his first term, he pardoned Charles Kushner, his daughter’s father-in-law. During his second term, he appointed Kushner as ambassador to France. 

There used to be a procedure for these things. There was a pardon attorney in the Department of Justice who recommended pardons only after an investigation, including contact with the prosecutor, the sentencing judge, and prison officials. Most pardons were granted after completion of the sentence.  

“This president views the pardon power as a personal tool that he can use when it benefits him personally, politically, or financially, without assessing whether the use of the pardon power benefits the American public,” Elizabeth Oyer, a former senior Justice Department attorney under Trump told The Washington Post. The “traditional rules and procedures about pardons have been thrown out the window,” she said. 

Trump short-circuits the Justice Department and grants reprieves often on the recommendation of the White House pardon czar Alice Marie Johnson, who was herself granted clemency during Trump’s first term after serving 22 years of a life sentence for cocaine trafficking. Her sponsor was Kim Kardashian. 

Many of the Trump 2.0 pardons had a champion in Trump’s inner circle, such as former Representative Trey Gowdy, Health Secretary Robert F. Kennedy Jr., or Roger Stone, who in 2020 received his own presidential pardon. 

Consistency is unimportant to the president, as my colleague Bill Scher has noted on these pages. Prosecutors in the Southern District of New York said former Honduran President  Juan Orlando Hernández  took millions of dollars in bribes and used Honduras’s police and military to protect drug shipments and crush rivals. He was convicted, but powerful advocates helped Hernández walk free from a 45-year prison sentence thanks to Trump’s pardon. 

Ross Ulbricht, founder of the Silk Road online drug bazaar, who was serving a life sentence for distributing narcotics and conspiring to launder money, got out of jail free. His mother campaigned for the pardon at Bitcoin and Libertarian conferences. The Wall Street Journal reported that in 2023, the Libertarian Party’s chair told Trump over dinner that he needed to free Ulbricht if he wanted Libertarian support. 

Other drug pardons involve convicted traffickers serving lengthy sentences, including the Sotelo brothers of Fort Worth, Texas, and Anabel Valenzuela. 

Trump is obsessed with pardoning those who tried to overturn the 2020 presidential election. On his first day in office, he pardoned anyone “convicted of offenses related to events that occurred at or near” the Capitol on January 6, 2021, commuted 14 sentences, and ordered all pending cases related to the riot dropped. The Justice Department suspended two prosecutors who referred to those who stormed the Capitol on January 6, 2021, as “a mob of rioters.” Trump had described January 6 as “a day of love.” The January 6 proclamation covered at least 1,500 people.  

In at least two instances, Trump has issued second pardons for January 6 defendants. One was Dan Wilson, who had pleaded guilty to firearms crimes that took place in 2022, when six guns and about 4,800 rounds of ammunition were seized during a search of his home related to a January 6 investigation. 

As broad as the president’s pardon powers are, Trump is determined to push them beyond the Constitution’s express limitations. This month, the president said he had pardoned jailed Tina Peters, a former county clerk in Colorado who was convicted in state court of felony charges related to unauthorized access to election machines. 

Peters was accused of sneaking Conan Hayes, a purported computer expert, into her office in 2021, using someone else’s security badge so that he could copy Dominion Voting Systems’ hard drives. She was convicted of charges including attempting to influence a public servant and conspiracy to commit criminal impersonation and is serving a nine- year sentence of imprisonment.  

The issue with Peters’ pardon is that the Constitution grants the president the power “to grant Reprieves and Pardons for Offenses against the United States.” The Supreme Court has interpreted that language as applying to federal crimes, not those prosecuted by state authorities. How this new claim of presidential power will unfold in the courts remains uncertain. 

More than half of the acts of clemency for named individuals relate to prosecutions initiated and pursued by the Biden Justice Department —in addition to the January 6 cases. 

Then there are the white-collar criminals.  

Nikola founder Trevor Milton, a Trump supporter, was convicted of fraud in federal court for allegedly lying to investors about his zero-emission trucks. He styled himself as a political victim of the Biden administration—and Trump agreed. 

Binance founder Changpeng Zhao can cause the world’s largest crypto-trading platform to return to the U.S. Zhao and his company pleaded guilty in 2023 to violating anti-money-laundering rules. Trump has claimed not to know who he is, which is either a sign of cognitive decline or prevarication in the extreme. 

Trump pardoned Joe Lewis, the former owner of Tottenham Hotspur football club, who pleaded guilty to insider trading in the U.S. last year. Lewis, like so many of the other recipients of Trump’s grace, was a political supporter. 

Trump last month freed David Gentile, the convicted fraudster who ran a firm known as GPB Capital, just days into a seven-year sentence. GPB held itself out as a private equity fund for Main Street and raised roughly $2 billion. Prosecutors said its executives were using the money to fund lavish lifestyles. Gentile authored a scheme that defrauded thousands of investors, many of whom were retired citizens living on fixed incomes. 

Reality TV couple Julie and Todd Chrisley blended celebrity and conservative appeal. They had been sentenced for conspiracy to defraud banks out of more than $30 million in fraudulent loans by submitting false documents. 

In 2024, their daughter, Savannah, spoke at the Republican National Convention, framing their prosecution as politically motivated. 

Not every pardon involved a Biden-era case. Just this year, Trump pardoned people prosecuted by the Justice Department during his first term—or whose prosecution started during the Biden administration but continued in Trump’s second term. 

The president’s own appointees charged sports executive Timothy Leiweke during the current Trump administration. 

Leiweke was accused of conspiring with a rival to rig the bidding process for a new basketball arena in Texas, a claim he denied. 

Trump has pardoned elected officials on both sides of the aisle. 

Leading the list of four  Democrats is U.S. Representative Henry Cuellar and his wife, who were charged last year with taking nearly $600,000 in foreign bribes. 

Trump said Cuellar, representing a competitive district in Texas near Mexico, had been punished for speaking out against Biden’s border policies. Following the pardon, Trump expressed seller’s remorse. He went after Cuellar days later on social media, saying he showed a “lack of loyalty” by filing for reelection as a Democrat, amid speculation that he might switch parties. 

Democrats in Congress welcomed Cuellar with open arms. The House Appropriations Committee promptly voted to return him to his leadership position on a powerful spending panel. 

Trump loves celebrities. Former Major League Baseball star Darryl Strawberry pleaded guilty to tax evasion in 1995, with a history of substance abuse. He got a pardon. How can anyone argue with that? 

But there is a sleaze and a foul aroma to these promiscuously issued Trump pardons, and it’s only the first year of his second term. Could Trump actually sell pardons? Given the Supreme Court’s ruling giving the president almost unlimited immunity for offenses he may have committed in office, we wonder.  

One cannot help but be reminded of the old Yiddish expression, “Petty thieves are hanged, big ones are pardoned.”  

The post Trump’s Pardon Power Abuses  appeared first on Washington Monthly.

No American president has worked as hard as Donald Trump to sabotage the intended constitutional distribution of powers among the legislative, executive, and judicial branches of government and to bring all governmental power into his hands. Sadly, and too often, the Supreme Court under Chief Justice John Roberts has been a dependable ally of the president. The December 8 oral argument in Trump v. Slaughter, the case involving Trump’s firing of the Federal Trade Commission’s Democratic members, reveals a majority likely to overturn even a unanimous 90-year-old precedent upholding Congress’s authority to create independent agencies.  

So far, the chief source of institutional resistance to Trump’s usurpations has been the lower federal judiciary. Trump’s most creative attempts to kneecap them have failed. These include a suit against every single federal district judge in Maryland—both active and senior. It was a clumsy attempt to negate a district court’s order that judges be given at least 48 hours to review any immigrant’s petition for habeas corpus before the administration could deport them or change their legal status. Another lawsuit sought an advance judicial imprimatur from the Western District of Texas for federal agency moves to extinguish collective bargaining agreements. These moves might produce legal challenges in less friendly parts of the country. The request for a get-out-of-court-free card was too much for the Trump-appointed trial judge to swallow. 

But the Supreme Court has blocked lower courts from providing relief against Trump’s power grabs. In the Slaughter case, Trump has presumed to fire duly appointed administrators at will, notwithstanding explicit statutory provisions limiting his removal authority to good cause. He has made similar moves against members of the Consumer Product Safety Commission, the Federal Labor Relations Authority, the Merit Systems Protection Board, the National Labor Relations Board, and the Surface Transportation Board, among others. Lower courts have sought to enjoin Trump’s moves and keep the discharged administrators in place. They have rested on the ground that the Supreme Court has not overturned the binding legal precedent that upholds independent agencies, Humphrey’s Executor v. United States. For its part, however, the Supreme Court—using its so-called emergency docket—has approved Trump petitions to keep his fired officials in limbo until it finally decides Humphrey’s Executor’s fate. It has, instead, signaled, as did the conservative justices during the Slaughter oral argument, that a majority remains enamored of a theory of presidential removal power at odds with the constitutional text and history. 

