So much for being more regular about posting…

This week, Canada’s shift away from co-dependency with its southern neighbor continued, as the European Union announced it would extend an invitation to Canada for “Associate Member” status, a category that does not currently exist. What exactly this status means is still unclear. Trump doesn’t seem happy about the prospect.

Let’s survey some economic indicators, shall we? The national price of gas is now up to $4.48 a gallon, up from $4.10 a month ago, while the national price of diesel has reached an all-time high of $6.50 a gallon, up from $5.55 a month ago. Annual inflation is currently at 3.4%, compared with 2.4% in February before the war with Iran started. In light of persistent inflation this week the Federal Reserve, now chaired by Trump loyalist Kevin Warsh, voted to raise the Fed Funds rate by 25 bps, the first rate hike since 2023. Trump didn’t lash out at Warsh the way I thought he might, but he does continue to hold unrealistic views as to what U.S. interest rate levels ought to be. The S&P 500 remains up 11.5% year-to-date, although it has been treading water over the past six weeks. The average 30-year mortgage rate climbed to 6.95% this week, the same level it was at Trump’s second inauguration; it had gotten below 6% just before the war with Iran started. Finally, the average price of ground beef hit an all-time high of $6.92 per pound last month; its climb during the Biden administration from $3.97 to $5.60 was one of the drivers of public dissatisfaction with Biden. Yet, somehow, Congressman Emmer (R-MN) was quoted on the campaign trail this week touting ground beef prices below $2 per pound.

With such ‘robust’ economic news, it is perhaps not surprising that over the past 10 days Nate Silver’s assessment of the Democratic Party’s chances this fall have improved. Right now he makes the Democrats 65% favorites to take the Senate, up from 51% when I last posted. He’s moved Talarico up from 56% to 70%, while in Iowa Turek’s chances have risen from 35% to 52%. He also thinks it is now 51% that the Democrats will get to 52+ seats, which could be important given Fetterman’s unreliability.

There is also news about the U.S. having reached a new security arrangement with Denmark regarding Greenland. However, it is not yet clear what is actually in the new agreement, and whether it is substantively different from the pre-Trump status quo. As a practical matter, even if it doesn’t actually change reality, it defuses tensions with the E.U. while giving Trump an ability to, as a Danish reported put it, “take a victory lap on social media.”

However the main piece of news since I last posted comes from the Supreme Court, which took some all-too-rare action against a Trump administration policy priority.

I had briefly mentioned in my last post the various controversies around first an Executive Order, and then a final regulation, imposing new requirements regarding the transmission of federal election ballots via the mails. As lawyer Adam Unikowsky explains, the primary underlying federal objective isn’t really about preventing mail-in voting fraud at all:

“The government has had difficulty collecting voter information from states. There’s currently a separate stream of litigation in which the federal government is suing states trying to get access to their voter rolls. These lawsuits have failed 23 straight times. So the federal government is trying something different. …[T]he federal government will leverage its power over the Postal Service to prevent states from sending mail ballots unless the states give the federal government information sufficient to identify, by name, everyone who voted by mail.”

A secondary underlying federal objective, arguably, is to wreak havoc with an election cycle that is likely to be adverse to the administration. The new rule may be illegal as a general matter, but in attempting to implement it two months before an election the administration is creating significant operational risk that mail-in voting for the 2026 midterms would not function smoothly–which, given the current politics of mail-in voting, seems to be a risk the administration would welcome.

As such, while the plaintiffs seeking to stop the new regulation are certainly arguing that the regulation is entirely invalid, they are more immediately concerned with getting it enjoined for the 2026 midterms. And that’s what SCOTUS did last week, in a case now captioned USPS vs. California: The per curiam majority denied the administration’s application for a stay of an adverse lower court ruling preventing the rule from applying to the 2026 midterms, saying both that “the Government is unlikely to succeed on the merits of its challenge” and that “the equitable factors applicable for obtaining emergency relief from this Court do not warrant a stay.”

Since the second statement quoted above would have been sufficient to justify the denial of a stay by SCOTUS, the fact that the per curiam opinion also made the first statement is interesting: It appears to signal that at least 5 Justices believe that the rule is likely illegal, period. On the other hand, we have an Alito dissent joined by Thomas in which he argues that the stay should have been granted, and we have a Kavanagh concurrence saying that he thinks there’s “at least a fair chance” that the rule is legal but that implementing it so close to an election (and with so little preparation for the rule’s requirements having been made) would be “arbitrary and capricious” under the APA.

As such, on the eventual merits question of whether the USPS has the authority to adopt this rule, we could be looking at more like a 5-4 or 6-3 split. But for now, at least, the rule is a dead issue with respect to the 2026 elections, albeit not before having dredged up a lot of concern among the general public about the potential reliability of mail-in voting.

The problem with going more than a month between blog posts is that, even in the dog days of summer, there’s more to write about than I can possibly do justice to. Still, all one can do is try…

Primaries. I believe the 2026 primary season is done at last, with Massachusetts finishing things up last week.

When I last wrote, I was eagerly awaiting the upcoming election here in Minnesota, and particularly the Democratic primary to replace retiring Senator Tina Smith. That primary pitted my Representative, moderate Angie Craig, against the sitting Lieutenant Governor, the more progressive Peggy Flanagan. My view going back several months was that while I had supported Craig as a very suitable nominee for her largely exurban 2nd District, Minnesota Democrats needn’t settle for someone that moderate in a statewide race. The party establishment agreed with that view, and Flanagan was poised to win the party endorsement at the state convention in late May. Which, according to the way party politics has always worked in Minnesota, ought to have been the end of it; primaries are a recent innovation in Minnesota, and the expectation was that losing candidates would drop out after the convention, making the primary a coronation rather than a contest.

