There was some Saturday night drama in the Senate yesterday. In the wee hours of the morning, the Senate had released its version of OBBBA, and then called a vote for later that afternoon on the motion to proceed with debate. (This timing was insensitive inasmuch as it forced Minnesota’s two Democratic Senators to miss the funeral of assassinated Minnesota politician Melissa Hortman.)

At the end of the 15-minute voting period, the tally was 46 ayes and 50 nays. As expected, Senators Paul (R-KY) and Johnson (R-WI) were no votes, as was Senator Tillis (R-NC) who is concerned about the Medicaid cuts’ impact on his state; while Senator Hawley (R-MO) had previously expressed similar concerns, he had announced his support for the bill prior to the vote. Four Senators were present but had yet to cast their votes: Lee (R-UT), Scott (R-FL), Lummis (R-WY), and Murkowski (R-AK). VP Vance was called in to be ready to cast a tie-breaking vote if needed.

After about an hour Murkowski caved, swayed perhaps by a new provision that exempts “non-contiguous states” from some of the Medicaid cuts (shades of the Cornhusker Kickback 15 years ago to win Senator Nelson’s vote on the ACA). It took another couple of hours after that for the other three holdouts to fall in line, as did Johnson, making the final vote 51-49 to proceed with debate.

Since then, the Parliamentarian has reportedly axed the non-contiguous states provision from the bill. What exactly is in the bill? Can it pass the Senate? And then can that bill pass the House? Will Trump get to sign his big beautiful bill on July 4th as he has insisted? It should be an interesting week.

We are leaving later today for vacation in Croatia. I may blog during that time, but then again I many not.

The focal point of this post will be two SCOTUS decisions that came out this week, but a couple of quick hitters before getting to those.

In a press conference Thursday, Defense Secretary Hegseth referred to last weekend’s U.S. bombing attacks on Iran as “the most complex and secretive military operation in history”. No hyperbole here. I couldn’t help but think of the opening scene of my favorite movie of the decade, 2024’s Civil War, in which we see Nick Offerman’s unnamed U.S. President workshopping language to describe a recent battle before settling on “some are already calling it the greatest victory in the history of military campaigns.”

With Trump’s self-imposed July 9th tariff deadline looming, we can expect to see trade relations back in the news in coming days. Friday afternoon Trump posted to social media that he is terminating all trade talks with Canada, citing Canada’s announcement today that it will proceed on Monday as scheduled with the initial collection of a new Digital Services Tax that had been enacted a year ago (retroactively to January 1, 2022).

Now, back to our regularly scheduled programming…

On Monday, SCOTUS granted the administration’s request in DHS v. D.V.D. to stay a lower court’s preliminary injunction while the case is appealed to the 1st Circuit. As is typical for shadow docket cases, no explanation of rationale for the majority’s action was provided; however, Justice Sotomayor did pen a 19-page dissent, joined by the other liberals.

This case involves so-called third-country removals of deportable aliens. Some background on the concept, from Sotomayor’s opinion:

“Federal law generally permits the Government to deport noncitizens found to be unlawfully in the United States only to countries with which they have a meaningful connection. To that end, Congress specified two default options… [as well as] which possibilities the Executive should attempt next. … This case concerns the Government’s ability to conduct what is known as a ‘third country removal’, meaning a removal to any ‘country with a government that will accept the alien.’ Third-country removals are burdensome for the affected noncitizen, so Congress has sharply limited their use…”

There are also considerations here relating to the Convention Against Torture, which prohibits returning an individual to a state for which “there are substantial grounds for believing that he would be in danger of being subjected to torture.”

Lower court rulings in this case required the government to “provide noncitizens with written notice in advance of a third-country removal (as is statutorily required), along with a meaningful opportunity to raise a claim under the Convention.” As such the relief the administration sought from SCOTUS was the ability to continue conducting third-party removals without those constraints, while it appeals the lower court’s ruling.

On one level this topic seems comparatively uninteresting to the average American: The individuals in question have already received the due process to determine they are deportable (unlike in the A.A.R.P. case), so we’re talking about a somewhat lesser due process issue, with respect to their destination after leaving the U.S. However, the goings-on with this case are the closest so far that the administration has come to openly defying a court order, and that fact has elevated public interest in the case. Again quoting from Sotomayor’s opinion:

“Here, in violation of an unambiguous TRO, the Government flew four noncitizens to Guantanamo Bay, and from there deported them to El Salvador. Then, in violation of the very preliminary injunction from which it now seeks relief, the Government removed six class members to South Sudan with less than 16 hours’ notice and no opportunity to be heard. The Government’s assertion that these deportations could be reconciled with the injunction is wholly without merit. … The affected class members lacked any opportunity to research South Sudan, to determine whether they would face risks or torture or death there, or to speak to anyone about their concerns. Instead, they were left in their cells overnight with no chance to raise a claim and deported the next morning. The Government thus openly flouted two court orders, including the one from which it now seeks relief. Even if the orders in question had been mistaken, the Government had a duty to obey them until they were ‘reversed by orderly and proper proceedings’.”

