Catching up on the week that was…

More disappointing news out of SCOTUS, as they ruled Monday in a shadow docket case called McMahon v. New York to overturn a temporary injunction that had prevented Education Secretary McMahon from terminating half of the Department of Education’s workforce, as (quoting McMahon) “the first step towards a total shutdown” of the Department. As with other cases, litigation about the legality of the actions will continue, but in the meantime structural damage to the functioning of the federal government will be done. This time Sotomayor drew the assignment of writing the dissent, on behalf of all three liberals. Much of the commentary around the decision pointed out the incongruity between the Court’s handling of this case versus its handling in Biden v. Nebraska of the Biden administration’s student loan forgiveness program, thus strengthening the case many on the left are making that SCOTUS is acting in a partisan rather than principled manner.

And disappointing news out of the Senate, in two different ways this week.

First, the Judiciary Committee has advanced the nomination of Emil Bove to the 3rd Circuit, notwithstanding that he may be uniquely unqualified to serve on the federal bench (and many believe Trump intends to nominate him to SCOTUS when a vacancy arrives). As Ben Wittes recently put it: “Bove’s fundamental problem as a nominee is that there is simply no reason to believe him ethically or morally capable of fulfilling the judicial oath Trump has nominated him to take. His career, particularly the past six months of it, have been marked by an unmistakable trail of allegations—many of them not meaningfully in contest—of conduct simply unacceptable in a federal judge.” The full Senate is expected to vote on his nomination next week; I still have hope, but I really had hoped he wouldn’t make it out of Judiciary.

Next, the Senate voted 51-48 to approve a slightly modified version of the $9 billion rescissions package that, among other things, kills federal funding for the Corporation for Public Broadcasting. The earlier procedural vote, on whether to proceed to debate, actually required Vance as tiebreaker, with opposition from Collins, Murkowski, and McConnell. However once debate was underway, Senator Smith (D-MN) had to be hospitalized overnight, depriving the Democrats of a no vote; and in the end McConnell switched sides for the final vote. Today the House passed the revised version (which restored $400 million in funding for international AIDS relief), 216-213. With this precedent having been set, it will be interesting to see what further rescission packages the administration puts forward for the House’s consideration.

Paramount, the corporate parent of CBS currently attempting to merge with a company called Skydance, had earlier this month agreed to settle Trump’s lawsuit against CBS for $16 million. The lawsuit, which relates to an interview with Vice President Harris that “60 Minutes” had aired during the 2024 campaign, was widely viewed as being completely without merit. However, Paramount needs FCC approval to complete the merger with Skydance… On Monday CBS late night host Stephen Colbert, a Trump critic, returned from a two-week vacation and referred to the $16 million settlement as a “big fat bribe”. On Thursday, CBS announced that it would cancel Colbert’s show, The Late Show, in May after 11+ years with Colbert as host following David Letterman’s 22-year run. While CBS asserts this was strictly a financial decision, there is widespread suspicion that the cancellation of the show may have political motivations.

But the huge political story of the week involves disgraced financier Jeffery Epstein, who died by hanging in 2019 while in federal custody for sex trafficking charges.

It is hard to know quite where to begin here in explaining this story… Epstein had a long list of very powerful friends, including both Bill Clinton and Donald Trump, who may (or may not) have engaged in sexual activity with underage women that Epstein allegedly trafficked. (I say ‘allegedly’ since Epstein died before trial but, after his death, Epstein’s girlfriend Ghislaine Maxwell was convicted of related charges and is serving a 20-year federal sentence.) As such there is widespread interest in the question of what incriminating material Epstein may have retained and that may be in the possession of federal investigators, and who that material incriminates. In particular, many of the MAGA persuasion believe that these “Epstein files” would incriminate whole swaths of the “deep state”, and that the Biden administration was keeping these files secret to protect Democratic interests. Given this, a major priority for many MAGA figures–including the men who are now the top 2 officials in the FBI, Kash Patel and Dan Bongino–was getting the Trump administration to provide full transparency about the Epstein investigation, including whether his death in custody was really a suicide.

