Some days, there’s just so much news…

A few minutes after I clicked ‘publish’ on the previous post, news broke that the Court of International Trade ruled, in a case I previously mentioned captioned V.O.S. Selections vs. U.S., that none of Trump’s tariffs are a lawful exercise of Presidential powers under the International Emergency Economic Powers Act of 1977.

The 3-0 ruling in V.O.S. Selections breaks the tariffs into two types: the “Trafficking Tariffs”, announced against Canada and China and Mexico in February and March; and the “Worldwide and Retaliatory Tariffs,” announced on ‘Liberation Day’ in early April and thereafter.

With respect to the Worldwide and Retaliatory Tariffs, the court ruled that they “do not comply with the limitations Congress imposed upon the President’s power to respond to balance-of-payments deficits. The President’s assertion of tariff-making authority in the instant case, unbounded as it is by any limitation in duration or scope, exceeds any tariff authority delegated to the President under IEEPA. The Worldwide and Retaliatory tariffs are thus ultra vires and contrary to law.”

With respect to the Trafficking Tariffs, IEEPA empowers the President to take actions to “deal with” an unusual and extraordinary threat, and the court ruled that these tariffs do not “deal with” the threat posed by fentanyl trafficking because there is no direct link between the tariffs and the emergency . Quoting from the opinion: “If “deal with” can mean “impose a burden until someone else deals with,” then everything is permitted. It means a President may use IEEPA to take whatever actions he chooses simply by declaring them “pressure” or “leverage” tactics that will elicit a third party’s response to an unconnected “threat.” Surely this is not what Congress meant when it clarified that IEEPA powers “may not be exercised for any other purpose” than to “deal with” a threat.”

The government will of course appeal, and appeals from this particular court go to the Federal Circuit Court of Appeals. We shall see how rapidly this court case progresses.

In other late-breaking news today, Secretary of State Rubio issued a two-sentence statement saying that the government will take action to “aggressively revoke visas for Chinese students, including those…studying in critical fields,” as well as “enhance scrutiny of all future visa applications” from China and Hong Kong. This comes in the wake of action the previous day to stop scheduling new student visa interviews while the government rethinks its approach to vetting applicants’ social media postings.

Also tonight, Trump announced a puzzling sentence commutation of 74-year-old Larry Hoover, a notorious Chicago gang leader and drug kingpin. Hoover was already serving a 150-year state sentence for a 1973 murder conviction when, in the 1990s, he was sentenced to life on federal racketeering charges for running the Gangster Disciples from prison. As such, while Hoover may soon be released from the federal supermax facility, Trump’s commutation doesn’t impact his state conviction and as such he may remain behind bars. Rapper Kanye West, a vocal supporter of Trump, had argued for Hoover’s clemency with Trump as far back as 2018.

Something I’d not mentioned previously is Trump’s ambition to build a “Golden Dome” missile defense system — a modern-day version of Reagan’s proposed Strategic Defense Initiative, which was decades away from technological feasibility. Trump thinks this can be built by the end of his term, for $175 billion. On the other hand, he appears to need Canadian cooperation, not unlike what Canada has historically provided for NORAD, in order to build it. And, as has been on the front of my mind this year, U.S.-Canada relations are in a very delicate state thanks to Trump’s frequent “51st state” comments.

Trump played the “51st state” card again yesterday in a social media post, suggesting that while an independent Canada would need to pony up $61 billion to cover a portion of the Golden Dome costs, Canada would get it for free if annexed by the U.S. Perhaps the best-case scenario is that “Canada will pay for the Golden Dome” becomes to Trump 2.0 what “Mexico will pay for the wall” was to Trump 1.0. Prime Minister Carney’s office responded today with a statement that “the Prime Minister has been clear at every opportunity, including in his conversations with President Trump, that Canada is an independent, sovereign nation, and it will remain one.”

Speaking of Canadians, one of my favorite political writers, David Frum, has a new piece in The Atlantic called “The Trump Presidency’s World-Historical Heist.” After reciting a litany of early Trump 2.0 corruption initiatives, including some I haven’t mentioned, Frum observes that:

“Nothing like this has been attempted or even imagined in the history of the American presidency. Throw away the history books; discard feeble comparisons to scandals of the past. There is no analogy with any previous action by any past president. The brazenness of the self-enrichment resembles nothing seen in any earlier White House. This is American corruption on the scale of a post-Soviet republic or a postcolonial African dictatorship.”

