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Immigration is about Race

June 29, 2026 – 10:17 am

The Supreme Court signs off on Trump’s program to Make America White Again.

Other than openly professing Nazis, the anti-immigrant voices in the US get incensed at the suggestion that what they care about is race. At times they seem to care about anything other than race: disease, election security, jobs, crime, and so on. J. D. Vance has even blamed immigrants for the high cost of housing. Experts dispute the anti-immigration claims in all those areas and are ignored. But O no no, the problem couldn’t be that the vast majority of people coming into the US are black or brown.

Even if you could put all those problems aside (as a decent respect for reality does), there’s still one issue that stands out above all others: respect for the law, and particularly for the laws that control our border. The problem with these people is that they came here without permission and crossed our border without leaving a trace in our systems. We don’t know who’s here, we don’t know who they are, and so on.

Well, the second Trump administration has exposed the lie of that explanation. It has gone after people with temporary protected status (TPS), and it has found excuses to shut the door in the face of legitimate refugees, who our laws and treaties oblige us to protect. (We are accepting refugees this year, but only white ones from South Africa.)

So the shoe has moved to the other foot: It’s not immigrants who are breaking the law, it’s the Trump administration.

But wait until the courts hear about this! We are a nation of laws, and our courts protect even the weakest among us from the strongest. So Haitians and Syrians losing their TPS status sued, charging that Trump’s DHS is violating the law that established TPS. In parallel, an immigrant-rights organization sued to change DHS’s policy preventing refugees from coming to our border and applying for asylum. Lower courts offered at least temporary relief while the cases worked through the system. They did not settle the underlying issues, but ruled that the immigrants were likely to prevail, and so should not have to leave the country before winning their cases. (In the Haitian TPS case, a lower court also found it likely that the Haitians would prevail on the part of their suit that blames the Trump administration’s racial animus for their eagerness to rid the country of Haitian refugees.)

The administration appealed both cases to the Supreme Court, which announced its decision in both cases on Thursday: All the lower court actions were overturned. Hundreds of thousands of refugees will have to return to countries that the State Department says are not safe. Countless others will never get the chance to seek protection in the United States.

But OK, you might think, the Supreme Court doesn’t make policy. It just (in John Roberts’ words) “calls balls and strikes”. Maybe, when a wise court really drills down into the underlying bedrock of law, the refugees are just out of luck.

If you think that, I invite you to read the majority opinions in each case, which were both written by Sam Alito (my least favorite justice). And after you do that, read the dissents by Justices Kagan and Sotomayor.

Both of Alito’s opinions are mockeries of legal reasoning. He had a conclusion to get to, and he got there. He can’t say it in so many words, but he wants to Make America White Again. And the other five conservative justices agreed with him.

At its root, the immigration issue is about race. Nothing else.

Temporary Protected Status. The TPS case is Mullin v Doe, which concerns about 300,000 Haitians and a smaller number of Syrians. All of them are in the United States legally. Temporary protected status (TPS) is a legal designation created by Congress to provide humanitarian aid to people escaping some disaster, either natural or man-made, in their home countries. TPS recipients are allowed to live and work in the United States while they wait for conditions to resolve back home. The program includes no path to citizenship and the TPS residents do not vote. Their status is reviewed periodically by the Department of Homeland Security.

Haitians got this status in 2010 after their country was devastated by an earthquake, while Syrian TPS was a response to the repression of the Assad regime and the disruptions associated with the civil war to overthrow him. According to the Trump regime, their continued presence strains the meaning of the word “temporary”. But the law that established TPS also established a process for terminating it: The DHS secretary, Markwayne Mullin currently, is supposed to consult with relevant government agencies, evaluate what they say, and make a determination about whether that particular country is a safe place to go home to. (Notice: Under the law, the relevant point isn’t whether the original emergency is over, but whether the country is now safe.) Having made an official determination that the country is safe now, the DHS secretary can revoke the TPS status.

Mullin did none of this, which becomes clear if you look at the current State Department advisories on travel. Haiti is under a Level-4 travel advisory: Do Not Travel.

Do Not Travel to Haiti due to the risk of crime, terrorism, kidnapping, unrest, and limited health care.

Non-emergency US government employees and their families were ordered out of Haiti in 2023. Those who stay are not allowed to leave the US embassy “for non-essential reasons due to safety risks”.

Syria is also a Level-4 country:

Do not travel to Syria for any reason due to the risk of terrorism, unrest, kidnapping, hostage taking, crime, and armed conflict.

That’s what the Trump regime wants to send people back to.

When the government fails to follow procedures laid out by law, it violates the Administrative Procedures Act. That’s the basis for these lawsuits. The Haitians also charged that DHS’s action was at least partially motivated by race, and so violated their equal-protection rights under the 14th Amendment. District courts in New York and D.C. issued a temporary injunction blocking the revocation of TPS status, and a DC appellate court rejected the government’s motion to stay that injunction.

These rulings are not final judgments on the merits of the Haitians’ and Syrians’ claims, but reflected the courts’ judgment that the immigrants would probably win their cases, and that they should not be ejected from the US while those cases are being decided.

Wednesday, the Supreme Court reversed those judgments. While the merits are still not decided, Justice Alito and his five conservative accomplices decided that the government would probably win the cases and so nothing should prevent the government from sending the Haitians and Syrians home in the meantime. So even if the Haitians and Syrians would happen to win their cases somehow, it will be very hard to come back.

Alito’s reasoning rests on one line of the TPS statute, which explicitly bars

judicial review of any determination of the [Secretary of Homeland Security] with respect to the designation, or termination or extension of a designation, of a foreign state.

Read correctly, this is a common-sense provision: DHS is the department Congress designated to make the safe-to-go-home decision, and judges should not substitute their opinions for the DHS secretary’s. But Alito expands this exemption to include the entire DHS decision-making process. Not only is DHS’ conclusion immune from review, but also DHS’ refusal to follow the decision-making process the law lays out. So Alito reads the TPS law to say: “Here’s how you decide whether to withdraw TPS status. But if you ignore what we just said and instead pull a decision out of your butt, no one can do anything about it.” [1]

Alito also slaps down a lower-court finding that the Haitian decision was at least partially based on race, because Alito does not take racism seriously unless the victims are white.

Recall the context: Trump has referred to Haiti as a “shithole country“. He and J. D. Vance explicitly and knowingly lied about precisely these Haitian TPS residents by claiming “they’re eating the dogs, they’re eating the cats” in Springfield, Ohio.

Alito brushes this off:

None of the cited statements by either the President or the Secretary was overtly racial, and in substance all expressed policy views that could rest on race-neutral justifications. For example, one may oppose TPS and favor tighter restrictions on immigration for economic or other reasons that have nothing to do with race. And a person without racial bias can provide a harshly unfavorable description of living conditions in some of the countries with TPS designations.

In short, because Trump never said “I hate Black people”, because it’s possible to imagine non-racial motives for his actions if you strain hard enough, and because Haiti actually is a shithole country, the Court should ignore the possible presence of racism here. [2]

Now that it is free to do so, we can anticipate the mother of all ICE raids on Springfield, Ohio and other cities and towns with large TPS populations. The New Republic pictures Springfield becoming the next Minneapolis:

Here’s the thing: If you vote for the ticket that tells you immigrants are eating your pets—the ticket that tells you mass removals are needed to purify and revive the nation and its heartland towns—what you’re actually going to get is social turmoil, violent ethnic purges, and serious economic disruption. If you are upset at the prospect of law-abiding immigrants being violently wrenched from your communities, next time don’t vote for the guys who lied in your faces so viciously about them.

Asylum and the Border. Remember when Bill Clinton wondered what the meaning of is is? Alito’s majority opinion in Mullin v Al Otro Lado is like that, but the two-letter word in question is “in”. What does “in” mean, really?

The Immigration and Nationality Act of 1952 requires immigration officials to inspect every person who “arrives in the United States”, and offer each of them an opportunity to ask for asylum in the United States because they are persecuted in their home country. But what does “arrive in” really mean? If border guards stand on the border and stop migrants while they are still technically in Mexico, have they “arrived in” the United States or not? Can we then ignore our legal and treaty obligations to offer asylum to victims of persecution?

After an elaborate wander through dictionaries and usages, Alito concludes that we can. When Congress tried to codify our obligations under the post-Holocaust Convention on Refugees, it really was that stupid. [3]

Now, back in April I wrote about our broken system of processing asylum claims and what might be done about it, so I understand that there are issues here. But this verbal sleight-of-hand can’t be the way we fix it.

What Alito is doing here is based on a theory of interpretation known as textualism, which is related to originalism. In the abstract it sounds great: We should interpret the words in a law according to the common usage of those words in that era. Who could argue with that?

The problem is that I have never seen this method applied in good faith, just as I have never seen originalism applied in good faith. The textualist/originalist always knows what conclusion s/he is aiming for, and cherry-picks examples of history and usage to get there.

What gets lost is the larger context: Why did Congress pass this law? What problems was it trying to solve? By breaking laws down into individual words, you can ignore all that and come to an interpretation that makes no sense. That’s what Alito has done here.

Why? When you run into such obvious examples of motivated reasoning — and especially when you run into two on the same day by the same author — you have to wonder what the motive is. When such a smokescreen of verbiage is thrown at you, you have to wonder what’s behind the smoke.

I think it’s obvious: racism.

TPS has allowed more than a million brown or black people to come to the United States legally and work here. Many more arrive at our borders and claim asylum — maybe because it takes us years to process such claims and in the meantime they also can live and work in the US.

In some people’s eyes, these programs threaten the identity of the US as a white country. To them, these immigrants “poison the blood of our country“. To get them out, Americans might make up lies about them “eating the dogs, eating the cats“. A government that represents those people might construct outside-the-law justifications to send the one group away and refuse admittance to the other.

And six racially motivated Supreme Court justices might rubber-stamp those justifications.

[1] It’s worth pointing out that during the Biden administration, the Court routinely invented new law (like the “major questions doctrine“) that allowed it to second-guess whatever decisions government agencies made. Now it is ignoring established law in order to preclude lower courts from reviewing decisions made by Republican officials. If the 48th president is a Democrat, we can expect to see the prevailing winds reverse again.

[2] Under Alito’s reasoning, neither Jim Crow nor slavery could be viewed as racial issues. We can imagine race-neutral justifications for either (like a shortage of workers capable of picking cotton, or a revenue shortfall that required a poll tax). And Southern politicians often expressed their great love for their African property. To ignore these statements as having been made in bad faith, and to claim instead that laws were passed out of racial animus — that would violate the deference that courts owe to the executive and legislative branches of the Southern state governments.

