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.

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

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

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

Does that make sense?  

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

In criticizing the Supreme Court’s use of the “shadow docket”—where it has issued major rulings this year, mostly in Trump’s favor, without full briefing, oral argument, written opinions, reasoning, or even named authors—The New York Times Editorial Board says it is troubled but insists it would be “unfair” to call the Court “a mere extension of Mr. Trump.” Why unfair? There is no doubt about it. The justice business has now descended into the bargain basement. 

While the shadow or emergency docket is supposed to be used where there is a real emergency, and a party may suffer “irreparable harm” if the court does not act immediately, the docket has become an expedient for the Court’s down-and-dirty rubberstamping of even the most obviously illegal of Trump’s sweeping executive orders. 

Trump has often boasted that he has a supermajority MAGA court that gives him “big wins.” In this case, he’s not exaggerating. The justices have used shortcut procedures on their shadow docket to issue decisions handing Trump most or all of what he had asked for in hot-button cases dealing with immigration, transgender individuals in the military, the independence of government agencies, and even previously incontestable interpretations of the Constitution. 

The shadow docket rulings in Trump’s favor are supposed to be temporary and provisional. In outcome, they have become a mark of Cain, allowing the president to pursue his flagrantly illegal policies indefinitely and even irreversibly. 

It may be that institutionalists on the Court will do anything to avoid a constitutional confrontation, no matter how much over the top the executive’s conduct is. However, the shadow docket allows them to roll over anonymously, in lock step, and without opinion or reasoning.  

University of Chicago law professor William Baude first coined the term “shadow docket” in a 2015 article in the NYU Journal of Law & Liberty. Although Baude probably failed to grasp at the time how apt the sobriquet would be, he defined the term as “a range of orders and summary decisions that defy its normal procedural regularity.” Decisions on the shadow docket happen in the shadows. 

It appears Baude never dreamed that the excessive use of the “shadow docket” might be a dagger to the heart of Supreme Court independence. 

Baude’s critique of the shadow docket is scholarly. He argues that many of the court’s orders lack the transparency we have come to appreciate in the merits cases, and second, that summary reversal orders have become an exception that swallows the rule. Indeed, the matrix for summary reversal cases (“who loses, and who wins, who’s in, who’s out”) remains a mystery, beclouding all ability to tell whether the Court’s selections are fair. 

The legal pundits have gorged on Baude’s use of the catchword “shadow.” The term reminds us, who are old enough, of the 1937-to-1954 radio detective drama series “The Shadow,” where the hero had learned in the Orient the secret of how to cloud men’s minds so they cannot see him as he battled crime. Only the Shadow knows “what evil lurks in the hearts of men.” 

Justice Ketanji Brown Jackson has been the most outspoken critic of the shadow docket and its increasingly convenient procedural availability for the justices to deliver bargain-basement endorsements of Trump’s agenda without explanation or legal rhyme or reason.  

“This fly-by-night approach to the work of the Supreme Court is not only misguided,” Jackson wrote. “It is also dangerous.” 

Her colleague Justice Elena Kagan has quickly agreed:

“As we have done more and more on this emergency docket, there becomes a real responsibility that I think we didn’t recognize when we first started down this road to explain things better. I think that we should hold ourselves sort of on both sides to a standard of explaining why we’re doing what we’re doing.” 

The Times refrained from concluding what most Americans long ago concluded: that the Court, which includes three Trump appointees, has become a rubber stamp for Donald Trump. When Trump campaigned in 2016, he promised to appoint justices who would “automatically” overrule Roe v. Wade. And he did, and they did.  

It argues by way of mitigation that it ruled against him in his “ludicrous claims of election fraud” in 2020, and the ruling that he couldn’t transfer migrants to a prison hellhole in El Salvador without notice and hearing. But in both cases, the court had nowhere to go but to reject Trump’s claims, lest its rulings not survive the laugh test. And in the immigration matter, the court timidly ordered the government to “facilitate” the return of the illegally deported migrants to the United States, not to “effectuate” their return. 

