President Trump took a broad swing at the [legal] industry Friday night after three earlier orders punishing Paul Weiss and two other firms. In a presidential memorandum, he broadly accused law firms of abusing the legal system to challenge his policies, stymie immigration enforcement and pursue partisan causes. He instructed Attorney General Pam Bondi to seek sanctions in court against lawyers and firms who engage in “frivolous, unreasonable and vexatious litigation.”
Trump also directed Bondi to launch a broad review of conduct by lawyers in litigation against the government over the last eight years to determine whether additional firms should face the same type of punishments he has issued already, most notably the termination of government contracts held by firm clients.
Administration officials already have built a list of more than a dozen law firms they might target with executive orders, and Trump has expressed eagerness in signing more of them, according to people familiar with the planning.
Trump’s latest pronouncement landed particularly hard in an industry that was still processing Paul Weiss’s decision to cut a deal with the White House rather than challenge the administration in court. Trump on Thursday rescinded his order against the firm after it agreed to provide $40 million in pro bono legal services to support the administration’s initiatives, such as assisting veterans and fighting antisemitism.
Several law-firm chairs and senior partners said they were working to calm clients and employees, with younger associates increasingly calling for lawyers to take a stand against Trump. Some firm leaders said their clients—and their fellow partners—were split on whether they would rather their firms take a deal if targeted or fight it out in court. A number of firms were trying to draw distinctions to clients between their work and the activities of the firms that Trump has punished already. Corporate lawyers with a connection to the Trump administration have been tapped to open communication lines with the White House, and several firms were seeking to engage lobbyists, people familiar with the discussions said.
Paul Weiss chairman Brad Karp spoke with other firms’ leaders in recent days and told them he found the deal with the White House distasteful but said he had little choice but to take it, according to people familiar with those conversations.
“Clients had told us that they were not going to be able to stay with us, even though they wanted to,” Karp told firm lawyers and employees in an internal email Sunday viewed by the Journal. “It was very likely that our firm would not be able to survive a protracted dispute with the Administration.”
One firm, Perkins Coie, which was hit with a Trump executive order on March 6, continued to lead the fight against the administration over the weekend.
“Now more than ever law firms and lawyers across the political spectrum have to stand up for our timeless values,” David Perez, a Perkins Coie partner said on LinkedIn. The Paul Weiss agreement, he said, emboldened Trump “to ratchet up his attack on one of the strongest checks on his power: lawyers and the rule of law.”
Perkins Coie sued the administration on March 11 and won a restraining order against the administration, with a judge saying the executive order was likely unconstitutional. But while the firm is winning in court, it is struggling to manage the fallout behind the scenes.
Perkins is losing clients who fear Trump’s wrath, and a number of top companies that work with the firm have called other firms about representation, people familiar with the matter said. One of the people said some competing lawyers have made sympathetic calls to Perkins to say they aren’t trying to steal the firm’s clients and would step aside if those clients wanted to return to Perkins after the situation calmed down.
An effort across a number of firms to file a court brief in support of Perkins continues to flounder because not enough firms are willing to sign it, for fear of antagonizing the administration, people familiar with those negotiations said.
San Francisco-based Keker, Van Nest & Peters urged law firm leaders “to resist the administration’s erosion of the rule of law.”
“Our liberties depend on lawyers’ willingness to represent unpopular people and causes, including in matters adverse to the federal government,” the firm said. “An attack on lawyers who perform this work is inexcusable and despicable.”
Trump’s campaign in part has been focused on paying back opponents. Perkins, for example, worked with Hillary Clinton’s presidential campaign and an opposition-research firm that compiled a discredited dossier against Trump. Covington & Burling, another firm hit with an executive order, provided legal counsel to former special counsel Jack Smith. And Trump cited Paul Weiss’s previous ties to Mark Pomerantz, who also worked on the Manhattan district attorney’s investigation into Trump and his business.