After backing that statement up via a walk through past examples of Presidential corruption, Frum concludes his article with the following:

“The emoluments clause depends on congressional enforcement, backed by the ultimate sanction of impeachment and removal. And if Congress does not enforce it? Then public opinion remains the only sanction. Cynics deny that public opinion matters, but Trump is not one of them. His belief in how much popular disgust for corruption matters is precisely why he and his supporters worked so hard to promote dark legends about rivals: the Bushes, the Clintons, the Bidens. Those stories were not based on nothing, but the closer anyone looked, the less there was to see. The Trump story, by contrast, is almost too big to see, too upsetting to confront. If we faced it, we’d have to do something—something proportional to the scandal of the most flagrant self-enrichment by a politician that this country, or any other, has seen in modern times.”

One of my other favorite chroniclers of our time, appellate lawyer Adam Unikowsky, wrote a comprehensive article today talking about the A.A.R.P. case involving the Alien Enemies Act. I’ve been following this situation somewhat closely, and yet much of this article was new to me.

In an early April case, Trump v. J.G.G., SCOTUS reinforced that the people the administration seeks to remove under the AEA have a right to due process: “AEA detainees must receive notice after the date of this order that they are subject to removal under the Act. The notice must be afforded within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs.” Here Unikowsky describes how the administration responded to the decision in J.G.G.:

“And so the government quickly devised a new notice protocol to comply with J.G.G. … Much of this post will describe a dramatic series of events and filings on April 18 that culminated in a Supreme Court injunction. But the government didn’t tell the courts or the detainees’ lawyers about this new protocol until after the events of April 18. The government wrote the new protocol and immediately started implementing it without telling anyone what it was. As far as I can tell, the government first disclosed the new protocol in a federal court filing on April 23—well after the government attempted to start deporting people pursuant to the new protocol. Moreover, even on April 23, the government attempted to file this new protocol under seal, opposing its public disclosure…”

This new protocol involves giving a detainee a form advising them that they have been determined to be a TdA member and will be deported, and allowing them to make one phone call. The protocol also says that if the detainee doesn’t express a desire within 12 hours of receiving the form to submit a habeas petition then the detainee can be immediately deported, and that even if that desire is expressed then the detainee only has 24 hours to actually submit the habeas petition before being deported. But, the form doesn’t tell the detainee that they have the right to file a habeas petition! Nor does the detainee know that they only have 24 hours to get the petition filed. Nor was the form also provided to the lawyers of those detainees who already had immigration lawyers. Nor was the ACLU, who actively wants to provide legal representation to these detainees, given a list of the detainees’ names or allowed to visit the facility without a specific name of the detainee they wanted to meet with. An illusion of due process, rather than actual due process.

Unikowsky ends his lengthy article with the following passage:

“I usually wince when people say that a Supreme Court decision delivered “justice.” In almost all Supreme Court cases, both parties have a claim to the mantle of justice, and the Supreme Court’s decision reflects nothing more than the fact that the winning party had stronger legal arguments. Almost all, but not all. From time to time, the Supreme Court finds a way to deliver justice. In A.A.R.P., the Supreme Court delivered justice.”

My last topic for today is something I talked about on multiple occasions last year: TMTG, the Trump-owned company that owns Truth Social and trades under the ticker DJT. As a company, it remains unprofitable, having reported $31.7 million of losses for 1st quarter 2025 on $0.8 million of revenue. As a stock, it has continued to support a market capitalization in the mid single billions, with its stock price having briefly gone above $40 in the days before the inauguration and below $20 during the April bear market.

But TMTG has other ambitions. Last month, TMTG and Crypto.com signed an agreement to bring thematic exchange-traded funds to market, under the Truth.fi brand. And this week, TMTG announced that it would raise $2.5 billion of new financing and use the proceeds to buy and hold bitcoin, making TMTG the latest in a series of what financial columnist Matt Levine refers to a “crypto treasury companies”.

Levine has noted repeatedly in his newsletter that crypto treasury companies as a group — the most famous of which is the former software company MicroStrategy Inc., now known simply as Strategy Inc. — have seemingly found a way to print money: When they raise $X to buy a crypto asset, their market cap increases by a multiple of $X. This happened earlier this week to a moribund public company called SharpLink, who announced it would receive $425 million of new financing and buy Ethereum with it, and saw its market cap increase by $2.5 billion.

