Saturday, August 30, 2025
Friday, August 29, 2025
Federal Circuit Appeals Court strikes Trump tariffs
The "major questions doctrine" is a major expansion of Supreme Court prerogative. It has been the subject of trenchant crititicsms as a Supreme Court power grab such as that by Mila Sohoni in the pages of the Yale Law Journal and other leading journals.
The so-called major questions doctrine pens District Judges while it licenses the Supreme Court. As Sohoni has observed it serves
to centralize power in the Supreme Court by weakening actors of our government other than the Supreme Court. Though accepting the case against universal vacatur will certainly place curbs on lower court judges, it would also indulge, and thereby strengthen, the perilous proposition that the Supreme Court should intervene to redistribute congressional allocations of power in ways that centralize its own importance and preferences.
- GWC
In V.O.S. SELECTIONS, INC., et al. v.DONALD J. TRUMP, an enbanc opinion by the Federal Circuit Court of Appeals [over three dissents] the majority held:
The Government appeals a decision of the Court of International Trade setting aside five Executive Orders that imposed tariffs of unlimited duration on nearly all goods from nearly every country in the world, holding that the tariffs were not authorized by the International Emergency Economic Powers Act (IEEPA), 50 U.S.C. § 1701 et seq. Because we agree that IEEPA’s grant of presidential authority to “regulate” imports does not authorize the tariffs imposed by the Executive Orders, we affirm.
***
The Constitution grants Congress the power to “lay and collect Taxes, Duties, Imposts and Excises” and to “regulate Commerce with foreign Nations.” U.S. Const. art. I, § 8, cl. 1, 3. Tariffs are a tax, and the Framers of the Constitution expressly contemplated the exclusive grant of taxing power to the legislative branch; when Patrick Henry expressed concern that the President “may easily become king,” 3 Debates in the Several State Conventions 58 (Jonathan Elliot ed., 1836), James Madison replied that this would not occur because “[t]he purse is in the hands of the representatives of the people,” id. at 393.
Moreover, the United States imports more than $4 trillion of goods annually; these imports account for 14 percent of the nation’s economy. J.A. 215. The Government itself has claimed that the Reciprocal Tariffs will “generate between $2.3 trillion and $3.3 trillion over the budget window.” The White House, Statement from the Off. of Commc’ns, FACT: One, Big, Beautiful Bill Cuts Spending, Fuels Growth, https://www.whitehouse.gov/articles/2025/05/fact-one-big-beautiful-bill-cuts-spending.The Executive’s use of tariffs qualifies as a decision of vast economic and political significance, so the Government must “point to clear congressional authorization” for its interpretation of IEEPA. West Virginia, 597 U.S. at 723 (quoting Util. Air, 573 U.S. at 324).
***
On January 20, 2025, the President declared the existence of a national emergency at the United States’ southern border with Mexico under sections 201 and 301 of the National Emergencies Act (NEA), Pub. L. No. 94-412, 90 Stat. 1255 (1976) (codified as amended at 50 U.S.C. §§ 1601–1651). See Proclamation No. 10886, Declaring a National Emergency at the Southern Border of the United States, 90 Fed. Reg. 8,327, 8,327 (Jan. 20, 2025). In the Proclamation, he identified the presence of “cartels, criminal gangs, known terrorists, human traffickers, smugglers, unvetted military-age males from foreign adversaries, and illicit narcotics that harm Americans” at and around the southern border as threats to the country’s territorial sovereignty. Id. Shortly thereafter, the President faulted Mexico for “afford[ing] safe havens for the cartels to engage in the manufacturing and transportation of illicit drugs” to the United States. Executive Order No. 14194, Imposing Duties to Address the Situation at Our Southern Border, 90 Fed. Reg. 9,117, 9,117 (Feb. 1. 2025).