[3] If you need a refresher course on how the Holocaust led to post-war laws about refugees and asylum, read Sotomayor’s dissent.

By weeklysift | Posted in Articles | Also tagged immigration, race | Comments (4)

What to do with a lawless Supreme Court?

May 4, 2026 – 11:58 am

Can democracy flourish, or even survive,
if two-thirds of the justices on the Supreme Court don’t believe in it?

[A previous version of this post didn’t load for some users, so I republished under a similar title.]

One of the great moments in American politics happened on March 15, 1965. It was barely a week since “Bloody Sunday“, when Alabama state police attacked civil rights demonstrators trying to cross the Edmund Pettis Bridge in Selma.

Police (and non-police actors like slave patrols or the Ku Klux Klan) had been beating up Black people for over 100 years, but this time it was on TV, where the whole nation could see it. Nonviolent protesters had brought the reality of oppression into the nation’s living rooms: White people could maintain their dominance, but only by being villains, by brutalizing people who posed no threat.

How would the nation respond?

President Johnson answered by addressing a joint session of Congress, saying these words in his White Texas accent:

There is no Negro problem. There is no Southern problem. There is no Northern problem. There is only an American problem. …

What happened in Selma is part of a far larger movement which reaches into every section and state of America. It is the effort of American Negroes to secure for themselves the full blessings of American life. Their cause must be our cause, too. Because it is not just Negroes, but really it’s all of us who must overcome the crippling legacy of bigotry and injustice.

And we shall overcome.

Johnson backed those words up by proposing the Voting Rights Act, which he signed into law a few months later.

Undoing that landmark piece of legislation has been the life’s work of Chief Justice John Roberts. Wednesday he finished the task.

Immediate and long-term perspectives The decision the Supreme Court released Wednesday, Louisiana v Callais (called just “Callais” in most media coverage), requires explanation both in an immediate and a long-term sense. Immediately, it blesses a practice the VRA was passed to eliminate: “cracking” minority communities and spreading them among multiple districts so that all (or nearly all) districts have a White majority. Or, looked at from the other side, Callais makes illegal the practice of intentionally gathering minority voters into a district where they might form a majority and elect a candidate of their own choosing.

Possibly immediately (if Louisiana can get away with the redistricting it now wants to do even after some absentee votes in its primary have already been mailed, and if other southern states can follow suit), but certainly by 2028, red states in the Deep South will redraw their maps so that maybe ten or so Black congresspeople are gerrymandered out of their jobs. By 2029, the congressional delegations of many Southern states may be as lily-white as they were before the VRA passed in 1965.

Bad as that outcome is, you can’t appreciate the full horror of this decision without seeing the larger context: Callais is the culmination of John Roberts’ 13-year program to repeal the VRA by judicial fiat, in contravention of the intention of the Congresses that passed it and kept renewing it. During those years, a series of corrupt decisions [1] have built on each other to get us where we are today: It is now hard to imagine any state action — no matter how racist — that could be reversed by bringing that state to court under the VRA.

In 2013’s Shelby County decision, Roberts threw out Section 5 of the VRA. Section 5 required a list of states with a history of Jim Crow election practices to get any changes to their election rules pre-cleared by the federal Justice Department. Roberts decided that this provision (which had been re-authorized by Congress as recently as 2006 and had been upheld in numerous Supreme Court precedents) violated the “equal sovereignty of the states”. He got around the precedential history by saying “things have changed dramatically” since the first version of the VRA was passed in 1965.

Here’s what I had to say about that at the time (in a piece I demurely titled “This Court Sucks“):

“Things have changed” is not a legal argument. It’s a fine point to make on a blog or at a dinner party, but a Supreme Court justice has to do better than that.

If Roberts were being a real judge here, he’d spell out what “equal sovereignty” has and hasn’t meant in American legal history. He’d enunciate an abstract standard by which Jim Crow was “exceptional” in 1965 and which justified the steps taken then. He’d explain how that standard was violated by the renewal of the VRA in 2006. And he’d lay down a set of conditions that Congress would need to satisfy to make the VRA acceptable today. (If you want to see what a real legal opinion looks like, read Justice Ginsburg’s dissent. Whether you agree with her or not, she is clearly doing something far more rigorous than what Roberts is doing.)

Roberts doesn’t do any of that. The VRA was vaguely justified in 1965 and is vaguely unjustified now, because “things have changed”. If I were a congressman, I would have no idea how to revise the VRA so that it passes constitutional muster. If Congress does revise it, lower court judges who rule on it will just be guessing about its constitutionality. It will have to go back to the Supreme Court before anyone knows whether it’s really a law again, because there are no standards in Roberts’ opinion by which a revision can be judged.

This isn’t law. It’s politics. It’s mush.

The mush has continued since. If Shelby County eliminated blocking racist election laws before they take effect, the Brnovich decision in 2021 made it harder to use Section 2 of the VRA to challenge such laws after they take effect. On a parallel track, the Rucho decision in 2019 said that partisan gerrymandering cases were “nonjusticiable”. In other words, partisan gerrymandering might be an unsavory practice, but neither the laws nor the Constitution give the courts power to do anything about it.

Sleight of hand. And that brings us to Wednesday’s Callais decision, written by Justice Alito. Once again, we are told that “things have changed”, so laws protecting minority voting rights are no longer necessary. [2] That sets up two legal sleights of hand: intent, and the confusion of partisan with racial gerrymandering.

One issue has run through the history of the VRA’s interpretation: Does the VRA only outlaw intentionally racist election practices? Or does it outlaw practices that have the effect of disenfranchising minority voters or diminishing their power, regardless of motive? The difference is important, because intent can be hard to prove in court. Many of the Jim Crow practices didn’t explicitly mention race: Poll taxes might be justified as a way to raise revenue, and the effect of discouraging poor people from voting, or the fact that Black voters are disproportionately poor — that might be portrayed as entirely accidental. Literacy tests might simply be a means of raising the quality of the average voter, unrelated to an educational system that favors White children. And so on.

This kind of thing was well understood even in 1965. [3]

As Justice Kagan explains in her dissent, the Court hobbled VRA enforcement by shifting to an “intent” interpretation in a 1980 decision. So Congress rewrote the VRA in 1982 to specify an “effects” interpretation. Alito denies that he is reinstating the “intent” view in contravention of Congress, but he is. He explicitly writes:

§2 of the VRA requires evidence giving rise to a strong inference of intentional discrimination.

The second sleight-of-hand makes use of the corrupt Rucho decision on partisan gerrymandering.

The upshot of Rucho was that, as far as federal law is concerned, a state legislature may use partisan advantage as a factor in redistricting. And litigants cannot circumvent that rule by dressing their political-gerrymandering claims in racial garb. Imposing liability “based on the racial effects of a political gerrymander in a jurisdiction in which race and partisan preference are very closely correlated . . . would, if accepted, provide a convenient way for future litigants and lower courts to sidestep our holding in Rucho that partisan-gerrymandering claims are not justiciable in federal court.” Alexander, 602 U. S., at 21. “Instead of claiming that a State impermissibly set a target Republican-Democratic breakdown, a plaintiff could simply reverse-engineer the partisan data into racial data and argue that the State impermissibly set a particular [racial] target. Our decisions cannot be evaded with such ease.”

Since intent is what matters, and a pro-Republican gerrymander looks just like a White-racist gerrymander, it’s impossible to prove racist (rather than partisan) intent. So the VRA’s protection against racial gerrymanders — effectively the last piece of the VRA still standing — is effectively dead.

But Kagan’s dissent calls Alito on his shenanigans:

[T]o its (modest) credit, the Rucho Court did not pretend that partisan gerrymanders were something in need of safeguarding. To the contrary, the Court conceded that they were “incompatible with democratic principles” and “lead to results that reasonably seem unjust.” (The Court’s rationale was only that federal courts lack competence to deal with gerrymanders, not that they were protected by law or beneficial as policy.) Today, though, the majority straight-facedly holds that the Voting Rights Act must be brought low to make the world safe for partisan gerrymanders. For how else, the majority reasons, can we preserve the authority of States to engage in this practice than by stripping minority citizens of their rights to an equal political process?

Rucho wrung its hands over partisan gerrymandering as a disreputable practice, and claimed only that the Court had no power to interfere with it. But now, Alito presents partisan gerrymandering as a state’s right, which Congress dare not impinge on and the Court is obligated to protect. There is, of course, no legal argument to back up that claim. It’s just how the Court’s Republican majority wants things to be, so Alito has slipped it between the lines. [4]

In fact, Alito has the logic exactly backwards: He says courts can’t throw out racial gerrymanders because they might accidentally throw out partisan gerrymanders. But the VRA says courts must throw out partisan gerrymanders if they have the same effect as a racial gerrymander. That’s the law as written, but under this Court, written law doesn’t mean much.

How to handle a corrupt court. Not long ago, when Democrats controlled the White House and both houses of Congress, some members of the party suggested expanding the Supreme Court to 13 justices, so that four new justices could outvote the corrupt Republican ones. This proposal never got close to implementation, because it was widely viewed as too radical. The party’s center saw raw exercises of power like that distasteful, as something dirty that we needed to keep clear of if we ever wanted to restore purity to our government.

In view of what Trump has been doing in his second term, and the increasingly aggressive partisanship of the current Supreme Court majority, that view now seems naive.

The purity viewpoint has already begun to change, as we have seen in the recent gerrymandering battle. Democrats could have clutched their pearls and held onto their purity as Texas made five Democratic seats in Congress vanish. But Gavin Newsom decided to fight fire with fire in California, and the state’s voters backed him up. More recently in Virginia, “centrist” Governor Abigail Spanberger made the same choice, and the electorate of her swing state agreed.

Legal purists worry about the Supreme Court losing authority if it is seen as just another political branch of government. But that’s what it already is, and public respect for it is waning, for good reasons.

We’ve been here before. In 1937, FDR called for a plan to expand the Supreme Court, which had been invalidating just about everything he tried to do. That proposal failed, in that it did not pass Congress. But it also succeeded in making the Court back off.

If Democrats take power again in 2029, a similar strategy is called for: Immediately pass legislation to restore voting rights, and to undo the other excesses of this corrupt Supreme Court. And have a court-expansion proposal ready to vote on if the Court tries to interfere.

The Roberts Court has become the enemy of multi-racial democracy. If we’re going to make up the ground that we’ve lost, and someday go beyond our previous accomplishments to achieve the democratic republic Americans have long envisioned, we’re not just going to have to overcome white supremacists or Republicans or oligarchs. We’re going to have to overcome a corrupt, partisan, racist Supreme Court as well.