In that context, the Court majority’s willingness to stay the lower court injunction while the administration appeals is disconcerting. Sotomayor described the majority’s use of discretion to grant the stay as being “as incomprehensible as it is inexcusable” and noted the following:

“This is not the first time the Court closes its eyes to noncompliance, nor, I fear, will it be the last. Yet each time this Court rewards noncompliance with discretionary relief, it further erodes respect for courts and for the rule of law.”

So, that was Monday,

Then Friday comes, and SCOTUS hands down 119 pages of opinions in Trump v. CASA, the case involving so-called universal preliminary injunctions handed down by three courts on Trump’s birthright citizenship executive order. Barrett has the 6-3 majority opinion, with Sotomayor writing the lead dissent for the liberals; there’s also a Thomas concurrence (joined by Gorsuch), an Alito concurrence (jointed by Thomas), a Kavanagh solo concurrence, and a Jackson solo dissent.

The Barrett opinion doesn’t discuss the merits of the underlying birthright citizenship dispute at all, but focuses strictly on the question that has been percolating at SCOTUS for the last several years before finally coming to a head in this case: has Congress “granted federal courts the authority to universally enjoin the enforcement of an executive or legislative policy”? Solicitor General Sauer had argued that Article III forecloses the concept of universal relief. Barrett’s opinion doesn’t go that far but instead focuses on the authority Congress granted to the courts under the Judiciary Act of 1789, concluding the following:

“Under our well-established precedent, the equitable relief available in the federal courts is that ‘traditionally accorded by courts of equity’ at the time of our founding. Nothing like a universal injunction was available at the founding… [t]hus, under the Judiciary Act, federal courts lack authority to issue them.”

What we are really talking about here is competing visions of the role of the judiciary in the U.S. Constitutional system. The majority’s view, summarized by Barrett, is that “federal courts do not exercise general oversight of the Executive Branch; they resolve cases and controversies consistent with the authority Congress has given them. When a court concludes that the Executive Branch has acted unlawfully, the answer is not for the court to exceed its power, too.” As such, per Kavanagh’s concurrence, “district courts issuing injunctions under the authority afforded by the Judiciary Act of 1789 may award only plaintiff-specific relief.”

Kavanaugh’s concurrence is interesting, as it imagines in this context a significant role for SCOTUS to play in resolving “applications for stays or injunctions with respect to major new federal statutes and executive actions”. He concurs with those who believe that “there often (perhaps not always, but often) should be a nationally uniform answer on whether a major new federal statutory, rule, or executive order can be enforced throughout the United States during the several-year interim period until its legality is finally decided on the merits,” but argues that it is SCOTUS, and not a district court, whose job it is to do that and thereby provide “a form of precedent (de jure or de facto) that provides guidance throughout the United States during the years-long interim period until a final decision on the merits.”

Sotomayor’s principal dissent criticizes the majority for ignoring the underlying context in which this case arose, namely the administration’s desire to enforce an executive order that is (per Sotomayor) “patently unconstitutional.” Per Sotomayor:

“The Court’s decision is nothing less than an open invitation for the Government to bypass the Constitution. The Executive Branch can now enforce policies that flout settled law and violate countless individuals’ constitutional rights, and the federal courts will be hamstrung to stop its actions fully. Until the day that every affected person manages to become party to a lawsuit and secure for himself injunctive relief, the Government may act lawlessly indefinitely. Not even a decision from this Court would necessarily bind the Government to stop, completely and permanently, its commission of unquestionably unconstitutional conduct.”

But the real tour de force here is Jackson’s solo dissent, which is brusquely dismissed by Barrett as being “at odds with more than two centuries’ worth of precedent, not to mention the Constitution itself” and as “embracing an imperial Judiciary.” To Jackson, the fundamental question posed by this case is simple:

“May a federal court in the United States of America order the Executive to follow the Law? To ask this question is to answer it. In a constitutional Republic such as ours, a federal court has the power to order the Executive to follow the law—and it must. It is axiomatic that the Constitution of the United States and the statutes that the People’s representatives have enacted govern in our system of government. Thus, everyone, from the President on down, is bound by law. By duty and nature, federal courts say what the law is (if there is a genuine dispute), and require those who are subject to the law to conform their behavior to what the law requires. This is the essence of the rule of law.”

And as such Jackson criticizes the majority for taking too narrow a view of the Judiciary’s power:

“[The majority thinks] that the only function of our courts is to provide ‘complete relief’ to private parties. Sure, federal courts do that, and they do it well. But they also diligently maintain the rule of law itself. When it comes to upholding the law, federal courts ensure that all comers–i.e., everyone to whom to law applies and over whom the court has personal jurisdiction (including and perhaps especially the Executive)–know what the law is and, most important, follow it.”

