Tuesday was election night in some states, and it is impossible to imagine that the night could have gone better for the Democrats.

Virginia is usually the focal point of the nation on the first Tuesday of November in odd-numbered years. In light of term limits, Republican Governor Youngkin was unable to run for re-election. Lieutenant Governor Earle-Sears, a Black woman, ran for the Republicans to replace Youngkin. Her opponent was former Rep. Spanberger, a moderate Democrat who declined to run for re-election to the House in 2024 in order to focus on this race. Spanberger was ahead several points in pretty much all polling, but she overperformed expectations, winning 57.2 – 42.6.

Spanberger also had longer coattails than expected. Democrats picked up the open Lieutenant Governor seat, 55.3 – 44.4, and unseated the incumbent Attorney General, 52.8 – 46.8. The latter victory was notable for two reasons. First, the Democratic candidate, Jones, was embroiled in controversy over a leaked text message from 2022 advocating violence against the Republican then-Speaker of the Virginia House. Second, the Republican incumbent, Miyares, had recently opined that he believed efforts currently underway in Virginia to amend its constitution’s provisions governing redistricting could not take effect until 2027, so his re-election likely would have impeded Democratic efforts to re-draw the Virginia map in time for 2026. Additionally, Democrats expanded their majority in Virginia’s House from 51-49 to 64-36.

New Jersey was the other state with a gubernatorial election this week, and as in Virginia the Democrats were running a moderate white woman with both House and national security experience. Unlike Spanberger, Rep. Mikie Sherrill had remained in the House while running for Governor. Sherrill was expected to be in a very close race against Jack Ciattarelli, who had lost the 2021 gubernatorial election 48.2 – 51.0. Instead Sherrill won decisively, 56.6 – 42.9, making her the first female military veteran to be governor of a U.S. state.

Across the river, the New York City mayoral election had attracted much national attention for its unusual three-way race, pitting the Democratic primary winner (Mamdami), the Democratic primary runner-up running on a third party line (former Governor Andrew Cuomo), and the Republican primary winner (Sliwa). Incumbent mayor Adams remained on the ballot, given how late in the election he withdrew. He eventually endorsed Cuomo, and his continued presence on the ballot was a non-factor as he attracted less than 0.5% of the vote. The day before the election, Trump (and also Musk) endorsed Cuomo. Importantly, the general in NYC is first-past-the-post, even though the Democratic primary was ranked-choice. Given these dynamics, it was generally expected that Mamdami would win, but it was felt unlikely that he would surpass 50% of the vote, raising questions as to whether he really would have a mandate for change (or whether he even vote have won under a ranked-choice scheme). However, he managed to get 50.4% of the vote, versus 41.6% for Cuomo and 7.1% for Sliwa. The idea that New York City would elect its first Muslim mayor on the very same day that Dick Cheney died would have seemed impossibly remote 20 years ago.

Moving to the other coast, all eyes were on California’s Proposition 50, a constitutional amendment needed to enact the pro-Democratic gerrymandering statute that Governor Newsom championed earlier this year, in order to counter-balance the pro-Republican gerrymandering statute that Texas had just enacted at Trump’s behest. When the campaign started, there was considerable doubt as to whether the amendment would pass, and Republican mega-donor Charlie Munger Jr. (the son of Warren Buffett’s former right-hand man) was expected to bankroll the No campaign. However, the opposition fizzled, and in the end Prop 50 passed 64-36, with relatively heavy turnout for an election with nothing else on the ballot.

Here in Minnesota, there were mayoral elections in both Minneapolis and St. Paul in which ranked-choice voting applied. In both cities, the incumbent won a plurality, but not majority, of the first-preference votes. After re-allocations, St. Paul has a new mayor, with a Hmong-American woman replacing the Black male incumbent; however in Minneapolis, re-allocations did not topple the moderate white male incumbent in favor of his Somali-American male challenger, who like Mamdami is a Democratic Socialist. A little closer to home, the Democrats held the state Senate seat in a by-election in my district, and with it retained control of the state Senate, 34-33. However, these election results now create two new vacancies in the Minnesota House in Democratic-held seats, temporarily giving the Republicans a two-seat House majority until by-elections can be held.

The last 2025 election results I want to discuss come from Georgia. I don’t pretend to understand Georgia politics, other than they do some things differently down there (e.g., Senate runoff elections) for reasons that, historically speaking, probably have a lot to do with trying to dilute the impact of the Black vote. In Georgia they have a 5-member elected Public Service Commission, in which each member represents a specific geographical district. You might think, therefore, that each PSC member would be elected by the voters of the district they will represent. No no, don’t be silly; all PSC members are elected on a statewide basis. Which has meant that. in recent years, the PSC has been an all-Republican body.

Well, there was recently a court case arguing that this electoral approach was contrary to the Voting Rights Act. Ultimately the 11th Circuit upheld the status quo; but all of the legal bickering had the impact that, in 2025, there needed to be a statewide special election for 2 of the 5 PSC district seats. And, out of the blue, the Democrats won both of these statewide elections with ease, unseating Republican incumbents with almost 63% of the vote in both races.

The morning after the elections, SCOTUS held two-and-a-half hours of oral arguments in the IEEPA tariffs cases. The general consensus is that the arguments went badly for the government, although perhaps not so badly that it is impossible to imagine Trump prevailing. Still, on the prediction markets the implied likelihood of the tariffs remaining intact fell from the high 40s before the arguments to the mid 20s afterwards. A reasonable forecast based on the tenor of questioning is for a 6-3 ruling against the tariffs, with Gorsuch, Roberts, and Barrett joining the liberals. Given how rapidly SCOTUS agreed to hear the case in the first place, there is hope that a decision will come out on an equally expedited timetable, perhaps by the end of December.