But the president’s Friday memorandum also signaled Trump’s broader frustrations with lawyers challenging his initiatives in court—and winning. His administration is currently locked in a showdown with a Washington federal judge over Trump’s invocation of wartime powers to deport alleged Venezuelan gang members. A number of the president’s other initiatives have been put on hold by the courts, including the termination of thousands of government employees and limits on birthright citizenship and transgender rights.
Public-interest legal organizations and smaller firms have been leading many of those cases.
Sid Davidoff, a New York lawyer who was famously on President Richard Nixon’s “enemies list,” said industry leaders were caving to pressure.
“You have some top notch firms, significant legal minds, and they’re just being whipped,” Davidoff said. “I guess they are trying to protect their bottom line, but it’s really upsetting.”
A deeply researched article on the goings on at Paul Weiss, based on lots of things, including the thoughts of the firm’s managing partner, who tries to tell his side of the story.
Here are some questions. (As I said, I’ll give my personal answers in later posts; others may have different answers than mine.)
Is the “agreement” between Trump and Paul Weiss legally enforceable—and does it even purport to be legally enforceable?
What did Paul Weiss actually “agree” to do?
What lies did Trump tell about the “agreement”?
In addition to the points in the agreement, what points are missing? In other words, what hound dogs are not barking in the night?
When the managing partner of Paul Weiss walked out of his meeting with Mango Mussolini, did the said managing partner think, “Man o man, did I just snooker Trump”?
What did Trump actually want from the “agreement,” and did he actually get the thing that he actually wanted?
Did Mr. Karp, Paul Weiss’s managing partner, overlook the forest for the trees?
Big law firms like Paul Weiss compete in three important dimensions. (1) They compete for the business of rich clients with legal issues. (2) They compete for associates (salaried junior lawyers); central to their business model is hiring able associates, paying them a lot of money—i.e., buying their time at wholesale—and then marking up their time to sell at retail, at exorbitant hourly rates. (3) They compete to steal partners with good “books of business” from other firms, and they strive to keep the partners they have from walking out the door. How will the Trump “agreement” impact Paul Weiss’s ability to engage effectively in these three modes of competition?
Paul Weiss probably expects to hire several dozen new associates from the graduating law class of 2025. How will the Trump “agreement” affect the thinking of those potential new hires? How will it affect their incentives to join—or not to join—Paul Weiss? How many of the 2025 law grads who have Paul Weiss offers are actually going to show up at the firm this summer? How many will decide to look for work elsewhere?
Would it be in the collective self-interest of the big firms to take the “Trump factor” out of their competition for corporate business, their competition for able associates, and their competition for partners?
In the next two weeks or so, is Paul Weiss likely to turn around and modify its position?
If a lot of the big firms decide, on reflection, that they would collectively be better off to stand together against Trump, what steps might they take to implement that decision?
In the next two weeks or so, is it likely that many of the big law firms will come to the epiphany that they need—in their own stone cold self-interest—to take collective action to support the rule of law?
Is Perkins Coie likely to win or lose in its lawsuit against Trump—and would one or more amicus briefs likely affect the outcome substantially?
President Lizard Brain seems to think he can head off the lawsuits against him—there are now well over a hundred, and he’s losing most of them—by punishing the lawyers who represent plaintiffs with legal positions adverse to him. But is there in fact there a constitutional right to sue? And does a litigant have a legal right to counsel of their choice? And is it lawful for the government to punish someone for exercising a constitutional right?
Is collective action against Trump by the major law firms a matter of life and death for democracy and the rule of law, or is it more like Kabuki theater?
If rule of law is ultimately to be preserved, what three factors will achieve the preservation?
And apart from that, how did you enjoy the play, Mrs. Lincoln?
With the United States Congress having debased and shamed itself in the face of Trump’s bullying, it’s especially important for other institutions to stand up to the nonsense. Especially the Supreme Court and the rest of the federal judiciary. Especially the colleges and universities, and particularly the elite universities. Especially the legal profession, and particularly the American Bar Association and the elite law firms.
