It feels like a century ago that Donald Trump stood on the west front of the U.S. Capitol and was sworn in for a second time, promising to seize the Panama Canal, slap tariffs on the world, dispatch troops to the southern border, and let Elon Musk chop down the federal government. But while the past 11 months have often been exhausting and dispiriting, they’ve also been invigorating for us at the Washington Monthly as we generate new ideas to take on MAGA, never flinch from criticizing liberals and Democrats, and offer reporting and analysis that explains what’s really going on. 

We’re not calling these 11 pieces our best (although they are among them), nor are they among our most widely read (though many are), but they are representative of the continued breadth and inventiveness of this magazine in its 56^th year. 

Of course, it takes readers like you to keep our work going, so we hope, in an age of corporate and consolidating media, you’ll support our non-profit, independent voice. Meanwhile, if you’ve read these before, see how they held up, and if you haven’t, you’re in for a treat. We’re proud of them. 

The post 11 of Our Most Memorable Pieces from 2025  appeared first on Washington Monthly.

It feels like a century ago that Donald Trump stood on the west front of the U.S. Capitol and was sworn in for a second time, promising to seize the Panama Canal, slap tariffs on the world, dispatch troops to the southern border, and let Elon Musk chop down the federal government. But while the past 11 months have often been exhausting and dispiriting, they’ve also been invigorating for us at the Washington Monthly as we generate new ideas to take on MAGA, never flinch from criticizing liberals and Democrats, and offer reporting and analysis that explains what’s really going on. 

We’re not calling these 11 pieces our best (although they are among them), nor are they among our most widely read (though many are), but they are representative of the continued breadth and inventiveness of this magazine in its 56^th year. 

Of course, it takes readers like you to keep our work going, so we hope, in an age of corporate and consolidating media, you’ll support our non-profit, independent voice. Meanwhile, if you’ve read these before, see how they held up, and if you haven’t, you’re in for a treat. We’re proud of them. 

The post 11 of Our Most Memorable Pieces from 2025  appeared first on Washington Monthly.

In this episode of the Washington Monthly podcast, Anne Kim and Garrett Epps discuss the dangers of the Supreme Court’s increasing reliance on often unsigned emergency rulings—the so-called “shadow docket”—to rule in favor of President Trump’s agenda. They also discuss the Court’s recent rulings limiting the rights of transgender minors and their parents and the erosion of the wall between church and state. Epps argues that the Court has forsaken its role as a co-equal branch of government and a check on executive power in favor of enabling Trump’s increasing authoritarianism.  

This transcript has been edited for brevity and clarity.  

** 

Anne Kim: 

Hey, Garrett it’s great to see you. I hope you’re having a good summer! 

Garrett Epps: 

Well, you know, Chief Justice Roberts used to say that when the court leaves town, the Constitution is safe for the summer. I’m afraid that’s no longer true, but I’m trying to pretend it is. 

Anne Kim:

Well, the Supreme Court has had an extraordinarily busy few months, and they’re going to be busy for the foreseeable future. Just to list some of the rulings they’ve made recently: They’ve banned the use of so-called nationwide injunctions; they’ve allowed the deportation of eight immigrant men to South Sudan, which is a country to which these men have absolutely zero connection. They’ve upheld the Tennessee law denying gender-affirming care to transgender minors. And most recently, they’ve allowed not only the mass firing of workers to proceed, but they’ve allowed the dismantling of the Department of Education on a “temporary” basis as the cases proceed on the merits. 

When Supreme Court historians look back on this era, what do you think they’re going to say about the Court’s approach, its philosophy, its decision-making? 

Garrett Epps: 

Well, you know, that’s a hard question to answer because we are still in the midst of this. But the result seems to be that the institution is just paralyzed and is unable to function the way it has historically. And as I looked over this desert of unsigned emergency orders, I thought back to an article in the Monthly that we ran on our website by Jack Rakove, the leading historian of the Framing and the original period, who basically wrote that this is not a constitutional crisis because our constitution has failed definitively and we are now in the post-constitutional era.  

I certainly hope that’s not true, but I do think that the signs and symptoms are there of a kind of institutional failure across the government. The American government with its structure and its constitutional norms is really like a patient with sepsis, that at a certain point the infection just overwhelms, and the organs begin to shut down. The lower federal courts have been continuing to function, but the Supreme Court has taken on itself to shut them down. 

This Court is ostentatiously unwilling to stand up in the slightest respect for the lower court judges who have been dealing with an administration that lies to them, that rather openly says that it will not follow their orders, that actually violates their orders and says, “What are you going to do about it?”  

Anne Kim: 

So do you think that the lower courts then are going to change their behavior as a result of these signals from the Court or do think the lower courts are just going to hold firm and do their job? 

Garrett Epps: 

This is beyond my powers of prognostication because it’s actually a kind of psychological or political science prediction, not legal, right? I frankly think that for the lower courts, the law has been on their side most of the time.  

But do I think that things will stay the same? No, things never stay the same. And at a certain point, you know, a district judge is going to have to ask himself, do I just keep getting slapped down by the Supreme Court? Do I keep getting these threats? Is my family going to be in perpetual danger? Maybe I leave the bench. Maybe I just quiet down. I don’t know. 

Federal judges are among the people in the world I most admire. I think they do a very difficult job. They’re by and large very, very intelligent, principled people. But institutions break. We’re seeing the Court break. At a certain point, the lower federal courts will not be able to stand up against this kind of pressure when the head of their branch is deliberately refusing to shield them. 