Craig saw things differently. Shortly before the state convention, foreseeing that she would lose she announced that she would not be seeking the party endorsement at the convention and would instead contest the primary. Which she did, outspending Flanagan 4-to-1 (although honestly it felt like more of an edge than that, based on the advertising I saw). While Governor Walz remained officially neutral, his decision to not endorse his own running mate was suspicious, and in the last week of the campaign his wife endorsed Craig. It all turned to out to be for nought, however, as Flanagan managed a 59-39 victory. Her opponent in the fall will be former sports broadcaster Michelle Tafoya.

There was a surprising Senate primary result in Florida. I had thought that moderate Alex Vindman, a central figure in the first Trump impeachment trial, was facing only token opposition in the Democratic primary and could make a compelling (albeit long-shot) general election candidate. I’d never even heard of his opponent, Black progressive Representative Angie Nixon, until she beat Vindman, 56-44.

Alaska held its jungle primary, to which 4 people advance to the general. The two leading candidates are former Rep. Mary Peltola, a Democrat, and incumbent Senator Dan S. Sullivan, a Republican. Peltola won 49.5% of the vote to Sen. Sullivan’s 41.4%. I would be remiss in failing to mention that one of the two minor candidates who advanced is a different Dan Sullivan, also purportedly a Republican; however, it is not looking like the potential voter confusion here will be dispositive.

In South Carolina, recall that Sen. Lindsey Graham would have been on the ballot this fall, so when he died a second primary was hastily scheduled for August. Contrary to many people’s expectations his sister Darline, who had been appointed to the seat, decided to run in the primary and received Trump’s endorsement. In a field where 5 different candidates got at least 5% of the vote, she got a 33% plurality, advancing to the runoff against Rep. Ralph Norman. Graham’s debate performance attracted much criticism, particularly when she admitted she was pretty ignorant about foreign policy. Nevertheless, Trump’s coattails got her across the finish line, as she beat Norman 52.4 – 47.6. With Tommy Tuberville likely to be elected Governor of Alabama this fall, the U.S. Senate may have a new “least qualified member” come 2027.

Finally, votes in the Massachusetts Senate primary faced an unusual choice, where the 80-year-old progressive incumbent (Markey) faced a challenge from a much younger but more moderate Representative (Moulton), forcing many voters to choose between policy preferences versus protesting the gerontocracy. Progressive policy won out, 65-35.

Canada. Well, things here have fallen apart more quickly than I would have thought possible.

Recall that back in 2018, the Trump administration negotiated a replacement for the 1994 North American Free Trade Agreement (NAFTA). The new agreement, which the U.S. calls USMCA (although Canada calls it CUSMA), took effect on July 1, 2020 for an initial 16-year term. Under the original agreement, six years in there would be a trilateral joint review process. That process could result in the countries agreeing to extend USMCA for a further 16 years or, failing an ability to agree on that, in the countries having a series of annual reviews until a 16-year extension is reached, or until the agreement expires. On July 1, 2026, the U.S. announced it was not willing to renew USMCA for another 16 years, leaving the agreement intact but triggering the process of successive annual reviews.

Then, later in July, the Trump administration announced that it would impose 50% tariffs on a range of Canadian products effective August 19th, citing Section 338 of the Smoot-Hawley Tariff Act of 1930 as its authority to do so. That section of the law had never been used, and a compelling argument can be made that this authority was implicitly repealed with the passage of the Trade Expansion Act of 1962.

The new tariff threat brought Canada and the U.S. to the negotiating table. I was in Canada on vacation on August 18th when Trump announced a 3-day postponement of the new tariffs on the grounds that the two countries were on the verge of reaching a deal. But three days later, an hour before midnight Canadian PM Carney pulled his negotiators away, allowing the tariffs to take effect. The next day he announced that Canada would impose retaliatory tariffs, scheduled to take effect tomorrow, and explained in his speech that “in recent days the U.S. proposed new terms that were uneconomic, unfair, and undermined the net benefits to Canada, calling into question the reliability of any deal.”

So, there is now a trade war between Canada and the U.S.; that’s lovely. Trump has threatened a further escalation of the trade war, but to date his only move has been to order the U.S. government to re-name Lake Ontario as “Lake America”. I’m not aware of any lawsuits arguing that the Section 338 tariffs are illegal, but hopefully one will emerge soon.

Iran. It’s still a quagmire, with no real movement, or path forward. The price of diesel reached an all-time high of $5.90 this week, while the price of gasoline on Labor Day is $4.14 a gallon, breaching the previous Labor Day high of $3.82 from 2012.

Ballroom. One of Trump’s major priorities over the past year has been his project, in the absence of any legal authority, to tear down the East Wing of the White House and build a new ballroom (over-top of a new security bunker). At times it feels like he cares more about the ballroom than about other aspects of the Presidency, which I suppose is what one should expect when elevating a real estate developer to that role.

In late August this situation finally reached the Supreme Court, via its emergency docket, in a case captioned National Park Service v. National Trust for Historical Preservation. Disappointingly, SCOTUS ruled 5-4 in favor of the government, granting it a stay of a lower court injunction that would have prohibited further above-ground construction. As a practical matter, this will allow the administration to complete construction before the legality of said action is fully adjudicated.

You might ask, how do we know that an emergency docket ruling was precisely 5-4? In this case, it is because Chief Justice Roberts wrote a dissent that was joined by the three liberals. Early in Roberts’ dissent he writes “[t]hat construction is likely unlawful”; and the majority opinion takes pains to note that “[t]oday, we do not pass upon the legality of the government’s East Wing project.” The legal issues at stake in the SCOTUS opinion are entirely about whether the plaintiffs who sued the government have standing to do so, and hence whether the district court exceeded its authority in granting the injunction.

While I am not a lawyer, I am increasingly convinced that something — although I can’t specify a precise solution — needs to change when it comes to judicial evaluation of whether or not the executive branch is complying with the law. Time and time again, the Trump administration has rather brilliantly exploited a seam in our form of government whose existence I hadn’t previously appreciated: It is all too possible for the executive branch to willingly break the law, without adequate legal remedies available to prevent it.