As to Covington, as far as I can tell, the matter is hanging fire.
In the case of Paul Weiss, the firm retained as its counsel a Trump-linked law firm and then, shortly thereafter, Paul Weiss’s head had a face-to-face meeting with Mango Mussolini—a meeting that is said to have resulted in a settlement agreement. The latter has been represented, at least by headline writers, as a capitulation by the targeted law firm.
I really don’t think so.
Trump-Approved Pro Bono Work
The purported agreement is described in Mr. Schmidt’s article, cited above. One component is said to entail the firm’s contributing “$40 million in legal services to causes Mr. Trump has championed, including ‘the President’s Task Force to Combat Antisemitism, and other mutually agreed projects,” according to Schmidt’s reporting.
Paul Weiss’s annual revenue is about $2.6 billion, and its profit per partner stands at just over $7.5 million. Even if the agreement implied that the firm would forego $40 million in revenues, that would only be a microscopic part of the firm’s annual earnings.
Paul Weiss is currently charging $1,000 per hour for second-year associates, $1,560 per hour for senior associates, and up to $2,400 per hour for partner time. Depending on which lawyers at Paul Weiss are going to provide the Trump-approved pro bono legal services, it’s not going to take all that long to eat up $40 million.
DEI
Schmidt also reports, “The firm, Mr. Trump said, also agreed to conduct an audit to ensure its hiring practices are merit based ‘and will not adopt, use, or pursue any DEI policies.’”
My strong sense is that Trump’s mental illness has advanced to the stage where his situational awareness is severely, severely diminished. As so many have noted, he does indeed have an authoritarian playbook. But it’s not the playbook of a rational wannabe authoritarian.
Perhaps through confirmation bias, this afternoon I call your attention to Amanda Taub’s essay, which draws a sharp contrast between Trump’s approach and that of the dictators presiding over Hungary and Turkey.
Trump—and his MiniMes like Rep. Hageman of Wyoming—seem to think that their own base are a bunch of masochists.
Trump’s Right About One Thing: Only Trump Can Fix It
An authoritarian playbook based on madness and sadism toward your own supporters is a dog that won’t hunt.
Trump is right. The one person who can defeat Donald Trump—the one person who is going to defeat Donald Trump—is none other than Mango Mussolini himself.
Please excuse a brief point of personal privilege: my undergraduate degree is from Princeton, and, between us, my wife and I have a bunch of degrees from Columbia. (To be more precise, I have one degree from Columbia, and she has so many that I can’t remember them all.)
Well, that’s as may be. But, I am very happy to say, Princeton’s president did not get the memo. I salute him and I honor him.
President Eisengruber of Princeton writes,
The United States is home to the best collection of research universities in the world. Those universities have contributed tremendously to America’s prosperity, health, and security. They are magnets for outstanding talent from throughout the country and around the world.
The Trump administration’s recent attack on Columbia University puts all of that at risk, presenting the greatest threat to American universities since the Red Scare of the 1950s. Every American should be concerned.
The rise of the American research university in the 20th century depended on many factors, including two crucial turning points. The first, at the start of the century, was the development of strong principles of academic freedom that allowed people and ideas to be judged by scholarly standards, not according to the whims or interests of powerful trustees, donors, or political officials. Stanford’s dismissal in 1900 of Edward Ross—an economics professor who had incited controversy with his remarks about, among other topics, Asian immigrants and the labor practices of a railroad run by the university’s founders—catalyzeda movement to protect the rights of faculty members to pursue, publish, and teach controversial ideas. Significant governance reforms took place in the same period, shifting control of professorial appointments from boards of trustees to presidents and faculties.
The second turning point came during World War II, when Vannevar Bush, the director of the Office of Scientific Research and Development, created the modern partnership between the federal government and the country’s research universities. Bush recognized that by sponsoring research at universities, the United States could lead the world in discoveries and innovations. Over time, American universities became responsible for a large portion of the government’s scientific programs, accepting tens of billions of dollars a year to perform research that would make the country stronger and improve the lives of its citizens.