Jackson is also deeply worried by the consequences of the majority’s decision:

“[O]ur rights-based legal system can only function properly if the Executive, and everyone else, is always bound by law. Today’s decision is a seismic shock to that foundational norm. Allowing the Executive to violate the law at its prerogative with respect to anyone who has not yet sued carves out a huge exception–a gash in the basic tenets of our founding charter that could turn out to be a mortal wound. … [R]ather than having a governing system characterized by protected rights, the default becomes an Executive that can do whatever it wants to whomever it wants, unless and until each affected individual affirmatively invokes the law’s protection. … What the majority has done is to allow the Executive to nullify the statutory and constitutional rights of the uncounseled, the underresourced, and the unwary, by prohibiting the lower courts from ordering the executive to follow the law across the board.”

Lofty rhetoric aside, it is somewhat too early to read the tea leaves here. With respect to the birthright citizenship dispute, litigation will continue. As imagined by Kavanaugh’s concurrence, I suspect the day will soon come when SCOTUS will be asked to grant an injunction preventing the enforcement of the executive order while litigation proceeds, and I am optimistic the Court would grant that injunction. With respect to the broader issues at play, this Court keeps shifting the balance of power towards the Executive, which could be a force for a good in the right hands and a force for evil in the wrong hands.

The real lesson here, I think, is that elections matter, in a couple different dimensions. While I think Gorsuch and Kavanaugh and Barrett have each brought some interesting perspectives to the court, I do think that if Hillary Clinton had been able to fill those three vacancies, the SCOTUS resulting from those appointments would not have issued these types of opinions (although in that counterfactual Trump presumably would have returned to private life after losing in 2016 so these particular cases wouldn’t have arisen).

As an aside, I continue to think of Jackson as the new Rehnquist, forging a solo path on the Court, hoping that over time the pendulum will swing back to meet her. She is 54 now and has been on the court for 3 years. When Rehnquist was 54, he’d been on the bench for 7 years, and was still 7 years away from becoming the Chief Justice; it was another 5 years after that, with the appointment of Thomas, before Rehnquist would have something approximating a majority of like-minded justices (although that majority included justices FedSoc would consider ‘squishes’, namely O’Connor and Kennedy). Where will Jackson be in 12 years, and will she ever be able to forge a Court reflecting her judicial vision? That will depend crucially on who gets to fill the Thomas (age 77), Alito (75), Sotomayor (71), and Roberts (70) seats. And that depends to a large extent on who controls the Senate in 2026, and the Presidency in 2028 & beyond.

But more fundamentally: The people who we elect are swearing an oath to uphold the Constitution (and, in the case of Senators, to provide advise and consent in the appointment of officials who also swear such an oath), and we as citizens need to take great care in assessing whether those individuals truly intend to uphold those oaths, for we can no longer expect the judiciary to enforce those individuals’ adherence to said oath.

So much to talk about… This is what I get for not carving out time to blog on a daily basis.

We’ll start with Iran: On Monday there was a brief and somewhat performative attack by Iran on a U.S. base in Qatar. I say ‘performative’ because the Iranians tipped the Qataris off about it in advance, and as a result there were no casualties. After that, Trump claimed that Iran and Israel have agreed to a ceasefire, although the situation remains somewhat tenuous–enough so that Trump complained on Tuesday that the two countries “have been fighting so long and so hard that they don’t know what the fuck they’re doing.” Yes folks, that’s the President of the United States, dropping the f-bomb during a press availability (this was not a hot mike situation).

There has also been some debate over how effective last weekend’s U.S. attack on Iranian nuclear capability actually was. On Tuesday the NYTimes reported that a classified DIA assessment asserted that the bombing “set back the country’s nuclear program by only a few months.” Consistent with his worldview that everything is either a total success or a complete failure, Trump continues to insist that there was “total obliteration” of the facilities and decries any reporting to the contrary as, you guessed it, fake news.

Moving from Iran to Tehrangeles: Yesterday Judge Breyer ruled that the Newsom v. Trump case, regarding the federalization of the California National Guard, could continue at the district court level notwithstanding the recent 9th Circuit ruling overturning his temporary restraining order. He also rejected the administration’s desire to transfer the case out of the Northern District (where the state government sits) and into the Central District of California (which, confusingly, is where L.A. sits). The next step in the case will be expedited discovery on the question of whether the federalized National Guard has taken actions in violation of the Posse Comitatus Act.

Now moving from West Coast to East Coast: I had not previously talked about the fact that on Tuesday there was a Democratic primary for the mayor of New York City. Recall that Eric Adams, the current mayor, was elected as a Democrat but had been indicted on federal corruption charges in September 2024, causing most of the Democratic establishment to call for his resignation. As such Adams dropped out of the Democratic primary in early April, but is expected to run for re-election this fall as an independent.