This against Trump rulings pale compared to the 12 decided applications on the shadow docket this year involving Trump’s sprawling executive orders, with all but two going Trump’s way.  

A decision in a merits case is the apparent product of great care and lengthy deliberation. In recent terms, the median time from when a party first sought Supreme Court review to when the justices ruled was more than a year. 

Such cases feature two sets of briefs and oral argument, discussion of the case at conference, and exchange of draft opinions, often including concurrences and dissents—no rush to judgment here. There is the appearance and the reality of full consideration.  

Shadow docket applications are another matter. Excluding death penalty cases, the median time between first filing and the court’s decision is about three weeks. 

The Times points out, “the administrations of George W. Bush and Barrack Obama, combined, asked the Supreme Court for emergency relief only eight times in 16 years,” while Trump, who in the four years of his first term applied for emergency relief 41 times, has applied for shadow relief 21 times since January, an astonishing statistic so immutable it cannot get anyone fired for announcing it. 

 As Congresswoman Jasmin Crockett recently said in another context, “It doesn’t take an Einstein to see that the math ain’t mathin’ here.” 

The evidence that the Court had become totally political is the box score. Of the 22 decided applications decided by the Court this term on their shadow docket involving Trump’s executive orders, Trump won 20 and lost maybe two. None of these orders is necessarily wrong, but they raise questions of procedural regularity—i.e., of the consistency and transparency of the Court’s processes.  

But, as any lawyer will tell you, procedural regularity begets substantive legitimacy. 

Also, the Court’s behavior has been supremely partisan. Its inconsistency is astounding. As Baude has pointed out, it is anomalous that the Court outlawed the nationwide injunction in the birthright citizenship case. However, it refused to disturb it when it had a chance during the Bush, Obama, or Biden administrations. The double standard is self-evident. The court intervened to lift 77 percent of lower-court temporary restraining orders and preliminary injunctions against the Trump administration, while lifting 14 percent of those against the Biden administration. 

Who knows whether the Court’s behavior is supremely partisan? Perhaps the Shadow knows.  

The post The Shadow Knows  appeared first on Washington Monthly.

The idea that the United States awaits some dread constitutional crisis has become commonplace. For lawyers, such a crisis would likely involve Donald Trump’s administration defying the Supreme Court on some critical ruling. But other crises are readily imaginable. Might President Trump invoke the Militia Act to manipulate the 2026 congressional elections, or order the Marines to take sites in Greenland without congressional approval, which seems ever more plausible after the June 22 bombing of Iranian nuclear facilities?

Such scenarios are not unfounded, but they do not diagnose our true malady. Our ongoing constitutional crisis began with the presidential election last November 5. Reelecting an individual culpable for January 6 who has twice made a mockery of the presidential oath of office is itself a constitutional crisis. Nothing in his past or current behavior suggests that Trump has ever felt fidelity to his constitutional duties.

Once a constitutional crisis becomes an endemic condition, the term no longer usefully describes our collapsing system. Instead, we live in an era of constitutional failure when the relevant institutions cannot fulfill their responsibilities.

Because constitutional failure is a term we have never needed to use, it merits a precise definition. First, it must identify the specific situations where the government institutions have manifestly not fulfilled their constitutional functions. Second, it should treat these omissions not as occasional lapses but systemic defects. Third, it must explain how the political and ethical norms of constitutional governance have evaporated.

To apply this framework to the second Trump administration is hardly difficult. The only problem is where to begin. Consider its authoritarian reliance on executive orders to vitiate legally established government activities, its attempt to intimidate institutions outside of government to do its bidding, and its insistence that servile loyalty to the president outweighs fidelity to constitutional norms. That some commentators describe this last practice as the Führerprinzip—the Nazi principle that the will of the leader transcends all legal norms—tells us everything.

Deciding whether the Constitution is failing requires asking if and why the other two branches of government have been remiss in checking a rogue executive.