Two developments to discuss this week on the SCOTUS shadow docket front.

First, our repeating series of “6-3 SCOTUS orders overturning a lower court order prohibiting the administration from immediately implementing a new policy, with scant explanation from the majority and a lengthy dissent from the liberals” continues. The latest entry is a case called Trump v. Orr, which involves a Trump executive order requiring that, going forward, the sex marker shown on new U.S. passports must represent biological sex at birth. Jackson drew the assignment this time to write the dissent, and once again she writes a footnote of broader interest:

“Not only does the Court’s stay determination produce inequity, but it is also part of a broader pattern of this Court using its emergency docket to cavalierly pick the winners and losers in cases that are still pending in the lower courts. … This way of handling stay determinations jeopardizes procedural fairness as well, because the lower courts have an obligation to fully and fairly consider the merits of the plaintiffs’ legal claims despite the majority’s declaration of the “likely” winner. The Court’s stay-related pronouncements cannot be permitted to thwart the full legal process that our judicial system requires.”

Second, we have a very fluid situation right now relating to SNAP funding in light of the government shutdown. On Thursday a federal court in Rhode Island ordered the government to fully fund SNAP payments for November by the end of the day on Friday. The administration immediately appealed to the 1st Circuit. In mid-day on Friday, the 1st Circuit declined the administration’s request for an administrative stay, while saying that the administration’s request for a stay pending appeal “remains pending, and we intend to issue a decision on that motion as quickly as possible.” The administration then immediately went to SCOTUS, asking that by 9:30pm on Friday it issue an administrative stay.

Since this case came out of the 1st Circuit, it just so happens that the Justice responsible for handling the issue is Ketanji Brown Jackson. At 9:17pm, she issued the administrative stay that the administration requested, in a case now captioned Rollins v. Rhode Island State Council of Churches (Brooke Rollins, who I’d never heard of before, is the Secretary of Agriculture and a Texas attorney who had majored in agricultural development at Texas A&M). However, Jackson’s stay expires 48 hours after the 1st Circuit resolves the administration’s pending motion for a stay pending appeal, which Jackson reiterated “the 1st Circuit is expected to issue with dispatch.” Steve Vladeck speculates on Justice Jackson’s rationale:

“Given the gravity of this issue, it makes all the sense in the world for a justice in Jackson’s position to do whatever she could to ensure that the underlying question (must the USDA fully fund SNAP for November?) is resolved as quickly as possible—even if that first means pausing Judge McConnell’s rulings for a couple of days. If the alternative was a longer pause of McConnell’s rulings, then this was the least-worst alternative, at least for now. And regardless, imposing this compromise herself, rather than forcing her colleagues to overrule her, is, to me, a sign of a justice who takes her institutional responsibilities quite seriously, indeed—even when they lead away from the result she might otherwise have preferred if it were entirely up to her.”

Finally, as the government shutdown enters its record-breaking 6th week, Transportation Secretary Duffy announced that flight capacity at 40 large airports was being reduced by 4% effective yesterday, rising to 10% by November 14th, and possibly rising to 20% after that.

It’s been a somewhat dour weekend for me, as my Blue Jays lost the 2025 World Series in excruciating fashion a few minutes into November, losing Game 7 5-4 to the Dodgers in the 11th inning after being ahead 4-3 with 1 out and the bases empty in the 9th inning. The Jays squandered bases loaded with 1 out in the bottom of the 9th tied 4-4, and runners on the corners with 1 out in the bottom of 11th down 5-4. This one hurts.

There are election in some states the day after tomorrow. Here in Minnesota, there is a by-election in my state Senate district, and it is known that the result will determine overall control of the Minnesota Senate. On a more national level, the main races of interest are the New York mayoral race, the Virginia governor race, and the California referendum to approve Governor Newsom’s gerrymandering proposal (to counterbalance the actions recently taken in Texas). More on those races later this week.

A week ago, Trump announced the cessation of all trade talks with Canada, and imposed an additional 10% tariff. This was in response to a television ad that the Conservative government of Ontario aired during Game 1 of the World Series, an ad that consisted entirely of things President Reagan said about tariffs in a 1987 radio speech.

The Senate did this week vote to terminate Trump’s tariffs on first Brazil and Canada, and then more globally. Republican Senators Paul, McConnell, Collins, and Murkowski voted to remove all three sets of tariffs, while Senator Tillis joined in for Brazil only. Unfortunately these votes are essentially symbolic, as the House is unlikely to vote on these matters.

Somewhat more importantly, this week is when SCOTUS will hold consolidated oral arguments on the two IEEPA tariffs cases, V.O.S. Selections and Learning Resources. The latter case presents the question of whether IEEPA authorizes the President to impose tariffs, period; the former case presents the question of whether IEEPA authorizes the President to impose these particular tariffs and, if so, whether that represents an unconstitutional delegation of Congressional authority. There will lots to unpack from the oral argument, I’m sure.

In other SCOTUS activity, this week Justice Barrett called for supplemental briefing in Trump v. Illinois on a question inspired by the amicus brief of Georgetown law professor Marty Lederman. Recall from my last post that one of the three statutory pre-conditions to the President’s ability to federalize the National Guard is that the President is “unable with regular forces to execute the laws of the United States.” The administration has argued that “regular forces” refers to civilian law enforcement personnel, such as DHS and ICE employees. However Lederman argues convincingly that “regular forces” instead means the Regular Army, which is to say the military. And that would imply that this third federalization prong could only apply in situations where the President had already tried and failed to use military personnel to execute domestic laws, which in term would require invocation of the Insurrection Act.