And we shall overcome.

[1] I use the word corrupt carefully. It would be one thing if Roberts and the conservative majority that has been built around him professed some different-but-arguable legal theory that made the VRA unconstitutional or unenforceable. But I’ve been reading these decisions since Shelby County in 2013, and none of them make a recognizable legal argument. They are simply results that the Court majority wants. Josh Marshall explains:

In our thinned out political discourse people often use the term “corruption” to refer only to venal corruption – bribes, conflicts of interest mostly involving money, kept Justices like Clarence Thomas. That is neither the only nor the most significant form of corruption. In most cases venal corruption is significantly self-correcting. It gets exposed and prosecuted. The more general meaning of corruption is when a form of rot takes over an office or institution because of systemic and ingrained abuses of power. That is the case with the Supreme Court and it’s especially dangerous with the Supreme Court because a mix of history and restraint have left very few checks on its abuses. The Supreme Court is given specific powers to achieve specific ends. Over the last 15 years it has assumed vast new powers and used them consistently for anti-constitutional ends. Far from interpreting or defending the constitution it is at war with it.

[2] Justice Kagan’s dissent nails this perfectly:

So the majority moves on again, now to a grab-bag of “developments” that it somehow thinks license it to rewrite a statute. The majority first summons the slogan of Shelby County, in which the Court ordained itself the arbiter of when civil rights laws are no longer needed. “ ‘[T]hings have changed dramatically,’ ” today’s majority echoes, pointing to increases in African American voting registration and to the success of “ ‘African-Americans attain[ing] political office’ ”—“particularly in the South, where many §2 suits arise.” No doubt that is so, in large measure because of the Voting Rights Act. But it is a separate question whether those gains will endure once the Act’s protections are gone. See Shelby County, 570 U. S., at 590 (Ginsburg, J., dissenting) (noting the fallacy of “throwing away your umbrella in a rainstorm because you are not getting wet”). And surely—but apparently not—the proper actor to answer that question is Congress. … It is for the people’s representatives in Congress to decide when the Nation need no longer worry about the dilution of minority voting strength.

[3] Johnson said as much in his speech:

Every device of which human ingenuity is capable has been used to deny this right. The Negro citizen may go to register only to be told that the day is wrong, or the hour is late, or the official in charge is absent. And if he persists, and if he manages to present himself to the registrar, he may be disqualified because he did not spell out his middle name or because he abbreviated a word on the application. And if he manages to fill out an application he is given a test. The registrar is the sole judge of whether he passes this test. He may be asked to recite the entire Constitution, or explain the most complex provisions of state law. And even a college degree cannot be used to prove that he can read and write. For the fact is that the only way to pass these barriers is to show a white skin.

Experience has clearly shown that the existing process of law cannot overcome systematic and ingenious discrimination. No law that we now have on the books–and I have helped to put three of them there–can ensure the right to vote when local officials are determined to deny it.

So the VRA was designed to go beyond “the existing process of law”. That is precisely what Roberts, Alito, and their allies have undone, because (in their judgment and their judgment alone) “things have changed”.

[4] It’s tempting to give a pass to the Republican judges who didn’t write on this topic: Kavanaugh, Gorsuch, and Barrett. But they had to see the logical holes in this argument, and they then chose to vote for it without posting a dissent on any particular.

By weeklysift | Posted in Articles | Also tagged 2026 election, race | Comments (6)

What to do about a lawless Supreme Court?

May 4, 2026 – 10:56 am

Can democracy flourish, or even survive,
if two-thirds of the justices on the Supreme Court don’t believe in it?

How would the nation respond?

President Johnson answered by addressing a joint session of Congress, saying these words in his White Texas accent:

There is no Negro problem. There is no Southern problem. There is no Northern problem. There is only an American problem. …

What happened in Selma is part of a far larger movement which reaches into every section and state of America. It is the effort of American Negroes to secure for themselves the full blessings of American life. Their cause must be our cause, too. Because it is not just Negroes, but really it’s all of us who must overcome the crippling legacy of bigotry and injustice.

And we shall overcome.

Johnson backed those words up by proposing the Voting Rights Act, which he signed into law a few months later.

Undoing that landmark piece of legislation has been the life’s work of Chief Justice John Roberts. Wednesday he finished the task.

Here’s what I had to say about that at the time (in a piece I demurely titled “This Court Sucks“):

“Things have changed” is not a legal argument. It’s a fine point to make on a blog or at a dinner party, but a Supreme Court justice has to do better than that.

If Roberts were being a real judge here, he’d spell out what “equal sovereignty” has and hasn’t meant in American legal history. He’d enunciate an abstract standard by which Jim Crow was “exceptional” in 1965 and which justified the steps taken then. He’d explain how that standard was violated by the renewal of the VRA in 2006. And he’d lay down a set of conditions that Congress would need to satisfy to make the VRA acceptable today. (If you want to see what a real legal opinion looks like, read Justice Ginsburg’s dissent. Whether you agree with her or not, she is clearly doing something far more rigorous than what Roberts is doing.)

Roberts doesn’t do any of that. The VRA was vaguely justified in 1965 and is vaguely unjustified now, because “things have changed”. If I were a congressman, I would have no idea how to revise the VRA so that it passes constitutional muster. If Congress does revise it, lower court judges who rule on it will just be guessing about its constitutionality. It will have to go back to the Supreme Court before anyone knows whether it’s really a law again, because there are no standards in Roberts’ opinion by which a revision can be judged.

This isn’t law. It’s politics. It’s mush.

This kind of thing was well understood even in 1965. [3]

§2 of the VRA requires evidence giving rise to a strong inference of intentional discrimination.

The second sleight-of-hand makes use of the corrupt Rucho decision on partisan gerrymandering.

The upshot of Rucho was that, as far as federal law is concerned, a state legislature may use partisan advantage as a factor in redistricting. And litigants cannot circumvent that rule by dressing their political-gerrymandering claims in racial garb. Imposing liability “based on the racial effects of a political gerrymander in a jurisdiction in which race and partisan preference are very closely correlated . . . would, if accepted, provide a convenient way for future litigants and lower courts to sidestep our holding in Rucho that partisan-gerrymandering claims are not justiciable in federal court.” Alexander, 602 U. S., at 21. “Instead of claiming that a State impermissibly set a target Republican-Democratic breakdown, a plaintiff could simply reverse-engineer the partisan data into racial data and argue that the State impermissibly set a particular [racial] target. Our decisions cannot be evaded with such ease.”

But Kagan’s dissent calls Alito on his shenanigans:

[T]o its (modest) credit, the Rucho Court did not pretend that partisan gerrymanders were something in need of safeguarding. To the contrary, the Court conceded that they were “incompatible with democratic principles” and “lead to results that reasonably seem unjust.” (The Court’s rationale was only that federal courts lack competence to deal with gerrymanders, not that they were protected by law or beneficial as policy.) Today, though, the majority straight-facedly holds that the Voting Rights Act must be brought low to make the world safe for partisan gerrymanders. For how else, the majority reasons, can we preserve the authority of States to engage in this practice than by stripping minority citizens of their rights to an equal political process?

In view of what Trump has been doing in his second term, and the increasingly aggressive partisanship of the current Supreme Court majority, that view now seems naive.

The Roberts Court has become the enemy of multi-racial democracy. If we’re going to make up the ground that we’ve lost, and someday go beyond our previous accomplishmens to achieve the democratic republic Americans have long envisioned, we’re not just going to have to overcome white supremacists or Republicans or oligarchs. We’re going to have to overcome a corrupt, partisan, racist Supreme Court as well.

And we shall overcome.

In our thinned out political discourse people often use the term “corruption” to refer only to venal corruption – bribes, conflicts of interest mostly involving money, kept Justices like Clarence Thomas. That is neither the only nor the most significant form of corruption. In most cases venal corruption is significantly self-correcting. It gets exposed and prosecuted. The more general meaning of corruption is when a form of rot takes over an office or institution because of systemic and ingrained abuses of power. That is the case with the Supreme Court and it’s especially dangerous with the Supreme Court because a mix of history and restraint have left very few checks on its abuses. The Supreme Court is given specific powers to achieve specific ends. Over the last 15 years it has assumed vast new powers and used them consistently for anti-constitutional ends. Far from interpreting or defending the constitution it is at war with it.

[2] Justice Kagan’s dissent nails this perfectly:

So the majority moves on again, now to a grab-bag of “developments” that it somehow thinks license it to rewrite a statute. The majority first summons the slogan of Shelby County, in which the Court ordained itself the arbiter of when civil rights laws are no longer needed. “ ‘[T]hings have changed dramatically,’ ” today’s majority echoes, pointing to increases in African American voting registration and to the success of “ ‘African-Americans attain[ing] political office’ ”—“particularly in the South, where many §2 suits arise.” No doubt that is so, in large measure because of the Voting Rights Act. But it is a separate question whether those gains will endure once the Act’s protections are gone. See Shelby County, 570 U. S., at 590 (Ginsburg, J., dissenting) (noting the fallacy of “throwing away your umbrella in a rainstorm because you are not getting wet”). And surely—but apparently not—the proper actor to answer that question is Congress. … It is for the people’s representatives in Congress to decide when the Nation need no longer worry about the dilution of minority voting strength.

[3] Johnson said as much in his speech:

Every device of which human ingenuity is capable has been used to deny this right. The Negro citizen may go to register only to be told that the day is wrong, or the hour is late, or the official in charge is absent. And if he persists, and if he manages to present himself to the registrar, he may be disqualified because he did not spell out his middle name or because he abbreviated a word on the application. And if he manages to fill out an application he is given a test. The registrar is the sole judge of whether he passes this test. He may be asked to recite the entire Constitution, or explain the most complex provisions of state law. And even a college degree cannot be used to prove that he can read and write. For the fact is that the only way to pass these barriers is to show a white skin.

Experience has clearly shown that the existing process of law cannot overcome systematic and ingenious discrimination. No law that we now have on the books–and I have helped to put three of them there–can ensure the right to vote when local officials are determined to deny it.

By weeklysift | Posted in Articles | Also tagged 2026 election, race | Comments (2)

Crime in the Cabinet

December 1, 2025 – 10:04 am

Most administrations come and go
without credible evidence of a crime by a cabinet official.
There were two this week alone.

In January of 2017, as Barack Obama was getting ready to hand the presidency over to Donald Trump after eight years in office, the Heritage Foundation’s Hans von Spakovsky pushed back on the “myth” that Obama had presided over a “scandal-free administration”. Von Spakovsky listed six of what he described as “some of the worst scandals of any president in recent decades”.