These two developments had an important connection. The government’s successful collaboration with American universities depended on its respect for academic freedom, which, for decades, presidents and legislators from both political parties largely observed. That freedom attracted the world’s finest scholars and facilitated the unfettered pursuit of knowledge.
Robust federal funding helped make American universities the world’s best, but it also created a huge risk. Universities had acquired a public patron more powerful than any private donor; their budgets became heavily dependent on that single source. If the United States government ever repudiated the principle of academic freedom, it could bully universities by threatening to withdraw funding unless they changed their curricula, research programs, and personnel decisions.
That’s what the Trump administration did this month when it canceled $400 million in funding to Columbia without the legally required due process. The government toldColumbia that the money would be restored only if the university met various conditions, which included placing its Middle East, South Asian, and African Studies department “under academic receivership” and making unspecified but “comprehensive” reforms to its student admissions and international-recruiting practices.
Recent events have raised legitimate concerns about anti-Semitism at Columbia. The government can respond to those concerns without infringing on academic freedom. The principles of that freedom do not give faculty or students the right to disrupt university operations or violate campus rules. Nor does this freedom allow faculty to violate the scholarly standards of their discipline or compel students into political activity. To the extent that the government has grounds to investigate, it should use the processes required by law to do so, and it should allow Columbia to defend itself. Instead, the government is using grants that apply to Columbia science departments as a cudgel to force changes to a completely unrelated department that the government apparently regards as objectionable.
Nobody should suppose that this will stop at Columbia or with the specific academic programs targeted by the government’s letter. Precisely because great research universities are centers of independent, creative thought, they generate arguments and ideas that challenge political power across fields as varied as international relations, biology, economics, and history. If government officials think that stifling such criticism is politically acceptable and legally permissible, some people in authority will inevitably yield to the temptation to do so.
Nor should those who might revile the views expressed by some Columbia faculty members, or who dislike the university’s admission policies, take any comfort from this assault on academic freedom. Universities are now under attack from the right; in the future, left-leaning politicians may demand that universities do their bidding. Under such circumstances, the safest appointments may be the blandest ones—and brilliant scholars, those whom the world most needs, are rarely bland.
The attack on Columbia is a radical threat to scholarly excellence and to America’s leadership in research. Universities and their leaders should speak up and litigate forcefully to protect their rights.
The universities cannot, however, prevail alone. Strong, independent academic institutions produce new technologies and insights that catalyze economic growth, save lives, improve well-being, and overcome injustices. Every citizen and officeholder who cares about the strength of our country must also care about free speech, self-governing thought, and the untrammeled quest for knowledge. They, too, should demand a stop to the government’s unwarranted intrusion on academic freedom at Columbia.
Well, yeah. But I think there are actually two sides to this coin.
Two Sides to the Coin: Who Will or Won’t Obey Which Orders?
Well may we ask, how do the courts enforce their orders when Trump tells his minions to violate the law?
But, by like token, when Trump tells his team to violate the law, how many of them will actually do it?
Let’s wargame this out.
Some on the Trump team are lawyers—actual members of the bar. Lawyers who engage in contempt of court—not to mention other violations like subornation of perjury or obstruction of justice—face fines, imprisonment, and disciplinary actions up to and including disbarment.
If you are a lawyer, there will probably come a time when a client will pressure you to violate the law or demand that you violate the law. You had bloody well not do it. It’s the wrong thing to do. But even if you don’t give a tinker’s damn about right or wrong, it’s still a really bad idea to violate the law on a client’s behalf.
Now, to push our little thought experiment to the next step: Maybe you are a member of the bar who has drunk deeply of the MAGA Kool-Aid. Maybe you think that a Trump dictatorship would be just fine and dandy. But are you SURE that the leap toward dictatorship is actually going to work?