Anne Kim:  

Now, I want to ask you about the merits of a couple of places where the court has offered up some sort of reasoning and an opinion. But first, I want to point out a Blue Sky post by Georgetown’s Steve Vladek. He said that since April 4th, and he posted this yesterday, the Supreme Court has issued 15 rulings on 17 emergency applications filed by Trump, and he notes that it has granted relief to Trump in all 15 rulings and written majority opinions in only three. So just to clarify for those who are not Supreme Court watchers, that is not normal behavior on behalf of the Court, right? 

Garrett Epps:  

Well, to start with, the government’s got a streak that that Babe Ruth or Ted Williams would have envied. Vladek, as I recall in his book, The Shadow Docket, points out that in the Bush and Obama administrations combined, the federal government sought emergency relief in eight cases. That is over a 16 year period. This administration has sought emergency relief in 15 cases over a six month period and, as Vladek says, received it in every case.  

It is almost as if the Court has changed its function, that the Supreme Court is now a part of the executive branch whose job it is to police the lower courts, whose job it is to make sure the lower courts don’t get in their way.  

As to why it’s doing that, the mixture will be different for each justice. I think some of it is pure cowardice. The administration is signaling as hard as it can that it’s not going to follow adverse rulings even from the Supreme Court. So you can convince yourself, if you’re an institutionalist, that you’re protecting the institution by not getting it into a situation where the executive just finally brushes it aside.  

Anne Kim: 

When we’ve had this conversation before, you’ve characterized John Roberts as an institutionalist. And you’ve said again just now that if the court has an institutionalist bent, it’ll behave in a certain way. But what is the institutional justification for behaving in this way at the expense of other parts of its own branch? 

Garrett Epps: 

Well, you know, I think institutionalism and cowardice are very hard to tell apart. Institutionalism says we need to preserve the viability of this institution, and if we push ourselves too far out of our lane, we’re going to end up harming ourselves and being brushed aside. And I do think that that features into the Chief Justice’s reasoning at least.  

Now, the motives of the other five conservatives, I don’t fully know. I don’t think anybody really knows. It’s a mixture of things. You’ve got three justices appointed by Trump, three justices who have made their peace with being Trump people, however many flashes of independence they may show. And so expecting them to throw themselves on hand grenades to stop changes in the federal government that they approve of may be a little too much. 

The other thing is just fear. One thing we don’t know is what kind of back channel signaling is going on between the branches. There is a long history of that. And if you go back to the 1930s and 1940s and President Roosevelt and the Supreme Court, one thing we learned is that in 1935, the president was prepared to defy the Supreme Court in the gold standard cases. It’s not clear whether the Court knew that or not, but they backed off in that case.  

And at the beginning of World War II, in a case called Ex Parte Quirin, the president had arrested Nazi saboteurs on American soil and tried them by military commission, which to a lot of people did not seem constitutional. But when that case came to the Supreme Court, when these saboteurs asked for a new trial, there’s a lot of evidence that President Roosevelt sent an intermediary to tell the Chief Justice that if he ordered a new trial for the saboteurs, the president would execute them the next day. He was not going to follow any order of the Court.  

Now is something like that going on? I don’t know. We certainly can’t expect that Donald Trump is reticent–that he wouldn’t do that. This is a man who came onto the floor of Congress and shook hands with the Chief Justice and said, “Thank you very much. I won’t forget it,” speaking of the immunity ruling.  

And some of it could be physical fear. I don’t really know, but this majority is behaving in a way that is shocking.  

Anne Kim:  

Let’s move to individual cases. And I want to ask about one case that looked like a huge victory for the Trump administration on nationwide injunctions. But then the opinion by Justice Amy Coney Barrett seemed to allow a window for lower courts to use class action certifications to achieve close to the same effect as a nationwide injunction. How do you interpret what’s going on? 

Garrett Epps: 

Well, you know, I don’t want to make predictions. But I do think there has been a tendency on the part of this Court to say, “We can’t give you relief in this case, but if you ask for it in a different way, then we might.” 

But it’s not at all clear that they mean that. We have a case now coming out of New Hampshire where the judge has certified a nationwide class of babies who will be born after the deadline of the Trump citizenship proclamation. 

I think this is a classic candidate for a class. There are large numbers of potential plaintiffs, and the idea that each baby would have to go to court and have its own lawyer arguing that it’s a citizen is ridiculous. The plaintiffs have one issue in common: Does the 14th Amendment guarantee birthright citizenship or not? And the representation is adequate. 

I’m quite sure there will be an emergency appeal to the Supreme Court asking the Court to decertify the class. And the question then becomes, did the Court mean what it said? This is a Court that doesn’t have a very good record of meaning what it says anymore. 

Anne Kim: 

And just for context, what you’re walking through are the four factors under Rule 23 of the Federal Rules of Civil Procedure under which a judge determines whether a class can be certified or not.  

Garrett Epps: 

Correct. Numerosity, commonality, adequacy of representation and similarity of issue. But at any rate, class actions are not a slam dunk. Courts are supposed to exercise some discretion or care in certifying them. And there are plenty of ways the Supreme Court could say, oh, well, maybe another class, but not this one. Meanwhile, of course, they are allowing this administration to attack in the most basic way newborn American children. And as Justice Sotomayor said in her dissent in the Casa case, what would they do if a future president said all people have to turn their guns in? 

The example she didn’t use, but I think ought to be on everyone else’s mind is, what would this Court do if an administration said, “All persons of the following ancestry shall report to transit points for internment?” 

That is no more unconstitutional than changing the rules about citizenship. That is no more sinister. That is no more anti-human. And would the Court say, “Well, you know, each individual will have to bring a lawsuit and say, no, don’t send me to the camps, send the others, just not me.” That’s not the way a legal system is supposed to work. 