So, what happened when TMTG did the same thing? Its stock went down by 10%. Levine has a theory:

“[T]he obvious appeal of the crypto treasury strategy for most small US public companies is probably along the lines of “nobody is paying attention to our tiny company, but if we announce we’re buying a big pot of crypto, retail traders will get excited and overpay for our stock.” And then that doesn’t work for Trump Media because, you know, retail traders already got excited and overpaid for its stock. There is only so much attention that anyone can pay to Trump Media, and just doing more stuff — even otherwise pretty reliable stuff like announcing a Bitcoin treasury strategy — is not really additive. The pool of retail investors who could get excited about Trump Media stock, but were not already excited about Trump Media stock, is small, and the Bitcoin treasury pivot doesn’t seem to have found any more of them.”

Today brought two further instances of Trump using his pardon power on politically sympathetic people who had been convicted of white-collar crimes.

First, Trump pardoned a man named Paul Walczak who was sentenced last month to 18 months in prison and ordered to pay $4.3 million in restitution for tax crimes, relating largely to withholding Social Security taxes from his employees’ pay but then keeping the money. I’m sure it is pure coincidence that three weeks ago Walczak’s mother, a major Trump supporter, attended a $1 million per head dinner for super-PAC MAGA Inc. at which Trump was the keynote speaker.

Next, Trump pardoned reality TV stars Todd & Julie Chrisley, who were convicted in 2022 of bank fraud and tax evasion. Their daughter Savannah was a speaker at the 2024 RNC.

I haven’t talked much yet about Trump’s war on BigLaw, which is a subset of the retribution theme. Trump issued several executive orders targeting specific major law firms, ones having some connection or other to various legal actions taken against him in recent year. Some BigLaw firms, most notably Paul Weiss, negotiated with the administration to get the exeucitve order rescinded. Others have sued.

And, they’ve been winning. In early May a federal judge permanently enjoined the administration from enforcing its executive order against Perkins Coie; late last week a different federal judge did the same with respect to an executive order against Jenner & Block; and today a third federal judge declared that the executive order against WilmerHale was unconstitutional. Of course, one imagines there will be appeals.

In political news, Sen. Tuberville (R-AL) announced today that one term was enough and, instead of running for re-election in 2026, he will run for Governor of Alabama (the Republican incumbent being term-limited). I look forward to the eventual departure of the Senate’s least competent member. Also, another poll shows Rep. Ocasio Cortez as a surprisingly heavy favorite — this time, 54-33 — to unseat Sen. Schumer in a hypothetical Democratic primary (although it appears this poll only surveyed Democrats in New York City rather than statewide).

Things have been relatively quiet on the tariff front in recent days, but this morning Trump brought tariff policy back to the front burner with two different announcements. First, he announced his intent to impose a 50% tariff on the E.U. effective June 1st. Second, Trump first talked about imposing a 25% tariff specifically on Apple iPhones (in reaction to reports that Apple may be seeking to move production from China to India), and then later in the day clarified that this would apply to Samsung and other phone manufacturers as well, starting as soon as late June.

I neglected to mention in my catch-up post that a few days ago Moody’s became the third of the three major bond rating agencies to downgrade the U.S. from AAA to the next-highest rating, citing the likelihood that “current fiscal proposals under consideration” (i.e., OBBBA) will lead to expanded budget deficits. In reaction the 30-year Treasury yield, which was below 4% as recently as September 2024, went above 5% for the first time in the second Trump presidency.

Yesterday, SCOTUS took action in a shadow docket case called Trump v. Wilcox, which emanated from actions Trump took to remove–without cause–a member of the National Labor Relations Board and a member of the Merit Systems Protection Board, notwithstanding that there are statutes saying the President can only make such removals with cause. Many conservatives believe that such statutes are an unconstitutional restriction on the power of the executive. While the existing SCOTUS precedent from 1935, a case called Humphrey’s Executor, would suggest such removals are unconstitutional, that precedent has been weakened in various ways by SCOTUS in recent years but not yet overruled. As such, the removed board members were able to get lower courts to overturn their removals, appealing to stare decesis; Trump brought emergency action to SCOTUS to get those lower court actions reversed, pending full adjudication of the merits.