Because, friend, if Trump doesn’t pull off his dictatorship, then you are going to be left up that famous tributary without a means of locomotion.
If you are a lawyer, you will be subject to disbarment, and will need to find another line of work—animal husbandry, maybe?
If you are not a lawyer, you can’t be disbarred—you were never “barred” in the first place—but there are plenty of other adverse consequences that could ensue.
In short, Conway is surely right as far as he goes: Just because the Supreme Court says “Jump,” that doesn’t mean that everyone in the land will ask “How high, sirs?”
But the same thing goes if and when Trump says “Jump—into defiance of the rule of law!” Lots of people will jump. But how many will not jump?
And Then There are the Knock-on Effects …
As Conway says, when push comes to shove, there will be a lot of folks out in the streets. But it won’t only be folks in the streets. Read the damn WSJ Editorial Board, for example: If the rule of law disappears and it becomes a jungle out there, how the hell can big business enforce its contracts—or have enough certainty to invest and thrive?
What will Trump do when every Fortune 500 CEO comes for him?
… At a Time When There is Massive Pain Throughout Society
If you’re Mango Mussolini and you want to go full authoritarian, maybe you don’t want to pick a time when government breakdowns are hurting your peeps and when trade wars are causing big pain.
Not a Rosy Scenario—But a Damn Uncertain Scenario
No, my name is not Rosy Scenario, and of course I don’t know how all of this is going to turn out. But I do know, to a high level of confidence, that there are a whole lot of moving parts—and a lot of those moving parts may not move in Trump’s direction.
The key to understanding this morning’s Supreme Court ruling unfreezing American foreign aid is that two different rulings are at issue here, and teasing apart those technicalities reveals a loss that is perhaps more significant for the Trump administration than is first apparent.
The two orders both come from U.S. District Court Judge Amir Ali. There’s his underlying temporary restraining order (TRO), which remains in effect (and which the government has neither tried to appeal nor sought emergency relief from), and then there’s his more specific order, which purported to enforce the TRO by obliging the government to pay somewhere from $1.5 billion to $2 billion of committed foreign-aid funds by February 26. It was that order that the government tried to appeal, and from which it sought emergency relief first in the D.C. Circuit Court and then in the Supreme Court. By issuing an “administrative stay” last Wednesday night, Chief Justice John Roberts temporarily absolved the government of its obligation to comply with that order—but not with the underlying TRO, which generally requires the government to spend money that Congress has appropriated for foreign-aid funding.
Against that backdrop, the Court’s ruling today is more than a little confusing. Let’s start with what’s clear: A 5–4 majority (with Chief Justice Roberts and Justice Amy Coney Barrett joining the three Democratic appointees) denied the government’s application to vacate Judge Ali’s enforcement order. The Court’s ruling contains only one meaningful sentence, and it is maddeningly opaque:
“Given that the deadline in the challenged order has now passed, and in light of the ongoing preliminary injunction proceedings, the District Court should clarify what obligations the Government must fulfill to ensure compliance with the temporary restraining order, with due regard for the feasibility of any compliance timelines.”
This sentence (or, perhaps, an earlier draft of it) provoked a fiery and more than a little hypocritical eight-page dissent from Justice Samuel Alito, joined in full by Justices Clarence Thomas, Neil Gorsuch, and Brett Kavanaugh. But before getting to the dissent, let me try to read a couple of tea leaves out of this cryptic but important passage.
First, I think it’s meaningful that the majority denied the government’s application rather than dismissing it as moot. In English, that is the majority signaling that the government likely still must comply with the “pay now” order—the second of the two—albeit not on the original timeline. If the majority thought that the “pay now” order was no longer live because the deadline had come and gone, then the proper disposition would have been to dismiss the application as moot, not to deny it. (Indeed, although there are good reasons to not rely upon dissents to figure out what the majority held, Alito’s dissent seems to reinforce this reading.) This may seem like a very thin reed, but it’s a distinction I can’t imagine was lost upon the justices. The majority (and, apparently, the dissent) seems to agree that the government remains under not just the general obligation of the original TRO but the specific obligation of the “pay now” order.