In defense of the Court, however, the scope of the removal power has long been the subject of serious debate. It is even more disturbing that the Court has indulged Trump’s constitutional workarounds, where there is no serious question that he is usurping Congressional powers. Consider, for example, Congress’s exclusive authority to establish—and eliminate—government offices and agencies. As Chief Justice (and former President) William Howard Taft wrote in Myers v. United States—a favorite citation of the Roberts Court majority: “To Congress under its legislative power is given the establishment of offices, the determination of their functions and jurisdiction, the prescribing of reasonable and relevant qualifications and rules of eligibility of appointees, and the fixing of the term for which they are to be appointed.” Yet Trump is trying unilaterally to reorganize the executive branch by eliminating agency functions and, in some cases, mothballing agencies altogether. And the Roberts Court has repeatedly sidelined lower court orders temporarily blocking Trump’s sabotage.  

For example, a federal district court in Massachusetts enjoined personnel terminations and program transfers undertaken by Education Secretary Linda McMahon in response to a March 2025 Trump executive order directing her “to the maximum extent appropriate and permitted by law, [to] take all necessary steps to facilitate the closure” of her Department. The U.S. Court of Appeals for the First Circuit declined to stay that injunction. Yet on July 14, over three dissenting votes, the Supreme Court stayed the order as requested by the Trump administration, allowing the department’s dismantling to continue without explanation. As the plaintiffs’ pursuit of a permanent injunction continues to percolate in the lower courts, the Trump-McMahon sabotage continues. The Supreme Court effectively shrugged off the ongoing damage to both the department and the separation of powers. 

Similarly, the Supreme Court has hampered challenges brought by unions, nonprofit organizations, and local governments to block mass layoffs undertaken in response to the February executive order, “Implementing the President’s ‘Department of Government Efficiency’ Workforce Optimization Initiative.” In one case, a federal judge in San Francisco required the government to reinstate more than 16,000 workers fired by six agencies—an order the Ninth Circuit declined to stay. With two Justices in dissent, the Supreme Court blocked the lower court order on the ground (not actually explained in its opinion) that the nonprofit organizations named in the order lacked standing.  

In a second case, a different federal district court judge issued a temporary restraining order to pause the implementation of the Trump executive order through widespread RIFs and agency reorganizations across 22 federal agencies. Again, the Ninth Circuit refused a stay of relief. This time, over Justice Ketanji Brown Jackson’s sole dissent, the Supreme Court blocked the lower court on the ground that the executive order and OPM’s implementing memorandum are likely lawful. An unsigned opinion for at least a majority of the justices, along with a concurrence by Justice Sonia Sotomayor, suggested that such challenges would have to be assessed on an agency-by-agency basis. 

The effect of the Supreme Court’s interventions—each based on a narrow, technical understanding of the litigation—is a deliberate obliviousness to the administration’s actual ambitions. In contrast, the district courts issued careful opinions detailing the harms portended by the “critical transformation of the Federal bureaucracy” that Trump’s executive order promised to accomplish without Congress’s input. 

Trump has been equally aggressive in seeking what might be called workarounds that undermine Congress’s power to control federal spending—arguably the legislature’s key lever in a constitutional system of checks and balances. A recent New York Times editorial usefully outlined Trump’s three key strategies: Refuse to spend money that Congress has allocated, spend government funds in ways that Congress has not authorized, and overturn Congress’s decisions to spend money on specific programs by undermining the relevant agency’s capacity to implement the programs he disfavors. Just as the Times observed, Trump “has repeatedly ignored laws passed by the House and the Senate to spend money, or not spend it, based on his whims and agenda.” 

Historically, it has primarily been the duty of congressional oversight committees or the Government Accountability Office (GAO), headed by the Comptroller General, to call out such lawlessness. Indeed, as detailed in a November report on the administration’s behavior, Brookings Senior Fellow Molly Reynolds states that the GAO has so far recorded seven instances of second Trump administration legal violations. She adds that it “is likely a significant undercount, since it only includes actions on which GAO has completed an investigation.” Among the brazen violations not yet assessed by GAO is the administration’s freeze on food assistance under the Supplemental Nutrition Assistance Program (SNAP) during the recent government shutdown. Once again, after a federal district court ordered that SNAP payments resume and a Court of Appeals denied a stay, the Supreme Court came through for the Trump administration, again without explanation. Similarly, the Court had blocked lower court attempts to force the executive to comply with Congress’s approved spending for foreign aid and education.  

The possible exceptions to the Roberts Court’s forbearance from disciplining Trump’s lawlessness may come in cases that fit a third category. They do not involve statutes at odds with the Roberts Court’s theory of the unitary executive. Nor do they involve Trump’s blunderbuss attempts to bypass the constitutional inconvenience that power over government structure and spending belongs to Congress, not the executive. These are cases in which Trump purports to act under duly enacted statutes but stretches his legal authority beyond what the legislative text will bear. 

For example, and to Trump’s undoubted dismay, the November 5 oral arguments in two Supreme Court cases challenging his tariffs—Trump v. V.O.S. Selections and Learning Resources v. Trump—saw a majority of justices raise concerns that may doom his current policies. A loss before the Court would deal a severe political blow. As the Court of International Trade explained, the challenged orders have “imposed tariffs of unlimited duration on nearly all goods from nearly every country in the world.” Voiding these tariffs would undermine Trump’s political credibility at home and weaken his economic leverage abroad. 

In issuing his challenged tariffs, Trump explicitly relied on the 1977 International Economic Emergency Powers Act (IEEPA). That law provides certain authorities to allow the President “to deal with any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States, if the President declares a national emergency with respect to such threat.” Among those powers is the authority to “regulate . . . any . . . importation . . . of . . . any property in which any foreign country or a national thereof has any interest.” In a technical sense, what the tariff cases are about is the scope of power Congress conferred on the President when it used the word, “regulate.” 

Four orders based on the IEEPA earlier this year imposed tariffs on Canada, China, and Mexico in response to an emergency Trump declared over the flow of illegal drugs into the U.S. Three other IEEPA-based orders, including the so-called Liberation Day tariffs, are rooted in a declared emergency caused by “a lack of reciprocity in [U.S.] bilateral trade relationships, disparate tariff rates, and non-tariff barriers, and U.S. trading partners’ economic policies that suppress domestic wages and consumption.” The core of the administration’s argument for all these measures is that the tariffs are a form of “regulation” of imports authorized by IEEPA in response to “unusual and extraordinary” threats. 

Stepping back from the technical issues of statutory interpretation, the boldness of Trump’s tariff schemes is a remarkable power grab. The U.S. has not imposed tariffs of this magnitude since the 1930s. As I wrote in a Brookings paper co-authored with Robert E. Litan, a Trump victory would “all but entirely transfer the full scope of Congress’s tariffing power under the Constitution from the legislative to the executive branch.”  

During the oral argument on tariffs, the justices’ skepticism had two complementary strands. One involves a close reading of the word “regulate,” using traditional technical rules of statutory construction. For example, IEEPA is not a revenue-raising statute; the words “tariff,” “duty,” and their synonyms do not appear in it. As Justice Elena Kagan pointed out, the word “regulate” appears in a list of verbs that confer various powers on the president. Still, no other verb has anything to do with raising revenue. When Congress lists terms in that way, the words are assumed to fall within the same category, which in IEEPA is arguably “forms of administrative control,” not measures to raise money. 

Justice Sonia Sotomayor further noted that the objects of permissible “regulation” under the IEEPA extend beyond imports. If the word “regulate” allows the president to impose tariffs on imports, IEEPA would also enable the levying of tariffs on a wide variety of transactions, including exports, which Solicitor General D. John Sauer acknowledged would be unconstitutional. More than one Justice pointed out that all but one of the other existing federal statutes that confer tariff authority on the president use the word “tariff” or “duty”; the one exception is a statute that gives the president power to “adjust imports,” but does so in a statute that explicitly anticipates the levying of duties.  

Sauer’s main counterargument rests on the drafting history of the IEEPA. The relevant language of the statute was drawn from another law—the Trading with the Enemy Act of 1917 (TWEA). Before IEEPA was enacted, a lower court had allowed President Richard Nixon to impose a 10 percent duty on imports under the authority of the TWEA. Because Congress was presumably aware of that case and borrowed the TWEA’s language for the IEEPA, the Government argues that the authority to “regulate” must mean the same thing under both statutes, including “regulation” by tariff. (At the same time Congress enacted the IEEPA, it limited TWEA’s authority to wartime.) Arguing on behalf of the private parties challenging Trump’s tariffs, however, former Deputy Solicitor General Neal Katyal insisted that there was no evidence Congress was either attentive to or agreed with the earlier decision. 