That objective overlooks an inconvenient truth, namely that in the 1990s and 2000s Epstein and Trump were reportedly very close friends. As such, it seems far more likely that full transparency into the Epstein files would incriminate Trump himself than it would reveal, as MAGAites appear to expect, a vast sex trafficking conspiracy among leading Democrats. In light of this, over the past few months the administration has been slow-walking its commitment to transparency around the Epstein files. Then, almost a week ago, DOJ and the FBI released an unsigned two-page memo that basically said there’s nothing to see here, claiming that there actually is no “incriminating ‘client list'” (despite Attorney General Bondi’s earlier contention that said list was on her desk awaiting her review) and re-affirming that Epstein’s death was by his own hand.

This has not gone over well among Trump’s base. Trump keeps trying to move past the issue, claiming recently that these Epstein files are yet another “Democratic hoax” and arguing that Republicans who are fixated on this issue are “stupid”. Sensing weakness, Democrats are now jumping on the bandwagon of supporting full transparency for the Epstein files, and there may well be enough Republicans joining them to eventually force the administration into releasing more than they want to release.

And then yesterday the Wall Street Journal dropped a bombshell, reporting that for Epstein’s 50th birthday in 2003 Trump had penned a very curious letter as part of a tribute to Epstein, including a signed doodle of a naked woman and ending with the wish that “every day be another wonderful secret.” Today Trump has sued the WSJ and its owner, Rupert Murdoch, for defamation, seeking billions of dollars in damages. Of course, let us remember that truth is considered a complete defense to accusations of defamation.

Ten days since my last blog post. We’ve been back from Croatia for a couple of days now, and bodily cycles are more or less back to normal by now.

OBBBA has been enacted, although in many cases we’re still getting to know what’s in the bill. Something amusing in the bill that has taken a lot of people by surprise is a tweak it made to the taxability of gambling winnings: Under OBBBA, you can only net 90% of gambling losses against your gambling winnings, instead of the previous 100%. That may look innocuous, but it’s enough to make most professional gambling strategies ineffective on an after-tax basis. For instance, if you have a strategy whose success rate is 51.3%, and you face a marginal federal tax rate of 35%, your pre-tax earnings are now zeroed out on an after-tax basis. I haven’t seen an explanation yet as to who added this to the Senate bill and why, but with Nevada a critical swing state there is some bipartisan support for amending this change after the fact.

In judicial news, SCOTUS did stay the preliminary injunction in Trump v. AFGE, thus allowing the administration to continue with plans implementing Executive Order 14210, and an associated OPM memorandum, relating to the restructuring of the federal workforce. Quoting from the unsigned SCOTUS order:

“We express no view on the legality of any Agency RIF and Reorganization Plan produced or approved pursuant to the Executive Order and Memorandum. The District Court enjoined further implementation or approval of the plans based on its view about the illegality of the Executive Order and Memorandum, not on any assessment of the plans themselves. Those plans are not before this Court.”

Sotomayor picked up on that theme in her solo concurrence:

“The plans themselves are not before this Court, at this stage, and we thus have no occasion to consider whether they can and will be carried out consistent with the constraints of law. I join the Court’s stay because it leaves the District Court free to consider those questions in the first instance.”

Jackson was the sole dissenter, consistent with her recent theme of opposition to the Court’s approach with respect to the judicial oversight of the administration’s actions. Quoting from her dissent:

“What is at issue here is whether Executive Order No. 14210 effects a massive restructuring of the Federal Government (the likes of which have historically required Congress’s approval), on the one hand, or minor workforce reductions consistent with existing law, on the other. One needs facts to answer that critical question, and the District Court not only issued such preliminary findings based on actual evidence, it is also the tribunal best positioned to make that determination, at least initially. Put differently, from its lofty perch far from the facts or the evidence, this Court lacks the capacity to fully evaluate, much less responsibly override, reasoned lower court factfinding about what this challenged executive action actually entails. I respectfully dissent because, in addition to the Government’s failure to show the exigency or irreparable harm that is required for emergency relief, this Court could not possibly know in this posture whether the Government is likely to succeed on the merits with respect to such a fact-dependent dispute. So it should have left well enough alone.”