Second, the clause about the district court clarifying the obligations that the government must fulfill to comply with the TRO strikes me as an invitation to Judge Ali to do exactly that—to issue a more specific order that (1) identifies the particular spending commitments that he believes the government must honor to comply with the TRO and (2) gives the government at least a little more than 48 hours to do so. The upshot is that, even if the Trump administration doesn’t have to pay the money immediately, it will have to do so very soon. That’s small solace to the organizations and people who have already had their lives upended by the spending freeze, but it’s a bigger loss for the Trump administration than the text may suggest.
Third, the timing of the ruling is striking. The Court handed down the order right at 9 a.m. this morning—less than 12 hours after the end of President Donald Trump’s address to Congress last night. It is just about impossible to imagine that the ruling was still being finalized overnight (or that the chief justice was somehow influenced by his awkward moment with Trump). If not, then there appears to have been at least some choice on the Court’s part to hand down the ruling after the president’s speech and not before it at the close of business yesterday—perhaps to avoid the possibility of Trump attacking the justices while several of them were in the audience. I’ve written before about the problem of the Court timing its rulings—and how it underscores the extent to which the justices are, and ought to admit that they are, playing at least some politics even with what should be a straightforward procedure for releasing rulings when they’re ready. This at least seems like it might be another example.
And fourth, here’s that 5–4 lineup again. Back in January, I wrote about how this particular 5–4 alignment (the chief justice, Justice Barrett, and the three Democratic appointees) is starting to show up in cases “in which the Chief Justice’s elusive but not illusory institutional commitments, and Justice Barrett’s emerging independence, are separating them from the other Republican appointees. For a host of reasons that I suspect are obvious, we may see more such cases sooner rather than later.”
On one hand, it’s a bit alarming that Kavanaugh joined the dissent. On the other hand, for those hoping that the Court is going to be a bulwark against the (mounting) abuses of the Trump administration, it’s a cautiously optimistic sign that there may well be at least five votes to support lower-court rulings attempting to rein in those abuses.
In many ways, the dissent is far more illuminating than the majority’s order. As is unfortunately often the case with respect to Alito’s dissents from emergency applications, this one combines a remarkable amount of hypocrisy with statements that are either materially incorrect or, at the very least, misleading.
On page three of the ruling (page two of the dissent), for example, Alito writes that “the Government must apparently pay the $2 billion posthaste—not because the law requires it, but simply because a District Judge so ordered.” Of course, this completely misstates both the theory of the plaintiffs’ lawsuits and the gravamen of Judge Ali’s order. The whole point is that the law does require it—that Congress has mandated the spending and that the contractual obligations have been fulfilled. Indeed, Judge Ali’s “pay now” order is about work already completed for which the money was already due. If there is authority for the proposition that the government is not legally obliged to pay its bills, Alito doesn’t cite it. Yes, there may be separate questions about the courts’ power to compel the government, but that’s not the same thing as whether the “law requires” the government to pay its bills. Do the dissenters genuinely believe that the answer is no?
Alito also makes much out of the argument that sovereign immunity bars the claims against the government. But the Supreme Court has already held that relief under the Administrative Procedure Act can run to whether the government is obliged to pay expenditures to which the recipients are legally entitled. Alito asserts that actually ordering the government to pay those expenditures is something else entirely; suffice to say, I think that’s slicing the bologna pretty thin. His argument would have more force if Judge Ali’s “pay now” order was about funds for which the administrative processes haven’t fully run. But here, they have. And so it’s just a question of whether federal courts have the power to force the government to … enforce the law.