Anne Kim:  

Justice Jackson also had a very powerful quote in her dissent in Casa where she said, “Executive lawlessness will flourish.” And to me, the word “will” seems to be a misnomer. It already is flourishing! 

Turning now to your point about just how conservative this Court actually is, some of the substantive rulings that have been issued will profoundly limit people’s rights. One decision I want to ask you about is United States versus Skrmetti, which is the decision that upheld the Tennessee law banning gender-affirming treatment for transgender minors. A similarly conservative decision is Mahmoud v. Taylor. And that’s the one that ruled that parents in Montgomery County, Maryland, have the right to opt their kids out of story time with books that happen to involve LGBTQ characters if they are religiously objecting to that content. What do you make of these decisions? 

Garrett Epps: 

Look at the two cases together, and both of them have to do with parental rights and the parents’ rights to care for the upbringing of their children. Skrmetti says that even if a physician and the parents agree that a child is suffering from a recognized disorder, gender dysphoria, and that these treatments would help prevent a bad outcome in this particular case, parents are not permitted to make that choice because the Tennessee legislature thinks they would do better not to. On the other hand, when you have a local school board that thinks it would be good for students to be exposed to literature that is inclusive, then parents of course have the right to say, “No, no, no, that mustn’t be allowed.”  

So there’s a tremendous contradiction between the two.  

An equally important thing about Skrmetti is the way that the Court dodges the issue. You or I would say this is a case about trans rights and the extent to which trans people, in this case, minors, but not just minors, are entitled to have their uniqueness, their physical integrity, their freedom of choice protected by the Constitution from a fairly aggressive intervention by the states. And the Court gets around that by adopting this transparently dishonest argument that the Tennessee statute is not an anti-trans statute at all but instead discriminates against certain medical procedures and treats both genders the same.  

I don’t know if people remember Loving v. Virginia, but the Commonwealth of Virginia argued to the Supreme Court that it didn’t discriminate by race because the law said white people can’t marry Black people and Black people can’t marry white people. So it’s perfectly equal, no harm, no foul. The Court said that’s a ridiculous argument. But now the Court has picked that argument up 50 years later saying we can make trans people disappear because they’re not really a rights-bearing class of people, and this is simply a sort of medical regulation. That’s a very ominous sign.  

Anne Kim: 

Okay, so let’s move to next term. The Court can’t dodge the substantive questions for that much longer. Birthright citizenship will come up on the merits. The president’s ability to levy tariffs randomly, the president’s ability to use the Alien Enemies Act to send people out of the country randomly – all of that is going to come up.  

I know you don’t like to predict, but any thoughts?  

Garrett Epps: 

Well, I have spent a lot of the last few weeks re-examining my life choices and thinking that I could have pursued a career in used car sales, for example, or some other profession that has some shred of integrity to it. 

And so for that reason, I’m very reluctant to predict what the Court will do. Now, I’m going to note that a lot of the very smart colleagues that I have in the professoriate, people much smarter than me, people who know, you know, have been on the inside of the court as clerks or lawyers, are quite confident that the court will not approve Trump’s démarche on birthright citizenship, which is just the most flagrant piece of lawlessness we’ve almost ever seen. I would like to believe that.  

But things are changing very fast. And I am reluctant to predict with confidence that the Court will make the administration back off on citizenship when they’ve already allowed it to go into effect. We’ll know more when we see what they do with the class certification. But I think that is the case that will determine whether we are now in a state of just nihilism constitutionally. If the Court can find some way to allow Trump to do this, there really is nothing that Trump won’t be able to do.  

We don’t know what’s going to happen. We don’t know why the court is doing what it’s doing. And remember, we’re dealing with a six member majority, a multi-headed beast, and it’s very hard to say which way the beast will run when we ring the bell or whatever else.  

And I think that the degree to which the administration is stepping up its pressure on the public and on institutions — conducting mass immigration raids and things of this sort– is just raising the temperature and putting more pressure on a Court that has really shown very little ability to do what we all were taught in high school the Court would do, which is to use its independence to stand outside of the political gale and decide based on neutral principles.  

The way we talk about things is changing constantly under the pressure of this administration. And just to take one example that seems absurd, in the last week, we’ve had the president say that he objects to the affect of a certain comic actor and therefore is going to deprive her of her American citizenship. If you said 90 days ago, “Can the president object to the presence of someone on television and therefore take away their citizenship?” The person would be like, “What are you, nuts?” Now we’re arguing that Trump’s power over citizenship doesn’t extend that far, whereas in fact, the president has no power over citizenship. That’s how far the Overton window has shifted.  

What this illustrates to me is a proverb that was coined by Samuel Johnson in the 18th century where he said we “succumb to absurdity as the eye in time is accommodated to darkness.” And we’re seeing that darkness is growing. The eyes of everybody, including the Supreme Court justices, are accommodating to the kind of things that Trump is doing. 

Staying out of certain fights to preserve the institution is a very easy thing to say. But a Court that cannot look at rampant lawlessness and call it by what it is isn’t really a court anymore. The Supreme Court will have a very different role in our government going forward unless something drastically changes.  

I was also reminded this week of a quote from Looking Back at the Spanish War by George Orwell, a very great essayist, who said, talking about the fall of the Spanish Republic, he said, “I think it is better, even from the point of view of survival, to fight and be conquered than to surrender without fighting.” A court that draws lines and says to the administration, “If you’re going to cross these lines, we’re not going to help you,” is a very different historical legacy from a Court that enables, that helps, that steps out of the way, that seems to be bending the knee to these same lawless initiatives.  