The second strand of skepticism focused on the bigger picture—namely, the stakes for the separation of powers and checks and balances if the Court were to accept Trump’s broad understanding of his statutory authority. Justice Neal Gorsuch has been the most voluble member of the Court in expressing concern that Court precedents defining the so-called “nondelegation doctrine” have left Congress too much leeway to abdicate fundamental policy-making power to the executive branch. His questions echoed that concern. At one point, he got the Solicitor General to concede that, under Trump’s view of the IEEPA, another president could unilaterally “impose a 50 percent tariff on gas-powered cars and auto parts to deal with the unusual and extraordinary threat from abroad of climate change”—which, for Gorsuch, would not be an attractive proposition. 

Both Gorsuch and Roberts also joined the liberal Justices in pressing Sauer on what has come to be called the “major questions doctrine”—a requirement that the executive branch find exceptionally clear statutory authority when it purports to exercise administrative power in an “unheralded” way. Sauer responded that less explicitness is required when the president is exercising power in a foreign relations context and when the statute being invoked is plainly intended to equip him to respond to emergencies. Roberts seemed skeptical. He pointed out that the burden of tariffs falls domestically, not just abroad. Roberts voiced his doubts as follows: “You have a claimed source in IEEPA that had never before been used to justify tariffs. . . and correct me on this if I’m not right about it—the justification is being used for a power to impose tariffs on any product from any country for—in any amount for any length of time. That seems like—I’m not suggesting it’s not there, but it does seem like that’s major authority, and the basis for the claim seems to be a misfit.”  If the liberal Justices are joined in their own patent skepticism by even two members of the Roberts-Barrett-Gorsuch trio, Trump’s current tariff initiatives go down. 

At least some conservative Justices joined in another unusual move in late October that also suggests a willingness to entertain arguments that Trump is overreading the statutory powers Congress has actually delegated to the President. Trump v. Illinois is Trump’s application to the Supreme Court to stay a lower court order blocking the administration from federalizing and deploying the National Guard within Illinois. The relevant statute allows a President to place National Guard troops under federal command in any of three circumstances. The only one even hypothetically relevant is if “the President is unable with the regular forces to execute the laws of the United States.”  

U.S. District Court Judge April M. Perry found this statutory trigger irrelevant. The Trump administration claimed that the statute’s reference to the inability of “regular forces” to execute the laws referred to the “execution of the federal laws by the federal officers who regularly enforce them, without undue harm or risk to officers.” Perry rebuffed that reading, concluding that the mention of “regular forces” referred to the U.S. armed forces, not civilian officers—a circumstance that would permit law enforcement by the National Guard “extremely rarely.” To invoke that clause, the President would have to assert that federal military force alone, without the National Guard, would be insufficient to execute federal law, which is a highly counterintuitive proposition. She concluded that, regardless of the government’s interpretation of “regular forces,” “there has been no showing that the civil power has failed” to execute the laws.  

In upholding Judge Perry’s grant of preliminary relief, a unanimous Seventh Circuit panel declined to settle which reading of the statute was correct. The panel held that, regardless of what constitutes “regular forces,” the administration had failed to show that federal civil officers were unable to enforce the law. When the Trump administration turned to the Supreme Court to stay the order below, the Court directed the lawyers for both sides to file additional briefs on “[w]hether the term ‘regular forces’ refers to the regular forces of the United States military, and, if so, how that interpretation affects the operation.” It is possible that a majority of Justices would like to decide the case against Trump if they can be persuaded that he is misreading the statute, as opposed to just fabricating an emergency. 

Of course, neither the Justices’ skeptical questioning of tariffs nor their request for additional briefing on National Guard deployment ensures that Trump’s challengers will prevail. Nonetheless, even a suggestion of legal pushback contrasts with the Court’s reaction to his independent agency firings and other cases in which lower courts have resisted Trump’s usurpations of legislative authority. Writing about the tariff cases, Abbe Gluck, a Yale Law School professor and leading scholar on statutory interpretation, has observed: “[A] focused textualist analysis coming out against the president [is less] likely to be viewed by the president as a major smack down. And that, indeed, may be part of the attraction of this approach for at least a portion of the court.” It is also why these cases are an inadequate counterweight to the Court’s enthusiasm for unitary executive theory and its blinkered reaction to Trump’s blitzkrieg against pluralistic democracy. 

The post How the Roberts Court Indulges Trump’s Constitutional Workarounds  appeared first on Washington Monthly.

The Department of Justice has declared war on the federal courts, conveniently omitting the Supreme Court. This is not the surmise of some liberal pundit. It is not an inference drawn from the rant of Emil Bove, now a federal judge, once Trump’s personal lawyer and a high-ranking Justice Department figure. Bove is said to have told his colleagues, after they had ruled against the government in a Venezuelan deportee’s case, “F… the courts.” Bove’s behavior raised eyebrows at the time, but the criticism largely subsided after the Senate confirmed him for the Third Circuit bench.  

But when Deputy Attorney General Todd Blanche told the Federalist Society in November that we must declare war on the courts for bad decisions, there is reason to fear that the independence of the judiciary is seriously undermined. 

Specifically, Blanche attributed the Trump administration’s myriad losses in the lower federal courts to “rogue activist judges,” claiming that these “liberals” are “more political or certainly as political as the most liberal governor or D.A.” As Blanche continued, “There’s a group of judges that are repeat players, and that’s obviously not by happenstance, that’s intentional, and it’s a war, man.” Blanche called it a “war” three times in his speech.” He said we have a “travesty when you have an individual judge able to stop an entire operation or an entire administrative policy that’s constitutional and allowed just because he or she chooses to do so.” But isn’t that precisely what judges are supposed to do? Nevertheless, Blanche thundered, “So, it’s a war.” 

The “war” is being fought on many fronts. Blanche speaks for Attorney General Pam Bondi, who filed a senseless misconduct complaint against Chief Judge James Boasberg of the D.C. district court; White House Rasputin Stephen Miller intermittently decries each adverse ruling against the Trump administration as a “judicial insurrection”; and, although it has been postponed, the Senate Judiciary Committee had been set to convene a hearing on claims of misconduct by two district judges.  

Supreme Court Justice Ketanji Brown Jackson said at a conference of judges and lawyers last May, “These attacks are not random; they seem designed to intimidate those of us who serve in this critical capacity. The threats and harassment are attacks on our democracy, on our system of government. “And they ultimately risk undermining our constitution and the rule of law.” Jackson called on the judges in the room to show “raw courage” and dispense justice without fear of any outside consequences. “I urge you to keep going, keep doing what is right for our country, and I do believe that history will vindicate your service.”  

Court orders must be obeyed unless and until reversed. This is a particular duty imposed on Justice Department lawyers sworn to uphold the Constitution. When this obligation is repudiated, tyranny reigns. There is no reason for the executive branch to delegitimize the judicial branch unless it fears that judges will hold it accountable. Judges today face calls for their impeachment, threats of violence, and instances where their orders are not obeyed. 

One would have thought that political impeachment of judges was settled in 1805, when the Democratic-Republican President Thomas Jefferson sought to impeach the Federalist Justice Samuel Chase. Chase had been a founding father and a signer of the Declaration of Independence. Pre-Chase, there had been one prior Senate impeachment of a judge; in that case, the jurist was removed for drunkenness and insanity. The Chase case required the Senate to explore the meaning of impeachable crimes. 

The Senate record refers to Chase as “a staunch federalist with a volcanic personality.” His fiery rhetoric often drew public attention and criticism, particularly from the Democratic-Republicans who controlled Congress. His conduct, especially his partisan commentary during jury charges, further fueled calls for his impeachment. 

Jefferson became incensed when he learned that Chase had charged a grand jury in a way the president believed had an unfair political slant. So, he wrote to the House and asked them to impeach. The bill of impeachment accused Chase of acting with bias. The articles also addressed rulings he made in cases involving treason and sedition, including refusing to dismiss allegedly biased grand jurors and excluding or limiting defense witnesses in politically sensitive cases. The House impeached Chase for “high crimes and misdemeanors,” and he stood trial in the Senate, declaring that he was being prosecuted for his politics rather than for any crime. The Senate presided over by Jefferson’s vice president, Aaron Burr, who was a fugitive from justice, having killed Alexander Hamilton in a duel the preceding year, failed to convict, even though Jefferson’s party held a super majority. Chase resumed his judicial duties.  

The failed impeachment set a precedent. A federal judge, appointed for life, does not sit at the pleasure of the Senate. We have learned that the Constitution requires judges to tell us what the law is. They should not be impeached for rulings with which the party in power disagrees. Judges should be impeached for outright criminal behavior, such as, to use a true-to-life example, receiving extravagant gifts from parties with business before the court.  