And Trump got the emergency relief he sought, in what appears to be a 6-3 decision, lifting a stay while the D.C. Circuit consider Trump’s appeals. Kagan wrote a powerful dissent, joined by the other two liberals. In determining that emergency relief was warranted, the unsigned majority opinion asserts that “the Government faces greater risk of harm from an order allowing a removed officer to continue exercising the executive power than a wrongfully removed officer faces from being unable to perform her statutory duty.” Kagan says the majority got this exactly backwards: “[T]he relevant interest is not the “wrongfully removed officer[s’],” but rather Congress’s and, more broadly, the public’s. What matters, in other words, is not that Wilcox and Harris would love to keep serving in their nifty jobs. What matters instead is that Congress provided for them to serve their full terms, protected from a President’s desire to substitute his political allies.”

One of the reasons why this case has been of significant interest to observers is that if the President can remove members of the NLRB or MSPB, then does it follow the President could remove the Chair of the Federal Reserve Board? Here the unsigned majority opinion says no, on the grounds that “[t]he Federal Reserve is a uniquely structured, quasi-private entity that follows in the distinct historical tradition of the First and Second Banks of the United States.” While empathetic to the majority’s deserve to avoid roiling the markets, Kagan calls B.S., concluding that “one way of making new law on the emergency docket (the deprecation of Humphrey’s) turns out to require yet another (the creation of a bespoke Federal Reserve exception).”

I didn’t make blogging a priority this week. Catching up on recent events in some stories I’d recently addressed, and then later today I’ll hopefully have a new post covering some more recent news issues.

• OBBBA. The Republican House managed to get their big beautiful tax bill adopted, overcoming last week’s hiccup in the Budget Committee. The Budget Committee met again Sunday night and the 4 previously dissenting budget hawks were persuaded to switch their votes from no to present, allowing the bill to move out of committee by a single vote. Two main types of amendments were made to the bill this week: a modest increase in the SALT deduction from $30,000 to $40,000, and with the phase-out now commencing at $500,000 instead of $400,000; and an acceleration in the timing of some of the bill’s Medicaid cuts. The combination of these changes got enough of Speaker Johnson’s left and right flanks in line to allow the final bill to pass, after a marathon all-night session, by a single vote: 215-214. If Rep. Connolly (D-VA) had not died of cancer earlier in the week, and if two safe Democratic seats weren’t already vacant due to earlier deaths, I do wonder if Johnson could have squeezed out an additional vote. The ball is now in the Senate’s court, where Majority Leader Thune similarly has to find a balance between his right (Paul, Johnson), left (Collins, Murkowski), and quixotically populist (Hawley) flanks.

• MAGA Accounts. One of the minor changes made this week to OBBBA is that the new savings vehicle for children was renamed from “MAGA account” to “Trump account”. Having said that, the new vehicle is not particularly appealing, with one think tank economist quoted as saying “realistically, this is the sixth or seventh best tax-free savings account option.” Its main selling feature is that OBBBA would seed these Trump accounts with a $1,000 deposit, but only for children born between 2025 and 2029.

• Trump v. CASA. No news from SCOTUS in the 7 days since the oral arguments in the birthright citizenship case. While on some level that is not surprising, it does seem to suggest that SCOTUS is not inclined to take the potential path of calling for additional briefing on the merits issue. Of course, Kavanaugh’s solo concurrence in A.A.R.P II, released the day after the Trump v. CASA oral argument, strongly suggested that a majority of the Court was not temperamentally inclined to turn itself into a court of first review on merits issues. I did read an interesting analysis this week, which unfortunately right now I cannot locate, noting that SG Sauer consistently talked about how the administration would acknowledge a SCOTUS ruling on the merits as constituting binding nationwide precedent, but that this is qualitatively different than saying that SCOTUS can overturn the order. As such it appears Sauer’s view of the world is that no one in the judiciary — not even SCOTUS — can enjoin the administration from implementing an order. Instead, SCOTUS can make it clear to all that the order is unconstitutional, but the executive could still take actions in accordance with that order, forcing people to sue in order to get relief from the unconstitutional order. What a system.