Their most important failures involve the two clauses that would have disqualified Trump from reelection: the presidential impeachment clause and Section 3 of the Fourteenth Amendment. But starting in a more obscure location is better: the two Emoluments Clauses restricting the material benefits a president can receive from other governments. In his first administration, three suits sought to force Trump to comply with these two clauses. One, brought by members of Congress, was plausibly dismissed on standing grounds, because a minority faction in Congress cannot litigate to make the body implement a power it already possesses. Two other cases, however, progressed in the lower courts, but once they were appealed, the Supreme Court slow-walked them until Trump left office, leaving the issue moot.

The Court thus casually squandered an opportunity to clarify the meaning of a provision that badly needs enforcement. All previous presidents had scrupulously adhered to the Emoluments Clauses, which embody the fundamental principle that presidents should neither seek nor hold office for private gain. The honor of holding the highest office in the land should displace every other ambition. But this president and his family have more material, even sordid aims to pursue. With Trump, the imperial presidency and the presidential emporium have converged. This White House is for sale, whether through gifts from wealthy entrepreneurs, the manipulation of tariffs, and, perhaps worst of all, the family’s active involvement in crypto meme speculations.

But the two Emoluments Clauses occupy only obscure niches in the Constitution. The same cannot be said of the powers being abused to eliminate federal agencies and departments and purge civil servants. These agencies and officials derive their authority from congressional enactments and appropriations. All are covered by the Impoundment Control Act of 1974, adopted to constrain the unilateral efforts of President Richard Nixon to reduce federal spending on his own authority. All involve the signature constitutional obligation of the president to “take care that the laws be faithfully executed,” not least because every statute requires either the assent of the chief executive or, in the case of a presidential veto, its reenactment by supermajorities in both houses of Congress.

The most fundamental purpose of constitutional government, as it evolved in 17th-century England and revolutionary America, was to make the executive power susceptible to legislative control. It did not matter whether the executive was monarchical, ministerial, or presidential. The key point established by the English Glorious Revolution of 1688 was that the Crown had to rule with parliamentary consent or supervision.

The executive could not arbitrarily suspend or dispense with enacted legislation. The royal suspension of law topped the list of grievances that the parliamentary proponents of the Glorious Revolution compiled in the Bill of Rights that accompanied the accession of William and Mary to the throne. As its first resolution stated, “the pretended power of suspending of laws, or the execution of laws by regal authority, without consent of parliament, is illegal.”

A similar statement holds a prominent place in another famous Declaration. The second allegation leveled against George III on July 4, 1776, was that “He has forbidden his Governors to pass Laws of immediate and pressing importance unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.” In Anglo-American tradition, the executive suspension of duly enacted law is prohibited.

One would expect to hear Democratic members of Congress make this case repeatedly. Their silence on this point identifies one great political mystery of the day. Republican members cannot evade this accusation either. When audiences at constituent meetings repeatedly shout, “Do your jobs,” they have a better grasp of Congress’s responsibility than their feckless representatives.

A similar argument applies to the rogue agency implementing this strategy. The Department of Government Efficiency (DOGE) cannot be a department in the conventional sense. It was not legally created as such; instead, the obscure United States Digital Service underwent a radical mutation in name and purpose by executive order, from improving the government’s use of information technology to decimating its agencies.

Given DOGE’s scope, a naïve observer would think its head would require Senate approval. The Senate did not assert that claim. Nor do many senators seem to believe this power over appointments is all that important. Their willingness to confirm the nomination of a recovered heroin addict and anti-vaxxer as Secretary of Health and Human Services, the head of the World Wrestling Federation as Secretary of Education, and a Fox & Friends Weekend host as Secretary of Defense marks the Appointments Clause as yet another failure.