Stephen Vladeck, the Constitutional scholar, called Blanche’s statements “shamelessly hypocritical; and profoundly dangerous.” He wrote in his Substack One First, “The galling part is that Blanche never actually explains which of the more than 100 federal district court judges (to say nothing of the dozens of circuit judges) to rule against the Trump administration are ‘rogue activist judges.’ And all he really could provide as support for why they are “rogue activist judges” is because they are … ruling against the Trump administration.” Blanche said that “these Article. III judges [are] literally telling the president, the executive, what he can and cannot do.” 

And that is precisely what Article III judges are supposed to do. Blanche reminds us of Louie, the corrupt police chief in Casablanca who cynically said as he collected his winnings in Rick’s café, “I am shocked, shocked that gambling is going on in here.”  

Blanche is parroting the “unitary executive theory” that the president has total power over the executive branch, and even the entire government. Nothing in the Constitution says that. The argument is that an untrammeled executive is implicit in the Constitution and is gathered from the provisions of Article II that the “executive power shall be vested in the president;” that he is “commander-in-chief” of the Armed Forces; that he has the appointment power; and that “he shall take care that the laws be faithfully executed.” These powers, however, are qualified. The appointment power often requires the consent of the Senate. The treaty-making power is subject to ratification by 2/3 of the Senate, and the power to declare war belongs to Congress, not Todd Blanche and not Pam Bondi. And until now, whoever heard of one branch declaring war on another? It is certainly no accident that these attacks on lower courts coincide with decisions that have proven to be the most effective brake on the lawless behavior of the Trump administration. 

 Autocracy is just around the corner. Checks and balances are a toothless tiger. A supine Congress has demurely handed over its authority to the president, and the Supreme Court has been Trump’s handmaiden. Consider that the oral argument this week presages that the Court may overturn a 90-year-old precedent and bless his firing of independent agency appointees under the unitary executive theory, which it has vastly overblown. Maybe it will come to its senses over Trump’s usurpation of tariff powers. And maybe not.  

But if there is war, only the lower courts, including judges appointed by Trump himself, have manned the ramparts. 

The post Our Heroic Lower Court Judges  appeared first on Washington Monthly.

This summer and fall, Donald Trump’s administration launched a multi-pronged attack on diversity in higher education, deploying lawsuits and cutting funding for minority-serving institutions, particularly those with high populations of Hispanic students.  

In June, a group of conservative plaintiffs took aim at the federal program that offers funding and support to Hispanic-serving institutions, or HSIs. The Department of Justice is declining to defend the program in court, a move that breaks with tradition and increases the lawsuit’s chances of success. 

In September, the Department of Education redirected $350 million in federal funding for HSIs to other priorities, like charter schools and American history education. As in the lawsuit, the Trump administration argued that sending this money to schools that primarily serve Hispanics would be racial discrimination. 

The latest campaign in Trump’s war against “DEI” has the potential to devastate universities that define themselves through their service to underprivileged minorities. It also could pose a threat to the financial survival of the university system as a whole. 

As the Washington Monthly noted this fall, Hispanic students are the main growth population in a time of enrollment slump. With the overall student population declining, the federal government could be encouraging colleges to better serve an underprivileged group while preserving their own bottom line. Instead, it’s punishing them for doing so, reasoning that to target any particular ethnic or racial group—for any reason—is illegal discrimination. 

Beyond that, what would happen to higher education and the law if it became widely illegal to acknowledge race? To understand these cases and the future they could lead to, we spoke with Reginald C. Oh, who teaches constitutional law at Cleveland State University. A Monthly contributor, Oh is nationally known for his expertise in what the Constitution says about race.  

This interview has been edited for clarity and brevity. 

RW: So, Reggie, hi. First off, there’s this lawsuit against the Hispanic-serving institutions program, which the Department of Justice is declining to defend. Can you talk us through what the plaintiffs, the state of Tennessee and Students for Fair Admissions, are saying? 

RO: Okay, well, it really boils down to their argument that the HSI program is “illegal discrimination” in violation of Students for Fair Admissions v. Harvard, the Supreme Court’s decision from 2023 that struck down affirmative action. [Students for Fair Admissions was involved in both cases.] That’s the rationale both for the lawsuit and for the Trump administration saying, “Well, we don’t want to defend the lawsuit, because we also believe the program is illegal.”  

RW: Illegal how? 

RO: So that’s the key, right? When they say it’s illegal discrimination, what they’re really arguing is that it’s unconstitutional discrimination under SFFA v. Harvard. They’re substituting the word “illegal” for “unconstitutional,” which is a rhetorical move and an inaccurate statement of law. SFFA v. Harvard dealt solely with the admissions process, and whether race could be used as a criterion in admitting students. This issue has nothing to do with admissions or individual merit—it has to do with funding for schools that have a certain number of Latino or Hispanic students. [To be federally recognized as an HSI, a school must have at least 25 percent Hispanic students.] And that’s absolutely an open question.  

RW: Just to remind us, what part of the Constitution did SFFA v. Harvard say that affirmative action violated?  

RO: The Equal Protection Clause of the Fourteenth Amendment, which was intended to protect the rights of formerly enslaved people after the Civil War. It says that states can’t deny the equal protection of the law to any person within their jurisdiction. The Court in SFFA v. Harvard held that the use of race in admissions was unconstitutional discrimination against Asian-American students in violation of equal protection.  

RW: What do you think about the norm-breaking aspects of this particular case? The federal government isn’t defending its own program, hoping it leads to the program’s demise. Still, this was duly passed by Congress. Are there any concerns about a future where, if you’re a president saddled with a program you don’t like, you invite a lawsuit and then sit back and do nothing? 

RO: The Trump administration’s refusal to defend the lawsuit is unprecedented. Their attempt to justify their inaction by saying, “We’re not going to defend the law because we agree with the plaintiffs,” raises serious separation of powers issues. We’re talking about Congress passing a statute that tells the executive branch, “Distribute these funds to those minority-serving schools,” and so when the president refuses to defend the law in the lawsuit, what he is actually doing is defying Congress. 

RW: Don’t presidents sometimes decline to enforce a particular law? And isn’t that a prerogative that’s been under debate, but there’s certainly precedent for? In what way is this different from President Obama’s DACA program (Deferred Action for Childhood Arrivals), which gave people who were in the country illegally a chance to stay?  

RO: Yeah, so those raise two separate issues. DACA is really about the president creating his own program, right? But creating a program like DACA is considered lawmaking or legislation, which is the job of Congress, not the president. The job of the president is to faithfully execute the laws enacted by Congress. Congress didn’t create DACA, though, Obama did. So, the legal fight over DACA was about whether the president had the authority to create that kind of program without congressional approval. 

The HSI case is completely different, because Trump does have congressional authorization to distribute funds to eligible institutions. In fact, by law, Trump is required to distribute the funds. The Constitution doesn’t say the president may execute the laws enacted by Congress only if he thinks it’s a good idea; it says the president shall or must execute congressional programs. So, what’s the legal basis for Trump’s refusal to distribute the funds?   

RW: This makes me want to get back to something in this lawsuit. The plaintiffs are saying that these minority-serving programs are illegal under the SFFA v. Harvard decision. They’re arguing that the precedent, which outlaws affirmative action in admissions and says nothing about anything outside of admissions, should also apply to these programs. Do you think the Supreme Court will be favorable to this argument about what it was really saying in its own decision? 

RO: Honestly, yeah, I think they would be favorable to it. The Roberts Court is pretty hostile to race conscious policies. However, I don’t think you can say the outcome is written in stone, especially since the HSI issue is not about college admissions and individual merit, but about serving disadvantaged institutions that serve disadvantaged populations.  

RW: Okay, let’s move to September. The Trump administration announced that it would withdraw approximately $350 million in funding, the vast majority of which was going to HSIs. Some of it is being redirected to charter schools. Some is being sent to American history and civics grants. Some of it—somewhat confusingly, given the administration’s espoused views on race—is being sent to historically Black colleges and universities as part of a one-time infusion of upwards of $400 million. What was the reasoning there? 

RO: Well, in refusing to distribute the funds to HSIs, Trump is claiming to do so would be illegal DEI under SFFA v. Harvard. In diverting the funds to other programs like charter schools, Trump doesn’t really offer any reason or justification other than he’s the president. 

I want to explain further why Trump’s claim about “DEI is illegal discrimination” doesn’t make any sense. Even if a law is technically discrimination because it’s race conscious, that doesn’t make it automatically “illegal.” There’s another step involved called strict scrutiny [a very high standard of proof] in which the government can argue that the use of race was necessary to achieve a compelling interest. If they can do that, then the discrimination would be legal. Trump, however, never mentions the second step.  

RW: Can we touch a bit on the future this is creating? You know, if we’re in a world where it is illegal discrimination to have a program or to have funding that names a group of people, what happens long term? 