Mail-In Ballots. This post is already too long, and I imagine this subject will be coming up again in the near future, so for today I’ll be brief. There have been Executive Orders relating to the role of the U.S. Postal Service in delivering mail-in ballots in federal elections, and very recently a final regulation implementing portions of those EOs was promulgated. Many states believe that the rule is unconstitutional, and they seek to enjoin its implementation for the November elections while further litigation continues. This issue already reached the SCOTUS emergency docket once, in an August case called Trump v. California, over dissents from the 3 liberals. At that time, the Court argued that the legal action was premature since it was taken before the final rule was promulgated, so the legal harms to the states were speculative. Now that the rule exists, the district court judge has reaffirmed her previous ruling, and this will likely get back to the SCOTUS emergency docket very shortly.

Political Landscape. I’ll end for today with a brief summary of how the national political landscape looks like on Labor Day, citing Nate Silver’s new midterms model which he has christened FLIPR:

• FLIPR thinks control of the Senate is a genuine tossup, with a 50.6% chance that the Democrats will get to 51 seats. Of course, if they get to exactly 51, then there is some risk that Fetterman, whose approval ratings are far higher among PA Republicans than among PA Democrats, could be induced to switch parties.
• In terms of specific Senate races, FLIPR has Talarico as a mild favorite to flip TX (56-44) but, surprisingly, Sullivan as a mild favorite to hold AK (54-46). FLIPR also likes Jackson’s chances to flip ME (65-35), Brown’s to flip OH (62-38), El-Sayed’s to retain MI (68-32), and the Republican Hinson’s to hold the open seat in IA (65-35). Among longer shots, FLIPR gives the Democrat Hamilton a 20% chance to flip KS, which came as a surprise to me.
• FLIPS thinks the Democrats are heavily favored to take back control of the House, with an average margin of 231-204 and an 82.7% chance of being at 218+. It appears Silver thinks that Republicans have a structural advantage in popular vote terms of about 3% in the House, thanks to gerrymandering and other factors. Having said that, it is certainly possible that the Republicans will lose some of the seats, particularly in TX, that they had gerrymandered in an effort to gain.
• Silver’s tracking average of Trump’s approval / disapproval ratings currently sits at 38.1 – 58.5, which is very close an all-time low for Trump.

I voted yesterday, in the Minnesota Democratic primary; election day is August 11th, but I’ll be out of the country then.

There were primary elections in some states yesterday, most notably Michigan, where attention was focused on the Democratic Senate primary. The incumbent, Democrat Gary Peters, is retiring. There were three candidates: State Senator Mallory McMorrow, Representative Haley Stevens, and Abdul El-Sayed (not currently in office but the losing candidate in the 2018 gubernatorial primary). I had assumed that McMorrow, who gained national prominence with a speech at the 2024 DNC, was the front-runner here; and at one point I think she was. However as the campaign progressed she found herself outflanked by El-Sayed on her left and Stevens on her right, and she suspended her campaign a month ago without endorsing either opponent, but remained on the ballot.

Since then, this race became the most expensive Democratic Senate primary in history, with tens of millions of dollars of outside money (much of it from AIPAC) flowing in to support establishment figure Stevens against the charismatic progressive El-Sayed, who reportedly was outspent 10-to-1. It didn’t work, as El-Sayed eked out a narrow victory: 48.5% to 47.5%, with McMorrow still garnering 4.0% of the vote. It is certainly possible that Democratic primary voters just cost their party a winnable Senate seat by selecting an unelectable candidate, like Republicans did in Delaware in 2010, or in Alabama in 2017. At the very least, this Senate race will be an important test of how progressive ideas sit with the electorate outside of the most liberal areas.

There was an even crazier primary result from Michigan last night, on the Republican side, in the 8th District. This district near Flint is apparently, by at least one measure, the median district in the entire country; as such it is absolutely a swing seat, won in 2024 by a Democrat now running for her second term even though Trump carried the district. The Republican primary pitted 3 political neophytes: Amir Hassan, who Trump endorsed the day before the election; Al Lemmo; and Thomas Smith. Three weeks ago, Smith dropped out of the race and endorsed Lemmo but, like McMorrow, his name remained on the ballot. Despite that, yesterday Smith won handily, getting 50.4% of the vote, to 33.2% for Hassan and 16.4% for Lemmo. Not sure I’ve ever seen anything like it. Thomas Smith: the name you know.

Don’t have time to really catch up on Iran, or Blanche, or other issues. I will note that the Maine Democratic Senate Convention turned into a snoozefest, as supporters of former State Senate President Troy Jackson (who had just finished 3rd in the gubernatorial primary) so dominated the local nominating meetings to choose delegates that his victory was assured and everyone else dropped out. Jackson seems like Platner with less charisma and, one hopes, far less personal baggage.

A few things to catch up on:

The 250th Anniversary. With the heat wave in D.C. on July 4th, it wasn’t until 11:15pm local time that Trump was able to start his grand speech (which, I will confess, I did not watch). That meant the fireworks for the 250th, which was designed to break the previous world record for largest fireworks display, started very slightly after midnight, on the 5th.

In more recent 250th-related news, this week Treasury Secretary Bessent announced a new dollar coin will be issued for the 250th anniversary, with Trump on its face. Is this legal? The administration says it is, and at this point who are we to argue?

World Cup. The home country troika all bowed out in the round of 16, even though — thanks, it appears, to Trump’s intervention — FIFA overturned six decades of precedent to allow U.S. striker Balogun to play against Belgium, notwithstanding his red card in the previous game. After four-and-a-half weeks of play, we were left with the four highest-ranked countries in the world; seems like we could have just skipped ahead to that? Spain & Argentina will meet in the final, with England & France facing off for 3rd.