In that respect, contrast Alito’s analysis here with his dissenting 2023 opinion in United States v. Texas—in which he would have upheld an injunction by a single (judge-shopped) district judge that effectively dictated to the executive branch what its immigration-enforcement priorities must be. In explaining why the Biden administration should lose, he wrote:
“Nothing in our precedents even remotely supports this grossly inflated conception of “executive Power,” which seriously infringes the “legislative Powers” that the Constitution grants to Congress. At issue here is Congress’s authority to control immigration, and “[t]his Court has repeatedly emphasized that ‘over no conceivable subject is the legislative power of Congress more complete than it is over’ the admission of aliens.” In the exercise of that power, Congress passed and President Clinton signed a law that commands the detention and removal of aliens who have been convicted of certain particularly dangerous crimes. The Secretary of Homeland Security, however, has instructed his agents to disobey this legislative command and instead follow a different policy that is more to his liking.”
In 2023, Alito dismissed the view that courts could not push back against the president in such cases as a “radical theory.” In 2025, apparently, it’s correct. I wonder what’s changed?
Finally, Alito offers what I would euphemistically call a remarkable discussion of why the harm that the plaintiffs are suffering is insufficient to overcome the government’s case for a stay:
“Any harm resulting from the failure to pay amounts that the law requires would have been diminished, if not eliminated, if the Court of Appeals had promptly decided the merits of the Government’s appeal, which it should not have dismissed. If we sent this case back to the Court of Appeals, it could still render a prompt decision.”
In other words, the plaintiffs are being harmed not by the government’s refusal to pay them but by the D.C. Circuit’s refusal to exercise appellate jurisdiction over Judge Ali’s “pay now” order. I don’t even know what to say about this argument other than that, if that’s how irreparable harm worked, well, emergency relief (and the role of intermediate appellate courts) would look a heck of a lot different.
Alito closes by accusing the majority of imposing “a $2 billion penalty on American taxpayers.” This comes back to the central analytical flaw in the dissent: The “penalty” to which Alito is referring is the government’s underlying legal obligation to pay its debts. Debts aren’t a penalty; they are the literal cost of doing business. And if this is the approach that these four justices are going to take in all of the spending cases to come, that’s more than a little disheartening.
As for what comes next, well, I’m not entirely sure. We know that Judge Ali is scheduled to hold a preliminary injunction hearing tomorrow. It is very possible that before then (or shortly thereafter) he will reimpose some kind of “pay now” mandate that, with the hints from the Supreme Court majority, is a bit more specific and has a slightly longer timeline. Of course, the government could seek emergency relief from that order, too, but I take today’s ruling as a sign that, so long as Judge Ali follows the Court’s clues, at least five justices will be inclined to deny such relief. That doesn’t do anything immediately for the plaintiffs and other foreign-aid recipients who are continuing to suffer debilitating consequences. But it does suggest that, sometime soon, the government really is going to have to pay out at least some of the money at issue in these cases (and, as important, perhaps other funding cases too).
The broader takeaway, though, is that this is now the second ruling (the first was Dellinger) in which the Court has, in the same ruling, moved gingerly but at the same time denied the relief that the Trump administration was seeking. Two cases are, obviously, a small data set. But for those hoping that even this Supreme Court will stand up, at least in some respects, to the Trump administration, I think there’s a reason to see today’s ruling as a modestly positive sign in that direction.
Yes, the Court could do even more to push back in these cases. But the fact that Trump is already 0–2 on emergency applications is, I think, not an accident, and a result that may send a message to lower courts, whether deliberately or not, to keep doing what they’re doing.
This image provided by Rachel Malehorn shows Judge Amy Coney Barrett in Milwaukee, on Aug. 24, 2018. (Rachel Malehorn, rachelmalehorn.smugmug.com, via AP)
If you want to dig in the weeds, please do so; the two sources above, along with many others, will help.
Big picture: the issue presented by the case is whether it is A-OK for Trump to spit on the Constitution by exercising kingly power to destroy a federal agency created and funded by Congress—particularly in a situation where the destruction of said agency will lead to unimaginable loss of life.