One — using the IRS to “target political opponents” — was nothing more than a canard that circulated inside the conservative information bubble. (The IRS was skeptical of the tax-exempt status of new political organizations founded to take advantage of the Supreme Court’s Citizens United ruling. Most of the investigated organizations were conservative, but that was due to the flow of money rather than specific targeting of conservative organizations. In the end, nearly all of them were recognized as tax-exempt. More importantly: No link back to the White House was ever established.)

Others — Benghazi, government personnel records getting hacked, losing track of guns allowed into Mexico as part of a smuggling investigation, veterans dying while waiting for appointments at the VA — were screw-ups not rooted in any nefarious intentions.

Only one — the Hillary Clinton email controversy — involved any credible accusation of a crime. That was investigated by the State Department during the first Trump administration, and the report found “no persuasive evidence of systemic, deliberate mishandling of classified information.” No one was ever charged with a crime, much less convicted.

That’s not unusual. Crime in the cabinet is exceedingly rare. In the history of the United States, no cabinet official was convicted of a crime until 1929, when former Interior Secretary Albert Fall was found guilty of taking bribes in the Teapot Dome scandal. Three Nixon cabinet members and his vice president were convicted of crimes, which is one reason why the Nixon administration is remembered for its corruption.

But the Trump administration has a way of wearing down our standards and making us forget that lawlessness high in the executive branch used to be exceptional. For example, Trump officials violate the Hatch Act (banning government officials from using their offices for political activity) just about every day. Such violations went unpunished in the first Trump administration, so hardly anyone notices any more.

Even so, it was striking to hear two independent credible accusations of crimes by Trump cabinet officials in the same week.

DHS Secretary Kristi Noem all but confessed to contempt of court yesterday when she admitted she knew a federal judge had ordered a plane carrying detainees to El Salvador to turn around, but she ordered it to continue.
Department of ~~War~~ Defense Secretary Pete Hegseth reportedly gave an order to “kill everybody” in an attack on an alleged drug-smuggling boat in the Caribbean. Two survivors clinging to wreckage were then killed in a second attack. Even if the initial attack were legitimate (which it wasn’t), killing defenseless survivors is a war crime.

The second crime is more serious than the first, so let’s start there.

“Kill everybody”. Since September 2, the Trump regime has launched at least 21 attacks against boats on the high seas that it claimed were smuggling drugs, killing at least 83 people. Friday, that story got even worse, when the Washington Post published a report that Defense Secretary Hegseth had given a “kill everybody” order for the first attack. Two people survived the initial attack and were clinging to the wreckage when a second attack was ordered. It blew the survivors to bits.

If true, that incident is a clear war crime attributed to a specific person, Hegseth.

Horrifying as that is, I think it would be a mistake to lose sight of the larger picture: If we frame this wrong, it might seem as if the air campaign against the boats was fine until helpless survivors were targeted. It wasn’t. Whether Hegseth ever said “Kill everybody” or not, under his command the Department of Defense has committed 83 murders.

No operational consideration justifies the attacks. They are not like the drone attacks that have assassinated terrorist leaders, controversial and morally dubious as those might have been. In those cases, the targets might not have stayed in known locations long enough for a strike team to get there. Or the host country might not have allowed our strike team in. Often, the choice was either to send a drone or let the terrorists go on about their business.

That’s not the case here. These boats were in open seas dominated by our Navy. They could have been seized and could not have gotten away. Whatever drugs they might have been carrying would never have reached American consumers. The crews could have been captured alive, and might have given us valuable information about their suppliers or distributors.

So attacking the boats achieved nothing that couldn’t have been achieved without killing people. Instead, the Trump regime chose to kill 83 people.

Remember: Smuggling drugs is not a capital crime. Even if the alleged smugglers had been captured and given due process, they could not have legally been sentenced to death.

It’s worthwhile to put this in a more familiar context. In Clint Eastwood’s Dirty Harry movies, Harry Callahan is a cop who chafes under the legal restrictions that bind him, and that allow criminals to eventually go free. In the first movie, Harry dares a suspect to go for a gun so that he can legally kill him.

But the second movie, Magnum Force, pits Harry against a death squad of rogue cops who start a campaign of assassinations against the city’s underworld kingpins. The squad expects Harry to join them, but rogue assassinations are too much even for him. “A man’s got to know his limitations,” Harry says.

That’s what we’re seeing now: Trump and Hegseth have turned the US Navy into a rogue assassination squad. They see enough evidence to convince themselves boats are smuggling drugs, show that evidence to no one, and kill the alleged smugglers on their own authority.

Even if you’re as tough on crime as Dirty Harry, you shouldn’t approve. A government has got to know its limitations.

The Trump regime gives two justifications: First, the end justifies the means (which is precisely what Dirty Harry’s rogue cops argued). On October 23rd, Trump made the ridiculous claim that each boat blown up saves the lives of 25,000 Americans. (This is the same kind of math that caused Pam Bondi to claim that drug seizures during Trump’s first 100 days had saved 119-258 million lives.) He postulated that if he told the Congress about the operation (not to seek their authorization, which he says he doesn’t need) “I can’t imagine they’d have any problem with it. … What are they going to do, say ‘We don’t want to stop drugs pouring in’?”

Again, those boats could be stopped without blowing them up or killing anybody.

Second, the regime stretches the definition of “war” to cover this operation. The drug cartels, say Hegseth and Trump, are like ISIS or Al Qaeda. This is typical of the way the regime perverts language, so that reminding soldiers of their legal responsibility not to follow unlawful orders is “sedition”, or individuals deciding to cross our border is an “invasion”.

Smuggling has been part of the American economy since before the Revolution, from British tea to Prohibition whiskey to Colombian cocaine. It has never been considered an act of war. Those 83 people on those fishing boats were not soldiers and were not at war with the United States. They’re murder victims.

But just for a moment, grant the claim that these attacks are part of a war. That’s where the Post’s new revelations come in: Once your enemies are disarmed and helpless, it’s a war crime to kill them. If the report is true, Pete Hegseth and those down the chain who carried out his orders are guilty of war crimes.

It appears, at least for the moment, that Republicans in Congress are not going to cover this up.

Republican Sen. Roger Wicker of Mississippi, chairman of the Senate Armed Services Committee, and its top Democrat, Rhode Island Sen. Jack Reed, said in a joint statement late Friday that the committee “will be conducting vigorous oversight to determine the facts related to these circumstances.”

That was followed Saturday with the chairman of the House Armed Services Committee, Republican Rep. Mike Rogers of Alabama, and the ranking Democratic member, Washington Rep. Adam Smith, issuing a joint statement saying the panel was committed to “providing rigorous oversight of the Department of Defense’s military operations in the Caribbean.”

Hegseth denies giving the order and calls the Post’s report “fake news”.

And before I leave this topic, there is one more dot worth connecting: Military judge advocate generals (JAGs) are supposed to vet these legal issues for the armed forces. But Hegseth purged the JAGs back in February, about a month into his term:

Hegseth told reporters Monday that the removals were necessary because he didn’t want [the JAGs] to pose any “roadblocks to orders that are given by a commander in chief.”

The plan from the beginning was to give illegal orders and remove all obstacles to carrying them out.

Kristi Noem’s contempt of court. Remember back in March, when a judge ordered DHS not to deport a bunch of Venezuelans to the CECOT concentration camp in El Salvador, including turning around planes already in the air? And DHS in fact did not turn those planes around, defying the judge’s order?

The judge, James Boasberg, has kept pursuing the question of who is responsible and whether they should be charged with criminal contempt of court. Tuesday, government lawyers answered the first question: DHS Secretary Kristi Noem made the call, after consulting with Deputy Attorney General Todd Blanche, Principal Associate Deputy Attorney General (now federal appellate judge) Emil Bove, and DHS acting general counsel Joseph Mazzara.

Dean Blundell cuts through the spin and legalese to draw this conclusion: The regime just threw Noem under the bus. Government lawyers say they’ll be happy to answer any further questions in writing, but that “No live testimony is warranted at this time.” In other words: We’ll answer the questions we want to answer with very carefully crafted spin, and we don’t want to give the court or anybody else the ability to frame their own questions or insist on clear answers.

Blundell summarizes:

They’re naming Noem now.
They’re trying to keep her off the stand.
And they’re trying to keep other insiders and whistleblowers from testifying live

Noem responded yesterday in an interview with ABC’s Jonathan Karl:

KARL: So, I have two questions on that. First of all, is that right? Does the — does the buck effectively stop with you on this? Was this your responsibility? And had you known the judge had ordered those planes to be turned around when that order was issued?

NOEM: Yes, I made that decision. And that decision was under my complete authority and following the law and the Constitution and the leadership of this president, who is dedicated to getting dangerous criminal terrorists and gangs and cartels out of our country. And I’m so grateful that we get the opportunity every day to do that and to make decisions that will keep America safe.

KARL: Did you know about — did you know about the judge’s order when you issued your order for the planes to go (ph)?

NOEM: You know, this is an activist judge. And I understand, you know, we’re still in litigation with this against this activist judge who’s continuously tried to stop us from protecting the American people.

We continue to win. His ridiculous claims are not in good standing with the law or the Constitution. We’ll win this one as well. And we comply with all federal orders that are lawful and binding and we will continue to do that.

But I’m proud of the decision that I’ve made. Proud to work for this president each and every day to keep America safe.

So there you have it: It’s up to the regime, and not the courts, to decide what is “lawful and binding”. She disagreed with the judge, so she ignored his order. If that’s not contempt of court, I don’t know what is.

By weeklysift | Posted in Articles | Also tagged Trump administration | Comments (5)

Could a Third Term Happen?

November 3, 2025 – 8:46 am

It’s far-fetched but not impossible.

For months Trump has alternately encouraged and then tamped down speculation that he might seek a third term. Wednesday, he acknowledged the constitutional reality that “it’s pretty clear I’m not allowed to run”. But since it’s always a mistake to assume that any Trump statement is his final word, the third term idea will likely surface again at some point.

So how seriously should we take this? My conclusion: moderately seriously. Pay attention, but don’t lose your mind about it. That’s an attitude I’m trying to model this post.

The main reason to take it somewhat seriously is this: If Trump floated an idea like this and nobody pushed back, before long he’d be doing it. As you may remember from junior high, that’s how bullies operate. Every abuse, from pulling your pony tail to rape, starts as a joke. “Why do you have to be like that? I was just kidding around.” But if your response to the joke indicates that he might get away with it, it’s game on.

The main reason not to take it seriously is the 22nd Amendment, which seems pretty clear:

No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once.

And yet, Steve Bannon believes he has a way to get around that prohibition.