With the moderate incumbent out of the primary, the favorite to win was another moderate, former Governor Andrew Cuomo, who had resigned as governor in 2021 due to sexual harassment allegations. Importantly, in NYC the Democratic primary for mayor uses ranked choice voting, although the general election does not. As such several candidates entered the race to Cuomo’s left, and many of them entered into cross-endorsement agreements, trying to tell their supporters who they should rank downballot. An organized initiative even emerged called DREAM: Don’t Rank Evil Andrew for Mayor.

Out of this environment, a leftist candidate for mayor emerged: a previously obscure State Assemblyman named Zohran Mamdami. Born in Uganda on my 20th birthday, the charismatic Mamdami — a Muslim, and an avowed socialist — started the primary campaign at 1% in the polls but by election day had established himself as the clearest threat to Cuomo. (Hmm, charismatic young State-level politician of color with a funny name, starts from nowhere in the polls against multiple competitors, but manages to come out of the pack – where have I seen this before?) Going into Tuesday, the conventional wisdom was that Cuomo would almost certainly win a plurality, but not a majority, of the first choice votes and then we would need to wait one week to find out whether ranked choice re-allocations were enough to put Mamdami over the top.

Well, it turned out we didn’t have to wait. Shockingly, it was Mamdami who won a convincing plurality of the first choice votes, 43.5% to Cuomo’s 36.4%. That was enough, in light of the cross-endorsement agreements, to convince Cuomo to concede on election night, although Mamdami’s victory won’t be official until next week. Having said that, Cuomo had already formed his own Fight and Deliver Party in order to give him access to the general election ballot irrespective of the results of the Democratic party, but it is possible he will decide to drop out.

As such we don’t know at this point if Mamdami will be facing a four-way race (against Adams, the Republican candidate, and another independent candidate already endorsed by former Governer Paterson) or a five-way race (adding Cuomo); and with no ranked choice in the general, who knows how that will play out. Even so, the magnitude of Mamdami’s victory is a shock, and is expected to have significant reverberations on Democratic politics far beyond the five boroughs.

Moving from NYC to D.C.: The Senate is continuing to struggle with getting its version of OBBBA to the floor for a vote. The Senate Parliamentarian continues to issue rulings that various aspects of the bill do not quality for inclusion in a budget reconciliation bill exempt from the filibuster and thus requiring only 51 votes for passage. The list of bill components that have reportedly been nixed by the Parliamentarian is getting rather long, and I am having some trouble believing that what’s left over of this bill could pass either chamber at this point. On the other hand, the price of inaction is the expiry of the TCJA’s tax cuts in 2026, and there is probably not a single elected Republican who wants to see that happen.

Finally we move from Capitol Hill across the street to 1 First Street NE. Today SCOTUS announced that tomorrow will indeed be the last day of opinions for cased argued in October Term 2024, which means that we should finally learn the outcome of the birthright citizenship case, Trump v. CASA. Three days ago we did also get action from SCOTUS on the controversy regarding third-country removals of migrants, in a case that came to the top court under the caption DHS v. D.V.D. But given how long this post is already, I’m going to save a discussion of that case for tomorrow’s post.

Back in the U.S. for a week, between summer trips to Canada and Croatia.

In my last post I noted that Trump had been making noise about possible U.S. intervention in the Iran-Israel War that had just broken out. On Thursday the White House Press Secretary said that Trump would decide “within the next two weeks” on whether or not the U.S. would bomb Iran. That prompted the New York Times to remind the world of the many, many times that Trump had said an issue would be addressed in “two weeks” only for it to vanish:

“Two weeks for Mr. Trump can mean something, or nothing at all. It is both a yes and a no. It is delaying while at the same time scheduling. It is not an objective unit of time, it is a subjective unit of time. It is completely divorced from any sense of chronology. It simply means later. But later can also mean never. Sometimes.”

Indeed, the “two weeks” reminded many people of another principle that has become a common refrain in recent weeks, TACO: Trump Always Chickens Out.

In that context, it came as quite a surprise Saturday evening when word came out that the U.S. had, indeed, attacked three Iranian nuclear facilities using stealth bombers and submarine-launched cruise missiles. This attack represents the first-ever use of a 21st century U.S. weapon called the Massive Ordinance Protector, which can only be delivered by American B-2 bombers, and which was designed to strike deep underground targets like Iran’s uranium enrichment plant at Fordow.

While it’s still very early, this news bears monitoring along at least three major dimensions.

First, the direct foreign policy implications: To what extent does this represent a “one and done” event versus a harbinger of greater U.S. intervention in the Iranian conflict, and to what extent can and will Iran and its allies retaliate against the U.S.?

Second, the implications on Republican politics: Given that Trump clearly positioned himself as the anti-war candidate and swore off foreign interventionism in favor of his “America First” policy, to what extent does this action splinter the MAGA coalition?