There will be further litigation here, but in the interim the administration may proceed with implementing further layoffs. To that end, on Friday the State Department fired 1,400 employees, representing about one-sixth of its workforce.

Elsewhere, this week a district court judge (and GWB appointee) in New Hampshire certified a class action lawsuit (“Barbara” v. Trump) relating to the birthright citizenship executive order, and issued an injunction preventing the order from being implemented against members of the certified class, which includes all babies already born or born in the future to which the order would potentially apply. As such this action has much the same effect as the universal injunctions overturned last month due to Trump v. CASA, but using the form of class action lawsuits, following the road map laid out in Kavanaugh’s concurrence in CASA. More to come here, of course.

July 9th was supposed to be the expiration date of the 90-day pause that Trump had put in place on many of his tariffs, while he worked out deals on a country-by-country basis. Over the last several days we haven’t seen any deals announced, but we have seen a lot of unilateral pronouncements by Trump of new tariff rates that will take effect–for sure, this time we pinky promise–on August 1st. Many of these announced tariffs remain eyepopping: 30% for the EU, 30% for Mexico, 35% for Canada, and 50% for Brazil. The Brazil tariff is particularly interesting because in Trump’s letter imposing it, he specifically called out Brazil’s treatment of its former President Bolsonaro, thereby tying American tariff policy to a domestic political dispute in Brazil. In all of these cases, we shall see what actually transpires between now and August 1st; and, of course, litigation continues as to whether Trump’s authority under IEEPA actually includes the ability to impose these types of tariffs without Congressional approval.

The Senate is likely to vote this week on the rescissions bill recently enacted by the House, which among other things would de-fund the Corporation for Public Broadcasting. Trump recently announced that any Republican Senator who votes against the rescissions will lose his endorsement.

I’m starting to lose the enthusiasm for this blogging project, so we’ll see how much time I spent on it over the rest of the summer. I’ve rarely thought that the U.S. was “headed in the right direction,” as the pollsters like to put it; but right now the U.S. is (from my perspective) accelerating so rapidly in the wrong direction that it is difficult to have any faith that we can ever get back to the right course. And in that context, it’s depressing to keep focusing day after day on all the ways in which things are going wrong–the corruption, the short-sighted policymaking both domestically and globally, the upending of norms, and most of all the continual progression towards authoritarianism and the cult of personality. Still, there’s some value in documenting the journey, I suppose.

Today, July 3rd, was a very interesting day to be monitoring American politics from Europe.

When I woke up in Croatia at 7am local time (1am in D.C.) and checked my phone. I learned that the House was in the middle of a very elongated process to vote on a motion to proceed with debate of the Senate version of OBBBA. At that particular point in time, there were 5 Republicans who had already voted “nay” to the motion, which would have been enough to kill it; but Speaker Johnson kept the vote open for close to 6 hours. A couple of hours after I’d woken up, that motion would pass, 219-213.

(That was actually the second several-hour-long vote of the day; a previous vote to make some technical amendments to the rules around the debate took more than 7 hours, making it the longest vote in the history of the U.S. House. Keep in mind that these types of House votes normally last 15 minutes.)

Shortly after that, a few minutes before 5am D.C. time, the debate started on the Senate version of OBBBA itself. At this point Minority Leader Jeffries took it on himself to do a bit of a filibuster, breaking the House record for longest speech by talking continuously for 8 hours. And this is immediately after the House had already pulled an all-nighter.

With all that, we were finishing off our dinner in Croatia and getting ready to order dessert when the news came through that the House had passed the Senate version of OBBBA without any amendments, 218-214. In the end the only two Republicans who refused to vote for the bill did so for opposite reasons: Massie of Kentucky is the keenest of deficit hawks and had voted against the original bill; while Fitzpatrick of Pennsylvania, a moderate who represents a suburban Philadelphia district that Harris won in 2024, disliked the changes made by the Senate to Medicaid.

