With clear eyes, hard facts, critical thinking, new political strategy, empathy, and a soupçon of Schadenfreude
Category: Situational Awareness
Posts about the situation we are in–the good facts, the bad facts, and the terrible facts. Facts that, if taken on board, will let us “know ourselves, know the other side” and go on to win those hundred battles.
Contrary to the views of headline writers who did not go to law school and who suffer from chronic confirmation bias, in the recent case of Trump v. CASA, the Supreme Court opened the door to nationwide injunctions against Trump in cases where plaintiff classes have been certified according to Rule 23 of the Federal Rules of Civil Procedure.
Today, the first such injunction was granted, by a federal district judge in New Hampshire, in a case spearheaded by the American Civil Liberties Union and its allies.
The judge “ruled from the bench”—meaning that the formal text of most of his ruling isn’t available, at least currently. (The order certifying the class, however, is found here. As I predicted, Trump’s own executive order does a fine job of defining the class that is being certified.)
The ACLU’s press release reads in part,
CONCORD, N.H. — A federal court in New Hampshire today blocked President Trump’s executive order restricting birthright citizenship and certified a nationwide class that protects the citizenship rights of all children born on U.S. soil. The case is Barbara v. Donald J. Trump.
The ruling stems from a nationwide class-action lawsuit filed June 27, immediately after a Supreme Court ruling that potentially opened the door for partial enforcement of the executive order.
The American Civil Liberties Union, ACLU of New Hampshire, ACLU of Maine, ACLU of Massachusetts, Legal Defense Fund, Asian Law Caucus, and Democracy Defenders Fund brought the challenge on behalf of a proposed class of babies subject to the executive order. It seeks to protect all impacted families in the country in the wake of the Supreme Court’s recent decision in Trump v. CASA, which directed courts to consider narrowing nationwide protection that had been provided in the first round of challenges to the executive order attacking birthright citizenship.
The groups were in court today successfully arguing for a preliminary injunction and nationwide class certification. The ruling was made from the bench.
In granting the request, the court provided for a 7-day delay so that the government — which argued to the Supreme Court that a nationwide class was the appropriate way to seek nationwide protection in the birthright cases — could nevertheless try to get the First Circuit Court of Appeals to stay the relief, if it decides to pursue that option. Even with a 7-day delay, the ruling will go into effect well before July 27, when partial implementation of the unconstitutional order might otherwise have begun.
“This ruling is a huge victory and will help protect the citizenship of all children born in the United States, as the Constitution intended,” said Cody Wofsy, deputy director of the ACLU’s Immigrant’s Rights Project, who argued the case.“We are fighting to ensure President Trump doesn’t trample on the citizenship rights of one single child.”
What Happens Next?
Team Trump could wait for more decisions along the same lines by district courts around the country, in order to forum shop for the best appellate court. More likely, I think, is that they will appeal to the federal appellate court in Boston, which will quickly rule in the ACLU’s favor, so that the Supreme Court will have to address the merits of birthright citizenship very soon.
And what will happen then?
Well, maybe Justices Thomas and/or Alito and/or Gorsuch will quibble with whether a class should have been certified—or raise some other arcane, pettifogging objection to jurisdiction. Or maybe one of them will receive a revelation from the Angel Moroni that all class actions are unconstitutional.
You never can tell. But I am confident that at least five of the justices will continue to adhere to language of the Fourteenth Amendment and to reject Trump’s interpretation, just as the Supreme Court ruled back in 1898 in the Wong Kim Ark case.
And what will happen after that?
What will happen after that is that large pieces of shit will hit the fan.
David Brooks tries so hard. Today, he gets an E for Effort, seeking to persuade us that our national crisis has something to do with deficient moral philosophy.
Well, I am confident that moral philosophy has something to do with it. But before you get to moral philosophy, just answer this question:
Assume that John Doe has poor moral philosophy. Or, for that matter assume John Doe is utterly wicked, without a moral bone in his body. Even on that assumption, why would John Doe elect a national leader who manifestly lacks the mental capacity to be a national leader. And a national leader who is going to inflict grievous harm on John Doe’s own economic interests?