Third, the implications for Congress: To what extent do the Trump’s actions violate the War Powers Act, and what is Congress willing to do about that? Some on the left are already arguing that the Iranian bombing constitutes an impeachable offense.

In other news, the Senate Parliamentarian has started making rulings about which provisions of OBBBA can and cannot be included in a budget reconciliation bill requiring only a bare majority instead of a 60-vote majority. To my surprise, the Parliamentarian has blessed a revised version of a controversial provision that would place a 10-year moratorium on enforcing state and local AI legislation; in order to pass muster, the provision has been revised in the Senate to make the moratorium a condition for states for receive federal broadband expansion funds, thus creating a suitable connection to budgetary concerns.

As expected based on oral arguments, a 9th Circuit panel ruled 3-0 in favor of the administration in Newsom v. Trump, overturning the temporary restraining order issued by federal Judge Charles Breyer (the younger brother of retired Justice Breyer). Importantly, the 9th Circuit did not endorse the government’s position that there was no place for judicial review of the President’s decision to federalize the National Guard. On Friday Judge Breyer had been expected to hold a hearing on Governor Newsom’s request for a preliminary injunction, but now Breyer appears to have some doubts as to whether that injunction request should be filed in his court or directly with the 9th Circuit, so he called for briefing due tomorrow on that procedural question.

In other judicial news, SCOTUS did not grant the plaintiffs’ request for expedited consideration of the Federal Circuit IEEPA tariffs case.

Still on vacation in Canada, and am writing this from a train bound for Montreal. It’s a national day of mourning here, as last night the Edmonton Oilers lost the Stanley Cup Final to the Florida Panthers 4 games to 2, now making it 32 straight years that the Cup has gone to a U.S. team instead of a Canadian team.

Canada has been in the world spotlight for other reasons this week, as Prime Minister Carney has been hosting the annual G7 Summit out in Alberta. Trump showed up but then left halfway through the summit, citing the Iran-Israel War that broke out a few days ago as the pretext for a sudden return to D.C. Trump’s public statements today have been ambiguous as to whether he intends for the U.S. to join the war.

A three-judge panel of the 9th Circuit held oral arguments yesterday in Newsom v. Trump, the National Guard federalization case, but the questioning appeared to indicate the judges think Trump’s position has the better merits. Things have remained relatively calm in L.A. in recent days, with Mayor Bass yesterday lifting the evening curfew in effect for portions of downtown L.A. for the past 7 days.

Although we’re only about six weeks out from the Federal Circuit taking substantive action on the V.O.S. Selection v. Trump challenge to Trump’s use of IEEPA to justify various types of tariffs, yesterday a different set of plaintiffs urged SCOTUS to grant certiorari before judgment on its IEEPA tariffs case working its way through the D.C. Circuit, with the aim of getting oral argument at SCOTUS scheduled for October or even earlier. This case, Learning Resources v. Trump, presents the question of whether IEEPA’s grant of presidential authority to “regulate importation” authorizes any tariffs at all. The V.O.S. Selections case, by contrast, pre-supposed that IEEPA could authorize tariffs but then argued that these particular tariffs were beyond the scope of that authority.

Nothing of note from the SCOTUS shadow docket in recent days. On the regular docket, today the canonical 6-3 majority upheld (in U.S. v. Skremetti) a Tennessee law that forbids minors from receiving gender-affirming care. When the case was heard in December, the Biden administration was appealing a decision below that upheld the law, with General Prelogar making what I think was her last such appearance before the Court. In February the Trump administration informed the Court that it was changing its position about the constitutionality of the law, but urged that the Court continue with its opinion rather than dismiss the suit.

Finally, the Senate hopes to start taking votes on OBBBA by the middle of next week, but it is far from certain that Trump’s July 4th deadline for enactment can be met, as the competing priorities of Senate Republicans and House Republicans remain difficult to reconcile with one another.

Today is Father’s Day. I’m spending it in Canada with my two children who are rising juniors in high school; tomorrow we’ll do a university visit, then spend a couple of days with my parents, then do another university visit, then head back to the U.S.

In the wee hours of Saturday morning, a gunman posing as a police officer entered the home of Melissa Wortman, the leader of the Democratic caucus in the Minnesota House (which was split 67-67 between the two parties, with the Republican leader currently serving as Speaker under a power-sharing arrangement), and assassinated her and her husband. The gunman then went to the home of a prominent Minnesota Senate Democrat, John Hoffman, and shot both him and his wife several times, although both survived.

The suspected assassin, a 57-year-old white male, spent the rest of the weekend at large but reportedly was captured after sunset tonight, with the first reports breaking I was sitting down to write this post. By Saturday morning authorities knew who they were looking for and had found his abandoned vehicle, with a long list of other Minnesota Democratic political targets, and a number of fliers for No Kings Day events. In response, Minnesota authorities cancelled all No Kings Day events in the state, although tens of thousands of people showed up anyways in St. Paul at the Capitol.

