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.