Maine Senate. Graham Platner’s teflon finally wore off in early July when a former girlfriend credibly accused him of having had sex with her against her will during their relationship. Within hours, the tide of opinion in the Democratic party turned solidly against him, and he withdrew from the ballot mere days before that would no longer have been possible. Facing a brisk deadline to select a replacement candidate, Maine Democrats have organized a 600-delegate convention on July 25th. That will be interesting.

McConnell, and Graham. Mitch McConnell has, it would appear, been hospitalized for weeks after a sudden health issue. By last week, conspiracy theories were starting to circulate to the effect that he was actually brain dead and was being kept alive to avoid the need for a special election to be called in August, in which dissident Republican Congressman Massie could run. A picture of McConnell and his wife was finally released in order to quell the rumors.

With that as background: When I woke up this weekend to news that an important Republican Senator was dead, the identity of said senator was surprising — not McConnell, but rather Lindsey Graham. Graham had just returned from a trip to Ukraine, prompting conspiracy theories that perhaps Putin was behind his sudden death. His younger sister (and adoptive daughter) has already been appointed to Graham’s Senate seat; but Graham was on the ballot this fall, and a special primary election has been set for August 11th. Candidates have yet to file, but it is expecting to be a very competitive primary race.

Trump v. IRS. Recall that Trump had, ludicrously, sued his own administration “in his private capacity” for $10 billion due to a breach of his tax returns that had happened during his first term, and then Trump’s Acting Attorney General, Blanche, agreed to a settlement of the “lawsuit” that not only created a $1.776 billion fund from which Trump appointees could dole out monies to victims of “weaponization”, but also (illegally?) granted Trump a free pass on all his existing IRS audit issues.

This week, a federal judge issued an opinion to the effect that, in light of the unitary executive theory (including references to the recent SCOTUS decision in Slaughter), there was no adversarial interest between the parties to this lawsuit, and hence the suit was a fraud on the court. It’s a damning opinion, although its practical impact is somewhat unclear. As the opinion notes in a footnote, “whether a private agreement between the Parties—as if “there is no judge”—is valid and enforceable or is a depredation of the Judgment Fund and an illegal conferral of immunity is not before this Court.” But there are potential professional ramifications for some of the attorneys involved, including Blanche, whose confirmation hearing for the permanent A.G. role kicked off this week.

Iran. Last week, the vaunted Memorandum of Understanding appears to have fallen apart. Earlier this week, Trump announced that the U.S. would now be in charge of assuring safe passage in the Strait in exchange for a toll equal to 20% of the value of cargo; within 24 hours he walked that back. Brent crude prices had briefly retreated to its pre-war level in the low $70s with the signing of the MOU, but have now drifted back into the low $80s.

Tonight. Trump is giving a presidential address from the White House tonight, supposedly about the 2020 election? WTF? Both NBC and ABC have declined to carry it, while CBS and FOX haven’t shown their cards yet.

Yesterday the U.S. MNT won their round-of-32 World Cup tie against Bosnia and Herzegovina, in somewhat dramatic fashion. The Americans were ahead 1-0 an hour into the game when the hero of their round robin win against Paraguay, Balogun, was belatedly awarded a controversial red card after VAR review of a play that hadn’t even resulted in a yellow card before the VAR got involved. This was eerily reminiscent of how Bosnia had reached the World Cup in the first place, beating favored Italy in penalties after Italy had taken a red card while up 1-0. This time, however, the U.S. scored a second goal on a free kick from just outside the box and held on to win 2-0. With no ability to appeal Balogun’s 1-game suspension for the red card, the U.S. will be missing a key player for their round-of-16 match against Belgium, who had beaten the U.S. 5-2 in a spring friendly.

In my last post I had mentioned new NYTimes polling of the Texas and Maine Senate races. Shortly after I had published that article, the NYTimes release similar polls of four other key Senate races in red states: Alaska, Iowa, North Carolina, and Ohio. While Governor Cooper has a comfortable lead in North Carolina, the three other races currently lean to the Republicans by 2 or 3 points. This polling suggests that having the Democrats reclaim control of the Senate in 2026 remains odds-against, but still more plausible than one would have thought a year ago, given the seats that are up this year.

More recently, Fox News released polls of the Georgia and Iowa Senate races. They have Sen. Ossoff up 56-43 over Rep. Collins in Georgia (and also have Bottoms leading in the Georgia Governor’s race), while in Iowa they have the Democrat ahead, 50-46. They also have Sen. Collins up 50-47 over Platner in Maine.

Earlier this week, Speaker Johnson sent the House into its 4th of July recess sooner than expected, reflecting internal dissension in the Republican caucus. Retiring moderate Republican Congressman Bacon of Nebraska referred to the dissidents as “shitting in their own house because they’re mad at the neighbor.” Sounds about right.

Finally, we are now 2 days away from the 250th anniversary of the signing of the Declaration of Independence — and indeed, it was 250 years ago today that the vote to declare independence passed, although to John Adams’ dismay we eventually adopted the 4th and not the 2nd as the national holiday. Unfortunately, the celebration of the semiquincentennial has become mired in partisanship. Today the Democratic staff on the House Natural Resources Committee issued an interim report, “From Vanity to Insanity: How the White House Cheated the American People out of their 250th Birthday”. Quoting from the Executive Summary:

“In 2016, Congress established an independent, nonpartisan U.S. Semiquincentennial Commission tasked with organizing celebrations in honor of the 250th anniversary of the signing of the Declaration of Independence. America250 was created to lead the celebrations on behalf of every American, insulated from the political whims of any particular administration. It was designed to leverage public-private partnerships without any quid-pro-quos or outsized political influence infecting the celebrations. The National Park Foundation—the official philanthropic partner of the National Park Service for more than five decades—stood ready to channel private generosity toward the parks and public spaces where the nation would gather.