RO: In the scenario where the argument that it is all illegal discrimination wins, the future is race-blind policies about basically everything. You wouldn’t be able to consider race in any aspect of U.S. policy making, federal, state, or local.  

It may seem implausible, but the ultimate implication is that race as a concept gets eliminated from political and legal discourse. Think about it. After SFFA v. Harvard, some schools adopted policies barring admissions officers from knowing the race of applicants to ensure a “colorblind” process. But don’t people’s names identify their race? Asian names certainly do. So now admissions officers can’t know the names of applicants? And what about student essays—they now can’t write about their life experience if it would identify their race, right? You see where this goes. We’d end up in a world where even thinking or writing about race would be deemed dangerous because it could lead to “illegal discrimination,” and race functionally would no longer exist.  

Now think about the implications of all that.  

RW: The Supreme Court did mention that this is something you still could do—write an essay about your life experience that mentions race. 

RO: Yes, Roberts did say that. But Trump’s “any consideration of race is illegal discrimination” argument simply ignores that part of Roberts’s opinion. It’s like Trump is telling Roberts, I know you didn’t really mean that and so I’m just going to pretend that part doesn’t exist.  

RW: This leads to a broader point, as you’ve mentioned to me, with some historical parallels to the era of racial segregation in America. If you make law and policy unable to acknowledge something that is a fact in the real world, what kind of scenario does that create? Law and policy are denying realities on purpose, pretending they don’t exist so as to enforce a desired outcome, but without stating it. 

RO: That’s absolutely right. The goal of erasing race out of policymaking is ultimately to deny the reality of existing racial inequality, racial disparities, and racial segregation in K-12, in higher education, and in housing. Think about it. If we can’t consider or count race, then how can we measure and document the racial disparities we know exist? We can’t, and we’d be forced to pretend that racial disparities don’t exist and be unable to address them. And according to the Trump, it’s the Equal Protection Clause which requires this, which is bizarre, even absurd.   

RW: It’s upside down. 

RO: Yeah, we’re in bizarro world with a bizarro Equal Protection Clause in which equity violates equal protection, and racial inclusion or integration is illegal discrimination. If integration is illegal under equal protection, doesn’t that mean segregation is legal? Yeah, it’s absolutely reversed. It’s unequal protection, not equal protection. 

Bringing it back to HSIs, to be eligible for funding, schools must be at least 25 percent Hispanic and serve low-income students. In alleging that the HSI program is “illegal discrimination,” Trump’s goal is to end a policy assisting disadvantaged Hispanic serving colleges. If a law seeking to end racial inequality violates equal protection, then what the Equal Protection Clause protects is racial inequality.  

You know Bizarro, right? Go look up Bizarro Superman. 

RW: I don’t know Bizarro Superman. Oh, my god. [The WM editor is looking at a picture of Bizarro, a zombie clone of Superman who is his opposite in every way—nourished by kryptonite, weakened by sunlight.] 

RO: Yeah, yeah. That’s it. The Trump administration’s Bizarro Constitution.  

The post The Quiet War on Hispanic-Serving Colleges appeared first on Washington Monthly.

I recently spoke at Jesus College, Cambridge, to about 200 students, professors, and media figures about “Autocracy in America: Law and Politics in the Second Trump Administration.” The teaser for the event in a local blog was “US lawyer comes to Jesus,” which made me reassure my friends and family that the reports of my conversion were exaggerated. 

I reviewed the shocking departure from constitutional values and presidential norms of the second Donald Trump administration. In just 10 months, in a manner reminiscent of the Argentine junta of the 1970s, he has sent masked ICE agents in unmarked vans to seize presumed undocumented immigrants and deport them without due process to horrific prisons in El Salvador or to failed African states where they cannot speak the language. With a green light from the Supreme Court, many of these deportees were targeted based on skin color or their accents. He has unlawfully deployed the National Guard to U.S. cities. There are also the extrajudicial killings in international waters.  

The Brits I spoke with were most concerned about the drift toward autocracy in America, especially the targeting of political opponents, political gerrymandering, and the weakening of our constitutional system of checks and balances. Until the recent flap over the Jeffrey Epstein files release, Trump had full control over Congress, and it seems over the supermajority in the Supreme Court. Hopefully, nevermore. 

Slipping in the polls, stunned by fissures within the MAGA ranks, and set back by Democratic gains in the recent election—where Democrats won governorships by overwhelming margins and some local races by astonishing totals—Trump is pivoting like a whirling dervish. Under pressure from MAGA allies in Congress, he changed his position on releasing the Epstein files. Unless Pam Bondi succeeds in redacting some of the most embarrassing details, we may finally learn what happened in his 15-year relationship with the convicted pedophile.  

He turned to Zohran Mamdani, who was elected mayor of New York City on an affordability platform. Trump must realize that it is the high cost of living across America that, more than anything else, helped him beat Kamala Harris. And it is affordability more than anything else that explains the poor performance of Republicans earlier this month and Trump’s decline. The latest poll numbers show that Trump’s approval is below water. Only 33 percent of US adults approve of how he is managing the government, down from 43 percent in March.  

So, after labeling Mamdani a “communist,” he now tries to align with Americans who voted for him a year ago and supported Mamdani earlier this month. Trump loves winners and hates losers.  

Of course, affordability is a problematic issue for Donald Trump. To hang the bell on the cat, his inflationary tariffs have caused the economy to reach a point where healthcare and basic living expenses will be beyond many Americans’ means. 

Trump has fluctuated on Ukraine, and the negotiations are constantly changing. First, he thought Zelensky wasn’t sufficiently grateful. Then, while flying to Israel on October 12, he told reporters that, “if the war is not settled, we may very well transfer Tomahawk missiles to Zelensky. But at a meeting with Zelensky in Washington on October 17, five days later, Trump rejected the request. Later, after the Pentagon approved giving Ukraine the Tomahawks, he reconsidered and said he would sell Ukraine Patriot missiles, which can deter missiles and drones targeting military sites and civilians. Ultimately, he shifted back to calling Zelensky “ungrateful,” giving him until Thanksgiving to accept a 28-point “peace plan” that benefits Putin’s aggression, or face losing further U.S. support.  

November 30 marks Winston Churchill’s birthday. The deal Trump proposed is another Munich, rewarding aggression. Would Churchill have ever said that Trump brings us “peace in our time?” 

Foreign affairs expert Richard Haass is shocked by the Trump proposal. In a special edition of his newsletter “Home and Away,” he writes: 

The plan is extremely pro-Russian and one-sided. It favors, rather than punishes, Russia for this aggressive war of choice. It also requires Ukraine to rely not on itself but on Russia and the United States for its safety. The plan never should have been proposed; it definitely should not have been put into action. One can only wonder what influenced the American envoys—Steve Witkoff, Marco Rubio, Jared Kushner, and Secretary of the Army Dan Driscoll—when they created and promoted it. 

There is, as well, a sordid quality to it all. The United States is to receive compensation for any guarantees it provides and share in the profits generated by infrastructure projects in Ukraine funded by frozen Russian assets. It also pledges to sign an economic cooperation pact with Russia covering just about anything and everything. 

The position the President is putting Ukraine in is simply unconscionable. 

But get this last pivot. Last week, Trump said the plan was not America’s “final offer,” and Secretary of State Marco Rubio appeared to distance Washington from it before insisting just hours later that the US had authored it. In a Truth Social post, Trump strangely declined to blame Russia for the Ukraine conflict, instead aiming his ire at Kiev and European allies for failing to endorse his truce proposal. 

Meanwhile, a joint Ukraine-US statement says there’s now a whole new deal in play, which it calls an “updated and revised framework document”. The Financial Times quotes one of the delegates, though—Ukraine’s deputy foreign minister Sergiy Kyslytsya—who talks of a new 19-point plan with “very little left” from the original draft. If the rewrite is sensible, it will likely be unacceptable to Putin. Security guarantees for Ukraine are what’s key here. If negotiations break down, Trump may pivot again and supply the Tomahawks, or not.

Given the English parliamentary system, many at Cambridge were surprised that Trump could survive. Britain is accustomed to frequent changes in government. Between 2016 and 2024, it had four prime ministers. When it was revealed that its Defense Secretary John Profumo had an extramarital affair with Christine Keeler, who was also the mistress of a Soviet agent, Profumo was forced out, as was the Conservative government of Harold MacMillan in the next election.  

France likewise has a chaotic form of government. It has elected five prime ministers in the past two years. And they still do not have a budget. 

One of the chapels in the newly restored Notre Dame Cathedral is dedicated to the patron saint of Paris, Saint Genevieve. Beneath a statue of Genevieve is the inscription, which we would do well to take measure, “In Saint Genevieve the spirit of strength restores law and justice when they are flouted.”  

We need a Saint Genevieve in America. We have Trump for at least three more years, assuming he chooses to leave office in 2029, as the Constitution requires.  