Anne Kim: 

Thank you, Garrett. Always a pleasure to talk to you, even in these dark times and look forward to having a conversation again soon. 

The post Supreme Court or Supreme Enablers?   appeared first on Washington Monthly.

As disturbing as the first three weeks of the second Donald Trump administration have been, we can take solace in the judiciary branch’s role in constraining at least some of Trump’s dictatorial impulses. 

Emergency orders from federal judges have stalled Trump’s efforts to erase birthright citizenship, freeze trillions in congressionally mandated spending, give Elon Musk and his team access to the Treasury Department’s payment system, lay off U.S. Agency for International Development employees, pressure other federal workers to take a buyout and quit, transferring transgender women out of female-only prisons, and disclose the names of federal agents who investigated the January 6 insurrection. 

Last week, Washington Monthly Contributing Writer Peter M. Shane explained how state attorneys general had the legal standing to stop Musk in the courts, and a few days later, 19 of them won a temporary injunction stopping Musk cold and prompting Vice President J.D. Vance to threaten the authority of judges on Musk’s social media site. In this case, so far, the Trump administration is formally responding inside the courtroom, not outside, with a hearing set for Friday. However, in the case involving frozen spending, a federal judge in Rhode Island warned that the administration has not properly followed  his order to unfreeze federal grants sets the stage for a showdown between the executive and judicial branches. 

The judiciary is able to exercise any power at all to check Trump because in 2021 and 2022, when Democrats controlled the White House and Congress, they resisted calls to pack the Supreme Court.  

Suppose Democrats had succumbed to the temptation, which would have required abolishing the filibuster to ram through a partisan court-packing bill. In that case, the first thing the current Republican trifecta would have done is pass legislation along party lines to gut the entire judiciary. Every level would have been packed to negate any power held by judges untethered to Trump. All constitutional guardrails would have been eradicated. Then, Trump would have gotten to work issuing executive orders without regard to the Constitution or the law, and no one would have been able to stop him. 

During the Joe Biden presidency, Democrats were still fuming about how former Senate Majority Leader Mitch McConnell denied Barack Obama the ability to appoint Merrick Garland—or anybody else—to the seat vacated by Antonin Scalia upon his death in 2016, then not only let Trump fill that seat in 2017 but also the seat opened up after Ruth Bader Ginsburg’s death in near-record time ahead of the 2020 election. The rage led many to believe that the worst damage to the independent judiciary had already been inflicted. 

Kermit Roosevelt III, a constitutional law professor, wrote in 2021 for Time magazine in defense of court-packing:  

There are political considerations here, to be sure. The one put forward most often is that if Democrats expand the Court, Republicans will do so in response as soon as they get the chance. That’s possible, but battles over the court are already in a downward spiral of retaliation—just ask Merrick Garland. Game theory actually suggests that the way to prevent an opponent from repeatedly taking advantage of you is to show that you will fight back. The concern that Republicans might manipulate the size of the Court for partisan advantage in the future if Democrats do it now overlooks the fact that they’ve already done it, in the very recent past. Refusing to consider any Obama nominee (and pledging to do the same to Hillary Clinton if she won) is exactly that. 

(Roosevelt would probably be applauded by his great-great-grandfather Theodore, who controversially campaigned for president in 1912 on a platform that included recall by referenda of state judicial decisions and later defended the proposal because “the doctrine of the divine right of judges to rule the people is every bit as ignoble as the doctrine of the divine right of kings.”) 

On the now-defunct podcast, Positively Dreadful in 2023, host Brian Beutler hosted a debate on the topic of court-packing and rhetorically asked:  

If Democrats manage to get a large enough majority to make the court 13 members, and 7-6 liberal, and then five years, whatever, ten years down the line, Republicans got a trifecta again and made it 8-7 conservative, and then you went back and forth like that until some kind of detente broke out, why is that worse than the situation where it’s … ten years until attrition does the work for Democrats? 

We now see why it would be worse. It didn’t take five to ten years for Republicans to win a trifecta. And they did so with the most authoritarian-minded presidential ticket in American history, determined to twist the Constitution beyond the Founders’ recognition and treat the law as an inconvenience to be ignored.  

The entire point of the Constitution is to prevent consolidation of power in the hands of one individual or faction. The diffusion of power does not allow for expedient and efficient activist government, which has long been a frustration of progressives. That frustration has led to arguments that the various unwritten “norms” that further check a potential tyranny of the majority—such as the filibuster—are tilted in favor of libertarian conservatives and corporations and, in turn, do not deserve reverence or deference. However true that may be, we can now see more clearly that there is a bigger threat to democracy than a legislative process cumbersome yet still navigable for progressives: a lawless process not cumbersome at all to oligarchic fascists.  

Alexander Hamilton recognized this threat when defending the Constitution’s provision for lifetime judicial appointments in Federalist No. 78: 

…the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks.  

It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. For I agree, that [quoting the French judge Montesquieu] “there is no liberty, if the power of judging be not separated from the legislative and executive powers.”  

And it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments … from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its Constitution, and, in a great measure, as the citadel of the public justice and the public security. 

Hamilton’s argument does not assume the Supreme Court will be infallible. Critics of the Supreme Court’s un-elected nature can point to many examples of horrible decisions that violated human rights—from the Dred Scott decision that denied citizenship to all descended from enslaved people of African descent to the Korematsu ruling that blessed Japanese internment camps during World War II, to the Dobbs opinion which ended federal abortion rights.  