In other news, the government shutdown continues, and the administration now claims that as of November 1st it is no longer possible to administer SNAP benefits (fka “food stamps“) to tens of millions of Americans. Judges overseeing two separate lawsuits have ordered the administration to continue funding the program. There’s an interesting juxtaposition between the administration’s claim that it can’t find a legal way to keep SNAP benefits flowing during the shutdown despite the existence of billions of dollars of contingency funds specifically earmarked for that purpose, versus its simultaneous claim that its military activities against purported drug-carrying boats in the Caribbean (and more recently the Pacific) are perfectly legal despite its lack of articulation as to why that would be the case.

There’s a scene in Aaron Sorkin’s The American President where widower President Shepherd (Michael Douglas) has invited Sydney Ellen Wade (Annette Bening) over to the White House, and it quickly becomes clear that his knowledge of the historical china on display is fairly limited. My recollection was that Shepherd says “I’m not really an East Wing President.” (As it turns out, I misremembered Sorkin’s prose: He actually says “I’m more of a West Wing President.”)

I was reminded of that scene this week when news broke that, with no advance warning, the East Wing of the White House was completely demolished. Trump had previously signaled his intention to build a new ballroom at the White House, modeled after his ballroom at Mar-A-Lago; however, early indications were that the East Wing would remain intact. The new ballroom is now expected to cost $300 million, to be funded by President Trump and a long list of corporate and personal donors. A new poll this week has 53% of respondents disapproving of the East Wing demolition, versus only 22% approving.

The government shutdown continues, with no end in sight. The House of Representatives has remained out of session through the entire shutdown, with Speaker Johnson still refusing to seat Rep.-elect Grijalva, who would be the 218th vote in favor of the Massie-Khanna discharge petition relating to the Epstein files. A new poll has voters blaming Republicans over Democrats for the shutdown, 45-39.

There has been a lot of action lately in the three distinct cases relating to Trump’s federalization of the National Guard.

Out in California, the 9th Circuit just denied Newsom’s request for an en banc rehearing of the panel’s 2-1 decision to stay Judge Breyer’s temporary restraining order, although 10 active Judges joined Judge Berzon’s 38-page statement arguing that the court should have taken it up en banc (I think technically Berzon’s opinion is a “statement” rather than a “dissent” because, as a judge in senior status, she didn’t actually get a vote). However, Trump’s appeal on the merits of Breyer’s decision is still before the 9th Circuit panel, and oral arguments occurred this week. It seems plausible that if the panel were to rule in favor of Trump on the merits, there would be sufficient support for an en banc rehearing on the merits — i.e., that some of the people who voted against rehearing the stay did so for procedural rather than substantive reasons.

The Chicago case, discussed in my last post, now sits on the SCOTUS shadow docket. With the 7th Circuit having upheld the restraining order issued by the lower court judge, Trump now seeks a stay of that order, as he has on so many other issues this year. Both sides have submitted their briefs; and so we wait.

In the Oregon case, this week a (different) 9th Circuit appeal voted 2-1 in favor of the administration. I had previously mentioned that the recent 7th Circuit opinion focused on the question of whether there was a “danger of a rebellion against the authority of the government of the United States,” which is one of the 3 statutory reasons permitting the federalization of the National Guard. The per curiam 9th Circuit opinion doesn’t reach that issue, instead focusing on one of the other reasons, namely that the President is “unable with regular forces to execute the laws of the United States.” However, both the dissent and a solo concurrence take dramatically different views of the situation. Per the concurrence, an 1827 SCOTUS precedent called Martin v. Mott forecloses the possibility of judicial review of the President’s determination on these matters; legal scholars are very skeptical of that view. And then the dissent takes a point of view more similar to what we’ve seen from the Illinois rulings and the lower court judge in Oregon.

Probably the next domino to fall here is that SCOTUS will need to do something with the administration’s request for a stay in Trump v. Illinois. Nobody has gotten rich betting against this SCOTUS issuing a 6-3 opinion in favor of this administration’s request for a stay of a restraining order; but maybe this time will be different?

Moving on: In a continuation of his war on the war on financial crimes, today Trump issued a pardon to cryptocurrency magnate Changpeng Zhao, founder of Binance, who very recently had completed his 4-month prison sentence on money laundering charges.

And finally, in a story that defies all sense but is all too possible to believe in these times, there was reporting this week that Trump has submitted demands to the Department of Justice that it pay him $230 million as compensation for legal expenses he incurred in his various federal legal cases. Some of the DOJ officials who would need to sign off on this request, including Deputy Attorney General Blanche, were Trump’s defense lawyers in one or more of the cases involved.

….well, my own personal fiscal year-end, that is.

Sticking with the “summary of developments” approach from my last post, almost two weeks ago:

Government Shutdown. It’s still going on, with no end in sight. Pain is starting to be felt, in the form of missed paychecks.

The administration has started to issue reduction-in-force notices during the shutdown, affecting thousands of employees across dozens of agencies. A lawsuit had been filed in the Northern District of California, AFGE vs. OMB, to prevent these layoffs. That suit was transferred to Judge Illston, who had been handling the related lawsuit (AFGE vs. Trump) around DOGE-related workforce reductions. Two days ago Illston issued a temporary restraining order to prevent these layoffs, and today she expanded the scope of that TRO.

Military in Cities. Shortly after my last post, a Trump-appointed federal judge in Oregon ruled against the administration’s efforts to sidestep her previous ruling (against the deployment of federalized California National Guard to Portland) by instead deploying federalized Texas National Guard to defend an ICE facility in Portland. Since then, there has been a 9th Circuit oral argument on the administration’s efforts to overturn Judge Immergut’s ruling. The 3-judge panel included two Trump appointees, and the oral argument seemed to go well for the government; however, 8 days have now passed with no ruling from the 9th Circuit.