But under President Donald Trump, this anniversary has been hijacked and perverted into a hotbed of corruption and self-enrichment. … The White House first attempted to bend America250 to its purposes, demanding spectacles focused on promoting President Trump rather than the country while forcing partisan content, campaign-style fundraisers, and favored contractors onto an organization Congress designed to serve the whole country, not
one party or president. … When America250 would not yield, the White House created a replacement: Freedom 250 LLC, a shadow organization capable of infiltrating the celebrations and injecting America’s 250th with Trump’s extreme, partisan agenda. Lodged within the National Park Foundation, the new entity could exploit the credibility and donor
relationships of a beloved public charity while operating outside the transparency and accountability requirements Congress wrote into the semiquincentennial framework.”

The centerpiece of Freedom 250’s efforts is the Great American State Fair, currently taking place on the National Mall. Attendance has been abysmal, hindered in part by a massive heat wave impacting much of the country. Trump intends to give a major speech — or as he put it, “the most spectacular TRUMP RALLY of them all” — on the Mall on the night of the 4th as part of the “Salute to America 250 Celebration and Fireworks” event, promising “the LARGEST FIREWORKS SHOW IN HISTORY.” The forecast high in D.C. for Saturday is 99, with a ‘feels like’ of 109. Sounds wild.

The World Cup has moved into the knockout stages by now, with Germany the first major team to be upset in the first-ever round-of-32. Amusingly, on Canada Day we have the U.S. playing a round-of-32 match (against Bosnia), while on Independence Day we’ll have Canada playing a round-of-16 match (against Morocco).

As expected, today SCOTUS released its opinions in the birthright citizenship case, Trump v. Barbara; and as expected, the decision was adverse to the administration. The opinions ran to almost 200 pages:

• Writing for a 5-justice majority that included Barrett and the 3 liberals, Chief Justice Roberts wrote a compact 26-page opinion ruling that the Executive Order on birthright citizenship violates the 14th amendment;
• Thomas wrote a 91-page dissent, joined only by Gorsuch;
• Jackson wrote a 20-page solo concurrence, largely for purposes of rebutting Thomas;
• Alito wrote his own 39-page solo dissent;
• Gorsuch wrote a 3-page solo dissent;
• Finally, Kavanaugh wrote his own 10-page opinion in which he disagrees with the majority’s conclusion regarding the 14th Amendment, but concludes on statutory rather than constitutional grounds that the Executive Order cannot stand.

As such, on the core question at hand — does the 14th Amendment mandate the long-held belief that any child born in the U.S. (other than the children of foreign diplomats) is automatically a U.S. citizen, without regard to the immigration status of the child’s parents? — the ruling was 5-4.

A lot of the reactions I’m seeing to today’s ruling from the left are along the lines of, it’s ridiculous that this wasn’t 9-0, and the fact that it wasn’t reflects poorly on the Court. I think that perspective is misguided.

Recall that what is at issue here is how to interpret the following phrase from the 14th Amendment: “born … subject to the jurisdiction of the United States.” Today we are all originalists, so the question becomes, what were those words understood to mean in 1868? Roberts puts forward one view of how those words should be read in light of relevant history; Thomas puts forward his own view. The Roberts view focuses on British common law and the notion that “the child owed an implied allegiance to the sovereign who protected him at his birth—no matter how “momentary and uncertain” his presence in the King’s realms.” The Thomas view focuses on the concept of domicile as being integral to the concept of citizenship. I think it’s ill-advised to treat Thomas’ perspective either as being obviously wrong, or as having been offered up in bad faith to produce a Trump-favored result.

What if we weren’t all originalists now? What if we still ascribed to the notion of a living constitution, that the interpretation of these words in 2026 could and should differ from how they were understood in 1868, on account of changes in our society? The world of 1868 didn’t facilitate a concept like birth tourism, nor was there really such a beast as “illegal immigration” back then. Is it in the national interest, today, to read “subject to the jurisdiction of” in a manner that produces such a maximalist outcome with respect to the question of which set of U.S.-born babies are automatically U.S. citizens? I don’t know that it is.

Honestly, I feel like Trump handled this situation badly, albeit characteristically so, and that a less heavy-handed approach might have produced a different outcome. Imagine that a new President took office and, instead of immediately issuing an Executive Order that was contrary to more than a century of settled understanding, gave an address to the country along the following lines:

“My Fellow Americans, I speak to you tonight from the Oval Office on a manner of the greatest importance to our great nation: The meaning of U.S. citizenship. Over a century-and-a-half ago, in the 14th Amendment, we adopted a constitutional rule that any child born, quote, subject to the jurisdiction of the United States, unquote, was automatically entitled to citizenship. In the intervening years, this phrase has generally been interpreted as implying that any child born in U.S., even to parents who are temporarily visiting or studying in the U.S., or whose presence in the U.S. is not lawful, is automatically a citizen. You may have heard the term ‘birthright citizenship’ used to describe this interpretation of the 14th Amendment.

My administration believes that other interpretations of the 14th Amendment are equally viable, interpretations that would provide our government with greater flexibility to determine which U.S.-born children are automatically entitled to citizenship and which are not. On public policy grounds, we believe that it is in the national interest going forward for automatic citizenship at birth to be granted only to U.S.-born children of citizens and lawful permanent residents. We recognize, however, that the current body of constitutional law would prevent us from immediately enacting such a change in policy.

To that end, we will soon be initiating litigation in which we advance an alternate interpretation of the 14th Amendment’s phrase ‘subject to the jurisdiction of’, in order to facilitate our government’s ability to adopt new citizenship policies that in our view further the national interest. The Supreme Court is the only court that can provide the relief we seek, and as such we intend to get this case to that court as expeditiously as possible. While we believe our legal arguments are meritorious and should prevail, in the event that the Supreme Court were to disagree with us, we intend to follow up by working with Congress to propose and enact a new Constitutional Amendment, amending the language in the 14th Amendment to be more clear and more relevant to the challenges we face as a nation in the 21st century. Thank you for your attention, and God bless the United States of America.”