• Air Farce One. This week Trump officially accepted the offered gift from the Qatari government of a luxury 747, which Trump intends to have the Pentagon refit into his Air Force One. There has been widespread criticism of this from both sides of the political spectrum; in a recent poll, 62% of Americans (and 40% of Republicans) said the gift “raises ethical concerns about corruption.” In other corruption news, last night was the private dinner with Trump for large purchasers of his memecoin; the invite list has not been released but is believed to consist predominantly of foreigners.

• The War on Harvard. Finally, yesterday afternoon DHS Secretary Noem took the administration’s war against Harvard University to another level, telling the university that she has withdrawn its ability to enroll international students. If this action were to stand, then Harvard will not be allowed to have any students on F-1 or J-1 visas for the 2025-26 school year, forcing any continuing or new students who require those visas to find a different school. Harvard is, naturally, suing.

Over the course of the week, the House has been going through the often symbolic process of having various Committees approve different components of what will eventually become a massive budget reconciliation bill, so that the Budget Committee can approve the omnibus bill and send it to the full House. The intent was for Budget Committee approval to occur today, thus teeing things up for the full House to pass a bill and send it on to the Senate prior to the Memorial Day weekend.

However things took an unexpected turn today, as the vote in the Budget Committee failed, with four conservative Republicans voting against it. The bill, officially known for now as the One Big Beautiful Bill Act (OBBBA), combines the tax bill coming out of Ways & Means with various other bills directing spending cuts, most prominently with respect to Medicaid. The conservatives’ objection is that OBBBA doesn’t do enough to trim spending. As an example, while they support OBBBA’s addition of an 80-hour-per-month “community engagement” (i.e., work or community service) requirement for otherwise eligible childless adults to get Medicaid coverage, the dissenters criticize the fact that (for political reasons, presumably) OBBBA doesn’t implement that change until 2029.

As such there is now talk of another Budget Committee vote on Sunday night, in order to try and get things back on track. But keep in mind that once OBBBA makes it to the full House, there is still the potential that moderate Republicans will revolt over the approach taken to the SALT deduction; and once the bill makes it to the Senate, there is the potential that Senator Hawley and other Republicans will object to the magnitude of Medicaid cuts. On the other hand, with the TCJA’s tax cuts expiring after 2025, there is great pressure on the Republicans to do something they deem constructive, given their unified control in Washington.

Moving back to the legal world, SCOTUS issued an opinion today in a case that came up through the shadow docket and that relates to a controversial Trump executive order–but it wasn’t the case we discussed yesterday about birthright citizenship. Instead, today’s decision is the second one issued by SCOTUS in a case with the confusing caption of A.A.R.P. v. Trump, where here “A.A.R.P.” refers not to the advocacy association for retirees but rather the initials of a Venezuelan individual currently being detained by ICE.

The underlying issue in A.A.R.P. v. Trump relates to a March 2025 proclamation by Trump declaring that a Venezuelan gang, Tren de Aragua (TdA), “is perpetrating, attempting, and threatening an invasion or predatory incursion against the territory of the United States [and] is undertaking hostile actions and conducting irregular warfare against the territory of the United States both directly and at the direction, clandestine or otherwise, of the Maduro regime in Venezuela.” By characterizing TdA’s activities in the U.S. as an “invasion” taking place “at the direction” of the Venezuelan government, Trump is asserting that TdA members present in the U.S. are “alien enemies” as defined by the Alien Enemies Act of 1798 (AEA). This is relevant because the AEA authorizes the apprehension and removal of “alien enemies” (assuming they are at least 14).

As a result of the proclamation, the administration has been rounding up and detaining suspected TdA members, and has already managed to deport some of the detainees to El Salvador, where they are imprisoned pursuant to a deal that Trump struck with the El Salvadoran government. Reportedly, they have been using a scoring checklist, which includes various types of tattoos that purportedly signal connections to TdA, and concluding that an individual is putatively a TdA member if they score high enough on the checklist. This has led to accusations that some of the detainees identified as TdA members actually have no ties to TdA.

This situation raises a host of issues. First and foremost is the question of whether Trump’s proclamation has any basis in fact: Should TdA members in the U.S. be treated as “alien enemies”–or, put differently, does TdA’s activity in the U.S. constitute an “invasion or predatory incursion” in the sense of the AEA? This appears to be extremely questionable, although the administration is adamant that the judiciary should have no role in second-guessing the executive’s foreign policy judgment to declare what does or does not constitute an “invasion” for AEA purposes. But there is also the question of due process: To the extent an individual has been identified by the government as an alien enemy and the government wishes to remove that individual from the U.S., what notice does the alien need to receive and what ability does the alien have to challenge the government’s determination prior to removal?