“There’s many different alternatives,” Bannon said when asked about the 22nd Amendment. “At the appropriate time, we’ll lay out what the plan is.”

And Trump himself said back in March “There are methods which you could do it.”

So let’s think about what those methods might be.

Is there a loophole? Sort of. In a New Yorker conversation with Michael Luo, Ruth Marcus explains:

Note that it says “elected . . . more than twice,” not “serve as President for more than two terms.” The way—maybe—to get around that would be to have Trump elected Vice-President, and then to have whoever is the incumbent President resign to make way for a third Trump term. (Trump himself, by the way, said that this approach was “too cute,” and that “the people wouldn’t like that.”)

Alternatively, and even more fancifully, Trump could be elected Speaker of the House (you don’t have to be a House member to be Speaker), putting him in line for the Presidency, and both the elected President and Vice-President would clear the decks for him.

Marcus’ “maybe” depends on how the Supreme Court interprets the 12th Amendment, which says:

But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.

Again, though, Trump could argue that he’s not ineligible to be president, he’s just ineligible to be elected president. So maybe the same loophole covers the 12th Amendment too. An honest Supreme Court — especially one that puts so much emphasis on the original intent of the laws — would not allow this, but we don’t have an honest Supreme Court. So maybe it flies.

Could it work? Not if the 2028 election has anything to do with the will of the American people. Remember a few things:

As much as he hates to admit it, Trump got decisively defeated in 2020. It wasn’t close. Since then, he has had ample opportunity to come up with evidence to back his claims of fraud, and has produced nothing.
His reelection in 2024 was close. For the third time, he failed to get half the vote.
It didn’t take long for Trump to remind voters why they didn’t like him at the end of his first term. He hasn’t kept most of the promises he made in 2024. In particular, his critique of Biden centered on inflation, which he pledged to reverse on Day One. But inflation has not improved, partly because of Trump’s tariffs. He has kept his promise to focus on deportations, but his claim that he could deport “millions and millions” of dangerous criminals has turned out to be false. To get any kind of numbers at all, he has had to deport dishwashers, landscapers, and nannies — many of them abducted by ICE’s masked thugs. This is not popular.
He got a momentary bump in the polls from the apparent Gaza peace plan, which is looking more and more ephemeral. Now his popularity is almost as low as it has ever been, and continuing to sink.

Not to mention the fact that Trump is right: The plan to run a stooge (or two stooges) who then resign is too cute for the public to back. And then there’s the execution problem: Would you trust J. D. Vance to resign once he had been sworn in as President? Trump doesn’t seem like the trusting type.

Summing up: In any free and fair election, a Stooge/Trump or Stooge/Stooge ticket would lose in a landslide. Anybody who seriously proposes the plan, i.e., Steve Bannon, must also be planning to rig the election in a significant way. A small amount of corner-cutting wouldn’t do the job.

Whether that can happen or not is a different topic.

Does Trump understand that it won’t work? Hard to say. He seemed to understand it Wednesday, but I have long subscribed to the theory of Trump’s mind that David Roberts enunciated in 2016:

When he utters words, his primary intent is not to say something, to describe a set of facts in the world; his primary intent is to do something, i.e., to position himself in a social hierarchy. … Even to call him dishonest, to say he “lies,” doesn’t quite seem to capture it. The whole notion of lying presumes beliefs — to lie is to say something that one believes to be false, to knowingly assert something that does not correspond to the facts.

It’s not that Trump is saying things he believes to be false. It’s that he doesn’t seem to have beliefs at all, not in the way people typically talk about beliefs — as mental constructs stable across time and context. Rather, his opinions dissolve and coalesce fluidly, as he’s talking, like oil on shallow water. That’s why he gives every indication of conviction, even when, say, denying that he has said something that is still posted on his Twitter feed.

Wednesday, Trump found it useful to agree with people like Mike Johnson that he can’t run. (Of course, he also said this was “sad”, because “I have my highest numbers that I’ve ever had”, which is completely delusional. So Wednesday’s comment did not come at some moment of peak lucidity.) Tomorrow, he may find it useful to agree with Steve Bannon.

What makes this problematic for Republicans in general, even the fascist ones, is the Mad King problem: No one can tell Trump he is wrong. So if he starts asserting that one of the third-term scheme works, and in fact works easily because he’s so popular, who’s going to tell him that some serious election-rigging is needed?

Meanwhile, no Republican legally entitled to compete for the presidency can start organizing a campaign, for fear of antagonizing the Mad King. Typically, the primary field starts to assemble in earnest after the midterm elections, so there’s still time. But Democrats like Governors Newsom and Pritzker are already starting to position themselves. Republican candidates would too if the field were clear.

What does the third-term talk accomplish for Trump? At least for his followers (or for Republicans intimidated by his followers), talk of a third term pushes back the moment when he becomes a lame duck. No one is going to risk breaking the law for him if they anticipate someone else holding the presidency soon. But the fantasy of Trump remaining in office indefinitely keeps that realization at bay.

By weeklysift | Posted in Articles | Also tagged democracy, Trump administration | Comments (10)

Will the courts hold the line?

September 8, 2025 – 10:35 am

The Trump administration has suffered a series of defeats in court recently. Will that matter?

It’s been a bad week or two for Trump in court. Jay Kuo counts the ways:

A major ruling from the Federal Circuit invalidating most of Trump’s “Liberation Day” tariffs;
A long weekend emergency ruling stopping planeloads of unaccompanied children from being deported to Guatemala;
Trump’s big loss after a bench trial in California over his unlawful use of federal troops in that state; and
The Fifth Circuit smackdown of Trump’s invocation of the “Alien Enemies Act” to justify summary deportation of alleged gang members.

After Kuo’s post, Trump suffered another loss in court:

A federal judge on Wednesday ruled Donald Trump’s administration unlawfully terminated about $2.2bn in grants awarded to Harvard University and can no longer cut off research funding to the Ivy League school.

The judges in these cases have been sending a clear message: The law still counts for something, and it doesn’t change just because Trump says so.

But for that message to stick, two things have to happen: The Supreme Court has to back up the lower-court decisions, and the Trump administration has to obey the court orders once they become final. Will those things happen? I’ve seen both optimistic and pessimistic views.

Kuo is the optimist.

There’s an understandable tendency to hear about a big court victory for the good guys but then cynically dismiss it, claiming either that the Supreme Court will overturn it, or that the Trump White House will simply ignore the courts’ orders.

I want to encourage readers to not fall into this trap. True, the Supreme Court has intervened in a few cases to lift a few injunctions imposed by lower courts, and that admittedly has been awful to see. But it hasn’t ruled substantively on much of anything yet. And that has allowed court victories by the good guys to produce some real progress.

He points to blue-state attorneys general suing to claw back CDC grants the Trump administration had frozen. Red states, with their Trump-worshipping AGs, have taken the loss.

The Department of Justice wants the American public to assume that none of the orders granted by federal judges are being heeded. They want us to believe that they, and not the judiciary, are in control. But this is simply not the case.

Kuo points to the Guatemalan-children case, where (unlike in an earlier case with adults) planes in the air really did turn around, because “this time the government wasn’t up to playing more games with the courts”.

The pessimist side is represented by Vox’ Ian Milhiser, who summarizes “The overwhelming evidence that the Supreme Court is on Donald Trump’s team“.

The Court’s Republican majority now hands Trump several victories every month, only explaining themselves when they feel like it. When they do explain those decisions, they are often incomprehensible. The Republican justices exempt Trump from rules that apply to every other litigant, including the most recent Democratic president. Their decision permitting Trump to commit crimes doesn’t even attempt to argue that presidential immunity can be found in the Constitution — instead making a policy argument that Trump should not be chilled from taking “bold and unhesitating action” for fear of prosecution.

Nor is Trump the only litigant who receives this Court’s special treatment. The Republican justices favor religious conservatives so much that they will make up fake facts to bolster Christian conservative litigants. Meanwhile, they hate abortion providers so much that they once handed down an anti-abortion decision that, if taken seriously, would permit every state to neutralize any constitutional right.

If any other government official behaved this way, it would be obvious they were placing partisanship ahead of the law. It is no less obvious when these six specific government officials do so. The most reasonable explanation for the Republican justices’ behavior is that they are acting in bad faith.

It’s possible that even the most well-reasoned lower-court decisions against Trump will be reversed based on some gobbly-gook reasoning that we can expect to conveniently vanish should a Democrat ever again assume the presidency. That’s certainly what happened in the Trump immunity ruling.

But it’s worth noting that although the Court has thrown procedural hurdles in the way of those who would stop Trump’s lawlessness, and has sometimes reversed injunctions without much explanation, so far it has given Trump very few outright victories on the underlying merits of the cases. Birthright citizenship, for example, still stands.

The people caught in the middle are the lower-court judges themselves, ten of whom took the unusual step of talking anonymously to NBC News. Their problem is simple: When you do your best to apply the law as it was written and has always been interpreted, and then the Supreme Court reverses your decision in a shadow-docket ruling with little or no explanation, what do you do with the next case? You can’t apply the Court’s new reasoning, because that reasoning was never published.

In late July, the Constitution Daily Blog listed five Trump executive orders that are likely to hit the Supreme Court soon:

reversing birthright citizenship.
invoking the Alien Enemies Act to deport immigrants
using emergency powers to impose tariffs
firing heads of agencies protected by Congress
banning transgender people from serving in the military

I could imagine (but not agree with) the Court siding with Trump on the last two. But if any of the first three get the Court’s blessing, something is seriously wrong.

By weeklysift | Posted in Articles | Also tagged Trump administration | Comments (5)

“Unitary Executive” is a euphemism for Tyrant

July 28, 2025 – 10:04 am

How a conservative legal theory set us on a path to fascism.

If you clear your mind of preconceptions and read the Constitution end to end, I think you’ll see not just a list of rules and procedures, but a vision of the proper governance of a free people. [1] The newly established Government of the United States does not rule over its people in totality. Instead, the People have granted the government a specific list of powers to achieve specific goals.

Alexander Hamilton, for example, thought this structure made an explicit Bill of Rights unnecessary.

For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?

During the ensuing centuries, the power of the US government has grown, largely because social and economic change made the powers granted to it more significant. Interstate and international commerce, for example, was a comparatively small part of the average American’s life in 1787. Today, on the other hand, restricting your purchases to products wholly made within your home state would involve radical lifestyle choices. The power to regulate interstate commerce, consequently, opened the door to a much broader regulatory power.

Similarly, technological progress has opened up unforeseen new worlds of commerce and communication, requiring someone to define new ground rules. America’s ascension to world power likewise extended the powers of our government.