I think that type of framing would have forestalled a lot of the public angst of the past 16 months on this issue, and focused the national discussion on the following question: Is there an honest debate to be had over what “subject to the jurisdiction of” means and, to the extent there is, what should we want the phrase to mean in today’s world? Instead, we had a national discussion focused on Trump having unilaterally taken actions that were contrary to established law, forcing people to sue in order to restore the status quo.

In other news, a new NYTimes poll of the Texas Senate race between Paxton and Talarico has it in a dead heat, 47-47. They also polled the Maine Senate race, giving Platner a 49-47 lead over Sen. Collins. Somewhat expectedly, Talarico is doing better in this poll than generic House Democrats (45-51) while Platner is doing worse (53-42).

Last Thursday ought to have been the end of the October 2025 SCOTUS term, but as has often been true in recent years there were several decisions not yet issued by the date. Four were released this morning, and perhaps the remaining four outstanding will come tomorrow. This morning’s batch included three cases I’ve been following.

First, the Court ruled 6-3 in Trump v. Slaughter to overrule its 1935 precedent in Humphrey’s Executor. The existing law governing the Federal Trade Commission calls for the President to nominate the FTC’s members but then specifies that, once an FTC Commissioner has been appointed, they can only be removed before the end of their 7-year term “for inefficiency, neglect of duty, or malfeasance in office.” Notwithstanding that statute, Trump had removed Commissioners Slaughter and Bedoya without alleging those preconditions has been met, instead asserting general Presidential authority to remove executive officers. Today’s ruling, in overturning Humphrey’s Executor, asserts that Congressional restrictions on the President’s ability to remove a Commissioner are unconstitutional, violating the separation of powers.

This result is far from unexpected, but it saddens me. At my core, I am a technocrat: I think the best form of government involves heavy reliance on experts insulated from both political winds and pecuniary motivations. To the extent we ever had anything even close to that model in this country, it has been degrading throughout my lifetime, with an acceleration in recent years and a rapid acceleration during the second Trump term. Slaughter is yet another example of the movement away from what in my view constitutes the ideal of “good government”.

It was likely not coincidental that Slaughter was released on the same day as the SCOTUS opinion in Trump v. Cook, a rare occurrence where the Court decided to hold oral arguments on a case from its shadow docket. Recall that Cook arose from Trump’s effort to use unproven allegations of mortgage fraud, predating Lisa Cook’s appointment to the Federal Reserve, as grounds for firing Governor Cook “for cause,” which is what the relevant statute indicates is the only reason why a President can remove a Governor before the end of their 14-year term. While the issues in Cook are similar to those in Slaughter, the difference is that the Federal Reserve Board is traditionally viewed as possessing a level of independence from the President that the FTC and other multi-member commissions do not.

In a 5-4 opinion, Roberts (joined by Kavanaugh and the liberals) ruled today that the stay granted by a lower court to prevent Cook’s firing should remain in place while litigation continues. The Court majority asserts that the meaning of “for cause” is neither as broad as Trump asserted, nor as narrow as Cook argued. They also ruled that Cook was required to be given a meaningful opportunity to respond to the allegations before being fired over them, which did not occur. As such, the ultimate fate of Governor Cook remains up in the air, but at least she will remain in place on the FRB while further activity continues.

Roberts’ majority opinion in Cook does not mention his majority opinion in Slaughter at all, but that case is addressed in both a solo concurrence by Kavanaugh and a solo dissent by Thomas. Thomas argues that Slaughter should govern here, and that placing a restriction on the President’s ability to remove an FRB Governor is a violation of the separation of powers. Kavanaugh, by contrast, writes: “In my view, in light of…historical practice and precedent, the Federal Reserve may continue as an independent agency after Slaughter. If the Federal Reserve’s for-cause removal protections are to be eliminated, that change must occur through the legislative process.”

The day’s third SCOTUS decision of interest came from Justice Barrett. In a 5-4 opinion in Watson v. RNC, joined by Roberts and the 3 liberals, she held that a Mississippi statute allowing mail-in ballots postmarked by election day to be counted if they arrive within 5 days of election day does not violate federal law. The legal question at hand boils down to whether a federal statute prescribing “election day” refers to when ballots must be cast or also when they must be received; per the majority, it refers only to when they must be cast. If the other view had prevailed, that could have injected further operational uncertainty into this fall’s elections.

That leaves the birthright citizenship case Barbara as the main piece of news on tap for tomorrow. However I should also mention that, last week, the usual 6-3 majority ruled in favor of the government in the case now styled Mullin v. Doe about the revocation of Temporary Protected Status for Syrians and Haitians. I’m not convinced Alito’s ruling is wrong, actually; as heinous as the administration’s actions to unwind TPS programs are, they probably have the legal right to do them. Finally, in other SCOTUS news, today they declined to grant certiorari in Trump’s appeal of the Carroll II defamation case.

Turning to Iran: Despite the touted Memorandum of Understanding, and a resulting decline in oil prices (now back down to pre-war levels) and U.S. gas prices (today at $3.86, down from a high around $4.50 but above pre-war levels of around $3.00), there have been military skirmishes by both sides in recent days. Bill Kristol, writing this morning for The Bulwark:

“This military tit-for-tatting happened amidst a cacophony of competing understandings of the much-heralded memorandum of understanding signed two weeks ago. It turns out that an agreement that Iran would “make arrangements using its best efforts for the safe passage of commercial vessels” is subject to very different interpretations of “arrangements” and “best efforts.” The United States thinks “safe passage” should mean free passage. Iran thinks that if Iran can “make arrangements” it’s allowed to . . . make arrangements. Who could have known there would be disagreement on this point?