More broadly, the No Kings Day protests throughout the country were a success yesterday. Organizers claim total attendance of 5 million, which is probably an exaggeration, but it’s believable that it hit a million. Most major cities had turnout in the high five figures, and there were many gatherings in smaller communities. Oak Park, the Chicago suburb where my older kids live, had about 1,800 people turn out even though it overlapped with the much larger rally going on in downtown Chicago.

Trump’s military parade went off later in the day, although bad weather interfered with some of the plans, and attendance appeared to be extremely underwhelming. That didn’t stop Trump’s chief propagandist, Steven Cheung, from claiming that 250,000 had attended the parade; the real number may be as little as a tenth of that.

In other news, late last week the 2nd Circuit formally refused Trump’s request to have an en banc rehearing of his appeal of the verdict in the Carroll II trial, the one from 2023 where E. Jean Carroll was awarded $5 million in damages. Trump’s appeals in the Carroll I trial, the one from early 2024 where Carroll was awarded a further $83.3 million in damages, continue with the 2nd Circuit scheduled to hear oral arguments on June 24th.

Two significant developments in California yesterday.

First, during a press briefing being given by DHS Secretary Noem inside the federal building in L.A. that is being protected by the federalized National Guard and Marines, Senator Alex Padilla (D-CA) stood up to interject immediately after Noem said that federal troops would be staying in L.A. “to liberate the city from the socialists and the burdensome leadership that this governor and that this mayor have placed on this country and what they have tried to insert into the city.”

One of my favorite political movies is the 1962’s The Manchurian Candidate. There is a scene in that movie where the Defense Secretary is giving a press briefing, and in the middle of it Senator Iselin (the movie’s surrogate for Senator Joseph McCarthy) stands up and interrupts to announce that he is holding a (non-existent) list of card-carrying Communists employed by the Department of Defense. What doesn’t happen in that scene is Senator Iselin immediately being confronted by bodyguards, shooed from the room, forced to his knees, and handcuffed.

But that’s what happened to Senator Padilla yesterday, all captured very clearly on video. Naturally many Democrats are apoplectic and have called for Secretary Noem’s resignation, while Republicans seem to be denying any wrongdoing and blaming the incident on Padilla. This coming from an administration that recently indicted one Congressperson, Rep. LaMonica McIver (D-NJ), over a skirmish last month outside an ICE facility in Newark. (The Newark Mayor was originally arrested but has not been charged; he went on to finish 2nd in this week’s Democratic primary for this year’s New Jersey gubernatorial election.)

Second, a federal judge in California took swift action in Newsom v. Trump, ruling yesterday that Trump’s federalization of the California National Guard was unlawful, but declining to address Newsom’s concerns about potential use of the Marines in immigration actions until such time as there has been an alleged violation of the Posse Comitatus Act. (“Crime. Boy, I don’t know.”) The ruling was stayed until midday today to give the 9th Circuit time to act, and they have stayed the ruling further pending a hearing scheduled for June 17th.

In other news, the House voted 214-212 in favor of Trump’s recission request relating to $9.4 billion of previously appropriated funding for federal aid and public broadcasting. The Senate has 45 days to act, and it only requires a majority vote.

Finally, I should mention that tomorrow is not only Trump’s 79th birthday, but also the 250th anniversary of the founding of the Continental Army. To commemorate the occasion Trump has arranged for a military parade in D.C., the first one since 1991. As fate would have it, I will be on a flight leaving the country while the parade is taking place; the symbolism was unintentional, but apt. Earlier that day, so-called “No Kings Day” protests have been scheduled for hundreds of communities throughout the country.

It feels like we’re in a calm before the storm, on multiple fronts.

There are 4,000 federalized National Guard troops and 700 Marines presently in L.A., at an estimated cost of $134 million for a 60-day deployment. Their mission is a little unclear, and perhaps changing by the day: there is now a lawsuit, styled Newsom v. Trump, requesting a TRO to prevent the administration from proceeding with their purported “plans to use Marines and federalized National Guard to enforce immigration laws and other civil laws on the streets of our cities,” as contrasted with the more legitimate use of soldiers to protect federal property and personnel.

The propaganda battle over what exactly is going on right now in L.A. has run amok. California’s lawsuit asserts that “there is no invasion or rebellion in Los Angeles; instead there is civil unrest that is no different from episodes that regularly occur in communities throughout the country, and that is capable of being contained by state and local authorities”. Contrast that with the rhetoric coming from Trump and his allies, using words like “invasion” and “insurrection” to describe the L.A. protests, and with Trump asserting that “if we didn’t do what we did, Los Angeles would be burning to the ground.”

Trump’s politicization of the military took another turn yesterday with a speech at Fort Bragg (renamed by Trump in March, after having been changed to Fort Liberty by Biden in 2023), ostensibly to celebrate the 250th anniversary of the formation of the U.S. Army, but in practice a standard-issue Trump rally but with uniformed troops cheering on the President’s partisan attacks. So much for the long-standing Department of Defense directive prohibiting active-duty personnel from engaging in partisan political activities.