The answer, it would seem, is that Mr. Doe lacks not only morality but also the ability to see reality accurately and to draw reasonable inferences about the likely consequences of his own actions.
The One Worth Reading
The other piece, by Nathan Pemberton, is a lengthy account of the rise of Nazi ideology among a certain segment of our population—chiefly young men with poor economic prospects—and the cultivation of that ideology by many people close to the President of the United States.
Before reading it, you may want to visit the package store.
Pollyanna’s a busy young lady, so dear old dad doesn’t get all that many calls from her. Today, though, she called to offer an interesting working hypothesis—a hypothesis about the possible effect of the Big Beautiful Bill.
Not a prediction. A working hypothesis.
Here it is, but first some background.
As she pointed out, Trump’s policies are disastrous for everyone, including the business and financial elite. Consider tariffs. Consider the gutting of clean energy, at a time when energy demand is exploding. Consider the effect of mass deportation on the work force. Consider inflation. Consider the effort to obliterate American scientific leadership. Consider the deficit.
Observe that most of the economic elite does not live in an information bubble. All the effects we just listed are fully reported in the Financial Times and the Economist. Even the Wall Street Journal recognizes most of them, most of the time.
Assume, for the sake of the discussion, that the average member of the elite does not give a tinker’s damn about anything other than his or her own economic interests. But assume they do in fact care deeply about their own economic interests, and that, as a group, they have a generally accurate picture of what is going on.
Given all that, the working hypothesis—the hypothesis that isn’t a prediction, just a hypothesis—goes like this:
generally speaking, the economic elite have been motivated, above all else, to secure permanent extension of the Trump tax cuts, and
accordingly, the economic elites have greatly tempered their objections to Trump’s disastrous policies, largely out of a concern not to upset the delicate political apple cart before passage of the Big Beautiful Bill, but
now that the tax cuts are locked in statutory cement, the business and financial elite will feel significantly freer to try to stop Trump’s sabotaging of the American economy.
I discussed the executive order on birthright citizenship in the preceding post.
What is a “Nationwide Injunction”?
The term “nationwide injunction” is inapt and misleading, but lots of people want to use it anyway. So let’s define it for present purposes. For present purposes, a “nationwide injunction” is an injunction issued in a case brought by one or more persons (either two-legged persons or juridical persons such as corporations) that protects not only the individual plaintiff(s) but also everyone else in a similar legal position, even though there is no certified “class action” in accordance with Rule 23 of the Federal Rules of Civil Procedure.
As so defined, a nationwide injunction is an end run around the normal requirements for class certification under Rule 23.[1]
To illustrate and explain the point: Plaintiffs in the CASA case include four new mothers and their babies, one pregnant woman and her unborn child, and three undocumented immigrant women who might become pregnant. If the plaintiffs wanted to secure a ruling protecting not only their children but also all children whom Trump threatened to deprive of citizenship, then the normal/traditional route would be to ask the district court to “certify” such a “class” of similarly situated mothers. That class certification process involves a number of inquiries about whether it would be advisable for the litigation to go forward on a class basis, not an individual basis. But Liza, Andrea, and the other expectant mothers asked for nationwide/universal relief, without going through the certification exercise.
Before Trump v. CASA, Was There a Legitimate Legal Controversy about Whether Courts Could Issue “Nationwide Injunctions”?
Yes. Long story. But yes.
In fact, the Biden administration asked the Supreme Court to impose severe limitations on “nationwide injunctions.”
Some Say it was Odd—and Inadvisable—for the Court to Rule on the “Nationwide Injunction” Question but Kick the Can Down the Road on the Substantive Issue of Birthright Citizenship. Do You Agree?
Yes, I do agree. And if anyone reading this post wants to delve deeper, many of the sources cited above will be useful.
But I think the much more interesting question is whether plaintiff can represent a class of similarly situated mothers, babies, and unborn children.