Meanwhile in Chicago, a federal judge issued a temporary restraining order against the administration’s desire to federalize the Illinois National Guard to defend an ICE facility in the Chicago suburb of Broadview. Although this case started later than the Portland case, here the 7th Circuit has already issued its opinion upholding the TRO.

There is a federal statute that, among things, permits the President to federalize the National Guard if “there is a rebellion or danger of a rebellion against the authority of the Government of the United States,” in order to “suppress the rebellion.” As such a major issue in both Oregon v. Trump and Illinois v. Trump is whether the administration’s determination that there is the requisite “danger of a rebellion” in Portland and Chicago is subject to judicial review, and if so whether there actually is such danger at the present time. To that latter point, the unanimous per curiam opinion authored by the 3-judge 7th Circuit panel in Illinois v. Trump spoke eloquently:

“Political opposition is not rebellion. A protest does not become a rebellion merely because the protestors advocate for myriad legal or policy changes, are well organized, call for significant changes to the structure of the U.S. government, use civil disobedience as a form of protest, or exercise their Second Amendment right to carry firearms as the law currently allows. Nor does a protest become a rebellion merely because of sporadic and isolated incidents of unlawful activity or even violence committed by rogue participants in the protest. … The spirited, sustained, and occasionally violent actions of demonstrators in protest of the federal government’s immigration policies and actions, without more, does not give rise to a danger of rebellion against the government’s authority.”

War Against Anti-Corruption. Today President Trump commuted the sentence of former Republican Congressman George Santos. He had served less than 3 months of an 87-month sentence for fraud, after having pled guilty in August 2024.

Politicization of DOJ. In my last post I noted the recent departure of the U.S. District Attorney for the Eastern District of Virginia, apparently over his unwillingness to pursue cases against political enemies of President Trump. His replacement, after having indicted former FBI Director Comey on paper-thin charges of perjury, has now indicted New York Attorney General Letitia James on paper-thin charges of mortgage fraud. And we all know, thanks to a public Truth Social post that Trump made but apparently had intended as a private direct message to Attorney General Bondi, that these indictments were directed by the President.

More recently, charges of mishandling classified information have been brought against Trump’s former National Security Advisor, John Bolton. There may be more merit to the Bolton indictment than is present in the Comey or James indictments. Nevertheless, this action is pretty rich coming from the administration of a President who objected vociferously to the charges brought against him in the Mar-A-Lago documents case, the allegations from which appear more substantive than the allegations against Bolton.

Demonization of Political Opponents. Tomorrow is the 2nd scheduled series of “No Kings Day” protests against President Trump in communities throughout the country, following up on a successful day of protests four months ago. Republicans have attempted to prebut tomorrow’s protests by making ridiculous allegations about the participants. Speaker Johnson referred to the No Kings Day protests as “hate America rallies,” while the White House Press Secretary recently said that “the Democrat Party’s main constituency are made up of Hamas terrorists, illegal aliens and violent criminals.”

War on Free Press. Defense Secretary Hegseth recently announced a new series of rules that would apply to journalists embedded in the Pentagon. In response, almost all news organizations linked arms and turned in their Pentagon press passes, the only exception being ultra-right-wing TV channel One America News.

As I write this, we’re in the second day of the MLB Division Series (round-of-8). My beloved Blue Jays, the #1 overall seed in the American League, have pounded the favored Yankees in each of the first two games of their best-of-five series. I am starting to dream of a Blue Jays – Brewers World Series later this month, which would be so much fun. Elsewhere, my Broncos had a stunning come-from-behind win today at the undefeated Eagles, while my eldest son’s Illini had a nice win yesterday and are once again ranked in the top 20.

So, you might think I’d feel like all was well in world. But that’s not exactly how I feel these days. There’s just so much going awry, it’s basically impossible to keep track.

Recent developments in a number of areas about which I had been blogging:

Kimmel. In a rare piece of good news, public pressure got Disney to put Jimmy Kimmel’s show back on the air within a week of them having “indefinitely suspended” him over what were really rather mild comments about the Charlie Kirk assassination. A few days after that, the two groups of ABC affiliates who led the move against Kimmel relented and put his show back on their airwaves. There has been no new news that I’ve seen over the past couple of weeks about the alleged assassin’s motivations.

H-1B. Shortly after my last post, the administration clarified that the new $100,000 fee for H-1B visa applies only to new applications, and is a one-time rather than annual fee. The first lawsuit challenging the executive order, which appears to be captioned Global Nurse Force v. Trump, was filed on Friday in the Northern District of California.

Alien Enemies Act. The 5th Circuit voted to have an en banc rehearing of its recent decision in W.M.M. v. Trump, around whether the administration can assert that the activities of Venezuelan gang Tren de Aragua constitute an “invasion” for purposes of the Alien Enemies Act of 1798. A dissent argues that it would have been more appropriate to just let SCOTUS reach the merits of the issue as soon as possible, given that the 3-judge panel had released lengthy opinions covering both sides of the controversy. It is not yet clear when the 5th Circuit en banc will hear the case.

Military. Three different things to discuss here.

First, in a very unusual action, Secretary Hegseth summoned all U.S. generals around the world to come to a publicly announced meeting in Quantico, Virginia, for purposes of hearing speeches from both Hegseth and Trump in front of a Patton-esque flag. To the attendees’ credit, they reportedly remained stony-faced throughout, notwithstanding the overt political nature of some of the speakers’ comments. The most controversial part of Trump’s remarks was his suggestion that U.S. cities should be used as military training grounds.