The President also expanded the scope of the national emergency declared in Proclamation 10886 to include threats originating from Canada and the People’s Republic of China. On February 1, 2025, he declared that “the sustained influx of illicit opioids and other drugs has profound consequences on our Nation” and stated that “Canada has played a central role in these challenges, including by failing to devote sufficient attention and resources . . . to effectively stem the tide of illicit drugs.” Executive Order No. 14193, Imposing Duties to Address the Flow of Illicit Drugs Across Our Northern Border, 90 Fed. Reg. 9,113, 9,113 (Feb. 1, 2025). He similarly stated that this emergency had been exacerbated by China’s failure “to arrest, seize, detain, or otherwise intercept chemical precursor suppliers, money launderers, other [transnational criminal organizations], criminals at large, and drugs.” Executive Order No. 14195, Imposing Duties to Address the Synthetic Opioid Supply Chain in the People’s Republic of China, 90 Fed. Reg. 9,121, 9,122 (Feb. 1, 2025).
Wednesday, August 27, 2025
Can Lisa Cook keep her Fed Reserve seat? Michael Dorf
Steve Vladeck - Playing the Justices for Fools - One First
Playing the Justices for Fools - ONE FIRST - SUBSTACK
President Trump's latest emergency application rests on a contrived procedural emergency and a forfeited substantive claim—apparently banking on the view that the Court doesn't mind being played.
To cut to the chase, I wanted to write about the Trump administration’s latest emergency application to the Supreme Court (its 23rd in its first seven months in office)—in the ongoing litigation over the government’s refusal to spend foreign aid funds that Congress has mandated. (Yes, this application arises from the same two cases that the Supreme Court already dealt with in early March.)
The application is significant not only on its own terms, but because of the new reality it appears to reflect—one in which the Trump administration seems to be structuring at least some of its litigation decisions specifically to take advantage of its expectation that it can receive emergency relief from the Supreme Court. Here, that behavior includes contriving the procedural emergency that the Solicitor General now claims justifies intervention by the justices; downplaying the fact that the government forfeited the substantive claim on which it claims it is likely to succeed on the merits—by not properly raising it below; and misrepresenting what happened in the lower courts by conveniently leaving out any details that might draw the justices’ (or their clerks’) attention to those first two points.
Sunday, August 24, 2025
Supreme Court Lets Trump Administration Cut N.I.H. Grants for Disfavored Research
Supreme Court Lets Trump Administration Cut N.I.H. Grants for Disfavored Research
In a fractured ruling, the Supreme Court on Thursday ruled by a 5-to-4 vote that the Trump administration could for now cancel more than $780 million in grants from the National Institutes of Health that the government said had been intended to explore topics like diversity, equity and inclusion initiatives, “gender ideology” and vaccine hesitancy.
But a different five-justice majority let stand for now a lower court’s ruling that the administration’s underlying policy directing the cuts was probably unlawful and should be put on hold.
Only Justice Amy Coney Barrett was in both majorities.
Saturday, August 23, 2025
Josh Marshall - John Roberts created this redistricting crisis
John Roberts - in Rucho v. Common Cause (2019) - created the mess which has immunized Texas from reconfiguring disricts to drive Democrats from even proximity to power. This is not a good way to run a railroad. Of course southern racists invented the problem - first slavery, then the "white primary", And a host of anti-democratic measures - electoral maps to suppress the Black vote, mainly.
But California's retaliatory plan is a desperation move made because John Roberts gave Texas Republicans license to create grossly unfair legislative maps in Rucho, supra.
Thursday, August 21, 2025
NIH cuts can continue - Supreme Court - NPR
The Supreme Court on Thursday overturned by a 5-4 decision a lower court order, deciding at least temporarily, that the National Institute of Health does not need to continue paying out approximately $783 million in research grants to projects that the institute has since-stopped funding.
But the court, in its emergency docket order, also left in place by a 5-4 order a lower court ruling that threw out NIH memos that enforced the administration's policies.
Justice Amy Coney Barrett sided with the court's conservatives save Chief Justice John Roberts who sided with the court's three liberals.
https://www.npr.org/2025/08/21/g-s1-84441/supreme-court-nih-grants#:~:text=The%20Supreme%20Court%20on%20Thursday,institute%20has%20since%2Dstopped%20funding.