But the bottom line is that this is what a messy but unacknowledged surrender by the United States of America to the Islamic Republic of Iran looks like. And this is probably what the New Normal will look like. It will consist of on-and-off military tit-for-tats; endless diplomatic squabbling and propagandizing; a Strait of Hormuz that is quasi-open but not reliably so, and is mostly so at Iranian sufferance; no resolution with regard to Iran’s nuclear program; and at the end of the day an Iranian regime that is emboldened, American allies that are uncertain and dispirited, and a United States that is unable to exert its power or will decisively.”

In political news, last Tuesday was the New York primaries. The race of greatest interest to me was the Democratic primary in Manhattan, the 12th district, where Nadler’s retirement after 17 terms created an open seat. National attention early in the race had been focused on two candidates: 33-year-old Jack Schlossberg. a grandson of JFK who’d received an early endorsement from Pelosi; and ex-Republican George Conway, who focused singularly on his desire to see Trump impeached and vowed to serve only one term. In the end those two combined to receive only 17% of the vote, with Conway finishing 5th in what was supposedly a four-man race. The winner, Assemblyman Micah Lasher, was Nadler’s preferred successor. But the real news out of these primaries came from 3 other NYC-area seats, where candidates backed by Mayor Mamdani won, in two cases unseating more moderate incumbents, and in all cases reflecting an ascendancy in New York Democratic politics of pro-Palestinian over pro-Israeli views.

There have been a number of recent actions of interest in lower Federal courts:

• In a case called League of Women Voters vs. DHS, last week a federal judge in D.C. (Sooknanan) issued summary judgment to prevent the administration from taking various actions related to Executive Order 14248 from March 2025, “Preserving and Protecting the Integrity of American Elections.” The main thrust of the ruling is that it will prevent the administration from letting states use a federal citizenship database to screen their voter rolls. On the one hand, I happen to believe that the federal government should possess a comprehensive (and accurate!) citizenship database, and that such a database should be used for various purposes; so as a policy matter, I tend to agree with what the administration was seeking to accomplish. On the other hand, I think the ruling amply establishes that what the administration actually did was contrary to three different laws, and my foremost interest is in the rule of law.
• A couple of days later, a federal judge in Massachusetts (Casper) ruled that various other aspects of Executive Order 14248 were unconstitutional, in a case called California v. Trump.
• A year after EO 14248, Trump issued Executive Order 14399, “Ensuring Citizenship Verification and Integrity in Federal Elections”, which purported to create a host of new requirements relating to the use of the U.S. Postal Service to transmit ballots. This week a different federal judge in Masschusetts (Tawlani), in a different case also called California v. Trump, struck down various aspects of EO 14399. (So to recap: We have already had two different Oregon v. Trump cases on tariffs, and now we have two different California v. Trump cases on election ‘integrity’. Maybe the blue states could more comprehensively rotate who takes the lead plaintiff role on which cases, to avoid confusion?)
• Starting in March 2025 there have been ongoing controversies, under the adjudication of a federal judge named Boasberg, about deportation actions taken by the administration. This had led to a SCOTUS shadow docket case in May 2025, J.G.G. v. Trump. It also led to Boasberg finding probable cause to pursue contempt of court cases against administration officials. The judge’s ability to move forward with that was forestalled for several months by the D.C. Circuit Court, and thereafter was administratively stayed in light of the administration’s request for a writ of mandamus to stop the proceeding. In the case now known as In re Trump, earlier this year a 2-1 panel of the D.C. Circuit granted the writ of mandamus. However, last week the full D.C. Circuit en banc agreed to hear the case in late September, resuscitating the possibility that the contempt case will go forward.

Finally, turning back to the legislative arena: Last week veto-proof majorities in both houses had passed a housing bill, the 21st Century ROAD to Housing Act. It was supposed to have been signed last Wednesday. Two hours before the scheduled signing ceremony, Trump pulled the rug out, saying he would not sign it until Congress passed his voting ‘reform’ bill, the SAVE America Act, consistent with his earlier threat that he would not sign any domestic legislation until the voting bill (for which there still do not appear to be 50 Republican Senate votes, let alone 60) passes. Trump also downplayed the significance of the housing bill, whose provisions seem unlikely to have an immediate effect on housing costs. Today Speaker Johnson formally sent the housing bill to Trump anyways, starting the clock on Trump’s window to sign or veto it. If Trump does nothing, the bill will become law without his signature, around July 10th.

World Cup fever is sweeping North America. Today marks the end of the first set of pool play games, and so far we’ve seen a brace from American striker Folarin Bolagun (who would not be a U.S. citizen under the Trump administration’s interpretation of the 14th Amendment) in a 4-1 win over Paraguay, as well as a hat trick from Messi, braces from Mbappe and Haaland and Kane, and a remarkable scoreless draw between Spain and Cape Verde (which apparently cost one person $1 million on the prediction markets). Despite the ridiculous cost of tickets and the general unease in the world about the U.S. these days, crowds have been large and vigorous. The newly expanded 48-team format has led to a schedule where most days feature 4 games, spaced 3 hours apart, making for a continuous viewing experience. So far it’s been a triumph.

As foreshadowed, on Sunday (or Monday, depending on your timezone) the U.S. and Iran announced their intention to sign a memorandum of understanding this coming Friday in Geneva. However, apparently the MOU was instead signed by both countries’ presidents late today, with Trump’s signature coming while eating at Versailles with French President Macron following the conclusion of this week’s G-7 meeting.

What is in the MOU? It was read aloud to reporters today, but the text has not yet been officially released. What is known about it does not sound very promising, to be honest. For one thing, it calls for the immediate waiver of U.S. sanctions to allow Iran to export oil; legal scholar Jack Goldsmith observes that the executive probably can’t do this without Congressional approval, under the Iran Nuclear Agreement Act of 2015, but of course Trump constantly reminds me of Steve Goodman’s turn of phrase “little care I for the law”.

