Whether it’s federalizing the National Guard or imposing tariffs, the predicate is an emergency. Congress has enacted laws that confer powers, to a greater or lesser extent, on the president to deal with emergent situations that require action immediately and can’t wait for Congress to get its act together. But these laws presuppose that there is, in fact, an emergent situation, an emergency.

In the District of Columbia, Trump declared there is a crime emergency. There was, of course, crime occurring, as there pretty much always is. The magnitude of crime was lower than it had been in the past, although some denied that the statistics were legitimate. Then again, even if the statistics were being fudged, that does not prove that crime was either increasing or a sudden crisis. At worst, it was status quo. What part of this gave rise to an emergency? Trump said so. Continue reading →

The Court of Appeals for the Federal Circuit, en banc, affirmed the decision of the Court of International Trade (CIT) that the president has no authority under the International Emergency Economic Powers Act of 1977  (IEEPA) to unilaterally impose tariffs. Declaring an emergency does not empower the president to do whatever he pleases, even if he puts on a cool Liberation Day show.

Contrary to the Government’s assertion, the mere authorization to “regulate” does not in and of itself imply the authority to impose tariffs. The power to “regulate” has long been understood to be distinct from the power to “tax.” In fact, the Constitution vests these authorities in Congress separately. U.S. Const. art. I, § 8 cl. 1, 3; see also Gibbons v. Ogden, 22 U.S. 1, 201 (1824) (“It is, that all duties, imposts, and excises, shall be uniform. In a separate clause of the enumeration, the power to regulate commerce is given, as being entirely distinct from the right to levy taxes and imposts, and as being a new power, not before conferred. The constitution, then, considers these powers as substantive, and distinct from each other.”); Nat’l Fed’n. of Indep. Bus. v. Sebelius, 567 U.S. 519, 552, 567 (2012).

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It’s a curious complaint, challenging Federal Reserve Governor Lisa Cook’s purported firing by President Trump. While there is more than enough to substantiate her position that she engaged in no mortgage fraud, the gravamen of the complaint isn’t that she’s innocent and falsely accused, but rather that regardless of the accusation, it would not constitute a basis for her removal from the Fed board of governors.

This case challenges President Trump’s unprecedented and illegal attempt to remove Governor Cook from her position which, if allowed to occur, would the first of its kind in the Board’s history. It would subvert the Federal Reserve Act (“FRA”), which explicitly requires a showing of “cause” for a Governor’s removal, which an unsubstantiated allegation about private mortgage applications submitted by Governor Cook prior to her Senate confirmation is not.

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It’s nearly inconceivable that the loudmouthed fool appointed as United States Attorney for the District of Columbia, chosen to replace the incompetent minion who was so awful that not even the uber compliant Senate would confirm him, was unable to get an indictment in three tries. For those who would come up with other excuses, like the grand juries thrice refused to indict because it was comprised of radical leftists, bullshit.

It takes almost nothing to indict, the process being entirely one sided and allowing hearsay accusations to substitute for evidence. Sol Wachtler’s “ham sandwich” quote is too on the nose. Yet, Jeanine Pirro failed. And failed. And failed. And so Sidney Reid will be charged with misdemeanor assault, because no indictment is needed. Continue reading →

Other than the fact that it didn’t include the word “Epstein,” it’s unclear what caused President Trump to suddenly concern himself with “cashless bail,” as he calls it, other than his latest thrust to make himself the president who ended crime and win public adoration and a prize. When Trump decides to concern himself with something, he issues an order about it, because “I have the right to do anything I want to do. I’m the president of the United States.”  So the president signed an Executive Order entitled “Taking Steps To End Cashless Bail to Protect Americans.”

Many very smart and knowledgeable people have spent a great deal of time trying to find the “right” answer to dealing with bail and pretrial detention. I’ve been dubious, if not critical, about many of the reforms enacted over the past few years. Then again, I’ve been dubious, if not critical, about the handling of bail before these reforms. Trump’s EO, on the other hand, reflects neither the thoughts nor solutions of smart and knowledgeable people. Continue reading →

With far too many issues raised in a day to address, none of which had anything to do with Jeffrey Epstein, Trump ran the gamut from criminalizing protected free speech in an Executive Order criminalizing the burning of the American flag (and announcing the sentence to be imposed for doing so!), to violating the Posse Comitatus Act by federalizing National Guard units to perform law enforcement functions when there is no local request or emergency**

To cap off the day, President Trump “fired” member Lisa Cook of the Federal Reserve Board of Governors. By firing her and replacing her with one of his guys, it would give Trump a majority of the Board and enable him to dictate monetary policy, among other things, to his performative advantage of reducing the interest rate at the expense of sound economic policy. Continue reading →

It’s hard to imagine that John Bolton, after years and multiple investigations, is illegally in possession of classified documents. If so, it still isn’t remotely like Trump’s being given multiple opportunities to return the docs and refusing, lying and concealing so he could show them to randos and impress people with how important he was. And Trump not only said he was not a fan of Bolton’s, whom he claimed he fired and Bolton claimed he quit Trump 1.0, but he stripped Bolton of his security clearance and detail, even though he was under threat, on Day 1.

Still, raids need search warrants, and search warrants need Magistrate Judges to sign off on them. And yet, Trump’s actions have sown the seeds of mistrust in anything that gets touched by his bloated yet grubby fingers. Continue reading →

The government’s allegations against Kilmar Abrego Garcia have not held up well under even the slightest scrutiny. On the one hand, Homeland Security Secretary Kristi Noem, who favors cosplaying, obedient dogs and holding anything related to her president near to her head, called him a “monster” though he’s yet to be convicted of anything. Then there’s the president himself, who knows an MS-13 gangbanger when he sees one.

After insisting repeatedly that there was no way the United States could get El Salvador President Nayib Bukele to return Abrego Garcia to American custody, even though he was being held without any due process and tortured in a Salvadorean prison at Trump’s request and with American payment, it turned out that all that was needed was to ask and, boom, he was back. Continue reading →

It’s 8:00 p.m. on a Sunday. The house is quiet. Eerily so. My wife has retreated to the bedroom with a book and a “do not disturb” look. My friends have stopped answering my texts, and even the neighbors, who once welcomed my company, now seem to pull their blinds when they see me coming. Why? Because it’s WWE SummerSlam night, and I have opinions. Loud, passionate, endless opinions.

But I’m not alone. There, sprawled across the living room rug, is my loyal sidekick: Poppy, my dog. She’s the only one in the house who doesn’t roll her eyes when I start ranting about John Cena’s latest comeback or Brock Lesnar’s mysterious motives. In fact, I’m pretty sure she’s starting to recognize the theme music. The moment the first guitar riff blares from the TV, her ears perk up. Maybe she’s expecting a treat, or maybe she’s just bracing herself for another night of my animated commentary. Continue reading →

Historically, the party out of power wins the midterm elections as a means of rebuking and restraining the excesses of the party in power. Trump has no intention of letting that happen and no shame in doing whatever he can to prevent it. Fortunately for him, neither the Texas lege nor Governor Greg Abbott have any concern about disenfranchising citizens of the Republic who might vote otherwise by gerrymandering congressional districts to flip five districts to assure that they are as red as can be.

In response, California plans to put a question to its voters whether to do the same so that five congressional districts that are now red are turned blue. Both states are quite open about their purpose and, while California might better reflect the position of its citizens based upon the mechanism being used while Texas shows no interest whatsoever in what its citizens want, both are using redistricting in the most cynical, undemocratic way imaginable. Continue reading →