But those enhanced powers did not automatically flow to the President. The Constitution gave those expandable powers to Congress, including what has become known as the Elastic Clause, because it can be stretched in so many ways.

The Congress shall have Power… To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Other powers are split between Congress and the President. So, for example, the President can enforce the laws, but cannot make laws. The President is commander-in-chief, but cannot build an army or declare war. [2] The judiciary, in turn, defines what the laws mean.

The 20th century saw the growth of what has become known as the “administrative state”: The kind of detailed and fast-changing regulation that the government’s new powers required couldn’t be managed through a body as cumbersome as Congress. [3] And so Congress empowered a smorgasbord of agencies: FDA, SEC, EPA, Federal Reserve, and so on — each with its own power and purview.

In this manner, some of the spirit of Constitution was preserved, even as the executive branch expanded: Specific powers were granted for specific purposes. Each agency had its own mission, and while the agencies were part of the executive branch and overseen by presidential appointees, the rank-and-file employees belonged to the civil service and maintained a degree of independence. [4]

The norms of the presidency, in turn, required a President to compartmentalize, or at least to maintain the appearance of compartmentalization. So, for example, it was considered scandalous if President Obama was directing the IRS to give conservative organizations a hard time. [5] President Biden and Attorney General Merrick Garland kept their distance from Special Counsel Jack Smith’s investigation and subsequent indictment of Donald Trump.

A President is human and has enemies and resentments, but s/he is not supposed to use the government to exact personal vengeance. The person-with-enemies and the President-with-powers are intended to be kept separate.

But during the Reagan years, conservatives began to float the notion of a “unitary executive”. The theory is based on the first line of Article II of the Constitution, which says:

The executive Power shall be vested in a President of the United States of America.

For a long time this was interpreted loosely: Any grant of executive power had to pass through the President in some way, but did not come from him minute-to-minute. FBI directors, for example, were appointed by a President, but served 10-year terms that stretched well beyond the 4- or 8-year term of the appointing President, and were fired only for cause. [6] Similarly, chairs of the Federal Reserve are appointed by a President, but have never been replaced simply because a new President takes office.

But the Unitary Executive Theory says that any executive power is by definition a presidential power. The various agencies and officials of the executive branch are essentially fingers of the President’s hand. They do the detail work that is beneath the President’s notice, but have no real independence.

For a long time the unitary executive was a crank theory, but under the partisan Roberts Supreme Court it has increasingly become the law of the land. [7] In Trump’s second administration, the Court has allowed the firing of a series of people previously believed to be independent and protected by law.

“By means of such actions, this Court may facilitate the permanent transfer of authority, piece by piece by piece, from one branch of Government to another,” Justice Elena Kagan wrote for herself, as well as Justices Sonia Sotomayor and Ketanji Brown Jackson.

Most recently, Trump has attempted to reshape (and shrink by half) the Department of Education simply by firing its employees. [8]

Proponents of the unitary executive argue — as authoritarians often do — that government power will be wielded more efficiently by a single hand, and that government will be more responsive to the voters when elected officials are better able to implement the programs they ran on.

But the behavior of the Trump administration belies these claims. In a government of largely independent agencies, each wielding its own power to achieve a specific mission, American individuals and institutions have to worry about the laws and agencies as individual entities. So: You worry about the IRS at tax time, and try to make sure that your returns follow their rules. You worry about the Justice Department if you are contemplating some crime of theft or violence. A corporation worries about the SEC in its dealings with the market and their own stockholders, about the EPA when it considers what emissions its factories are putting into the environment, and about OSHA when it designs its work environment. And so on.

But under a unitary executive, when all these agencies are fingers of the same hand, everyone has to worry about being seen as enemies of the government. If we have displeased the executive in some way, any agency of government might be used to punish us or whip us back into line.

Take CBS. Does their news coverage displease Trump? Then the FCC balks at the corporate merger of CBS parent Paramount and cash-rich Skydance. It balks not until a specific public interest is satisfied, as would be the case under another administration’s FCC, but until Paramount has paid Trump $16 million to settle an otherwise baseless lawsuit, until Stephen Colbert’s show is cancelled, and until CBS agrees to have an ombudsman address complaints of anti-Trump “bias” in its news coverage.

Take Columbia University. Complaints that university wasn’t doing enough to protect Jewish students from harassment would ordinarily fall under the civil rights division of the Education Department, which might make a referral to the civil rights division of the Justice Department, with a narrow focus on the experience of the university’s Jewish students. But under a unitary executive, the offense is more general and the consequences far more sweeping: Columbia allowed pro-Palestinian demonstrations that expressed opinions contrary to Trump’s support of Israel’s government.

And so, the State Department revoked the green card and student visa of protest leader Mahmoud Khalil, allowing ICE (which is part of Homeland Security, not the the State Department) to arrest and detain Khalil for three and a half months without filing any criminal charges against him. Columbia’s research grants (primarily from the Health and Human Services Department) were frozen, and all of its federal grants were threatened. [9]

And the result? Not a specific set of adjustments to Columbia’s policies about antisemitism (antisemitism was always just a pretext), but a sweeping agreement to get Columbia right with the Trump administration, “including the re-organisation of its Middle Eastern studies department, and hiring a team of ‘special officers’ empowered to remove students from campus and make arrests”.

A similar administration assault on Harvard resulted in demands to

shift power from “faculty and administrators more committed to activism than scholarship” to “those most devoted to the scholarly mission of the University and committed to the changes indicated in this letter”, i.e., from Trump-hostile faculty to Trump-friendly faculty.
“reform its recruitment, screening, and admissions of international students to prevent admitting students hostile to the American values and institutions inscribed in the U.S. Constitution and Declaration of Independence” and “report to federal authorities … any foreign student … who commits a conduct violation”.
authorize an “external party” satisfactory to the government “to audit the student body, faculty, staff, and leadership for viewpoint diversity, such that each department, field, or teaching unit must be individually viewpoint diverse”. [10]

Again, the administration has mounted pressure by trying to freeze funds from a wide range of government departments. This is happening not at the end of a process in which Harvard has been found guilty of something and refused voluntary reforms, but as cudgel to beat the University into line with the administration. (Harvard is fighting this in court.)

The administration has also gone after law firms, getting concessions in exchange for release from a variety of threats that include

limiting the ability of attorneys to obtain access to government buildings, stopping any consideration for future employment with the government, canceling government contracts, and preventing any company that uses such a firm from obtaining federal contracts.

To sum up: Increasingly, we are in an environment where it is not enough to obey the laws. Instead, you need to maintain a friendly relationship with the government, and particularly not offend Trump himself. Otherwise, the full power of the government might come down on you.

The Germans have a word for this: gleichschaltung.

Gleichschaltung is a compound word that comes from the German words gleich (same) and Schaltung (circuit) and was derived from an electrical engineering term meaning that all switches are put on the same circuit allowing them all to be simultaneously activated by throwing a single master switch.

This unitary-executive metaphor goes back to the Nazis, because of course it does.

The Nazi term Gleichschaltung, meaning “synchronization” or “coordination“, was the process of Nazification by which Adolf Hitler—leader of the Nazi Party in Germany—established a system of totalitarian control and coordination over all aspects of German society “from the economy and trade associations to the media, culture and education”.

The unitary executive is precisely the person with his or her hand on that master switch. If American society retains any freedom, it will be due to the restraint of that executive, not to our inherent human rights.

So getting rid of Trump will not be enough to restore American freedom, as long as his successor — whether MAGA or some Democrat — continues to be a unitary executive holding the government’s master switch. Restoring freedom will require a sweeping change in the Supreme Court, as well as in re-establishing cultural expectations of the compartmentalization of presidential power.

[1] Recognizing, of course, that in 1787 not everyone was free. Much of our social progress in the last quarter-millennium has consisted of extending that vision of freedom more and more widely.

[2] The Founders never imagined the US achieving the kinds of world-spanning power it has today, or that it would need to maintain powerful armed forces in peacetime. Nor could they imagine a nuclear war, which could be lost before Congress could be convened.

[3] Imagine having to pass a new law each time a pharmaceutical company marketed a new drug or a food company began using a new preservative.

[4] This is the origin of the notion of a “Deep State”. President after president came into office with ideas for sweeping change, only to discover that the actual government had a great deal of bureaucratic inertia. The career employees of the various agencies had their own vision of their mission, which did not change just because they had a new boss.

You can see this today, for example, in the Justice Department, where many career employees — more than half in some offices — have quit rather than carry out orders that, by their lights, are corrupt. It’s impossible to know how many other civil servants have quietly sabotaged plans that violate what they see as their agency’s mission.

People join the EPA because they want to protect the environment, DoD because they want to defend the country, and so on. If asked to do something counter to those goals, they will do their best not to cooperate.

Properly understood, then, the Deep State is a culture, not a conspiracy.

[5] He wasn’t. IRS targeting of conservative groups for heightened scrutiny was never conclusively established, and no link to the Obama White House was ever found.

[6] Prior to Trump, only Bill Clinton had fired an FBI director — for ethical violations, in that case.

But President Trump fired FBI Director James Comey on a pretext in 2017, only four years into his term. During his transition period in 2024, Trump announced Kash Patel as his replacement for his own appointee Christopher Wray, seven years into Wray’s term. Wray might have challenged his apparent dismissal, but chose instead to resign.

[7] At least when Republicans are in the White House. The Roberts Court repeatedly found that President Biden had overstepped his legal authority. But now that Trump is president again, the bounds of presidential power have become increasingly vague and malleable.

[8] I have to wonder how well this would have worked for Biden. Would the Court have allowed him to eliminate student debt by firing all the people tasked with keeping track of it or collecting payments?

[9] Ordinarily, ending federal grants might be the conclusion of an anti-discrimination finding against a recalcitrant institution, not an opening salvo.

[10] “Viewpoint diversity” is a common MAGA euphemism for giving preference to MAGA-friendly students and professors. An economics department with no Marxists can be “viewpoint diverse”, but a biology department with no creationists might not be.

By weeklysift | Posted in Articles | Also tagged democracy, Trump administration | Comments (8)

Are Trump’s Tariffs Legal?

June 2, 2025 – 10:21 am

Can Trump decide for himself the extent of his own power?

Many of the Trump administration’s most controversial actions are based on novel (and perhaps far-fetched) interpretations of existing laws. The most objectionable deportations are based on a bizarre reading of the 1798 Alien Enemies Act, and soon the Supreme Court will have to rule on whether it really does give Trump he power he claims. Similarly, many of the tariffs he has declared are based on the International Emergency Economic Powers Act of 1977.