Tomorrow is a scheduled SCOTUS opinions release day, so we’ll see if anything particularly interesting emerges.

Some legal news from last month that I missed relates to AHA v. Trump, a case filed in April in connection with the administration’s newfound legal opinion that the Presidential Records Act is unconstitutional. A federal judge granted a preliminary injunction, requiring various federal defendants other than the President and Vice-President to not comply with the new legal opinion and associated new records retention guidance. The judge apparently felt that it was unclear as to whether the judiciary could enjoin Trump and Vance, and that it would be sufficient to enjoin all of their subordinates.

There was a runoff primary in Georgia last night, for both Governor and Senate. The sitting Lieutenant Governor, Bert Jones, had been endorsed by Trump and had a plurality in the April primary, but was defeated in the runoff by self-funding billionaire (and alleged tax cheat) Rick Jackson. Jackson will go on to face former Atlanta mayor (and potential 2020 vice-presidential candidate) Keisha Lance Bottoms. Trump went 1-for-2 in endorsements, however, as Rep. Mike Collins advanced to face Sen. Ossoff over an opponent (Derek Dooley) endorsed by outgoing Governor Brian Kemp.

Finally, I tend not to blog about legislation that has no chance of being enacted, but I am fascinated by Senator Sanders’ announcement that he is about to introduce a bill called the American A.I. Sovereign Wealth Fund Act, under which all major U.S. AI companies would be required to give 50% stock, together with voting rights and board seats, to a new government-controlled fund. This is precisely the type of bold public policy thinking that we need.

Uncertainty over the Iran stalemate has been the major news of the week, as we oscillate between suggestions that an agreement is imminent and reports that a resumption of hostilities is imminent. The first paragraph of today’s Bloomberg story reads: “President Donald Trump said an interim deal to reopen the Strait of Hormuz and end the conflict with Iran would be signed on Sunday, a claim contradicted by Iran as the two sides still differ over key points, including management of the waterway and payments to the Islamic Republic.” Earlier this week CNN published an analysis indicating that Trump had claimed an Iran deal was right around the corner at least 38 different times.

Yesterday the D.C. Circuit turned down the request for a stay of the recent order in Beatty v. Trump that Trump’s name be removed from the facade of the Kennedy Center. With yesterday being the deadline for compliance with the order, the Kennedy Center asserts that the name has been removed; however, in light of barricades and visual barriers that were hastily erected while the removal work was purportedly being performed, the public cannot tell at this point whether or not that is actually true.

Also yesterday, a federal judge in Massachusetts granted a request for a preliminary injunction in a case called National Parks Conservation Association vs. Department of the Interior. This case is an outgrowth of an executive order from March 2025 with the Orwellian name “Restoring Truth and Sanity to American History”, and specifically the portion requiring the Secretary of the Interior to “take action, as appropriate and consistent with applicable law, to ensure that all public monuments, memorials, statues, markers, or similar properties within the Department of the Interior’s jurisdiction do not contain descriptions, depictions, or other content that inappropriately disparage Americans past or living (including persons living in colonial times), and instead focus on the greatness of the achievements and progress of the American people”.

In response to this executive order, the National Parks Service has removed a host of interpretive materials relating to such topics as climate change, civil rights, slavery, immigration, labor, women’s suffrage, and Indigenous communities. In granting the request for a preliminary injunction, the judge agreed that these actions were arbitrary and capricious, and likely in violation of three different relevant laws. As a result, the judge has given the administration 21 calendar days — a window that expires right before the 250th anniversary of the country — to reinstall all interpretive materials that had been removed under the executive order.

As the opinion in NPCA v. Interior puts it: “A unilateral, unreasoned, and lawless Executive Order of a President cannot be the sole justification for an agency’s actions, lest the country be prepared to entrust its future to the whims of a single individual.” But I also thought the following passage from the opinion was particularly eloquent:

“The great irony of this case is that Defendants, and the Executive Order they purport to faithfully execute, decry the existing interpretive materials at National Parks as a “concerted and widespread effort to rewrite our Nation’s history, replacing objective facts with a distorted narrative driven by ideology rather than truth.” Yet, the Government’s actions do exactly what they profess to counteract, dismantling objective historic truths and permanently damaging public memory. Behind the incendiary rhetoric lies little substance, lacking even a remote amount of scientific rigor, facts, legal authority, or discernible reasoning. Our democracy and system of governance demand more from the Executive. Agencies must grapple with important facts and considerations, respect the limits of statutory authority, provide reasoned justifications for their actions, and, above all else, follow the law. That was not done here.”

In other judicial news, this week the Federal Circuit granted the administration’s request for a stay pending appeal of the CIT’s ruling in the Section 122 tariffs case, still styled Oregon v. Trump. This suggests that the Federal Circuit is not convinced of the validity of plaintiffs’ arguments that the preconditions to apply Section 122 cannot be met in a world without fixed exchange rates. The SCOTUS term is now down to its last two weeks but we’re still awaiting decisions in Cook, Slaughter, and Barbara as well as a potentially impactful election law case, Watson v. RNC.

There were some primaries this week, but nothing particularly interesting. For months it had been expected that last Tuesday’s Maine Democratic Senate primary would be a blockbuster, after mainstream party leaders had recruited 78-year-old Governor Janet Mills as an alternative to 41-year-old progressive Graham Platner, a veteran and oyster farmer with considerable personal baggage but a lot of momentum. However, Mills dropped out six weeks ago. The Platner-Collins matchup in the general will be one of this fall’s most interesting races.

Finally, this week Trump signed the Secure America Act, resolving the controversy over ICE and CBP funding that led to the government shutdown in April. This seemingly marks the first time that the budget reconciliation process has been used as an alternative to the usual appropriations process, which could have interesting long-term implications. The bill, which provides funding for these subagencies through the end of Trump’s term, passed 52-47 in the Senate (with Murkowski the only Republican defector) and 214-212 in the House.