Second, the administration has now made four separate military strikes against boats in the Southern Caribbean, having “now summarily killed 21 people it says were smuggling drugs as if they were not criminal suspects but enemy soldiers in a war zone” (per the NYTimes). The administration has reportedly argued to Congress that the U.S. is engaged in a “noninternational armed conflict” with certain drug cartels, justifying the military strikes. Legal pundits Marty Lederman and Ben Wittes each think that this legal argument is invalid, with Wittes going further to argue that the strikes are clearly criminal acts of murder under U.S. law. Not that Trump could ever be prosecuted for this, thanks to the SCOTUS ruling in Trump v. U.S.; but perhaps Hegseth and other officials could be, in time.

Finally, Trump continues to persist with his ambitions of sending military troops into Democratic-controlled cities, even when (unlike in Memphis) contrary to the wishes of the local governor. A week ago Trump wrote a social media post talking around “war-ravaged Portland,” much to the confusion of locals. He followed that up with an order federalizing 200 Oregon National Guard troops so that they could be sent into Portland. Local officials sued to block the move, receiving a court order preventing it. Now Trump has pivoted to deploying previously federalized California National Guard troops, to which Governor Newsom is expected to object. Meanwhile, Trump appears to be federalizing 300 Illinois National Guard troops for use in Chicago, against the wishes of Governor Pritzker.

Cook. In a rare shadow docket setback for the administration, SCOTUS has deferred the government’s application for a stay of an appellate court decision preventing Trump from firing Federal Reserve Governor Lisa Cook, instead indicating that the Court will hear oral argument in Trump v. Cook in January.

In a thematically related shadow docket action, SCOTUS recently granted the administration a stay in Trump v. Slaughter, a case about Trump’s firing in March of two FTC commissioners, and scheduled that case for oral argument in December 2025. At that point the Court is widely expected to formally overrule a relevant 1935 precedent, Humphrey’s Executioner. Kagan’s dissent, joined by the other two liberals, criticized the majority for using the shadow docket “to permit what our own precedent bars,” arguing instead that the stay should have been denied until such time as Humphrey’s is actually overruled.

New York Mayoral Race. With Mamdani consistently polling in the mid-40s in the four-way, first-past-the-post mayoral race in NYC, there had been speculation in recent weeks about trying to get Mayor Adams to drop out of the race. He did finally drop out, about a week ago. Even so, prediction markets are still assessing the young socialist’s likelihood of winning the race as being in the mid-80s.

Politicization of DOJ. A couple of weeks ago, the U.S. Attorney for the Eastern District of Virginia resigned under extreme pressure. It seems that his district had been investigating whether federal charges should be filed against former FBI Director James Comey, in connection with purported perjurious testimony Comey provided to Congress in late September of 2020. The 5-year statute of limitations for such charges was about to expire, and the U.S. Attorney had apparently concluded that no charges were warranted.

Trump apparently did not like that answer. Pressure was brought to bear, and that U.S. Attorney was replaced by a 36-year-old insurance lawyer with no prosecutorial experience, but who had been part of Trump’s legal team in the Mar-a-Lago documents case and more recently had served as a special assistant to the president. The new U.S. Attorney (who had never before been involved in a grand jury proceeding) promptly indicted Comey, days before the statute of limitations would have expired. His first court appearance will be later this week.

War Against DEI. This week the administration announced that $18 billion of federal funding for the Hudson Tunnel and Second Avenue Subway infrastructure projects in New York City were being put on hold, “to ensure funding is not flowing based on unconstitutional DEI principles.” Not to make Chicago feel left out, days later the administration put $2 billion of federal funding for the Red Line Extension project on hold “to ensure funding is not flowing based on race-based contracting.”

War Against Universities. Notwithstanding Harvard’s recent legal win, Trump asserted this week that a settlement with the university was imminent, suggesting that Harvard would pay $500 million. Days later, there has been no further news. Meanwhile, Governor Newsom suggested this week that California universities who enter into settlements with the federal government would see their state funding pulled.

Birthright Citizenship. Last week the administration petitioned SCOTUS for certiorari in Trump v. Washington, a case out of the 9th Circuit relating to the birthright citizenship executive order. By doing so, Solicitor General Sauer honored the promise he had made in the Trump v. CASA oral argument, namely that even if the administration keeps losing on this issue in each and every case, it would nonetheless seek certiorari in order to achieve a definitive nationwide answer to the controversy. Underscoring that point, days after the cert filing the administration lost a similar case in another circuit, this time the 1st Circuit.

Foreign Students and Speech. A Reagan-appointed district court judge recently ruled against the administration in a case, AAUP v. Rubio, arising out of various immigration-related actions the administration took in the spring with respect to foreign students for purportedly antisemitic speech. Summarizing the judge’s view of the case: “nothing in the text, history, or tradition of the First Amendment suggests that persons lawfully present here may be subject to adverse action based on their political speech, where that speech is primarily concerned with the actions of foreign nations with whom the United States is not at war and Congress has not made a specific determination that a specific organization threatens the violent overthrow of the government.”

Arizona By-Election. As expected, the daughter of recently deceased Democratic Representative Raul Grijalva easily won the by-election to replace her father. In principle she should provide the 218th vote for the discharge position that would force an up-or-down House vote on the release of the Epstein files. However, Speaker Johnson has repeatedly delayed the swearing-in of the newest Congresswoman. I wonder why.

Rescission. Basking in the success of his legislative rescission this summer, Trump recently attempted a so-called “pocket rescission” in which he informed Congress, less than 45 days before the end of the fiscal year, that he did not intend to spend a few billion worth of previously appropriated foreign aid funding. The legality of this type of action is questionable, and as such the pocket rescission announcement led to a SCOTUS shadow docket case called Department of State vs. AIDS Vaccine Advocacy Coalition. Predictably, at this point, the majority allowed the administration to proceed with its desired course of action (i.e., not spending the money), while taking pains to note that this was not a final ruling on the legality of that government action. It was Kagan’s turn to pen the dissent for the three liberals, writing the following in conclusion:

“[T]he standard for granting emergency relief is supposed to be stringent. The Executive has not come close to meeting it here. And the consequence of today’s grant is significant. I appreciate that the majority refrains from offering a definitive view of this dispute and the questions raised in it. But the effect of its ruling is to allow the Executive to cease obligating $4 billion in funds that Congress appropriated for foreign aid, and that will now never reach its intended recipients. Because that result conflicts with the separation of powers, I respectfully dissent.”