British lawyers I spoke with were bewildered by the Supreme Court’s shadow docket, where summary orders that are said to be interim become law without explanation, opinion, or even revealing which justices voted for the final decision. 

Then, there are the pardons. The rule of law is under serious challenge in the United States. Trump has pardoned violent criminals convicted and serving out their sentences over the events of January 6 as though they were Thanksgiving turkeys. His recent pardon of Joe Lewis, the former owner of Tottenham Hotspur football club, who pleaded guilty to insider trading in the U.S. last year, is a case in point, and of great interest in the U.K. The move was the latest in a series of high-profile pardons by Trump. Last month, he pardoned Changpeng Zhao, founder of crypto exchange Binance, who had pleaded guilty to money laundering charges. He also commuted the sentence of former Republican congressman George Santos, who was convicted of wire fraud and identity theft. He pardoned his daughter’s father-in-law and appointed him ambassador to France. 

“This president views the pardon power as a personal tool that he can use when it benefits him personally, politically, or financially, without assessing whether the use of the pardon power benefits the American public,” Elizabeth Oyer, a former senior Justice Department attorney under Trump told The Washington Post. The “traditional rules and procedures about pardons have been thrown out the window,” Oyer said. She called Trump’s use of the pardon power a “crisis.” 

But there is some cause for optimism. Looking at the signs of recent events, we see what was once unimaginable just a few months ago. Trump may be losing his hold on the Republican Party. One of the most telling signs was the announcement by Representative Marjorie Taylor Greene, the Georgia Republican, that she is resigning her House seat rather than allowing herself to be treated by Trump like what she called “a battered wife hoping it all goes away and gets better.” 

For years, Greene was, of course, one of Trump’s most loyal and high-profile hard-right supporters, but she has recently broken with him. That included issues like health care and the government shutdown, as well as pushing for the release of Justice Department files on convicted sex offender Jeffrey Epstein. Because of her betrayal, Greene has become a target for Trump, who has repeatedly attacked her on social media, calling her “a traitor” and “a ranting Lunatic” who has gone “Far Left.” Early Saturday, he wrote on social media that her decision to leave Congress was based on “PLUMMETING Poll Numbers and not wanting to face a Primary Challenger with a strong Trump Endorsement.”  

As John Lewis, the great civil rights leader and Congressman, famously said, “Democracy is not a state. It is an act.” Trump is blinking; hope may be on its way.  

The post An American Comes to Jesus  appeared first on Washington Monthly.

A paradox haunts books by contemporary Supreme Court justices. Publishers give the justices huge sums—$2 million, in the case of Justice Amy Coney Barrett—to write monographs insisting that Supreme Court judging is apolitical. Publishers provide these guarantees because Supreme Court judging in the United States is hyperpolitical: Partisans can be trusted to buy and praise the books written by justices on their side of the political fence. 

This paradox has a predictable literary consequence: The books are almost always bad. Recent books by Justice Neil Gorsuch and former Justice Stephen Breyer were widely and rightly panned by reviewers, though purchased in large numbers by partisan readers. Neither book explained why publishers, bookstores, producers, and influencers roll out red carpets for people whose primary job is supposedly to follow, to the letter, instructions given in past centuries.

Justice Barrett’s new book, Listening to the Law, meets the low bar set by her colleagues. She promises an accessible (not scholarly) insider’s guide to Supreme Court practice. The justices, Barrett tells us, like one another, attend parties together, and manage to disagree without rancor. Judging, she insists, is a matter of humility, of listening carefully to the law made by others. Apart from an informative discussion of textualism, the method with which Barrett is most associated, the book offers no account of why serious scholars—including, one suspects, Professor Barrett—think actual judicial practice is far more complicated than simply discovering (or “listening to”) the law made by others. The effect is less analysis than campaign biography, a self-presentation in the style of politicians explaining why they can be trusted with power.

The resemblance to political memoir is not accidental. Barrett, like her colleagues, aims to humanize herself. She assures readers that her pre-Court “life was good, but like anyone’s, it was not perfect”; that “these last years of being in the public eye have toughened me up”; that “all human relationships depend on kindness and humility.” Such bromides could have been lifted from a stump speech. Justices, like candidates, must persuade their audiences that they are relatable, trustworthy, and possessed of the moral fiber to do their jobs. The difference is that candidates eventually face voters. Justices, armed with life tenure, face only history.

Indeed, one of Barrett’s most insistent themes is precisely that life tenure guarantees independence. “The Constitution’s guarantees of life tenure and salary protection for federal judges,” she writes, “are designed to fortify a judge’s resolve to stand firm against the tide of public opinion.” The only evidence she provides for this claim is Alexander Hamilton’s assertion, made more than 200 years ago in Federalist no. 78, that “nothing will contribute so much as [life tenure] to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty.” Throughout, Listening to the Law celebrates the “genius” of the Framers. What was good enough for 18th-century minds ought to be good enough for 21st-century citizens.

An accessible guide to constitutional practice might note that very few constitutional democracies grant judges life tenure, and those that do (Canada and the United Kingdom) still require retirement no later than 75. Those judiciaries seem at least as independent as federal courts in the United States. A Brennan Center for Justice study by Lisa Hilbink of the University of Minnesota found that other democracies achieve judicial independence through shorter terms, mandatory retirement, or both, with no decline in performance. Indeed, the supreme court of Israel, which imposes mandatory retirement no later than 70, has far more aggressively challenged Prime Minister Benjamin Netanyahu’s policies than the U.S. Supreme Court has challenged Donald Trump’s policies. Similarly, the lack of life tenure has not inhibited the supreme courts of India and Germany from declaring constitutional amendments unconstitutional. 

Equally central to Barrett’s civics is the notion that judicial review exists to protect minorities from majority tyranny. Aware of our fallibility, the wise Framers of the Constitution created an institution that would ultimately declare segregated schools unconstitutional, protect free speech from local censors, and prevent police officers from physically abusing persons suspected of crime. The trouble, which Barrett conveniently neglects, is that the most difficult and consequential cases pit one minority against another. Consider Fulton v. Philadelphia (2021), which concerned whether the city could exclude a Catholic foster care agency that refused to work with same-sex couples. Both parties plausibly claimed to be protecting vulnerable minorities. Philadelphia argued that it was protecting LGBTQ families from discrimination; the Catholic agency argued that it was being discriminated against for its religious beliefs. 

History also undermines the slogan. Before Brown v. Board of Education (1954), it is difficult to identify a Supreme Court decision striking down a federal law most Americans would now say protected deserving minorities. More often it went the other way: Dred Scott (1856) denied Congress the power to ban slavery in the territories; the Civil Rights Cases (1883) voided Reconstruction-era protections; Pollock (1895) struck down the federal income tax; Carter Coal (1936) invalidated New Deal reforms. Slaveholders, too, claimed the mantle of an oppressed minority. As today, one person’s “worthy minority” was another’s entrenched interest, and few historians would tally the Court’s record as consistently protective of the vulnerable.

The deeper problem is not just that the Court often failed in practice, but that it has never had a clear method for identifying which minorities deserve protection. That choice is inherently political, so Barrett just ignores it. Listening to the Law never even hints at the difficulty of identifying the minorities that merit judicial protection, or whether the history of judicial review evinces any tendency for courts to make the right choices in this regard. Once one looks at the actual record of judicial review, what emerges is less a steady defense of the downtrodden minorities than a scattershot series of interventions, many of them on behalf of entrenched elites. 

As Mark Tushnet has noted, judicial review amounts to “noise around zero,” producing essentially random deviations—sometimes good, often bad—from what the political system would otherwise generate. When a pattern can be discerned, it is a tendency to side with the executive over Congress and with legal elites when they differ from the less educated or less wealthy. Professor Barrett is almost certainly aware of this scholarship, but Justice Barrett leaves readers with the comforting civics textbook version, assuring them that courts stand reliably with the powerless when in fact the historical record points to something closer to the opposite.

Listening to the Law likewise assures readers that justices decide cases on law, not politics. A few anecdotes about particular justices, Barrett’s willingness to sustain death sentences despite her moral opposition to capital punishment, and statistics demonstrating that approximately half the decisions the justices make are unanimous constitute the entire evidence for this assertion. No scholar paints with so broad a brush. A high percentage of the Supreme Court’s unanimous decisions concern matters such as the proper interpretation of the Employment Retirement Income Security Act (ERISA), a matter on which most people who are not retired have weak if any policy preferences. 

As politically conscious citizens observe, when the justices decide major cases on which the political parties divide, the justices appointed by Republican presidents almost always take positions favored by the Republican Party and the justices appointed by Democratic presidents almost always take positions favored by the Democratic Party. Consider abortion, campaign finance, and the recent Supreme Court practice of using the emergency, or shadow, docket to block lower federal court rulings temporarily enjoining Trump administration executive orders. A citizen who bet at even odds that the justices would vote consistently with the president that appointed them would gain a fortune. When exceptions exist, the tendency is for the justice to side with more moderate members of the party against more extreme members. That some Roberts Court justices may side with the Wall Street Journal editorial page over Donald Trump when the justices rule on tariffs hardly demonstrates a court above politics.