The A.A.R.P. v. Trump case has its origins about a month ago, when the ACLU became aware that preparations were being made to deport a set of Venezuelan detainees from Texas to El Salvador. In a procedurally extraordinary state of events, the case went from district court to the 5th Circuit to SCOTUS within 24 hours, resulting ultimately in a 7-2 SCOTUS order issued shortly before 1am on a Saturday morning. That order, which we’ll call A.A.R.P. I, directed the government to not deport any of the potentially impacted individuals until further notice. Reportedly, there were Venezuelan detainees in a bus on its way to an airport at the time SCOTUS issued its order, underscoring the need for extreme speed here. (In an earlier similar ACLU case, J.G.G. v. Trump, the government got planes to El Salvador into the air before a federal judge was able to enjoin the government from deporting the plaintiffs.)

Today’s SCOTUS opinion, which we’ll call A.A.R.P. II, also appears to have been 7-2 (the dissenters in both cases having been, perhaps predictably, Alito and Thomas), and grants the plaintiff’s desired injunction to prevent their deportation pending further legal proceedings. But just to be clear, at this stage the legal issues at hand involve the second issue above–due process around the notice that needs to be given before removal–and not the core issue of whether TdA is really “invading” the U.S. Quoting from today’s unsigned opinion:

“To be clear, we decide today only that the detainees are entitled to more notice than was given on April 18, and we grant temporary injunctive relief to preserve our jurisdiction while the question of what notice is due is adjudicated. We did not on April 19—and do not now—address the underlying merits of the parties’ claims regarding the legality of removals under the AEA. We recognize the significance of the Government’s national security interests as well as the necessity that such interests be pursued in a manner consistent with the Constitution. In light of the foregoing, lower courts should address AEA cases expeditiously.”

To that end, SCOTUS remanded the case to the 5th Circuit with fairly specific instructions as to what legal issues that appellate court ought to address, before the case inevitably returns to SCOTUS. One justice, Kavanaugh, wrote a concurrence suggesting that SCOTUS ought to have taken more direct action:

“The circumstances call for a prompt and final resolution, which likely can be provided only by this Court. At this juncture, I would prefer not to remand to the lower courts and further put off this Court’s final resolution of the critical legal issues. Rather, consistent with the Executive Branch’s request for expedition—and as the detainees themselves urge—I would grant certiorari, order prompt briefing, hold oral argument soon thereafter, and then resolve the legal issues.”

I’ve commented on multiple occasions before that one of the difficulties involved in trying to predict SCOTUS actions is the information asymmetry caused by the fact that the members of the Court know what positions they have taken on cases for which the opinions are not yet final and public. In particular, it will be interesting to see whether pundits’ views of what SCOTUS is likely to do in Trump v. CASA shift somewhat now that we know what SCOTUS has done in A.A.R.P. II.

Today’s news was dominated by the oral arguments at SCOTUS in Trump v. CASA, in which the administration is challenging the universal injunctions that three federal district courts have issued preventing it from implementing a new executive order re-interpreting the scope of birthright citizenship.

I had strong deja vu vibes today, taking me back a little more than a year ago to the SCOTUS oral arguments in the presidential immunity case, Trump v. U.S. For one thing, in both that case and today’s case the plaintiff was represented by the same advocate – John Sauer, who a year ago was acting as Trump’s personal attorney but today is the Solicitor General. For another, in both cases Sauer’s arguments are advancing a structural view of how the law ought to work that is somewhat contrary to the established understanding in effect for decades. And, as in last year’s case, Sauer went with a maximalist argument, opining in this case that so-called “universal injunctions” — the practice whereby a district court can enjoin the administration’s ability to implement a particular policy — are contrary to the role imagined by Article III of the Constitution for the federal judiciary, because of their impact on people who are not parties to the lawsuit.

And to be sure, universal injunctions have become far more common in recent years and, when coupled with forum-shopping, have caused great consternation among both political parties (albeit at different times). It is not unreasonable for SCOTUS to want to step in and provide some clarity on whether, and if so under what conditions, injunctions of this type are appropriate.