In addition to all of these ongoing items, we now have an important new topic: Government Shutdown.

Six months ago, a faction of moderate Democratic Senators had declined to endorse a government shutdown, perhaps fearful that a shutdown would allow Trump and his DOGE to do even more damage to the federal government than he was doing. The way things have gone since then, neither party seems particularly willing to cooperate with the other. Not that the Democrats have given a clear vision for what they seek to achieve from this shutdown, mind you, although they having been talking a lot about the Republican’s failure in OBBBA to extend the Biden-era increases to the ACA’s premium subsidies via advance premium tax credits.

At this point we’re only 5 days into the shutdown and the pain hasn’t really hit yet; we’ll see what happens, and who the populace blames.

My last post was written shortly after the assassination of Republican activist Charlie Kirk, but before any arrests had been made. Within 48 hours of the shooting, the alleged assassin was in custody. He is a 22-year-old white male, from a Republican Mormon family in Utah, who had dropped out of university after one semester and then enrolled in a trade school.

The alleged killer’s demographic profile did not exactly fit the template that the right wing was expecting, given their immediate reaction in the wake of the murder that the “radical left” were to blame. A viral tweet captured the moment: “Civil war cancelled due to shooter being demographically uncooperative.”

Several days later, the picture is still a little murky about the alleged killer’s politics and motivations. However, the emerging story from prosecutors is that he had become romantically involved with his roommate, a trans woman, and said he’d “had enough of [Kirk’s] hatred” towards trans individuals. There is no sign so far of any other parties being involved in this act of political violence.

Even so, there is legitimate worry in certain circles that the administration may use Kirk’s shooting as a pretext for repressing left-leaning organizations and voices. As an op-ed yesterday in The Guardian put it, “we must not let the shooting of Charlie Kirk become Trump’s Reichstag fire.” For his part, Trump yesterday asserted he would be designating antifa as a “terrorist organization,” which seems hard to do seeing as how antifa doesn’t actually exist.

On Monday night, late-night talk show host Jimmy Kimmel made the following comment in his monologue:

“We hit some new lows over the weekend with the MAGA Gang desperately trying to characterize this kid who murdered Charlie Kirk as anything other than one of them and doing everything they can to score political points from it.”

(This was, incidentally, the day before the court documents were filed asserting that the alleged killer’s motives may have been related to trans rights.)

Later that week, the Trump-appointed chair of the FCC accused Kimmel of “appearing to directly mislead the American public about a significant fact” and made comments threatening ABC’s broadcast license. To my tastes, the FCC chair’s comments misrepresent what Kimmel actually said. Kimmel did not say the alleged killer was a MAGAite; he said that conservatives were doing everything possible to paint him as not being a MAGAite, notwithstanding that he’s a 22-year-old white Mormon male from Utah raised in a conservative family.

Then yesterday, Disney-owned ABC announced that they were suspending Jimmy Kimmel’s late-night talk show indefinitely. ABC had previously agreed to pay $15 million towards Trump’s presidential library in order to settle a (possibly frivolous) defamation lawsuit; now, they have bent the knee further. Democrats are calling on the FCC chair to resign, as if that will happen.

So, the 1st Amendment is now under significant assault by the administration. Terrific… No statement yet from Kimmel; it will be interesting to see his reaction, which may well come in the form of one or more lawsuits.

In other news, on Monday the D.C. Circuit Court ruled 2-1 against Trump’s motion to lift the stay that a lower court had placed on his alleged firing “for cause” of Federal Reserve Governor Lisa Cook. The majority opinion ruled that Cook’s due process argument had merit, and therefore they did not need to (nor did they) reach the merits of her argument about the meaning of “for cause”. The dissenting judge, by contrast, opined that “for cause” could basically mean whatever the President wants it to mean, rather than the more limited range of potential “causes” outlined in Judge Cobb’s lower court opinion. Today Trump elevated the case to SCOTUS, so Trump v. Cook is now sitting on the shadow docket. In the meantime, the factual accuracy of the “mortgage fraud” allegations against Cook have been cast into doubt, while journalists have uncovered that Treasury Secretary Bessent appears to have once engaged in the exact same form of “mortgage fraud” conduct that underpins the allegations against Cook.

Finally, no federal troops are in Chicago yet, although the National Guard will imminently be deployed to Memphis for crime prevention purposes, with the support of Tennessee’s (Republican) governor.

It’s the 24th anniversary of 9/11 today. And it’s been quite a week, even if things have remained quiet in Chicago, which is where I feared the week’s emphasis would be after last weekend’s Chipocalyptic social media post.

On Monday we had another apparent 6-3 shadow docket decision from SCOTUS to overturn a lower court order aimed at preventing the government from immediately doing something that smells illegal, pending full resolution of the legal issues involved. This story is getting old.

This week’s case, Noem v. Vazquez Perdomo, involves racial profiling by ICE. There has recently been an apparent pattern of behavior in which ICE are stopping individuals in L.A. based solely on a combination of four factors — ethnicity, language/accent, location, and profession — without having any other reason to believe the individuals have violated immigration laws. A District Court judge in California issued an injunction preventing the government from acting so indiscriminately, and the 9th Circuit declined to overturn that injunction; but now, SCOTUS has overturned it.