In a dissenting opinion written by Justice Alito—who has been drinking a whole lot of Kool-Aid lately—and joined by Justices Thomas, Gorsuch, and Kavanaugh, the four justices seemed to take it as self-evident that Trump need not obey the Constitution and that it was a grievous act of “judicial hubris” for a lowly federal district judge to think that Trump has any obligation to the Constitution.
But one of the three Trump-appointed justices, Amy Coney Barrett, has been tapering off the Kool-Aid lately. She joined with Justice Roberts and with the three liberals in a short, unsigned opinion, indicating that the lowly federal district judge in question could bloody well go right ahead and order Trump to pay up. (That is, it’s OK for the judge to order Trump to pay pending a final resolution of the case.)
If you read the opinion—and I hope you do—you will see that I have oversimplified. You will see that this onion has a lot of layers. But I do not think I have oversimplified in a misleading way. And my guess is that it’s going to be Constitution, 5, Dictatorship, 4, from here on.
I did say “guess.” There is a difference, you know, between a guess and a prediction.
And, by the way, as Trump becomes increasingly unpopular, I would’nt be shocked if we peel off Kavanaugh.
A few days ago, Judge Reyes held a hearing in the case of Talbott v. Trump, challenging an executive order requiring the expulsion of transgender troops from the military, and specifically defaming all transgender people as dishonorable, untruthful, and undisciplined.
As an aside, I have to hand it to Orange Mussolini; if anyone knows how to recognize someone who’s dishonorable, untruthful, and undisciplined, that would be him.
Anyway, during the hearing, the judge was really tough on the unnamed Justice Department attorney who had the misfortune of trying to defend Trump’s words and actions. The ABA Journal writes,
The Associated Press and Law 360 report that during the hearings, Reyes:
• Raised her voice and demanded an answer from a government attorney about whether President Donald Trump’s executive order showed animus by calling “an entire category of people dishonest, dishonorable, undisciplined.”
• Engaged in a rhetorical exercise regarding discrimination. Reyes declared that graduates of the University of Virginia School of Law would be barred from her courtroom because they are “liars and lack integrity.” She then told the government lawyer who was a University of Virginia School of Law grad “to sit down.” According to the ethics complaint, the directive “served no legitimate judicial purpose and transformed an attorney appearing before the court into an unwilling participant in the judge’s unnecessary demonstration.”
• Asked the government lawyer what “Jesus would say to telling a group of people that they are so worthless, so worthless that we’re not going to allow them into homeless shelters? Do you think Jesus would be, ‘Sounds right to me’?” she asked. The complaint says the question “placed DOJ counsel in an untenable position of either appearing unresponsive or speculating about how an incoherent hypothetical aligns with Judge Reyes’ personal religious beliefs.”
Professor Sunstein, a distinguished public intellectual, teaches law at Harvard. As I often remark: you can always tell a Harvard man, but you can’t tell him much.
In this guest essay in the New York Times, Sunstein brilliantly covers a whole lot of ground and explains a whole lot of political theory and history, in a way that an ordinary educated person can readily understand.
Bottom line: full presidential control over all aspects of the federal executive is not, contrary to claims of some, mandated by the text of the Constitution or by our history. Such massive control poses many, many dangers.
Professor Sunstein is a polite person, so he did not say, in so many words, that presidential dictatorial powers given to a crazed monomaniac would likely produce disastrous results.
Bad as the unitary executive theory, read broadly, would be, Trump is also pursuing other ideas that are even worse. Sunstein writes,
[C]onsider the claim that the president gets to impound congressionally appropriated funds and choose which ones to spend. That claim would render Congress subordinate to the executive in what might be its most fundamental power: the purse. Impoundment authority, on the part of the president, would go well beyond the idea of a unitary executive. It would be a devastating blow to the separation of powers.
He did not add—but might well have added—that the notion that the president gets to pick and choose which court orders he obeys would likewise end the constitutional republic, and that right soon.
Facing MAGA 