In other news the Federal Circuit, sitting en banc, issued a per curiam order granting the administration a stay pending appeal in the V.O.S. Selections case, which means the IEEPA tariffs remain in effect for now. The order signals the intention for oral arguments to take place on July 31st, noting that “these cases present issues of exceptional importance warranting expedited en banc consideration of the merits in the first instance.”

Speaking of tariffs, there was news today that trade talks in London between China and U.S. had resulted in an agreement, but as of this writing we are still waiting to see exactly what that agreement is. From the New York Times: “For many analysts, the London meetings raised questions about what exactly had been gained by Mr. Trump’s aggressive trade tactics against China over the past few months, or whether his actions had ultimately backfired. ‘What exactly are we getting that we weren’t already getting before?’ asked Veronique de Rugy, a senior research fellow with the Mercatus Center, a libertarian think tank. ‘This deal suggests there was never a real plan.'”

Nothing to speak of out of SCOTUS so far this week, although tomorrow is a scheduled day for issuance of opinions. Within the past couple of days, both sides have submitted their briefs in Trump v. AFGE, the administration’s request for a stay of the lower court’s order preventing the administration from (as plaintiffs put it) acting to “unilaterally dismantle agencies across the federal government without allowing the federal courts adequate opportunity to consider and rule on the serious separation of powers concerns”. SCOTUS action on this and other shadow docket cases could come at any time, rather than as part of the more orderly roll-out of opinions on orally argued cases.

Still nothing substantive out of the Senate on OBBBA, although that could change any day. Trump has set an objective that he wants to be able to sign a bill by July 4th.

While it’s unlikely to have legislative legs, yesterday Senator Hawley (R-MO) co-sponsored a bill to increase the federal minimum wage to $15. In 2016, the addition of the $15 minimum wage to the Democratic party platform was considered a major victory for Sen. Sanders and the party’s left-wing; now, the policy has been embraced by one of the most socially conservative, albeit simultaneously populist, members of the Senate.

Finally, in a widening of the administration’s wars on D.E.I. as well as on (Columbia and) Harvard, today there is reporting from Bloomberg that the Treasury Department plans on issuing an IRS Revenue Procedure that would “bar private, nonprofit schools from remaining tax exempt if they favor any racial groups in matters such as financial assistance, loans, use of facilities or other programs,” which would likely require “ending many programs that try to counter longstanding disparities in wealth and higher educational experience among certain minority groups, including Black and Hispanic students”.

The dominant story over the weekend has been actions taken by the Trump administration in response to what, at least initially, were relatively benign protests in different parts of L.A. at ICE facilities.

On Saturday Trump announced that he would be calling up 2,000 California National Guard troops to protect federal agents and buildings, notwithstanding that Governor Newsom had not requested that the National Guard get involved. Trump’s authority to take this action comes from a statutory provision allowing the President to call up the National Guard whenever “there is a rebellion or danger of a rebellion against the authority of the Government of the United States.”

From the Editorial Board of the New York Times, in today’s paper, under the headline “Trump Calling Troops Into Los Angeles is the Real Emergency”:

“The National Guard is typically brought into American cities during emergencies such as natural disasters and civil disturbances or to provide support during public health crises — when local authorities require additional resources or manpower. There was no indication that was needed or wanted in Los Angeles this weekend, where local law enforcement had kept protests over federal immigration raids, for the most part, under control. Guard members also almost always arrive at the request of state leaders, but in California, Gov. Gavin Newsom called the deployment of troops “purposefully inflammatory” and likely to escalate tensions. It had been more than 60 years since a president sent in the National Guard on his own volition. Which made President Trump’s order on Saturday to do so both ahistoric and based on false pretenses and is already creating the very chaos it was purportedly designed to prevent.”

Also from the NYT’s opinion pages today is David French, who as a reminder was considered in 2016 by “Never Trump” Republican forces as a potential independent Presidential candidate, in a piece titled “America Is No Longer A Stable Country”:

“It’s hard to avoid the conclusion that the Trump administration is spoiling for a fight on America’s streets. On Saturday, after a protest against Immigration and Customs Enforcement arrests degenerated into violence, the administration reacted as if the country were on the brink of war. The violence was unacceptable. Civil disobedience is honorable; violence is beyond the pale. But so far, thankfully, the violence has been localized and, crucially, well within the capacity of state and city officials to manage. But don’t tell that to the Trump administration. Its language was out of control. … The administration’s language was extreme. Its actions, so far, have been more limited. But that’s small comfort. The potential next step is plain to see. If the administration (in its sole discretion) believes that this first, limited deployment is insufficient, then it will escalate. It will shout “Insurrection!” and “Migrant invasion!” to justify more military control and perhaps the invocation of the Insurrection Act.”