But Hamilton’s point was that illiberal judicial rulings can only harm liberty when other branches of government cooperate. (For example, Dobbs’s impact, while still significant, has been mitigated because most state governments still protect abortion rights.) An independent judiciary is the only defense against illiberal acts from the executive and legislative branches, and “permanency in office” is the maximum protection for judicial independence.  

We have seen that independence in action. Judges appointed by Ronald Reagan issued injunctions against Trump’s attempt to end birthright citizenship and to send transgender women to male prisons. Democratic-appointed judges who issued stays in others have power even though Democrats lost the last election.  

This is by design. Losing an election should not give the winners all power and the losers none because then the losers have little reason to continue participating in our democracy. Therein lies the path to secession and civil war. As former California Governor Jerry Brown once said, “The only way this country can hang together is if there’s a due respect for the non-winners.” 

Might this Supreme Court, perhaps the worst since the days of Dred Scott, prove insufficient to the task at hand? Yes, because no Constitution on paper can provide comprehensive protection against a determined group of authoritarians atop all branches of government. The Court’s decision last year to give Trump immunity for any “official” presidential action was deeply unsettling. But Trump also lost many Supreme Court cases in his first term, including cases intended to help him steal the 2020 election, so we should not assume this conservative majority will side with Trump reflexively, no matter how absurd.  

If Democrats did assume the worst in 2021 and nuked the independent judiciary, Trump would now have the ability to pack the Court with complete toadies who would probably go as far as voiding the 22nd Amendment and allowing him to become President-for-Life. Thankfully, Democrats contained such impulses, and now, our democracy still has a chance.  

The post It’s a Good Thing Democrats Didn’t Pack the Courts appeared first on Washington Monthly.

As a professor of voting rights and constitutional law, my phone has been ablaze in the past few weeks with texts from friends and family about the latest legal atrocity. “Will Trump try to run for a third term?” they ask. “Will we still have a Constitution?” 

My typical response is that we should not indulge the president’s wild notions that keep us spinning our wheels. No, he can’t run for a third term (absent a constitutional amendment, which would have virtually zero chance of passing). Yes, the Constitution—at least in a formal sense—will endure. We will have federal elections in 2026 and again in 2028.  

But here’s what keeps me up at night: What if Trump, Elon Musk, or someone else in the Trump administration refuses to follow a court order? That’s the looming constitutional crisis.  On Monday, a federal judge in Rhode Island determined that the Trump administration was not fully complying with its prior order to pause its funding freeze and demanded that the administration unfreeze funds.

What if the Trump administration simply ignores that order?

Already, there are signs that those in Trump’s orbit are setting the groundwork to undermine judicial decisions.  

Litigants have gone to court to stop the flurry of executive orders that are fundamentally reshaping our government, filing over 40 lawsuits in the past few weeks. For their part, jurists have stopped the spending freeze; paused an order that purports to end birthright citizenship, which is a key tenet of the Fourteenth Amendment; rejected a deadline for federal employees to accept a buy-out stemming from the infamous “Fork in the Road” email; and more.  

As a federal judge in Seattle, appointed by President Ronald Reagan, explained in one of the birthright citizenship cases, “The President cannot change, limit, or qualify this Constitutional right via an executive order.”  

In response, the Trump administration is attacking the judiciary. Vice President JD Vance posted on X, “Judges aren’t allowed to control the executive’s legitimate power.” Of course, the very question is whether the executive’s actions are within its “legitimate power.” If not, then courts must step in to declare the orders unlawful. Vance also retweeted conservative Harvard Law Professor Adrian Vermeule, who posted, “Judicial interference with legitimate acts of state, especially the internal functioning of a co-equal branch, is a violation of the separation of powers.”  

That’s wrong. Judicial oversight of a co-equal branch is precisely the role of separation of powers.  

Musk retweeted a post saying, “I don’t like the precedent it sets when you defy a judicial ruling, but I’m just wondering what other options are these judges leaving us if they’re going to blatantly disregard the constitution for their own partisan political goals?” Vance retweeted a post from columnist Kurt Schlichter, which said, “What if the judicial decision is lawless? A key component of the constitutional framework is judicial modesty, which is backed up by the fact that the judiciary has nothing to compel obedience, except its credibility.” 

That last sentence is correct: the judiciary has little to compel compliance except the norms that have sustained our democracy for over 200 years. The first part of the post is scary: is the Vice President suggesting that the administration should not comply with court orders because he believes they are somehow “lawless”?  

The way to challenge a decision is to appeal to a higher court, not to claim that courts are “lawless” and their rulings unworthy of respect. A failure to comply with court rulings would create the most serious constitutional crisis.  

The idea of judicial review goes back to the Founding. In 1803, in Marbury v. Madison, the Supreme Court explained that “a Law repugnant to the Constitution is void” and famously declared, “It is emphatically the duty of the Judicial Department to say what the law is.” 

The Court also curtailed the President’s powers in 1952 in the Youngstown Sheet & Tube Company v. Sawyer case, with Justice Robert Jackson’s concurrence offering a poignant reminder of the concerns that accompany an unchecked president: “With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations. Such institutions may be destined to pass away. But it is the duty of the Court to be last, not first, to give them up.” 

The statements from Vance and his allies may be political posturing. Vance did not, after all, outright call for a refusal to follow court orders. But the implications of his posts are concerning enough that they demand a strong rebuke—especially from Republicans. Pro-democracy Republicans must emphasize to the Trump administration that it’s still bound by the law. The people should call their representatives to remind them of their fidelity to the Constitution. By all means, the executive branch should appeal decisions with which it disagrees. But if it continues to lose, the administration must comply with those rulings.  