However this case is a somewhat odd vehicle for that intellectual debate, given that the executive order itself is in clear conflict with, per Justice Sotomayor’s reckoning today, four different SCOTUS precedents. If there is any merit in the concept of a universal injunction, it is likely in this type of situation, so as to prevent an administration from continuing to do things that are (as one of the judges below put it in this case) “blatantly unconstitutional”. Which is not to say that the administration doesn’t have the right to try and get those adverse precedents overturned; but shouldn’t they be bound by them in the interim?

The problem as many people (myself included) see it is that a world without universal injunctions appears to be a world in which an administration can choose to act in violation of the law for far longer than makes sense in a system dedicated to the rule of law. Justice Kagan today:

“Let’s just assume you’re dead wrong [on the merits]. How do we get to that result? Does every single person that iis affected by this EO have to bring their own suit? Are there alternatives? How long does it take? How do we get to the result that there is a single rule of citizenship that is…the rule that we’ve historically applied rather than the rule that the EO would have us do?”

Indeed, Kagan later pointed out that in this particular situation, there was no guarantee that the usual adversarial system would ever generate a ruling on the merits from SCOTUS that would impose a uniform rule:

“[L]et’s assume that you lose in the lower courts pretty uniformly, as you have been losing on this issue, and that you never take this question to us. … [W]hy would you take the substantive question to us? You’re losing a bunch of cases. This guy over here, this woman over here, you know, they’ll have to be treated as citizens, but nobody else will. … [I]n a case in which the government is losing constantly, there’s nobody else who’s going to appeal; they’re winning, it’s up to you to decide whether to take this case to us. If I were in your shoes, there is no way I’d approach the Supreme Court with this case. So you just keep on losing in the lower courts, and what’s supposed to happen to prevent that? … [T]he ones who can’t afford to go to court, they’re the ones who are going to lose. … in a case like this, the government has no incentive to bring this case to the Supreme Court because it’s not really losing anything. It’s losing a lot of individual cases, which still allow it to enforce its EO against the vast majority of people to whom it applies.”

Sauer’s main retort is that, in many situations, it would be possible for a class of plaintiffs to be certified and for a class action lawsuit to be filed, with the outcome of the lawsuit binding both the administration and the members of the class.

Justice Jackson later picked up on Kagan’s theme:

“[T]he real concern, I think, is that your argument seems to turn our justice system, in my view at least, into a “catch me if you can” kind of regime from the standpoint of the executive, where everybody has to have a lawyer and file a lawsuit in order for the government to stop violating people’s rights. Justice Kagan says let’s assume for the purpose of this that you’re wrong about the merits, that the government is not allowed to do this under the Constitution. And yet it seems to me that your argument says we get to keep on doing it until everyone who is potentially harmed by it figures out how to file a lawsuit, hire a lawyer, et cetera. And I don’t understand how that is remotely consistent with the rule of law… [T]he court has the power to say what the law is. And so one would think that the court could say this conduct is unlawful and you have to stop doing it.”

And later, some more from Justice Jackson:

“I would think we’d want the system to move as quickly as possible to reach the merits of the issue, and maybe have this Court decide whether or not the government is entitled to do this under the law. Wouldn’t having universal injunctions actually facilitate that? It seems to me that, when the government is completely enjoined from doing the thing it wants to do, it moves quickly to appeal that to get it to the Supreme Court, and that’s actually what we would want. What I worry about is similar to what Justice Kagan points out, is that, if the government is saying no lower court can completely enjoin it, it actually means that the government just keeps on doing the purportedly unlawful thing, and it delays the ability for this Court to reach the underlying issue.”

The attorney for the one of the respondents floated a compromise solution under which SCOTUS could rule that “universal injunctions are appropriate only in facial challenges involving fundamental constitutional rights where there are real concerns about…the legal and practical availability of relief to similarly situated parties who are also going to experience irreparable harm.” It is unclear if a majority might be convinced to take that bait.

Another alternative is that SCOTUS could grant certiorari before judgment on the merits of the underlying cases, swiftly call for supplemental briefing and a second oral argument, and thereby rule on the case in an expedited fashion, not unlike how it handled TikTok v. Garland back in January. We are already two weeks after the usual end of oral arguments for the October Term, and about six weeks away from when SCOTUS usually closes up shop entirely for the summer; would the Justices have an appetite to extend its schedule, in the interests of avoiding having to resolve the universal injunctions question?