And whether, by so complying with Rule 23, they can find effective legal relief against Trump’s illegal position on birthright citizenship.
What’s Going to Happen Next in the Birthright Citizenship Cases?
I’ll write about that in my next post, which will appear immediately above this one, because the posts on my blog appear in reverse chronological order.
[1] Related, but distinct, issues are raised by lawsuits with plaintiffs claiming to represent a category of other people—for example, a suit brought by a state government on behalf of all its citizen or a suit brought by a trade association on behalf of all its members. Team Trump challenged the “standing” of states and associations to bring such cases, but the Court decided to kick this can down the road.
What Does the Executive Order Claim to Accomplish?
The executive order is prospective. It purports to deny citizenship to future babies born in the United States if (1) the baby’s mother is unlawfully present in the United States and (2) the baby’s father is not a U.S. citizen or lawful permanent resident.[1]
What is the Legal Basis for the Executive Order?
The 14th Amendment provides, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States …”
Thus, if you want to argue that babies born in the United States to undocumented parents are not citizens, then you have to hang your hat on the words “and subject to the jurisdiction thereof.” And you have to make a very strained and slanty-eyed interpretation of that phrase.
That strained interpretation is the position Trump takes in the executive order.
A Frontal Challenge to an 1898 Supreme Court Case
Back in 1898, the Supreme Court considered—and rejected—the legal position that Team Trump now espouses. So Trump has to argue (among other things) that the Supreme Court got it wrong in 1898, and that the law has stayed wrong for the past 127 years.
Four Ways to Read the Executive Order
(1) A Test Case before the Supreme Court. A charitable reading is that the executive order is intended as the predicate to a test case, in which the Supreme Court would revisit the issue it decided back in 1898.
Trump may argue that it’s OK to set up a test case. After all, we all have a constitutional right to be wrong, and we all, including His Most High Excellency, have a right to ask the Supreme Court to embrace our erroneous legal claims.[2]
(2) Defiance of the Supreme Court. An uncharitable reading of the executive order is that Mango Mussolini claims that HE ALONE, not the Supreme Court, may divine the definitive definition of the words in the Constitution.
(3) Evasion of Supreme Court Review, or, the Cuter Than Bambi Reading. A third interpretation—perhaps even more uncharitable, though very possibly accurate—is Team Trump is attempting to evade Supreme Court review of his novel constitutional argument by
losing all the cases brought by people aggrieved by the order,
avoiding all appeals of such losses, and
enforcing their erroneous legal interpretation against everybody else.
Some lawyers—not that many, but some—are under the impression that they are cuter than Bambi. This is the sort of horseshit that they come up with.
(4) The FAFO Reading. Lastly, one may read the executive order as implying that Team Trump hasn’t thought through how to get their novel legal theory accepted. Under this interpretation, they just plan to Fuck Around and Find Out.
What about Retrospective Application of Trump’s Position against Birthright Citizenship?
Someone other than me must surely have spotted this issue—but, if so, I haven’t seen any evidence of it. Here’s the issue.
Suppose that—some way, somehow—Team Trump gets the courts to all enforcement of the executive order in respect of future babies born to undocumented immigrants. Bear with me on that. Just entertain the supposition.
Logically, that would imply everybody already born in the United States to undocumented parents also lacks U.S. citizenship.
Would Team Trump be prepared to take that position?
That’s at least five million people, and probably more.
[1] The order also addresses another distinct issue/problem, that of “birth tourism.” That’s an interesting issue, but pales in importance compared to the issue of babies born to undocumented immigrants.
[2] That right flows from the First Amendment right to petition for redress of grievance. And, BTW, Trump also has a constitutional right to ask Congress to pass a law endorsing his view of citizenship. But that wouldn’t work, because any such law would be unconstitutional unless and until the Supreme Court changes its mind about its 1898 interpretation of the Fourteenth Amendment.
An alternative title might be, “Defense Intelligence Talks, Bullshit Walks.”