As Alexander Hamilton wrote in Federalist 78, the executive has the power of the sword, and Congress has the power of the purse, but “the judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.”  

If the Trump administration refuses to comply with a court order, the court could hold it in contempt. Would it try to fine or even jail those who fail to carry out its directives? Those options, though necessary, would further the constitutional crisis.  

The American experiment—declaring independence from the king and creating a government with co-equal branches that balance and check each other—will not work if the executive branch ignores judicial mandates. Refusing to comply is itself lawlessness.  

The post I’m a Law School Professor. Here’s What Keeps Me Up at Night appeared first on Washington Monthly.

“The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.” – James Madison, Federalist 47

Donald Trump’s first ten days in office amounted to a blitzkrieg against our constitutional system of checks and balances. The Office of Management and Budget memo issued under his authority—and rescinded two days later—declaring a “Temporary Pause of Agency Grant, Loan, and Other Financial Assistance Programs”; his discharge of National Labor Relations Board member Gwynne Wilcox, and his purge of inspectors general not only violate explicit and binding statutory law. They all aim to undermine Congress’s constitutional priority in establishing domestic policy and regulating the execution of the law.

As David Super, the Georgetown Law professor, has painstakingly explained, Trump’s suspension of a broad swath of federal financial assistance was a brazen violation of the Impoundment Control Act. But it is much more. The suspension was a direct assault on Congress’s legislative powers, including the power of the purse. The memo’s signatory, acting OMB Director Matthew J. Vaeth, wrote: “Career and political appointees in the Executive Branch have a duty to align Federal spending and action with the will of the American people as expressed through Presidential priorities.” This is quite simply getting our Constitutional system backward. The law sets limits to presidential discretion. When Congress makes law—including the appropriation of funds that the executive is compelled to spend and the specification of limited conditions under which presidents may defer spending—the executive branch’s duty is to faithfully execute those laws. The president does not get to unilaterally bar federal funding that supports “Marxist equity, transgenderism, and green new deal social engineering policies,” even assuming that any of that is more meaningful than Project 2025 gobbledygook in the first place.

Trump’s firing of NLRB member Wilcox is intended to nudge the executive-indulgent Supreme Court under Chief Justice John Roberts to complete its subversion of congressional power to create independent agencies. Even under the Supreme Court when it was led by Chief Justice William Rehnquist, it had been conventional constitutional understanding—undergirded by the unanimous 1935 Humphrey’s Executor decision—that Congress was entitled to protect executive administrators from at-will discharge, so long as presidents could, directly or indirectly, effect the removal of any administrator who was violating the law. The Court reaffirmed that position in its 1988 Morrison v. Olson decision, which upheld, by a 7-1 vote, the independent counsel provisions of the post-Watergate Ethics in Government Act. The Roberts Court, however—enamored of the constitutionally dubious “unitary executive theory”—has been working towards the position that presidents can fire at will all subordinate officers of the United States. In the 2020 Seila Law case, a 5-4 Roberts opinion re-cast Humphrey’s Executor and Morrison as “two exceptions to the President’s unrestricted removal power.” They allowed Congress to protect the tenure, respectively, only of “expert agencies led by a group of principal officers” and “certain inferior officers with narrowly defined duties.” Trump no doubt wants the Supreme Court to overturn those exceptions so that he can fire anyone who defies “the will of the people” that he believes he embodies.

In a sense, the mass firings of inspectors general without fulfilling either the statutory requirement of notice to Congress or the statutory requirement of reason-giving is even worse. The Inspector General Act of 1978 permits presidents to remove inspectors general. It simply imposes statutory speed bumps to disincentivize unjustified removals of officials charged explicitly with promoting government economy, efficiency, and effectiveness, as well as preventing and detecting administrative fraud and abuse. Ignoring those statutory requirements thus challenges not only Congress’s authority to create independent administrators but also its authority to regulate, even modestly, how the White House and subordinate officers in the executive interact.

The groundwork for Trump’s assault on the Constitution has been laid by the fecklessness of the other two branches. Essential to the Madisonian system is that each branch of government would stand up for its constitutional authorities in constructive tension among the three branches. “Ambition,” Madison wrote in Federalist 51, “must be made to counteract ambition.” In our hyperpolarized political moment, however, Congress has been all but supine in the face of presidential overreach when the party in charge of Congress is also the president’s party. Congress’s failure to bar Trump from office after he incited an insurrection against democratic government embodied that irresponsibility.

The Roberts Court, for its part, has played an oversized role in upholding an unduly aggrandized, constitutionally mythical theory of “executive power.” Harvard law professor Jack Goldsmith has recently (and not entirely unsympathetically) laid out the cornerstone propositions of unitary executive theory. Its foundational premise is that the Constitution’s vesting of executive power in the President gives the president “all” executive power, which—according to the current Court—is “conclusive and preclusive.” That is, Congress may not regulate its exercise. Even the most cursory reading of the Constitution falsifies this premise. The vesting of executive power does not use the word “all”; indeed, some executive power, such as the power of appointment, is explicitly shared with the Senate. Congress, on the other hand, gets the word “all” used repeatedly. It is empowered “to make all laws which shall be necessary and proper for carrying into execution” Congress’s specific authorities “and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.” The misreading of the Constitution by right-wing judges and mostly conservative academics helped create a glide path to our current perilous moment.