The free exercise clause offers perhaps the starkest example of politics shaping judicial decision making. During the second half of the 20th century, conservative originalists were committed to the proposition that the free exercise clause as originally understood provided religious believers with no exemptions from generally applicable laws. This point was emphasized in the Reagan administration’s Guidelines on Constitutional Litigation in 1988, a core statement of conservation constitutional principles at the time. Justice Antonin Scalia made it explicit in Employment Division v. Smith (1990), holding that worshippers had no right to use peyote in religious ceremonies when Oregon law banned the drug entirely. 

By the early 21st century, however, evangelical Protestants—core members of the Republican coalition—became the typical free exercise claimants. A miracle promptly occurred. Republican-appointed justices discovered that the 1791 clause had always guaranteed exemptions, or that laws burdening evangelicals were exceptions to the no-exemptions principles. Who knew? Religious organizations may now engage in what would otherwise be considered employment discrimination by designating employees or teachers as ministers, as decided in Our Lady of Guadalupe School v. Morrissey-Berru (2020). 

The near-perfect correlation between partisan affiliation and votes goes unacknowledged in Listening to the Law. The message is simple: Trust us.

This, finally, is the problem with the genre itself. By presenting judging as a realm of pure law, insulated from politics, the justices offer a picture so implausible that it makes the opposite claim—that judging is nothing but politics—more credible. In their effort to inspire confidence, they deepen cynicism. If the only choices are civics class pieties or unvarnished partisanship, many readers will conclude, not unreasonably, that the latter is closer to the truth. Publishers, of course, will not mind. Judicial celebrity sells, and the market for reassurance is deep. Barrett closes with optimism that the constitutional project will endure, with no hint of constitutional crisis or recognition that many Americans believe one already exists. That is for serious studies of law and politics. Barrett’s purpose, like that of her colleagues’ books, is to persuade readers that all will be well so long as the justices remain in charge.

The post Justice Barrett’s Campaign Biography 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.

The Supreme Court has a fateful choice this week, arguably as daunting as any in its history. Of the 28 prior applications from Donald Trump’s administration that landed on its shadow docket, Trump v. Illinois is the most important. While supposedly temporary, the outcome could establish the rules for deploying National Guard troops to enforce the law anywhere in the country. 

Here’s the deal. On October 10, Joe Biden-appointed District Judge April Perry in Chicago issued a temporary restraining order preventing the use of federalized National Guard troops in and around Chicago. 

Less than a week later, a Seventh Circuit panel, consisting of one judge appointed by George H.W. Bush, one by Barack Obama, and one by Trump, unanimously kept the critical part of the injunction intact—denying Trump’s request for a “stay.” 

“We conclude that the district court’s factual findings at this preliminary stage were not clearly erroneous, and that the facts do not justify the president’s actions in Illinois … even giving substantial deference to his assertions,” the panel wrote. “The administration remains barred from deploying the National Guard of the United States within Illinois.”

The “clearly erroneous” rule serves as the gold standard that appellate courts rely on to review a lower court’s findings of fact in a civil case. This standard is highly deferential to the fact finder, and an appeal rarely succeeds solely based on challenging a factual determination.

Now, the Justice Department has petitioned the Supreme Court to do just that—not just to stay the district court’s injunction pending appeal, but to issue an immediate “administrative stay “to prevent ongoing and intolerable risks to the lives and safety of federal personnel while this Court considers this application.” The government has not made any factual showing of “federal personnel,” masked or unmasked, killed or seriously injured in Chicago, because there haven’t been any. Trump’s papers are riddled with overstated and overblown claims about the alleged violence and lawlessness in Chicago. Having learned that I had recently been to Liverpool, a Londoner said, “A real Chicago, Liverpool is.” Cities get reputations which die hard to shake, some true, others exaggerated.

Title 10 U.S.C. § 12406 is the federal law that establishes the key legal test. The statute grants the president the authority to activate the National Guard for federal service under specific conditions, including invasion, rebellion, or when the president cannot enforce federal laws using only regular forces. Once federalized under this law, the Guard is no longer under state control. It comes under federal authority and is subject to the Posse Comitatus Act, which prohibits the military from being used for domestic law enforcement.

Judge Perry highlighted the rather significant gap between the “facts” as portrayed by the Trump administration and the detailed affidavits from local and state officials:

 [There is] a troubling trend of Defendants’ declarants equating protests with riots and a lack of appreciation for the wide spectrum that exists between citizens who are observing, questioning, and criticizing their government, and those who are obstructing, assaulting, or doing violence … The lens through which we view the world changes our perception of the events around us. Law enforcement officers who go into an event expecting “a shitshow” are much more likely to experience one than those who go into the event prepared to de-escalate it. Ultimately, this Court must conclude that Defendants’ declarants’ perceptions are not reliable.

With a credibility gap in Trump’s submissions, Judge Perry correctly concluded that the statutory requirements for invoking § 12406 had not been met. As the Seventh Circuit summarized her findings, “There was insufficient evidence of rebellion or a danger of rebellion, nor was there enough evidence that the President was unable with the regular forces to enforce the laws of the United States.”

Though the Seventh Circuit rejected most of the government’s appeal, it agreed with Trump to the extent of issuing its own administrative stay of Judge Perry’s order insofar as it barred the federalization of National Guard troops; but, most importantly, it left the lower court order intact regarding their deployment.

Regarding the merits, the panel upheld the Ninth Circuit’s earlier ruling in Newsom v. Trump that ‘the President should be granted a great level of deference’ on whether one of the statutory predicates exists. However, it also concluded that the Trump administration was unlikely to succeed, mainly because the district court’s key factual findings—that Trump’s submissions lacked credibility—were not “clearly erroneous.” 

Based on those findings, they wrote, “We see insufficient evidence of a rebellion or danger of rebellion in Illinois. The spirited, sustained, and occasionally violent actions of demonstrators in protest of the federal government’s immigration policies and actions, without more, does not give rise to a danger of rebellion against the government’s authority.” And most telling:

There is insufficient evidence that protest activity in Illinois has significantly impeded the ability of federal officers to execute federal immigration laws. Federal facilities, including the processing facility in Broadview, have remained open despite regular demonstrations against the administration’s immigration policies. And though federal officers have encountered sporadic disruptions, they have been quickly contained by local, state, and federal authorities. At the same time, immigration arrests and deportations have proceeded apace in Illinois over the past year, and the administration has been proclaiming the success of its current efforts to enforce immigration laws in the Chicago area.

The Seventh Circuit disagreed with Judge Perry only to the extent that she prohibited blocking the mobilization of federalized National Guard troops. As it explained, “we conclude that the harm to plaintiffs of permitting Guard troops to remain temporarily under federal control, without deploying, as this case further progresses appears to be relatively minimal.”

In 1956, Justice Hugo Black elaborated the lesson of history drawn from the Founders’ era:

The Founders envisioned the army as a necessary institution, but one dangerous to liberty if not confined within its essential bounds. Their fears were rooted in history … [but] the generation that adopted the Constitution did not distrust the military because of history alone. Within their own lives, they had seen royal governors sometimes resort to military rule. British troops were quartered in Boston from 1768 until the outbreak of the Revolutionary War to support unpopular royal governors and intimidate the local populace.

As for why Trump v. Illinois presents the Court with an inflection point, we might say what it would mean if the full Court were to grant Trump’s request.

• It means the Court clears the way for Trump to send troops anywhere in the country to strengthen immigration enforcement, and it suggests that federalized National Guard troops could start accompanying ICE officers on immigration raids—even if they’re not doing the arrests themselves. If this doesn’t resemble Germany in the 1930s, it certainly comes close.
• Since we all know, face it, summary dispositions without opinion on the shadow docket become the law of the land, at least for the foreseeable future. If the Court grants Trump relief in Chicago, what will stop Trump from deploying national guardsmen nationwide to supplement the ICE program in enforcing immigration laws? And then, based on some pretext that there is a rebellion, posting troops at select polling places nationwide to intimidate voters during the midterm elections? 

As Stephen Vladeck wrote this month, the fundamental questions in these cases are not about the federal government’s legal authorities but the facts. Appellate courts, bound by the “clearly erroneous” rule, are supposed to review, not find facts. If it sides with Trump, the Court would endorse pretextual domestic military deployments.

Mark Twain famously said, “History may not repeat itself, but it often rhymes.” In Korematsu v. United States, the Court accepted representations from the executive branch that later proved false. Three justices dissented, with one calling the decision “legalization of racism.” The Court authorized the government to intern roughly 120,000 people of Japanese ancestry, most of whom were U.S. citizens. This decision is regarded as one of the darkest moments in the Court’s history. Let this shame not be eclipsed by Trump v. Illinois.