Mango Mussolini is fit to be tied:
White House press secretary Karoline Leavitt pushed back on the report’s conclusions, while not denying its existence. “This alleged ‘assessment’ is flat-out wrong and was classified as ‘top secret’ but was still leaked to CNN by an anonymous, low-level loser in the intelligence community,” Leavitt wrote on X.
“The leaking of this alleged assessment is a clear attempt to demean President Trump, and discredit the brave fighter pilots who conducted a perfectly executed mission to obliterate Iran’s nuclear program,” she wrote. “Everyone knows what happens when you drop fourteen 30,000 pound bombs perfectly on their targets: total obliteration.” …
Rep. Mike Quigley (D-Illinois), a member of the House Intelligence Committee, told The Washington Post there is widespread belief in Congress that the embarrassing content of the assessment is the reason why the Trump administration decided to delay the classified briefing. ““They don’t delay briefings that have good news,” Quigley said.
Quigley declined to discuss the contents of a classified briefing he received earlier this week. But he said that for years he’s been told by U.S. intelligence officials that any aerial attack on Iran’s nuclear facilities would not have a lasting impact.
“I’ve been briefed on the likelihoods of how this would play out for years, and I was always told you have to finish the job with troops on the ground,” he said. “Nothing has changed my mind on that.”
The vibe this Monday evening is of Iranian token retaliation and of a coming cease fire.
Maybe.
Or maybe not. Maybe whoever is running Iran tonight, or whoever will be running Iran tomorrow, is lulling President Numbnuts into unjustified complacency, turning around the trick he pulled on them. Meantime, The Economist takes a deep dive into what’s happening in Iranian politics.
On june23rd Iran’s regime ignored President Donald Trump’s warnings and attacked American military bases in Qatar and Iraq. Missiles could be seen over skyscrapers in Doha, Qatar’s capital. While the damage and casualties appear minimal, the war has reached the Gulf, whose glimmering cities offer an alternative vision of the Middle East and whose energy the world needs. The strikes outside Iran come alongside a sudden, ominous power shift inside it. Military hardliners are grabbing power from clerics. That could mean they try to extricate themselves from the war now in order to fight another day. But in the medium term it could signal that the regime becomes more extreme, not more pragmatic, under the pressure of a devastating military campaign.
One reason for this shift is that Iran’s elite fears it is in a struggle to preserve the country’s political system. Mr Trump has signalled he might approve the overthrow of the clerical-military order. “Why wouldn’t there be a regime change,” he asked on June 22nd. Strikes against non-nuclear targets have galvanised elements of an outraged Iranian public behind the regime. But most important of all, there has been a shift in who holds power at the top as a result of the war. The military men have gained ascendance over the religious clerics for the first time since Iran’s revolution in 1979. And they are not moderate.
Iran’s supreme leader, Ayatollah Ali Khamenei, is 86, and for years there has been speculation about succession, although who might gain the upper hand has been far from clear. The war is changing that, turbo-charging a power shift to the regime’s military arm, the Islamic Revolutionary Guard Corps (irgc). In the first days of the fighting Mr Khamenei, ageing and isolated for his own safety, disappeared from the scene like the Shias’ hidden Imam. He delegated decision-making to a new council, or shura, dominated by the irgc. “The country is in effect under martial law,” says an observer.
As the irgcgains control its elite is being transformed at speed by Israel’s assassinations. Gone are the veteran commanders who for years pursued “strategic patience”, limiting their fire when their totemic leader, Qassem Soleimani, was assassinated in 2020, and holding it when Israel battered their proxies, Hamas and Hizbullah, in 2024. Now a new generation, impatient and more dogmatic, has taken their place and is bent on redeeming national pride. “The maximalist position has been strengthened,” says an academic close to the reformist camp. He claims the decision-makers in place before the war were debating whether to ditch their anti-Israel stance. But “everyone is now a hardliner”.