Trump’s efforts to upend checks and balances are, of course, not new. In his first administration, Trump was eager to subvert Congress’s impeachment power and its general authority to oversee and investigate the executive branch. His method was simple: He just refused to provide information. The White House refused in 2019 to cooperate with the investigation into Trump’s apparent attempt to coerce Ukraine into conducting a criminal investigation targeting Joe and Hunter Biden. At his second impeachment trial, Trump declined to testify in defense of his actions on January 6, 2020. But these were but the tip of the iceberg. Co-Equal, a nonprofit formed to defend congressional oversight power, compiled a report documenting dozens of tactics the Trump administration used to impede over 100 congressional investigations and inquiries.

It is hard to overstate the dangers of the constitutional crisis that Trump is trying to provoke. He is pushing back against Congress’s key levers as a co-equal branch: not only its investigative powers but also its primacy in setting national policy, its authority to structure the offices of administration and to regulate their operation, and its power of the purse—whether to limit federal spending or to command it.

Until now, our system of checks and balances, however precarious, rested on the customary willingness of each branch of government not to push its powers to their furthest textually plausible limit. Americans benefited from the resulting realm of constitutional ambiguity. Ambiguity helped to sustain what Justice Robert Jackson once called “a zone of twilight in which [the President] and Congress may have concurrent authority, or in which its distribution is uncertain.” Respect for that ambiguity at both ends of Pennsylvania Avenue helped foster a measure of self-restraint, as well as interbranch dialogue and negotiation, often with salutary results. Trump prefers to eliminate any blurry lines around executive authority and arrogate all power to himself. The idea of self-restraint must seem to him an oxymoron.

Considering these circumstances, is it an abuse of language to say that Trump’s object is “tyranny?” Don’t ask me. Ask Madison.

The post Trump’s Fusillade of Tyrannical Orders appeared first on Washington Monthly.

For the past 30 years, I have taught constitutional law, and I have come to realize that America’s best days are those when my phone doesn’t ring. In ordinary times, constitutional scholars are dull company—when we find ourselves in demand as speakers and party guests, the Republic is in trouble.  

The last ten years have brought unprecedented challenges to the Supreme Court’s legitimacy, the effective functioning of American courts, and the idea of “the rule of law.” Being legal affairs editor of the Washington Monthly for the last four years has been like trying to drink the Great Lakes.  

In addition to the legal slog (largely unsuccessful) to hold Donald Trump and his enablers accountable, we have seen the sudden prominence of parts of the Constitution that even scholars find obscure. Does Article II Section 2 Clause 3 mean the president appoints an entirely new Cabinet during a short “recess of the Senate”? Does the same article mean that the president can proclaim that the House and Senate are in “disagreement” and close them down until a time of his choosing while he fills the executive branch with cronies? Can a president issue an executive order setting aside the Birthright Citizenship Clause of the Fourteenth Amendment? 

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For better or worse, lawyers and law professors are oft invited party guests, and we at the Monthly have been throwing one hell of a party. To hold power accountable, we have published legal scholars and attorneys like Peter M. Shane, one of the nation’s top experts on executive power, on questions ranging from presidential immunity to the end of the “administrative state”; Gerard Magliocca on the ongoing battles over the Fourteenth Amendment’s Disqualification Clause; Joshua A. Douglas, an authority on voting rights law, to assess the prospects that the next administration will meddle with Americans’ free elections; Jonathan Alter, who offered unparalled coverage of Trump’s Manhattan fraud trial, James D. Zirin’s observations (backed up by his experience as a federal prosecutor) on topics ranging from federal criminal prosecutions to Joe Biden’s age (backed up by his own experience as an octogenarian) to Samuel Alito’s alarming spiral; Caroline Frederickson on the Supreme Court’s radical abortion-rights decision; Ciara Torres-Spelliscy on federal campaign-finance and corruption law; Ruben Garcia on plutocrats’ war against the labor movement and the National Labor Relations Board; and Jacob Charles on the Supreme Court’s wacky gun-rights jurisprudence.  

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These authors speak from specialized knowledge and yet explain these subjects in accessible language. All maintain a refreshing distance from the warring sides of the increasingly polarized legal world.  

They offer insight you won’t find anywhere else but the Washington Monthly.  

It’s been my honor to recruit and edit fabulous legal writers for the Monthly—even though I cannot offer them the money they deserve; at the same time, I’ve had the opportunity myself to write some longer pieces that might not run elsewhere—a profile of accused “coup lawyer” John Eastman, a contrarian assessment of the Supreme Court’s disastrous 2023-24 term, a feature-length assessment of the legal vogue for “originalism,” among others. 

I am writing this year-end summary in hopes that readers who value this legal coverage will help us continue to pay a pittance to these brilliant contributors.

We can’t keep going without your help.  

There’s no indication that there will be fewer alarming legal and constitutional novelties when Donald Trump moves back into the White House. (We’ve already had to deploy Peter Shane to explain to our readers—and Elon Musk—that there is no “Department of Government Efficiency” and that cutting federal spending takes more than a few posts on X.) 

As those challenges arise, we will continue to tackle them in our print magazine, our constantly changing website, and now, in our new podcast (starring contributing writer Anne D. Kim and me). Your help and support make it possible. Will you join our law-nerd party? All the signs are that it’s going to be rip-snorter.  

Please contribute to the Washington Monthly now. It’s tax-deductible, and $50 or more brings you a complimentary gift subscription to our print edition. 

All the best, 

Garrett Epps 

Legal Affairs Editor 

The post Protecting the Constitution the Washington Monthly Way appeared first on Washington Monthly.

As the Mueller probe plods along, the wheels are starting to come off the Trump administration. Last week, we all got to compare this president with the legacy of Senator John McCain. While I was never a supporter of the latter, his funeral was crafted specifically to make Trump look small and place him outside our country’s most basic ideals.