Sotomayor wrote a dissenting opinion joined by the other two liberals, using the less polite phrase “I dissent” rather than the customary “I respectfully dissent.” The standout sentence from the dissent is: “We should not have to live in a country where the Government can seize anyone who looks Latino, speaks Spanish, and appears to work a low wage job.”

The majority offered no explanation for its ruling. However, Kavanaugh did pen a 10-page concurrence explaining his reasoning, although it was not joined by any of the conservatives, nor did it satisfy the liberals. Sotomayor writes: “[I]t is the Government’s burden to prove that it has reasonable suspicion to stop someone. The concurrence improperly shifts the burden onto an entire class of citizens to carry enough documentation to prove that they deserve to walk freely. The Constitution does not permit the creation of such a second-class citizenship status.”

Speaking of profiles, earlier this summer the WSJ had published an article alleging that Trump had written a curious poem for Jeffrey Epstein’s 50th birthday two decades ago, including a drawing of a naked woman and a signature in what would be the woman’s pubic region. Trump had vigorously denied this and sued the WSJ and Rupert Murdoch. Well, this week House Democrats released the picture, which is contained in a bound book prepared for that birthday celebration and recently provided to Congress by the Epstein estate. Trump again denied that the signature was his, upon which the media promptly found several other examples from that period of Trump using the very same signature style.

There continue to be efforts made in Congress to force the government to release more of the DOJ’s Epstein files. Representatives Massie (R-KY) and Khanna (D-CA) have collaborated on a discharge petition to force Speaker Johnson to call a vote on the matter. Yesterday a new Democratic representative from Virginia took office, thanks to this week’s by-election (in which the Democratic majority expanded from 67-33 in November to 75-25), and his election leaves the petition only one vote short. That vote should be provided in about two weeks, after an Arizona by-election in a safe Democratic seat occurs. Today Schumer tried to force the issue in the Senate, falling short 49-51; Hawley and Paul joined the Democrats, but Collins and Murkowski did not.

Federal Reserve Governor Lisa Cook received an district court injunction keeping her in office, notwithstanding Trump’s purported firing of her “for cause” based on alleged mortgage fraud transpiring before her appointed to the Fed. Per Judge Cobb’s ruling: “The best reading of the “for cause” provision is that the bases for removal of a member of the Board of Governors are limited to grounds concerning a Governor’s behavior in office and whether they have been faithfully and effectively executing their statutory duties. “For cause” thus does not contemplate removing an individual purely for conduct that occurred before they began in office.” Today Trump filed an emergency appeal with the D.C. Circuit, seeking to get her out of office before the Fed’s two-day meeting next week, at which the Fed is widely expected to begin lowering interest rates.

But, overshadowing all of this news as well as the 9/11 anniversary was the shocking assassination yesterday afternoon of Charlie Kirk, the Republican activist who was almost certainly the best-known U.S. political figure born in the 1990s (noting that AOC was born in late 1989). Kirk was killed in the middle of an outdoor speech he was giving at Utah Valley University, shot in the neck by a single bullet fired from 200 yards away. It has been over 24 hours at this point since the assassination and the shooter has yet to be apprehended, although today authorities released the picture of a person of interest. Notwithstanding that the profile of the shooter was completely unknown, Trump swiftly blamed the “radical left” while recounting a list of political violence that failed to include incidents perpetrated by right-leaning individuals, such as this summer’s assassinations in Minnesota.

While the first half of the week contained some promising legal news, there have been several unsettling developments as the week progressed.

On Friday, Trump signed an executive order entitled “Restoring the United States Department of War”. We’d had a Department of War from 1789 through 1947, at which point it was renamed the Department of the Army; then in 1949 the Departments of Army, Navy, and Air Force were in effect combined into the modern Department of Defense. It would apparently take a statute to formally rename the Department of Defense, but Trump’s order authorizes the use of the terms Department of War and Secretary of War (for Hegseth) in “official correspondence, public communications, ceremonial contexts, and non-statutory documents within the executive branch.”

Earlier in the week, U.S. military forces carried out an air strike on a boat in the Caribbean, ostensibly because the boat was involved in drug trafficking by the Venezuelan “terrorist organization” Tren de Aragua. The legality of this strike is doubtful, although the President’s formal letter to Congress about the strike suggested the strike was justifiable on grounds of national self-defense, even though the 11 people killed in the attack would appear to be civilians rather than soldiers. Some are wondering if Trump is setting the stage for a war against Venezuela, perhaps in Wag The Dog fashion to distract from other woes.

Then yesterday, Trump made a social media post with an AI-generated picture that is beyond belief. The background is Chicago, burning and with helicopters flying over it; the caption reads “Chipocalypse Now”, in the font associated with the 1979 war movie Apocalypse Now; and the picture shows Trump’s face superimposed over the body & clothes of the officer played by Robert Duvall in that film. The text in the social media post reads: ” ‘I love the smell of deportations in the morning…’ Chicago about to find out why it’s called the Department of WAR.” I have no words.

President Obama was particularly fond of a Martin Luther King Jr. quote about the arc of the moral universe bending towards justice. It has been a pretty good week in that regards, for a change.

The week started on Tuesday with Judge Breyer’s decision in Newsom v. Trump, the case in which the California Governor argued that the President’s use, in L.A. starting in June, of the Marines and the federalized National Guard to execute domestic law was a violation of the Posse Comitatus Act. In Breyer’s ruling, he agrees that the Posse Comitatus Act was violated. He also granted injunctive relief (currently stayed until September 12th), along the following lines:

“Defendants are enjoined from deploying, ordering, instructing, training, or using the National Guard currently deployed in California, and any military troops heretofore deployed in California, to execute the laws, including but not limited to engaging in arrests, apprehensions, searches, seizures, security patrols, traffic control, crowd control, riot control, evidence collection, interrogation, or acting as informants, unless and until Defendants satisfy the requirements of a valid constitutional or statutory exception, as defined herein, to the Posse Comitatus Act.”