Or, of course, SCOTUS could grant the administration the relief it seeks, allowing the executive order to take effect while the lower courts continue to assess its constitutionality. However that would seemingly endorse the notion that future administrations can behave in patently unconstitutional ways while waiting for a potentially lengthy judicial process to play out: A hypothetical advanced today involved a future administration that started confiscating firearms despite SCOTUS’ 2nd Amendment jurisprudence.

The immediate path forward on Trump v. CASA remains unclear after oral argument, although it seems highly improbable that the executive order will stand in the fullness of time. How long it takes to get to that result, however, will depend on what SCOTUS decides to do.

Trump is currently touring the Middle East, focusing on Saudi Arabia and Qatar. The story that came out earlier this week about the potential Qatari donation of a luxury jumbo jet to the U.S. government for Trump’s use remains in the headlines; Trump is, of course, adamant that everyone should see this as a good idea. Also attracting controversy is Trump’s meeting with Syria’s new interim president, who six months ago was still on the U.S. Specially Designated Global Terrorist list and as such had a $10 million bounty on his head.

Tomorrow there will be an oral argument at SCOTUS, which is extremely unusual for mid-May. The procedural posture of this oral argument is also extremely unusual. The argument is coming from three different federal court cases that were filed earlier this year in the wake of Trump’s executive order on birthright citizenship; for simplicity I’ll refer to the consolidated SCOTUS cases as Trump v. CASA.

The crux of Trump’s order is to prospectively deny citizenship to babies born in the U.S. after February 19, 2025 where the father was not a United States citizen or lawful permanent resident at the time of birth, and the mother’s presence in the U.S. at the time of birth was either unlawful, or lawful but temporary (e.g., a tourist or student visa). However, this conflicts with how the 14th Amendment’s phrase “subject to the jurisdiction thereof” has historically been interpreted, including in SCOTUS precedent from an 1898 case called U.S. v. Wong Kim Ark.

In light of this, three different federal court judges – located in Maryland, Massachusetts, and Washington – have each issued rulings preventing the administration from implementing the executive order, with one of the judges calling it “blatantly unconstitutional.” Each of those judges issued what legal scholars have recently taken to calling a universal injunction, the intent of which is to bar the federal government from implementing the executive order with respect to anyone, not just with respect to the plaintiffs in the case.

This gets into an area of law that has been increasingly controversial in the last several years, namely the question of whether and, if so, under what conditions a federal judge should have the ability to issue a universal injunction. The theoretical concern here is that, given how the Constitution’s “cases or controversies” language has historically been interpreted, a universal injunction arguably feels like an “advisory opinion” lying outside of the power of the judiciary. SCOTUS has tiptoed around this issue several times in recent years, but to date has avoided taking it head on.

In the CASA v. Trump case down below (and the two other consolidated cases that the government also lost), the federal government filed an application to SCOTUS asking that the injunctions issued by those judges be limited in scope to the plaintiffs broadly construed (i.e., including residents of the plaintiff states). Rather than granting or rejecting that request, a month ago SCOTUS scheduled an oral argument.

But to discuss what, and to what end? This is an oral argument for which there is no “question presented”, as there normally would be in a SCOTUS case. As such it is unusually hard to know, prior to oral argument, what exactly SCOTUS is seeking to accomplish. Many observers seem to believe that SCOTUS is looking to finally take the question of universal injunctions head on. However at least one prominent observer instead thinks that SCOTUS is seeking to avoid the universal injunctions question and instead move directly to the merits of Trump’s position on birthright citizenship, notwithstanding that there hasn’t really been briefing on the merits. We’ll find out tomorrow.

In other legal news, yesterday the little-known U.S. Court for International Trade heard oral arguments in the first of several legal challenges brought against Trump’s use of the International Emergency Economic Powers Act of 1977 as justification for his imposition of tariffs sans Congressional approval. While appeals to contemporaneous expressions of Congressional intent have gone out of fashion as a means of statutory interpretation this century, I do find it compelling that while IEEPA was being debated a House report said that “emergencies are by their nature rare and brief, and are not to be equated with normal ongoing problems,” which would appear to preclude a view that the existence of persistent bilateral trade deficits can be fit into the “emergency” hole. More to come on this front.