Compounding the generational shift is a newfound cohesion in a military-industrial complex renowned for paranoia and scheming. A year ago the regime was rocked by infighting. Businessmen, military professionals and ideologues battled for supremacy inside the irgc. Hardliners chased pragmatists from state institutions. Rival factions blamed each other for the death of the country’s president in a mysterious helicopter crash in 2024. Now they appear to be coalescing against a common foreign enemy.
How much public support does this emerging new power configuration enjoy? Many Iranians rue the billions of dollars their generals squandered on two decades of pointless proxy wars and even now some in Iran are describing the Israeli-American strikes as chemotherapy to remove cancerous cells. Increasingly, Israeli bombardments seem designed to tap into this seam of dissent and destabilise the country. Recent targets in Tehran include the police headquarters and the entrance to Evin, Iran’s jail for its most prominent political prisoners.
Yet in parallel the war has triggered a nationalist surge and narrowed the gap between ruler and ruled. No one has responded to calls from Binyamin Netanyahu, the Israeli prime minister, or Reza Pahlavi, the royalist pretender, for a popular uprising. Early admiration for Israel’s military prowess has turned to outrage as its targets have widened and the death toll has mounted. Scorn for the irgc’s haplessness has turned to pride at the speed with which it has reconstituted. Iranians who fled the capital are coming back. Those who once championed Israel are now handing over suspected Israeli agents to the police. Female political prisoners, the mothers of executed protesters and exiled Iranian pop stars have all issued calls to rally to Iran’s defence. “It’s backfired on Bibi,” says a former official turned dissident, using the nickname of Mr Netanyahu.
The shift at the top could dramatically alter decision-making in Iran. Hardliners have always been against talks with America. They remember Muammar Qaddafi, the Libyan dictator, who surrendered weapons of mass destruction in exchange for a lifting of sanctions, and Saddam Hussein, who granted unmonitors unfettered access to Iraq. Both were toppled by Western interventions. Now even moderates feel burned: the last round of talks with America, set for June 15th, fooled them into lowering their guard just as Israel attacked.
More could be to come. Within hours of America’s strike, Iran’s foreign minister, Abbas Araghchi, warned of “everlasting consequences”. Iran’s parliament has voted to close the Strait of Hormuz, a chokepoint through which 30% of maritime oil supplies flow (its vote is not binding). It is also considering a bill requiring Iran to withdraw from the Nuclear Non-Proliferation Treaty and cut co-operation with the un’s nuclear watchdog, the International Atomic Energy Agency.
The big question is whether the regime now pauses or pursues something worse. Some had sought to downplay the fallout from America’s bunker-busting strikes on Fordow and two other sites, perhaps to buy time and a greater margin of manoeuvre in firing back. While Donald Trump celebrated the “monumental” obliteration of Iran’s main nuclear sites, Iran’s leaders initially pointed to the absence of radiation and questioned their efficacy. America’s bombs were only twice as big as those used by Israel to hit the bunker of Hizbullah’s leader in Beirut last year, and Fordow’s chambers lay 25 times deeper than that.
But without a trusted mediator and no obvious off-ramp the more sober-minded appear to have been pushed aside. Many generals are eager to maintain their strikes on Israel which, they argue, have punctured its aura of invincibility. Israel’s destruction of half their missile launchers has slowed the rate, they admit. But more advanced systems, perhaps launched from the sea, are to come, says Mohsen Rezaei, a former irgc commander.
A growing caucus advocates dashing for a bomb. In the run-up to the American attack, Iran removed stockpiles of enriched uranium, and perhaps centrifuges from the targeted sites, claims an insider. Satellite imagery from June 20th shows a queue of trucks at Fordow’s gate. Some are suggesting detonating a nuclear device to prove Iran’s capability. Others advocate dropping a warhead coated in weapons-grade uranium on Tel Aviv. “Sure as anything they will be going for a nuke. It’s absolutely disastrous,” laments a Gulf mediator.