Consistent with the new world order frowning on universal injunctions, Breyer’s injunctive relief is narrowly tailored to California, although Breyer noted in his ruling the President’s threats to send National Guard troops into Oakland and San Francisco, underscoring the need for such relief in parts of the state beyond L.A. Having said that, one imagines his opinion will carry some weight if and when officials in, say, Illinois are faced with federal troops sent in to carry out immigration raids.

Later that same day, the 5th Circuit issued a substantive (as opposed to due process) ruling in an Alien Enemies Act case relating to the Venezuelan gang Tren de Aragua. Many observers had felt that, the 5th being the most conservative of the circuit courts, there was a greater likelihood that the administration might receive a favorable ruling in this district on its interpretation of the 1798 statute. However, in the case once called A.A.R.P. v. Trump but now called W.M.M. v. Trump, by a 2-1 majority the panel ruled that “we find no invasion or predatory incursion,” and thus enjoined the government from relying on the AEA to deport members of a class of affected individuals. Judge Oldham, perhaps auditioning for a SCOTUS appointment under Trump, wrote a 130-page opinion with the unusual ending “I respectfully but emphatically dissent.”

Then yesterday, Judge Burroughs gave Harvard University a thorough legal victory in Harvard v. HHS, contesting the administration’s actions in April and May to strip the university of roughly $2 billion in federal research funding, purportedly due to concerns about Harvard’s actions to combat antisemitism. The summary of paragraph of her ruling reads:

“Defendants and the President are right to combat antisemitism and to use all lawful means to do so. Harvard was wrong to tolerate hateful behavior for as long as it did. The record here, however, does not reflect that fighting antisemitism was Defendants’ true aim in acting against Harvard and, even if it were, combatting antisemitism cannot be accomplished on the back of the First Amendment. We must fight against antisemitism, but we equally need to protect our rights, including our right to free speech, and neither goal should nor needs to be sacrificed on the altar of the other. Harvard is currently, even if belatedly, taking steps it needs to take to combat antisemitism and seems willing to do even more if need be. Now it is the job of the courts to similarly step up, to act to safeguard academic freedom and freedom of speech as required by the Constitution, and to ensure that important research is not improperly subjected to arbitrary and procedurally infirm grant terminations, even if doing so risks the wrath of a government committed to its agenda no matter the cost.”

(“Committed to its agenda no matter the cost” will likely end up being the epitaph for this administration, TACO notwithstanding.)

Perhaps the most interesting part of Burroughs’ opinion is found in a footnote. In order to explain that context of that footnote, however, I need to go back a couple of weeks and mention an August SCOTUS shadow docket decision that I hadn’t previously mentioned, NIH v. AHPA.

That case arose out of the administration’s termination of a large number of NIH grants to researchers, for which the 1st Circuit had provided injunctive relief. Consistent with most of its other recent shadow docket actions, SCOTUS has now lifted the lower court stay, allowing the grant terminations to take effect while litigation on their legality continues, while at the same time creating an odd two-track process for that ongoing litigation. In NIH v. AHPA the Court splintered more than it usually does, in an unusual 4-1-4 configuration: Roberts and the 3 liberals would have kept the stay in place; the 3 arch-conservatives and Kavanaugh would have lifted it entirely; and as such Barrett’s opinion, joined by nobody else, ends up controlling the situation.

But Gorsuch wrote a scathing concurrence, the first sentence of which reads: “Lower court judges may sometimes disagree with this Court’s decisions, but they are never free to defy them.” In Gorsuch’s mind, the outcome of this case was pre-ordained by a 5-4 shadow docket decision from early April, in Dept. of Education v. California, and hence the lower court’s ruling was contrary to established SCOTUS precedent. (Never mind that in Roberts’ dissent, joined by the 3 liberals, he believes that this case is in fact distinguishable from the earlier case.)

With that as background, here is Burroughs’ heroic footnote:

“[T]he Supreme Court’s recent emergency docket rulings have not been a model of clarity, and have left many issues unresolved. … This Court understands, of course, that the Supreme Court, like the district courts, are trying to resolve these issues quickly, often on an emergency basis, and that the issues are complex and evolving. … Given this, however, the Court respectfully submits that it is unhelpful and unnecessary to criticize district courts for “defy[ing]” the Supreme Court when they are working to find the right answer in a rapidly evolving doctrinal landscape, where they must grapple with both existing precedent and interim guidance from the Supreme Court that appears to set that precedent aside without much explanation or consensus.”

Of course, there will be appeals in all these cases, so perhaps the arc will swing back over time even if, for the moment, justice is served.

And speaking of appeals, the administration has filed its petition for certiorari in what is now styled Trump v. V.O.S. Selections, the IEEPA tariffs case decided last week by the Federal Circuit. Alongside the petition, the government filed a motion — with respondents’ acquiescence — requesting “expedited consideration of the merits to the maximum extent feasible” and proposing that oral argument take place in the first week of November, which is lightning fast by SCOTUS standards. Assuming SCOTUS agrees, that should vault this case to the top of the list of noteworthy SCOTUS cases for the October 2026 term.

Finally, in political news Senator Ernst (R-IA) has announced that she will not seek re-election in 2026. It is a sad commentary on our politics when the Iowa Senator born in 1970 is seeking to retire from public life while the Iowa Senator born in 1933 chose to run for an 8th term in 2022 and hasn’t ruled out running again in 2028. This could put another Senate seat in play next year, with Democratic hopes in Iowa bolstered by a recent State Senate by-election in which the Democrats won a seat 55-45 in a district that went 55-44 for Trump last November.