A ruling is expected as early as this week.

The post Supreme Court Set to Rule on National Guard Troops in Chicago appeared first on Washington Monthly.

On October 7, the conservative majority of the Supreme Court appeared eager to set back Colorado’s LGBTQ-affirming legislative legacy—and gay and transgender rights more broadly. During oral arguments in Chiles v. Salazar, the Court’s conservative justices raised concerns about the state’s statutory ban on conversion or “reparative” therapy, on the books since 2019, and its apparent threat to Christianity-informed free speech. 

On the evidence of the Justices’ questions, a ruling against the Colorado statute seems likely. That setback would follow the Court’s anti-LGBTQ decisions from last term: Skrmetti v. Tennessee (2025), which supported bans on gender-affirming health care, and Mahmoud v. Taylor (2025), which allowed religion-compelled parents to opt their children out of public school story hours featuring LGBTQ-affirming books.  

“Conversion therapy” attempts to alter a person’s sexual orientation or gender identity so that they comply with anti-LGBTQ ideological commitments. As a therapeutic practice, mainstream medical professionals have widely rejected it—and it has been outlawed in over 23 states. Mental health professional organizations agree that identifying as LGBTQ is not a mental disorder, and that attempts to change someone’s sexuality or gender identity are at best ineffective and at worst actively harmful to patients. The practice includes anything from “talk therapy” that treats LGBTQ individuals as in need of a “cure,” to electric shock or pharmaceutical interventions. These practices persist, largely underground, in defiance of current bans. 

Colorado’s law bans medical interventions that cast LGBTQ individuals as mentally ill. A former conversion-therapy client of Colorado’s Focus on Family described the ban as “guiding people to the best version of themselves” by nurturing practices that are “beneficial, healing, and can save lives” and outlawing “therapy where [the] only…outcome considered successful is harmful.” In other words, the practices prohibited by the ban are those focused on the singular goal of encouraging a client to reject their LGBTQ identity.   

Kaley Chiles, a counselor licensed by the state to treat addictions, argues that the Colorado law violated her First Amendment rights by outlawing her ability to counsel sexuality- and gender-questioning youth who are seeking Christianity-informed therapies to help them resist their same-sex sexual desires and their gender dysphoria.  

Colorado is no stranger to Supreme Court fights over LGBTQ rights. The state is, paradoxically, home to the most vociferous anti-LGBTQ movement leaders and the most progressive LGBTQ-affirming policies—making it ripe for contentious legal and political rifts. In Romer v. Evans (1996), the Court overturned a 1992 voter initiative that branded Colorado “the hate state.” The ballot measure, organized by the Colorado Citizens’ Commission, barred gays and lesbians from seeking any state or municipal legislative protections from sexuality-based discrimination.  

Colorado quickly shed its “hate state” identity by updating its anti-discrimination measures in 2008 to include sexual orientation and gender identity. Yet almost ten years later, the state was back in Court—this time in a conflict with Christian wedding service providers. In a 2017 case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Supreme Court sided with a Colorado baker’s claim that the state’s nondiscrimination laws violated his Christianity-informed expressive rights to refuse to bake a wedding cake for a gay couple’s upcoming nuptials. Six years later, in 303 Creative v. Elenis, a Christian wedding videographer blamed the state for “chilling” her desire to design wedding websites exclusively for heterosexual couples. Once again, the Court rebuked the state’s LGBTQ nondiscrimination laws in favor of Christian business owners who oppose marriage equality.  

Chiles raises parallel substantive questions about the double helix of free exercise and free speech. Does the conversion therapy ban impose similar harms to Christianity-informed free speech that the Court outlawed in Masterpiece Cakeshop and 303 Creative? 

Assuming Chiles has standing to sue (a subject of some disagreement), the Court will have to determine whether her claim should be reviewed under the highly demanding “strict scrutiny” test, and, if “strict scrutiny” is warranted, whether the Court should send the case back to the lower Court or render judgment now. Two lower federal courts agreed with the state that the ban regulates medical conduct rather than speech and thus should be reviewed under the forgiving “rational basis” standard, as are other laws regulating medical care.  

Under a rational basis review, the state only needs to provide a reasonable rationale for banning conversion therapy—one that can easily be justified within the state’s normal efforts to protect the health and welfare of its citizens. Under strict scrutiny–a standard of review used only when a fundamental right has been abridged or when a suspect or spurious social classification (such as race or religion) is targeted by the legislation–the state faces a much higher evidentiary burden. In the case of a ban on conversion therapy, they must present evidence that Chiles’s type of talk therapy harms children.  

If the Court agrees with Chiles’s request for strict scrutiny, it has two options: to decide the case under this higher standard of review immediately or to send it back to the lower courts, as is typical, with instructions to reevaluate the evidence under the more rigorous standard. Chiles requests that the Court decide immediately, as it did last term in Mahmoud v. Taylor (the case involving parental opt-outs for school-based story hours with LGBTQ-affirming books), to address the supposed “irreparable” and “ongoing harm” that legislation and pending litigation have caused Chiles and her potential clients.  

Speech v. Conduct 

At oral argument, Justice Ketanji Brown Jackson pressed James Campbell, Chiles’s lawyer, to explain how her therapy differs from the many other medical interventions the state can regulate, as the Court held last term when it affirmed Tennessee’s gender-affirming-care ban. While quizzing Campbell, Justice Jackson asked “it’s just a little puzzling to me that she would stand in a different position than a medical professional who has exactly the same goals, exactly the same interests, and would be prescribing medication for that rather than talking to the client.” Cambell, however, argued that Chiles is engaging only in a “back-and-forth, one-on-one conversation [that] is a form of speech.” Talk therapy is speech, therefore, protected by the First Amendment. The medical interventions outlawed by Tennessee—puberty delaying medications, hormone replacement, and gender-affirming surgeries—are conducted. As such, Campbell argued that they do not fall within the First Amendment’s protections, while Chiles’s therapy does. 

If considered as pure speech, a ban on Chiles’s therapeutic methods would infringe on her fundamental rights and require review under strict scrutiny. Under this standard, Chiles argues, the state would need to demonstrate how talk-focused conversion therapy harms minors sufficiently to justify an otherwise unconstitutional restriction of free speech and exercise rights. According to this standard, Chiles contends that the statute would almost certainly fail. While they may have evidence that conversion therapy in general creates risks for young patients, as Chiles states, there is little empirical proof that talk-focused therapy, like the one she provides, causes any risks. An amicus brief from a professional organization supports the state’s position. It cites examples of dangers linked to different forms of conversion therapy, mainly because these therapies portray LGBTQ identities as abnormal.  

Standard of Care 

Oral arguments raised questions about the evidence that future courts might require as they are asked to review medical care. Colorado’s attorneys argued that the law follows “standard of care”—a legal term referring to the level of practice by professional practitioners–in the treatment of young people struggling with sexual and gender identity. Deviations from “standard of care,” argued the state, can be regulated or barred through legislation as a matter of ordinary state protections.  

Conservative justices argued differently. Justice Amy Coney Barrett questioned the meaning of “standard of care” when experts offered “competing strands” or when states disagree. Do states just “pick a side?” she asked. Justice Samuel Alito wondered what the role of the Court should be in accepting medical expertise, “when the medical consensus has been politicized” or “taken over by ideology.” These inquiries raise questions about the capacity for future Court cases to disregard “standard of care” and medical consensus.  

Justices on both sides of the ideological divide seemed to agree that a state cannot target therapists like Chiles who provide voluntary treatment to patients explicitly seeking to resist same-sex sexual attraction or to accept their gender dysphoria by embracing their birth-assigned gender. Justices Elena Kagan and Alito both contended that (as Kagan explained) “if a doctor says ‘I know you identify as gay and I’m going to help you accept that’, and another says ‘I know you identify as gay and I’m going to help you change that,’ and one of those is permissible and the other is not, that seems like viewpoint discrimination.”  

Interestingly, Chiles’s attorneys agreed that the argument would hold on “the flip side”—in cases where a state may want to ban gender- or sexuality-affirming care that is talk-based. Implying that, if Colorado’s law is determined unconstitutional in its application to talk therapy, conservatives may not be able to outlaw professional speech that affirms gender identity or sexuality—in the context of treatment and beyond. 

This raises questions—especially as conservative lawmakers, including President Donald Trump, seek to punish individuals for engaging in speech that criticizes ICE or Charlie Kirk, or promotes “woke” pedagogies. If Chiles wins, how will that precedent apply to LGBTQ-affirming or other targeted speech?  

The post The Gay Conversion Therapy Case and Its Discontents  appeared first on Washington Monthly.