The shift from religious to military authority has some advantages. Ayatollah Ruhollah Khomeini, the original leader of Iran’s revolution, warned against allowing the irgcinto politics, fearful they might dispense with his theocracy. With the clerics confined to their seminaries, there might be an easing of the regime’s religious strictures. In recent days state television has shown women with hair poking out from their headscarves. But the prospect of Iran being ruled by its new shuraindefinitely has other consequences, not least an even more militarised state hellbent on defiance and reprisals, and more ruthless in tamping down internal dissent. The outside world has often assumed that Iran’s regime exhibits reckless risk-taking and belligerence because it has been run by religious men. The danger is the military men are worse.
They say with Donald Trump that accusation is confession. Having warned during the 2024 campaign that Joe Biden, then Kamala Harris, would trigger “world war three”, Trump is now offering a perilous test of that proposition. In his statement on Saturday night, Trump pronounced his military strikes on Iran a success. America’s bunker-busting bombs had obliterated Iran’s nuclear capacity, he said. It could take a while to find out whether both Iran and Israel — the prime actors in a show that Trump did not script but in which he is now taking a starring role — will share the US president’s assessment. But Trump is hoping that his awesome display of power will bring the curtain down on the war. That is not his decision to make.
Whatever happens next, it is worth recalling how Trump got here. Ten days ago, Benjamin Netanyahu torpedoed Trump’s nuclear negotiations with Iran with a series of devastating missile strikes. Israel’s prime minister said that Iran was weaponising its nuclear programme and posed an existential threat. Most others, including the US intelligence community, do not share Netanyahu’s diagnosis. Having his desired deal scuppered by Israel’s move, Trump quickly associated himself with it. He demanded Iran’s unconditional surrender and said that he could take out the regime’s supreme leader, Ali Khamenei, at any point. Iran did not submit to Trump’s demand. His de facto declaration of war on Saturday night was the outcome.
It also bears stressing that nobody, including Trump, knows what will happen next. It is easy to start a war, especially if you command the most powerful military on Earth. But wars only end when one side gives up. That age-old warning about the fog of war is particularly relevant to today’s Middle East, in which there are often more than two warring parties. The enemy of your enemy can turn out also to be your enemy. Having once been lectured by a younger Netanyahu, Bill Clinton said to an aide, “Who’s the fucking superpower here?” Trump’s brief televised address following the strikes was meant to showcase his command of the situation. In reality, Netanyahu has been dictating events. But even he cannot predict how Iran will respond.
Netanyahu’s interests are not the same as Trump’s. Israel’s leader has made it clear he wants regime collapse in Iran. Trump wants Iran to surrender. The first would be precipitated by a strong Iranian response that left Trump no choice but to escalate — a prospect he threatened in his address. The second would involve a token Iranian retaliation that enabled Trump to declare mission accomplished. How this unfolds, and who gets to diagnose whether Iran’s actions are token or lethal, is largely out of Trump’s hands. This leaves him as the most powerful military actor in the Middle East but potentially a hollow one. Power is about the ability to shape events. Trump is largely their prisoner.
Whatever happens, Trump’s bombing of Iran has defined his presidency at home as well as abroad. This is Trump’s war now. Iran’s submission would reverberate to his advantage in many ways; a full-blown war could sink his presidency. Among the ironies, Trump’s Iran strikes are being cheered on by many of the “Never Trumpers” who had been warning so starkly of Trump’s autocratic impulses. They are prepared to risk the power-aggrandising opportunity that war will offer Trump. Another irony is Trump’s Maga allies, such as Steve Bannon, are among the biggest sceptics of this latest, and potentially most dramatic, chapter in the “forever wars” that Trump has vowed to end.
Only a fool would take Trump at his word, which he serially breaks. But it is safe to say that his ambition of winning the Nobel Peace Prize is unlikely to bear fruit. Without consulting Congress, and in probable contravention of international law, Trump has taken a fateful gamble. Whether he has fully digested this fact or not, he is now committed to seeing this through to the end. Iran and Israel will have at least as big a say as Trump in deciding when and how that happens.
Facing MAGA 