Presidential Immunity - Cass Sunstein
Presidential Immunity and Democratic Disorder
9 Pages Posted: 18 Jul 2024
Date Written: July 16, 2024
Abstract
Before Trump v. United States, issues of presidential immunity were generally analyzed by reference to the following question: Would subjecting the President to a legal proceeding compromise his ability to perform his constitutional functions? After Trump v. United States, the immunity issue is analyzed, in significant part, by reference to an altogether different question: Does some provision of the Constitution give the President unquestionable power, such that neither Congress nor courts may intrude on it? It is imaginable that the second question is the right one, but the Court's analysis is brisk and conclusory; it does not seriously engage with the standard sources of constitutional interpretation. For example, there is no real effort to show that the Court's various conclusions follow from text or the original public meaning. That is a puzzle. Part of the explanation for the new framework may lie in a single sentence, pointing to "the prospect of an Executive Branch that cannibalizes itself, with each successive President free to prosecute his predecessors, yet unable to boldly and fearlessly carry out his duties for fear that he may be next." This pragmatic concern might provide the motivation for some of the Court's momentous constitutional conclusions. It links Trump v. United States with a variety of other decisions, including Bush v. Gore and Trump v. Colorado, that also seem concerned with the problem of democratic disorder-a kind of Representation Reinforcement 2.0 (or is it 1.0?). For those who insist on fidelity to legal sources, the most charitable verdict on Trump v. United States is Scottish: Not proven.
Keywords: immunity, Trump, separation of powers
Civilian death toll in Gaza
Palestinians and campus protests
Wednesday, August 20, 2025
DHS employees protest violence and Kennedy measures
Trump seizing private companies
Tuesday, August 19, 2025
REMEDIES - FALL 2025 - PROF. GEORGE W. CONK - FORDHAM LAW SCHOOL
Office: 8-108 gconk@fordham.edu
Monday - Wednesday 2:00 - 3:25 PM Eastern
Room 4-04
It is the right of the supreme power to make laws; but further, it is its duty likewise...But since it is impossible, in so great a multitude, to give injunctions to every particular man, relative to each particular action, therefore the state establishes general rules for the perpetual information and direction of all persons in all points, whether of positive or negative duty.
Those rights then which God and nature have established, and are therefore called natural rights, such as life and liberty, need not the aid of human laws to be be more effectually invested in every man than they are; neither do they receive any additional strength when when declared by municipal law to be inviolable.
On the contrary, no human legislature has power to abridge or destroy them, unless the owner shall himself commit some act that amounts to a forfeiture.
The remedial part of a law is so necessary a consequence of the former two [declaratory and directory] that laws must be very vague and imperfect without it. For in vain would rights be declared, in vain directed to be observed, if there were no method of recovering and asserting those rights, when wrongfully withheld or invaded. That is what we mean properly, when we speak of the protection of the law.
William Blackstone, Commentaries on the Law of England, Vol 1 [1765] Of the Rights of Persons, § II of the Nature of Laws in general
Article III- U.S. Constitution
2. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority
The Government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation if the laws furnish no remedy for the violation of a vested legal right.
- John Marshall, in Marbury v. James Madison, Secretary of State, 5 US 137 (1803)
Week 1 – How Judges decide: Precedent, Equity, and the Common law; the Common Good and the public interest.
Opening lecture: What constrains judges? Law, Equity, natural law, and the problem of slavery from the founding to the Civil War.
Read:
Somerset v. Stewart (1772) Speech of Lord Mansfield at p. 510
Gouverneur Morris re slavery at Federal Convention 1787
Prigg v. Pennsylvania [1842] (case brief)
Blogpost: My response to Prof. Helmholz's First Things review of Vermeule's Common Good Constitutionalism
slides: Magna Carta to Emancipation
Benjamin Cardozo The Nature of the Judicial Process - Adherence to Precedent Lecture IV Excerpts from Cardozo Lecture IV
Week 2
Amendment XIV - Constitution of the United States of America
Section 1.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
What part of "all" does not mean "all"?