So in the end, Trump will indeed to get to sign his big beautiful bill tomorrow on the 4th. A major political win for him and for Speaker Johnson, at least in the short run. However from both a process standpoint and a substantive standpoint, it’s hard to view OBBBA as anything but an abomination. And the bill itself appears to be very unpopular. Once the dust settles I will try to memorialize what OBBBA actually does.

In other news, yesterday a district court judge ruled, in a case captioned RAICES v. Noem, against a Proclamation issued by Trump on Inauguration Day called “Guaranteeing the States Protection Against Invasion”, the main effect of which was to conduct an end-run around the normal asylum system. Quoting from the opinion:

“[T]he Court concludes that neither the INA nor the Constitution grants the President or the Agency Defendants authority to replace the comprehensive rules and procedures set forth in the INA and the governing regulations with an extra-statutory, extra-regulatory regime for repatriating or removing individuals from the United States, without an opportunity to apply for asylum or withholding of removal and without complying with the regulations governing CAT protection. The Court recognizes that the Executive Branch faces enormous challenges in preventing and deterring unlawful entry into the United States and in adjudicating the overwhelming backlog of asylum claims of those who have entered the country. … [But] nothing in the INA or the Constitution grants the President or his delegees the sweeping authority asserted in the Proclamation and implementing guidance. An appeal to necessity cannot fill that void.”

I was amused to note that the judge worked in a reference to Kavanaugh’s concurrence last week in Trump v. CASA. The judge’s decision grants immediate relief to a small set of named plaintiffs, and then certifies a class of individuals still present in the U.S. but who are potentially impacted by the Proclamation, and grants relief to that class postponed for 14 days (giving the administration an opportunity to seek a stay pending appeal). The decision does not address those individuals who have already been deported under the Proclamation, but litigation will continue on that issue.

I

It’s Canada Day today. Also Free Agent Frenzy Day in the NHL, although this year that was fairly underwhelming with a last-minute flurry of re-signings plus the sign-and-trade to Vegas of star Leafs winger Mitch Marner.

Speaking of Canada, I was chagrined to learn that Prime Minister Carney caved yesterday, cancelling the implementation of Canada’s Digital Services Tax and announcing legislation will be introduced to repeal it. This paves the way for re-opening of trade negotiations between Canada and the U.S, but feels like a win for Trump’s bullying tactics.

The big news of the day is that the Senate, after an all-nighter, passed its version of OBBBA on a 51-50 vote, with Vance breaking the tie. As expected, Republican Senators Paul and Tillis were no votes (with Tillis having announced over the weekend that he will not run for re-election in 2026, possibly opening the door for former North Carolina Governor Roy Cooper to capture the seat for the Democrats). The third no vote was Senator Collins of Maine. Senator Murkowski of Alaska was a reluctant yes, but after the vote she was critical of the artificial deadlines for passage imposed by Trump and urged that things proceed more slowly from here.

Notwithstanding that desire, the House is expected to take up the Senate version of OBBBA in the next couple of days. Can the Senate bill pass the House as is? That seems very hard to me. The Senate bill is considerably worse on the deficit than the House bill, which may cause consternation on the part of some of the deficit hawks who had voted yes before; and at the same time the Senate bill limits the House’s SALT relief to only 5 years, which may offend some of the Blue state Republicans who had voted yes. And on top of that, last week a key moderate Republican who was a yes vote on the original bill, Don Bacon of Omaha, announced he will not run for re-election and is not necessarily going to be a yes vote on the revised bill.

In other news, Mamdami was officially named the victor in the NYC Democratic mayoral primary today, after all votes from the 3rd-place and lower candidates were re-allocated in ranked choice. In the first choice ballot, Mamdami was at 43.5%, Cuomo 36.5%, and other candidates were at 20.0%. After re-allocations, Mamdami was at 53.1% and Cuomo 41.7%, with 5.1% of the original ballot not expressing a choice for one of those two. (Most outlets are ignoring the 5.1% and reporting this as a 56.0% – 44.0% win for Mamdami.) As such, Mamdami had close to a 2-1 advantage over Cuomo on the re-allocated votes, which is consistent with the conventional wisdom going into the election that Mamdami would benefit from ranked choice.