But the same question arises: In the IEEPA, Congress delegated certain powers to the President. But did it delegate these powers, to be used in this situation.

Wednesday, the United States Court of International Trade said no.

The argument. Simplifying somewhat, the Trump administration argues that the IEEPA gives Trump essentially unlimited powers over tariffs. He can invoke the IEEPA by declaring a national emergency of his choosing, and once he does, the emergency powers Congress has delegated to the President allow him to do just about whatever he wants. Courts have no power to intervene, because the existence of an emergency and the measures necessary to deal with it are “political questions” that unelected judges have no business resolving.

The counter-argument is that emergency laws like the IEEPA delegate specific powers with limitations, not dictatorial powers for the President to use however he likes. Even if you could interpret the language of the law to grant unlimited power, that would itself be unconstitutional: Congress can only delegate its power up to a point.

Moreover, the courts have a necessary role in interpreting whether a President’s use of an emergency power is within the limitations of the statute. Otherwise we’re back in the dictatorial situation: The President has as much power as he says he has, and no one can say otherwise.

Ordinary tariffs. Some background: Presidents don’t ordinarily make tariffs. Tariffs are taxes, and the Constitution assigns Congress “Power To lay and collect Taxes, Duties, Imposts and Excises”. Congress is also empowered to “regulate Commerce with foreign Nations”. So that’s typically how tariffs get done: Congress passes a law establishing them, like the ill-fated Smoot-Hawley Tariff Act of 1930.

This Congress has not passed a tariff bill, and Trump has not asked it to. Instead he has invoked the IEEPA, which Wikipedia describes like this:

The IEEPA authorizes the president to declare the existence of an “unusual and extraordinary threat … to the national security, foreign policy, or economy of the United States” that originates “in whole or substantial part outside the United States.” It further authorizes the president, after such a declaration, to block transactions and freeze assets to deal with the threat and requires the president to report to Congress every 6 months on the circumstances, threats and actions taken. In the event of an actual attack on the United States, the president can also confiscate property connected with a country, group, or person that aided in the attack.

IEEPA falls under the provisions of the National Emergencies Act (NEA), which means that an emergency declared under the act must be renewed annually to remain in effect.

A textbook example of the IEEPA in action was what President Bush II did after 9-11: He declared an emergency and blocked the assets of organizations identified as terrorist.

Emergency tariffs. Tariffs come into the picture because President Nixon used a predecessor of IEEPA (the Trading With the Enemy Act of 1917, or TWEA) to raise tariffs across the board. That action was contested in court, and an appeals court reversed a lower-court finding that the tariffs exceeded the power Nixon was delegated under TWEA. In reversing that decision, the higher court emphasized that the President’s power was not unlimited. Nixon had

imposed a limited surcharge, as a temporary measure calculated to help meet a particular national emergency, which is quite different from imposing whatever tariff rates he deems desirable

After that ruling, Congress passed IEEPA to pull back some of the power it had delegated to the President. The TWEA powers were now reserved for wartime, while IEEPA covered “national emergencies” short of war. These powers

may only be exercised to deal with an unusual and extraordinary threat with respect to which a national emergency has been declared for purposes of this chapter and may not be exercised for any other purpose.

Questions related to the balance of trade are dealt with in a separate piece of legislation: Section 122 of the Trade Act, where the President’s powers are still more restricted: Tariff surcharges are limited to 15% and 150 days.

But the Trump administration’s position in court is that the IEEPA’s delegation of power is essentially unlimited: It’s up to the President to decide what a national emergency is and what measures are necessary to “deal with” it. Courts can’t second-guess him, because that’s a “political question” off limits to the unelected judiciary. (So if the President declares that vaping constitutes a national emergency and banning pogo sticks is necessary to deal with it, courts have no power to intervene.)

The court didn’t buy any of that. The language of the statute is not the President’s to interpret.

This language, importantly, does not commit the question of whether IEEPA authority “deal[s] with an unusual and extraordinary threat” to the President’s judgment. It does not grant IEEPA authority to the
President simply when he “finds” or “determines” that an unusual and extraordinary threat exists. … Indeed, “[t]he question here is not whether something should be done; it is who has the authority to do it.” [Biden v. Nebraska, 600 U.S. at 501]. The court simply asks whether the President’s action “deal[s] with an unusual and extraordinary threat.” Congress provided the necessary standards for resolving this inquiry when it enacted IEEPA, and the court’s task is to apply them.

Which tariffs are at issue? Trump used IEEPA authority to impose tariffs of three types

worldwide tariffs. The 10% tariff on all imports.
retaliatory tariffs. The country-by-country tariffs Trump announced on “liberation day”.
trafficking tariffs. Tariffs against Canada, Mexico, and China to pressure them to prevent fentanyl smuggling into the US.

The court rejects all of them. There are other tariffs, including tariffs on metals and car parts, that Trump invoked on other authorities. Those were not questioned.

Nondelegation and Major Questions. During the Biden administration, the Supreme Court created new legal principles to restrain executive power. Nondelegation is essentially the idea that certain powers are so central to Congress’ role that they can’t be delegated. So legislation that delegates those powers broadly, rather than in very specifically defined circumstances, is unconstitutional.

The major questions doctrine says that large-scale grants of power to the executive branch must be made explicitly in the authorizing legislation. For example, the Court used this doctrine to knock down President Biden’s cancellation of student debt. The authorizing legislation allowed the executive branch to tinker with student loan repayments. But if Congress had intended to allow the President to cancel over a trillion dollars of debt, it would have said so explicitly.

Findings. The Court of International Trade found that Trump’s worldwide and retaliatory tariffs were balance-of-trade remedies that belonged under the restrictions of Section 122, not the IEEPA. A trade deficit by itself is not an “unusual and extraordinary threat” that invokes IEEPA emergency powers.

The President’s assertion of tariff-making authority in the instant case, unbounded as it is by any limitation in duration or scope, exceeds any tariff authority delegated to the President under IEEPA. The Worldwide and Retaliatory tariffs are thus ultra vires and contrary to law

The trafficking tariffs fail because they do not “deal with” the emergency that the President has declared. Fentanyl smuggling may well be a national emergency, but the connection to tariffs on Mexico, Canada, and China is too indirect and tenuous.

“Deal with” connotes a direct link between an act and the problem it purports to address. A tax deals with a budget deficit by raising revenue. A dam deals with flooding by holding back a river. But there is no such association between the act of imposing a tariff and the “unusual and extraordinary threat[s]” that the Trafficking Orders purport to combat.

Trump argues that the tariffs are necessary to put pressure on the targeted nations, so that they will crack down on fentanyl smuggling.

The Government’s “pressure” argument effectively concedes that the direct effect of the country-specific tariffs is simply to burden the countries they target. It is the prospect of mitigating this burden, the Government explains, that will induce the target countries to crack down on trafficking within their jurisdictions. See Gov’t Resp. to Oregon Mots. at 39. But however sound this might be as a diplomatic strategy, it does not comfortably meet the statutory definition of “deal[ing] with” the cited emergency. It is hard to conceive of any IEEPA power that could not be justified on the same ground of “pressure.”

The Government’s reading would cause the meaning of “deal with an unusual and extraordinary threat” to permit any infliction of a burden on a counterparty to exact concessions, regardless of the relationship between the burden inflicted and the concessions exacted. If “deal with” can mean “impose a burden until someone else deals with,” then everything is permitted. It means a President may use IEEPA to take whatever actions he chooses simply by declaring them “pressure” or “leverage” tactics that will elicit a third party’s response to an unconnected “threat.” Surely this is not what Congress meant when it clarified that IEEPA powers “may not be exercised for any other purpose” than to “deal with” a threat.

The ruling concludes:

In so holding, the court does not pass upon the wisdom or likely effectiveness of the President’s use of tariffs as leverage. That use is impermissible not because it is unwise or ineffective, but because [the law] does not allow it.

What happens now. The International Trade Court is not the final authority, and the administration has already appealed to the appellate court for the Federal Circuit. That court has put a stay on the ITC’s ruling until it has time to consider the case. Ultimately, this is probably headed to the Supreme Court.

That will be an interesting test for this Supreme Court, which expanded its own power to overrule presidential orders during the Biden administration. But do the same limitations apply to Democratic and Republican presidents? Or has the law become partisan, so that what was done matters less than who did it?

The politics. The Trump administration interprets all its losses in court as judges making their own policy decisions and trying to impose them on the executive branch. Stephen Miller, for example, decried how “15 Communist judges” spread through the courts can “block and freeze each executive action”.

That framing allows Trump’s people to describe the issues the way they want, and then say that judges are against what the administration is for. Trump wants to deport dangerous criminals, while judges want to stop him. Trump wants to defend our economy from predatory foreign countries, but judges want to stop him, and so on.

But that framing sidesteps whether the United States will continue to be a country of laws, or whether it will become a Trump dictatorship. The Constitution defines the powers of our government, and assigns them to different branches. When Trump gathers all those powers to himself — and more powers that the Constitution does not assign to anyone — our way of life is endangered.

Whatever legitimate goals Trump may have — deporting criminals or protecting American jobs or whatever — can be accomplished in legal ways. (For example, Trump could ask Congress for a new tariff law. He could deport criminals through the immigration courts.) When he ignores legal pathways in favor of illegal ones, he needs to be stopped.

By weeklysift | Posted in Articles | Also tagged economics, Trump administration | Comments (3)

What’s up with the Supreme Court?

May 19, 2025 – 9:19 am

Consider this a follow-up to last week’s post of qualified optimism about the prospects for American democracy to outlive the Trump administration. We continue to be steaming towards a direct clash between Trump and the Supreme Court. How that plays out will be a big factor in whether our way of government survives.

A lot of the pessimists I talk with say this clash has already happened and the bad guys won. Specifically, the Court told the Trump administration to bring Kilmar Abrego Garcia back from the concentration camp Trump has established in El Salvador. Trump has ignored that order and gotten away with it. So: courts and laws are powerless and Trump will do as he pleases. For all practical purposes, American democracy is already dead.

I read the situation somewhat differently. To me, the Supreme Court and the Trump administration look like two fighters circling each other warily, each waiting to see if the other really wants to do this.

It already seems clear that the Court will not endorse Trump’s most obviously illegal acts. It will not deny that the 14th Amendment guarantees birthright citizenship, no matter how badly Trump wants that denial. It won’t agree that he can invoke wartime powers (like the Alien Enemies Act) when there is no war. It won’t endorse him unilaterally unmaking agencies made and funded by Congress. The administration seems to understand this, which is why it hasn’t pushed for the Court to resolve those issues quickly.