Nor can the House of Representatives escape criticism for its dereliction of duty. The legal basis upon which Trump has launched his rollercoaster policy of raising, lowering, and suspending tariffs is less than flimsy, as the recent decision of the specialized Court of International Trade fully explains. The Constitution empowers Congress “to lay and collect Taxes, Duties, Imposts, and Excises,” with the House of Representatives initiating steps. Congress has authorized the president to modify tariffs only in urgent cases when an emergency exists. It cannot delegate the authority to levy a shifting and massive tax (that is, a tariff ultimately paid by consumers) to the president to impose unilaterally, another power the Stuart crown tried to wield arbitrarily in the seventeenth century.

In the face of this congressional passivity, what path of constitutional repair is left open? Unsurprisingly, the best answer remains the courts. Although it has taken time to respond to the turmoil Trump has unleashed, the judiciary’s actions have been encouraging. Remarkably, the difference between Republican and Democratic-appointed judges has been slight, suggesting that judicial independence enshrined in Article III may be fulfilled amid this grave situation.

Yet, with the current Supreme Court, one cannot be too confident. Why? Its responses to the two 2024 critical election cases remain deeply troubling to anyone who takes the injunctions of the Constitution seriously.  The Court handled one case with striking expedition. But it manifestly stalled the other with a run-out-the-clock set of procedural delays that deprived voters of findings they were entitled to possess before November 5. The decisions in Trump v. Anderson (which involved the application of Section 3 of the Fourteenth Amendment to Trump’s eligibility to appear on the Colorado primary ballot) and Trump v. U.S. (the presidential immunity case) should sit atop any hit list of constitutional failures.

Two conditions define this failure. First, whatever its motivations, the Supreme Court majority simply refused to recognize the gravity of January 6, 2021, a date which stands as the constitutional counterpart to the surprise attacks of December 7, 1941, and September 11, 2001. Rather than focus on specific facts and constitutional aspects of January 6 or confront the novel attempt of a sitting president to obstruct the peaceful transfer of power, the majority insisted, in Justice Neil Gorsuch’s words, that “We’re writing a rule for the ages.” In his opinion, Chief Justice John Roberts similarly observed that “we cannot afford to fixate exclusively, or even primarily, on present exigencies” or “transient results.” One can only wonder what makes some unforeseeable future contingency more urgent than the facts at hand. Law evolves not by dealing with imaginary contingencies but by making sense of existing facts.

The second condition seems more surprising. It is the stunning inadequacy of the majority’s understanding of constitutional history and core concepts of American constitutionalism. In Trump v. United States, the chief justice emphasized the desire of the Framers to create an executive who could act with “vigor,” “energy,” and “dispatch.” Any threat of being prosecuted for undertaking decisions requiring these qualities would weaken the presidency, thus providing a rationale for presidential immunity.

 That argument presents only half the story. The other quality the Framers insisted on and valued higher than “energy” and “vigor” was “responsibility,” which is best defined in Article II, requiring the president to “take care that the laws be faithfully executed.” That was the antithesis of what Trump did on January 6, which is precisely why his prosecution should have been expedited, not prevented.

The Court similarly erred in its concern about Trump’s indifferent willingness to put Vice President Michael Pence in danger. Here, the chief justice vaguely invoked the theory of separation of powers, stressing the close relationship between the president and vice president. But this emphasis badly misstates their relationship. For much of its history, the vice presidency was not—repeat, not—considered part of the executive. The office’s original sole constitutional function was to preside over the Senate. That was the capacity in which Pence was acting on January 6. The real threat to the separation of powers on January 6 came from the outgoing president’s depraved effort to stay in power.

The Supreme Court defaulted on its responsibility. Its duty was not to fret over future presidential prosecution but to deal with the facts at hand so that the electorate would be fully informed before November 5. By stifling the proceedings in Judge Tanya Chutkun’s courtroom, the Court made its unique and potentially lethal contribution to our failing Constitution.

In our fractious polity, fresh insults to constitutional norms and settled practices of governance occur daily. That is why the phrase constitutional crisis no longer describes our situation. The Constitution has failed, and we no longer know which institution will rescue it.

The post It’s Not Just a Constitutional Crisis in the Trump Era. It’s Constitutional Failure appeared first on Washington Monthly.