Honorable Sir,

I realize that we’re not old friends, and there is no reason why you would consider my thoughts to be any more worthwhile than anyone else’s, but as a lawyer and believer in the institutional value of the Supreme Court, I hope you will consider them nonetheless.

As you are no doubt aware, the Supreme Court has been in a precarious situation for the past couple months. The decisions of the past few years have given rise to doubts about the integrity of the Court. I understood, but deeply disagreed with, the Court’s dismissal of stare decisis in Dobbs. I understood the Court’s point in US v. Trump, but see the decision as functionally sloppy and impractical. And then there is Bruen, which has proven to be an unworkable mess rife with mischief. This is not to suggest you’re unaware of these problems, but that they provide the context within which the nation perceives the legitimacy of the “Least Dangerous Branch.” Continue reading →

It’s unsurprising that noted legal scholar and press secretary Karoline Leavitt, took to Fox News to echo Dear Leader’s proclamation of a great victory. After all, the per curiam decision was a very long four pages. But one would have suspected a Yale law school grad to have the fortitude to wade through all four pages, making the vice president’s reaction somewhat sad.

The Supreme Court today rejected the idea that far left judges in DC can overrule President Trump’s immigration enforcement.

This is a major loss for the lunatics and a major win for the American people.

Onward!

Except that’s not even remotely what the Supreme Court did, which should have been obvious even to J.D. Vance, whose eyes are clouded with visions of future relevance. Rather, the Supreme Court vacated the temporary restraining orders not because they were wrong, but because the 5-4 majority held that the habeas corpus petitions were brought in the wrong venue. Continue reading →

A few things are not in issue, no matter what some claim. It may be that Kilmar Armando Abrego Garcia is a member of the notorious gang MS-13, but nothing has yet been proven to support the accusation. It may well be that Abrego Garcia should be deported, but his being snatched and renditioned to El Salvador while subject to an order prohibiting his removal was unlawful. These two things are indisputable.

The third thing that’s not in issue is that the government’s lead immigration prosecutor, Erez Reuveni, has a duty of candor to District Judge Paula Xinis. Trump criminal defense lawyer turned Deputy Attorney General Todd Blanche knows this. He just didn’t care. Continue reading →

For the most part, the argument goes that the basis for imposing tariffs, the declaration of a national emergency under the International Emergency Economic Powers Act of 1977 (IEEPA), is a pointless circle, since it’s the president who gets to decide and declare the existence of an emergency. But the New Civil Liberties Alliance has brought suit against Trump under a different theory, challenging his initial tariffs against China.

The complaint alleges that Trump’s executive orders raising tariffs on Chinese imports exceed the statutory authority of the IEEPA, and that a ruling upholding this assumed authority would violate the nondelegation doctrine, which prohibits Congress from transferring to other branches of government “powers which are strictly and exclusively legislative.” When Congress does delegate its power, it must provide an intelligible principle, i.e., “a legal framework to constrain the authority of the delegee.” The suit argues that the IEEPA contains no such principle vis-à-vis tariffs, which are nowhere mentioned in the statute.

Continue reading →

A RELATIVELY SHORT TIME AGO IN A PLACE NOT TOO FAR AWAY—

It was December 8, 1982, and the Grassy Knoll Pub in Driftwood County was buzzing like a hive of slightly drunk bees. The premiere of E.T. the Extra-Terrestrial was happening that night in some fancy theater a few towns over, but Cassidy, the perpetually soused Irish doorman, didn’t give a rat’s arse about Spielberg or his wrinkly little alien. He was too busy pouring pints of Guinness for the locals and eyeballing the two newcomers who’d stumbled in around 7 PM, looking like they’d just escaped a Radio Shack explosion. Continue reading →

The day of the announcement of worldwide tariffs, from uninhabited islands to islands with either penguins or army bases, was probably pretty busy in the Oval. After all, there was the stock market crash to consider, the outrage of allies and trading partners, not to mention fielding the calls from Maine’s senators and representatives after cutting off funds and making changes to social security to punish the governor for being a “petulant child” to the mature executive.

And still, the gentlemanly boss made time for a young woman who had been feeling a little left out lately. Continue reading →

Few of us get to have the attorney general put the full force of the federal law enforcement machine behind us personally, crimes usually being more generic and prosecuted (or not) based upon the conduct more than the marque. But our new Attorney General, Pam Barbie Bondi has emphatically stated that crimes against Elon Musk are special.

“I’ve made it clear: If you take part in the wave of domestic terrorism against Tesla properties, we will find you, arrest you, and put you behind bars,” Bondi said.

Crimes against Chevy? Whatevs.

Tesla CEO Elon Musk blasted the attacks as “terrorism” and called them “unequivocally a hate crime” in X posts on Monday.

Continue reading →

Today is supposed to be the day. It’s been pumped. It’s been dumped. It “liberation day,” the day Americans will be liberated from their savings, their income, their food, cars and flat screen TVs. But such cheap goods aren’t part of the American Dream, according to billionaire Treasury Secretary Scott Bessent.

There will be pain, as renowned economics scholar Tommy Tuberville explains, but Americans will be happy to endure it for the sake of their president’s desires.

Continue reading →

In pretty much any other administration, Signalgate would have been more than enough for heads to roll. Targeting individual law firms for punishment by Executive Order because they represented people and cases that angered the president would have been a huge scandal, as would firing the personnel staffing nuclear weapons only to have to rehire them, if they could be found, as a demonstration of utter incompetence.

Even the most basic elements of administrative incompetence would have been more than enough to launch a dozen congressional inquiries, from why there is no toilet paper in federal office buildings to why staff were required to return to their offices only to find no room and be forced to work from their cars in parking lots. Unless, of course, DOGE came with guys with guns to evict non-executive branch staff from a privately owned building because they had no clue how they fit into the administrative scheme. Continue reading →

Shortly after the Supreme Court decided Citizens United, a friend was near hysterical about its implications for judicial elections. Mind you, I’m no fan of judicial elections, it being the worst of the bad methods of selecting judges. But I really couldn’t get very worked up about the notion that money would be the issue, that huge sums of money would be invested in getting a judge elected because the value of buying a judgeship just wasn’t all that great.

I mean, sure, it might prove better to have judges you preferred over judges you didn’t, but for the most part, judges didn’t wield all that much influence since they were limited by the cases that made it before them and most judges still felt constrained by reason and integrity. But then, I didn’t think about Elon Musk back then. Continue reading →