Instead, Trump’s lawyers keep offering the Court ways to surrender quietly, by writing itself out of the picture. For example, the portion of the birthright citizenship case that the administration argued in front of the Court this week did not seek an answer to the central question. Instead, it focused on whether lower court injunctions could cover the entire country. The acting Solicitor General argued for a system in which each loss in a lower court only affected the specific plaintiffs involved, leaving the administration free to ignore the birthright citizenship of any other Americans until they sued too. Only a Supreme Court ruling could shut the administration down completely.

This leaves an enormous loophole: If the administration simply refused to appeal a series of lower-court losses, none of the cases would make it to the Supreme Court, so there could be no national ruling against them.

In other words: You don’t have to endorse our position, Supremes, just write yourself out of the picture and let us proceed.

For its part, the Court has so far treated the Trump administration as if it were a good-faith actor, which it clearly is not. In the Garcia case, the Supremes supported a lower-court order to “facilitate” Garcia’s release, leaving the details to the executive branch. (That’s appropriate if the executive branch is acting in good faith, because the executive is presumed to be better equipped to deal with foreign governments.) In essence, it was offering Trump the opportunity to stop all this nonsense and start behaving like the kind of American president the Constitution envisions.

But of course he did not. The Trump administration interpreted “facilitate” in a ridiculously narrow way, and — surprise! — the details of Garcia’s release haven’t worked out. The government continues to give the lower-court judge a run-around as to what it is or is not doing to get Garcia back.

Sooner or later, Judge Xinis is going to tire of this and order the administration to present Garcia in his court on a particular date. That order will also get appealed up to the Supreme Court, which will then have to decide whether it is ready to confront Trump or surrender to him. If it isn’t ready to surrender, then Trump will have to decide whether he recognizes the authority of the Court. If he doesn’t, that’s the crisis point.

I don’t think anyone knows whether we’ll get there, or what will happen then. Trump himself may not know, and the answer may turn on how popular Trump is at the time, how the economy is going, how vigorously Republicans in Congress are standing up for him, how well organized anti-Trump protesters are, and a lot of other factors that have nothing to do with the case at hand.

It’s worth noting that so far the Trump administration is not acting as if it had thrown off the burden of judicial oversight. For example, on Friday the Supreme Court extended its previous ban on deporting any more people under the authority of the Alien Enemies Act until the administration’s invocation of the AEA’s wartime powers can be fully adjudicated. As best we can tell, the administration is obeying the order.

At least for now.

By weeklysift | Posted in Articles | Also tagged democracy, Supreme Court, supreme-court, Trump administration | Comments (9)

Rights, Privileges, and Mahmoud Khalil

March 17, 2025 – 10:31 am

Can a legal permanent resident be deported for expressing views the President disagrees with?

A long-standing debate runs through American history: Does the Bill of Rights enumerate human rights, i.e., something that anyone can claim by virtue of being human, or privileges of citizenship that our government can ignore when it deals with non-citizens?

The Declaration of Independence uses theistic language to promote a human-rights view: Human beings (or at least “all men”) have been “endowed” with rights “by their Creator”. To say that a man lacks rights is tantamount to claiming that he was not created by God. But in the Dred Scott decision of 1857, the Supreme Court took the opposite view: Rights derive from the social contract embodied in the Constitution. Africans residing in the United States, the Court held, were not party to that contract, and thus they “had no rights which the white man was bound to respect”.

Dred Scott has long been in the dustbin of history, and is widely viewed as one of the Court’s worst decisions. Currently binding Supreme Court precedents take an in-between view that leans towards human rights. Basically, the Court interprets the Constitution and the laws to mean exactly what they say: If lawmakers had intended a provision to apply only to citizens, they would have used the word “citizen” rather than some more general term like “person”. For example, the 14th Amendment uses both words:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

So there are privileges that apply only to citizens (the right to vote, for example), but due process and equal protection are not among them.

The Trump administration shows every sign of wanting to move that line. Just how far it wants to go is not clear. But the first case in point is Mahmoud Khalil.

Who is Mahmoud Khalil? Two weeks ago, Khalil (an Algerian citizen born in a Palestinian refugee camp in Syria) had the next layer of privileges short of American citizenship: He came here originally on a student visa, but became a legal permanent resident, a “green card holder”. He is married to an American citizen, who is eight months pregnant. If nothing goes wrong, in another month he’ll be the father of an American citizen.

He is also a pro-Palestine activist. Last spring, he participated in demonstrations at Columbia University, where he was a student at the time. (He has since finished his degree.) Wikipedia describes his views like this:

Following the start of the Gaza war in 2023, Khalil became involved in pro-Palestinian activism. He served as a negotiator for students associated with Columbia University Apartheid Divest (CUAD) when they were bargaining with Columbia University officials. In a 2024 interview, Khalil said, “As a Palestinian student, I believe that the liberation of the Palestinian people and the Jewish people are intertwined and go hand by hand, and you cannot achieve one without the other.” He characterized the movement as one “for social justice and freedom and equality for everyone”. Of concerns about antisemitism, Khalil said, “There is, of course, no place for antisemitism. What we are witnessing is anti-Palestinian sentiment that’s taking different forms, and antisemitism, Islamophobia, racism [are] some of these forms.”

The Trump administration describes him differently, claiming that he “led activities aligned to Hamas” and “engaged in pro-terrorist, anti-Semitic, anti-American activity“. But it has produced no specifics to back those claims up, and the language itself is slippery. What does it mean that an activity is “aligned with Hamas”? Aligned in whose view? Similarly, unless Khalil himself endorsed terrorism or attacked Jews or America in so many words — and if he had, I’d expect his critics to have produced specific quotes — “pro-terrorist, anti-Semitic, anti-American” is an opinion, not a fact.

Khalil’s arrest. A week ago yesterday, agents from the Homeland Security department arrested Khalil at his home in New York. Khalil’s wife Noor Abdalla recorded the event on her phone while simultaneously talking to Khalil’s lawyer on his phone. It isn’t exactly a classic police-state arrest — Khalil is not roughed up, for example — but it still has a lot of disturbing aspects. When Khalil’s wife asks for the names of the arresting agents, she is told “We don’t give our names.” They also refuse to say which agency they represent. All they’re willing to tell her is where Khalil is being taken: Immigration Custody at 26 Federal Plaza. They refuse to talk to Khalil’s lawyer, who is on the phone. “They’re literally running away from me,” Noor reports to the lawyer.

When Noor tried to visit Khalil at a detention center in New Jersey, she was told he was no longer there. It took some time for his lawyer to determine that Khalil had been moved to a facility in Louisiana, where at first he was not allowed to consult privately with lawyers. An immigration hearing to have him deported was scheduled for March 27.

Last Monday, a federal judge in New York ordered that Khalil not be removed from the US until a hearing in his court can determine whether deporting him violates constitutional rights.

The Just Security blog analyzes the legalities: No one in the executive branch can unilaterally revoke a green card.

To obtain authority to deport a green card holder, the government must charge (or accuse, as this is not a criminal matter) them with a condition under the immigration laws that in some way makes them “deportable.” “Deportable” is a term of art under the immigration laws. It refers to conduct defined in a set of provisions—most though not all involving criminal activity—codified at 8 U.S.C. 1227(a).

To prove that an [legal permanent resident] is deportable, the government must convene a “removal hearing” before an immigration judge. At that hearing, government attorneys must prove deportability by “clear and convincing” evidence.

Notably, the Trump administration has not accused Khalil of committing crimes, or of committing fraud in his green-card application (another deportability condition). Instead, it points to a condition that has never been used in this way before:

the government has invoked a rarely used “foreign policy” ground of deportation. That provision, located in section 237(a)(4)(C) of the Immigration and Nationality Act, makes deportable any “alien whose presence or activities in the United States the Secretary of State has reasonable ground to believe would have potentially serious adverse foreign policy consequences for the United States” (emphasis added).

The statute contains a (freedom of speech and association) safe harbor, incorporated by reference to the inadmissibility provisions, prohibiting deportation “because of the alien’s past, current, or expected beliefs, statements, or associations, if such beliefs, statements, or associations would be lawful within the United States,” but then contains an exception for the safe harbor: “unless the Secretary of State personally determines that the alien’s [presence] would compromise a compelling United States foreign policy interest” (emphasis added).

It’s worth pointing out that much of what the administration claims about Khalil (even if true) consists of “beliefs, statements, or associations would be lawful within the United States”. The First Amendment would protect an American saying “I support what Hamas did on October 7”, even if most other Americans would find that statement reprehensible. (Again, Khalil seems not to have said anything like that.)

The foreign-policy justification is pretty obviously absurd: Khalil is up for deportation because Trump promised to deport pro-Palestinian campus demonstrators. There is no “compelling US foreign policy interest” involved. What the administration will probably argue, though, is that identifying US foreign policy interests is a judgment call that belongs to the executive branch, not the judiciary.

The case, then, will turn on whether an immigration judge feels empowered to use common sense, which says that the foreign policy interest here is a pretext, not a reason.

Protests. The administration has pledged that a Khalil deportation will be “the first of many“, and has already arrested a second Columbia protester. A third has returned to India after having her student visa revoked.

Protests calling for Khalil’s release were held in several cities this weekend. The most striking was organized by Jewish Voice for Peace. Thursday, over 100 demonstrators were arrested for occupying Trump Tower in New York.

It would be a mistake to conclude from this that American Jews in general support Khalil. (A pro-Israel group is apparently fingering pro-Palestinian protesters for deportation.) But the administration’s usurpation of the fight against “antisemitism” as an excuse for curtailing freedom of speech is making a number of American Jews uneasy. Whatever pretext they claim for curtailing human rights, authoritarian governments have a way of using their powers against Jews eventually. Elon Musk’s antisemitism, as well as Trump’s and Vance’s embrace of the antisemitic Alliance for Germany party, undermines the administration’s claims to be fighting antisemitism.

In truth, the administration seems to be fighting freedom of speech, not antisemitism. The Khalil case shows the lengths it will go in order to find legal pretexts to punish people it disagrees with. That should worry all of us, no matter what we think about Palestine or Israel.

By weeklysift | Posted in Articles | Also tagged democracy | Comments (3)

The Weekly Sift

Tag Archives: law

Immigration is about Race

What to do with a lawless Supreme Court?

What to do about a lawless Supreme Court?

Crime in the Cabinet

Could a Third Term Happen?

Will the courts hold the line?

“Unitary Executive” is a euphemism for Tyrant

Are Trump’s Tariffs Legal?

What’s up with the Supreme Court?

Rights, Privileges, and Mahmoud Khalil

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