And a few minutes ago I saw a chyron on the TV saying that several hundred Marines are being deployed to L.A. Which would appear to indicate that Trump is about to assert authority under the Insurrection Act.

In the midst of all this, California AG Rob Bonta has announced California will sue the U.S. over its nationalization of California’s National Guard; and Trump was quoted in a press availability as supportive of the concept of arresting Governor Newsom. Fun times.

Less than a week after Trump gave Musk a glowing farewell to government service in the Oval Office, yesterday the growing Trump-Musk schism went into hyperdrive. Over the course of the day, Trump and Musk traded social media posts that included Musk suggesting that the reason AG Bondi hasn’t released the so-called “Epstein files” is that Trump is himself in them, and Trump suggesting that the federal government should cancel all of its contracts with Musk’s companies. Former Trump advisor Steve Bannon also called for Musk’s deportation on the grounds that 30 years ago Musk reportedly overstayed his student visa, after dropping out of Stanford but staying in Silicon Valley to work on his first startup. Tesla stock went down 14% yesterday as the feud played out in public during the trading day, and it only recovered 3% today. The ramifications of the schism on Republican politics remain murky.

While earlier in the week there was a hope that some Senate committees would start to roll out OBBBA markups this week, that hasn’t happened yet, and progress seems complicated.

The same judge who had previously granted Harvard a preliminary injunction against the DHS action on student visas has also granted Harvard a temporary restraining order against the Presidential proclamation on student visas. Harvard’s amended complaint argues that the use of Presidential authority to bar admission of a “class of aliens” doesn’t work in this situation, since the proclamation would allow any or all of those aliens admission to the U.S. for purposes other than studying at Harvard.

Something happened earlier in the week that I neglected to mention: The administration filed a recissions request with Congress, asking for its approval to not spend $9.4 billion of previously appropriated funding for the Corporation for Public Broadcasting and for various foreign aid activities. Congress has 45 days to act on the request, which requires only a simple majority of both houses. Such requests have been basically unknown in recent decades; Trump tried one in his first term but it failed in the Senate. The House may vote on it next week.

Today SCOTUS took action on a shadow docket case, SSA v. AFSCME, overturning the 4th Circuit’s en banc denial of an administrative stay on a lower court ruling enjoining the administration from providing DOGE with full access to all Social Security Administration records. The 3 liberals would have upheld the stay, and Justice Jackson wrote a dissenting opinion (joined once again by Sotomayor, but not by bridge-builder Kagan). Continuing with the theme of her dissenting opinion last week in Noem v. Doe, Jackson objects to the majority’s approach in applying the “irreparable injury” prong of the Nken factors when it is the government asking for a stay rather than another party. Today she writes:

“[T]he Court grants a stay permitting the Government to give unfettered data access to DOGE…despite its failure to show any need or any interest in complying with existing privacy safeguards, and all before we know for sure whether federal law countenances such access. The Court is thereby, unfortunately, suggesting that what would be an extraordinary request for everyone else is nothing more than an ordinary day on the docket for this Administration. I would proceed without fear or favor to require DOGE and the Government to do what all other litigants must do to secure a stay from this Court: comply with lower court orders constraining their behavior unless and until they establish that irreparable harm will result such that equity requires a different course. The Court opts instead to relieve the Government of the standard obligations, jettisoning careful judicial decisionmaking and creating grave privacy risks for millions of Americans in the process.”

Sticking with judicial activity, there was an extremely strange situation two days ago in Texas. It started with a DOJ announcement that it was suing the state of Texas over a decades-old state law that extends in-state tuition rates to undocumented students who have been present in Texas for at least 3 years before graduating high school. Efforts were made this spring in the Texas Senate to repeal the law, but the bill never made it to the floor for a vote. Six hours after the lawsuit was filed, controversial judge Reed O’Connor (perhaps best known for his 2018 ruling that the ACA was unconstitutional, ultimately overturned by SCOTUS in 2021’s California v. Texas) approved an order permanently enjoining the law.

How did that come to pass?!? Well, the putative defendant, Texas AG Ken Paxton, had in the interim filed a joint motion with the DOJ agreeing to a consent judgement that the law was unconstitutional. And, the original DOJ lawsuit had been filed not in Austin, where the state government is located, but in Wichita Falls, guaranteeing that the case would end up on O’Connor’s docket. Clearly, the fix was in from the start. Steve Vladeck commented that this whole endeavor “sets a new (low) standard for shameless hypocrisy on the part of both the U.S. Department of Justice and the Texas Attorney General’s Office,” noting that SCOTUS precedent clearly indicates that the courts have no authority to adjudicate in “transparently collusive lawsuits.” It will be interesting to see if somebody will intervene in the case in order to appeal this decision to the Fifth Circuit.

Finally, there was a major new development this afternoon in the Abrego Garcia situation, but since I haven’t provided any background about it yet in this series and since this post is already very long, I will leave that for a later post.