We had hardly grasped the weight of that comparison when reports began to surface about Bob Woodward’s book. I think Kevin Drum summed that one up well with this title, “Donald Trump Is an Unhinged, Lying, Fifth-Grade, Goddamn Dumbbell—And That’s Just What His Friends Say.”

On Wednesday, the New York Times published an anonymous op-ed from a “senior official in the Trump administration” suggesting that most of them know that this president is seriously unfit for office.

The dilemma — which [Trump] does not fully grasp — is that many of the senior officials in his own administration are working diligently from within to frustrate parts of his agenda and his worst inclinations.

I would know. I am one of them.

To be clear, ours is not the popular “resistance” of the left. We want the administration to succeed and think that many of its policies have already made America safer and more prosperous.

But we believe our first duty is to this country, and the president continues to act in a manner that is detrimental to the health of our republic.

That is why many Trump appointees have vowed to do what we can to preserve our democratic institutions while thwarting Mr. Trump’s more misguided impulses until he is out of office.

It’s clear that in the play that is running inside this person’s head, they have cast themselves in the role of hero to the country for being willing to thwart the president’s more misguided impulses. He or she wants you to know that any successes coming from this administration are in spite of Trump’s leadership, not because of it. They want you to take comfort in the fact that there are adults in the room.

In anticipation of how some of us might react to those claims, the author writes this:

Given the instability many witnessed, there were early whispers within the cabinet of invoking the 25th Amendment, which would start a complex process for removing the president. But no one wanted to precipitate a constitutional crisis. So we will do what we can to steer the administration in the right direction until — one way or another — it’s over.

The author would have us believe that by basically staging an inside coup where non-elected officials control the presidency, they are avoiding a constitutional crisis. What the holy hell!

I take small comfort in knowing that things could actually be worse than they already are if these guys weren’t thwarting Trump’s worst impulses. But enabling this lunatic’s grip on power while writing anonymous op-eds telling the American people that they’ve got this thing under control is the very definition of a constitutional crisis. They’re placating their egos with bromides about how they’re doing us a favor when it is much more likely that they’re drunk on the power of being able to run the show from the White House.

If the idea of a president  unfit for office combined with a cabal of White House officials running the country isn’t enough to wake congressional Republicans up from this deal with the devil, then the entire GOP is complicit in creating this constitutional crisis.

Barack Obama’s line about how democracy is on the ballot has never been more starkly true than it is this November.

The post The Constitutional Crisis Isn’t Coming. It’s Here. appeared first on Washington Monthly.

Last Friday morning, before the Mueller indictments against the Russians were made public, FBI Director Wray and Deputy Attorney General Rod Rosenstein briefed Trump on the coming announcement. As I suggested previously, that gave the White House time to develop talking points that were included in the president’s tweet immediately following the release of the indictments. Since then we’ve heard these three talking points repeated endlessly by the president, his supporters and right wing media:

1. The Russians started in 2014, before Trump announced his candidacy
2. The Russian efforts didn’t affect the outcome of the election
3. There was no collusion with the Trump campaign

What I found most interesting is that Deputy AG Rosenstein basically repeated those talking points during his press conference on Friday afternoon.

For the first five minutes of his prepared remarks, Rosenstein summarized the specifics of the indictments. But what he never mentioned are the numerous times they specifically state that the Russian efforts (particularly starting in April 2016) were designed to support Trump and hurt Clinton. As an example, early on in the document is a summary of their goals.

Not only did Rosenstein fail to mention that the goal of the efforts by early to mid-2016 was to support Trump and disparage Clinton, the one and only example he recounted was that after the election the Russian’s organized both a pro-Trump and anti-Trump rally in New York on the same day. For those who didn’t read the actual document, the idea that these efforts were only an attempt to sow discord in the election rather than in support of Trump was affirmed by Rosenstein’s account.

At approximately 4:50 in the video above, the Deputy Attorney General basically reiterated talking points #2 and #3 above. He ended his remarks by saying that nowhere in the indictment is there an allegation that any American was a knowing participant in these activities and that there is no allegation that the conduct altered the outcome of the 2016 election.

I find all of that pretty troubling. Is it merely a coincidence that Rosenstein repeated the White House talking points during his prepared remarks at the press conference? I don’t think so and am reminded of the testimony of former FBI Director James Comey on how the president was obsessed with pressuring him to make public statements about how Trump was not the target of the FBI’s investigation. Did the president pressure Rosenstein to repeat his talking points about these indictments? It looks like he did.

The question becomes: why did Rosenstein comply? It could be that he is simply providing cover for Trump at this point. But in praising the deputy AG for his performance on Friday, David Kurtz might have unknowingly provided an answer to my question.

Rosenstein makes it infinitely harder for Trump to fire him, as he is now the face of the probe. He also spares Mueller from being the face of the probe, and from all the slings and arrows of political fortune that go with that role (recall Ken Starr).

Rod Rosenstein is the one person Trump would have to go through to fire Mueller. In order to keep the special counsel he appointed from that fate, he has to keep his job. It very well might be that appeasing the president on these talking points was the dance Rosenstein had to do in order to in order to stop Trump from flying off the handle and creating a constitutional crisis.

If the day comes that Mueller releases evidence that implicates the president in a conspiracy with the Russians and/or obstruction of justice, that crisis will definitely unfold. But as others have suggested, at that point it will be too late.

The post Why Did Rod Rosenstein Repeat Trump’s Talking Points on Russian Indictments? appeared first on Washington Monthly.