The Constitution, in Article III gave courts of the United States the powers of the English law courts and chancery courts of equity. Section 2 declares:
"The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States"
The Judiciary Act of 1789 implemented that principle.
If the Supreme Court could uphold an order that all persons anywhere to cease interference with the mails or interstate commerce [as did the leaders of the American Railway Union - [striking in solidarity with the workers of the Pullman Car Company, Pullman, MO by directing their members to refuse to handle Pullman sleeping cars anywhere] , does a "universal injunction" exceed the powers of a judge of the United States?
In the Debs case (below) the Supreme Court in 1885 wrote:
We hold it to be an incontrovertible principle that the government of the United States may, by means of physical force, exercised through its official agents, execute on every foot of American soil the powers and functions that belong to it. This necessarily involves the power to command obedience to its laws, and hence the power to keep the peace to that extent." 158 U. S. 579
Does the scope of the injunction issued and upheld in In Re Debs 158 U.S. 564 (1885) comport with limitation on the injunction barring an executive order in TRUMP, PRESIDENT OF THE UNITED STATES, ET AL.v. CASA, INC., ET AL.ON APPLICATION FOR PARTIAL STAY No. 24A884. Argued May 15, 2025—Decided June 27, 2025*
Plaintiffs (respondents here)—individuals, organizations, and States— filed three separate suits to enjoin the implementation and enforcement of President Trump’s Executive Order No. 14160. See Protectingthe Meaning and Value of American Citizenship, 90 Fed. Reg. 8449. The Executive Order identifies circumstances in which a person born in the United States is not “subject to the jurisdiction thereof” and is thus not recognized as an American citizen. The plaintiffs allege that the Executive Order violates the Fourteenth Amendment’s Citizenship Clause, §1, and §201 of the Nationality Act of 1940. In each case, the District Court entered a “universal injunction”—an injunction barring executive officials from applying the Executive Order to anyone, not just the plaintiffs
The applications do not raise—and thus the Court does not address—the question whether the Executive Order violates the Citizenship Clause or Nationality Act. Instead, the issue the Court decides is whether, under the Judiciary Act of 1789, federal courts have equitable authority to issue universal injunctions.
Universal injunctions likely exceed the equitable authority that Congress has given to federal courts. The Court grants the Government’s applications for a partial stay of the injunctions entered below, but only to the extent that the injunctions are broader than necessary to provide complete relief to each plaintiff with standing to sue.
Universal injunctions are not sufficiently “analogous” to any relief available in the court of equity in England at the time of the founding. Grupo Mexicano, 527 U. S., at 318–319. Equity offered a mechanism for the Crown “to secure justice where it would not be secured by the ordinary and existing processes of law.” G. Adams, The Origin of English Equity, 16 Colum. L. Rev. 87, 91. This “judicial prerogative of the King” thus extended to “those causes which the ordinary judges were incapable of determining.” 1 J. Pomeroy, Equity Jurisprudence §31, p. 27.
Monday, August 18, 2025
Friday, August 15, 2025
Judge blocks anti-DEI rule
Wednesday, August 13, 2025
Split DC Circuit panel lifts bar in Trump funds freeze
Winters: Fratelli Tutti at Fordham
Dorf: Do class actions sole the nationwide injunction problem?
Dorf: Precedent and Birthright Citizenship
Tuesday, August 12, 2025
Cass Sunstein: the virtue of judiciqal mimimalism
Sunstein: the virtue of judicial mimimalism
By Cass Sunstein (Harvard Law)
My topic is the Supreme Court’s dilemma. I am going to offer one understanding of how it might try to manage the current situation, and more speculatively, one understanding of how some member or members of the Court might actually be trying to manage that situation.
For orientation, let us indulge the following assumptions (I think they are correct; if you don’t, please indulge them):
The executive branch, right now, is engaging in an unusually large number of actions that raise serious legal questions.
Some people think, not unreasonably, that there is a risk that the executive branch may not follow court orders.
A large percentage of the country (40 percent? 50 percent? more?) would be on the side of the executive branch, in the event of a conflict between the Supreme Court and the President. (The percentage would depend on the substance of the conflict, of course.)
Taken together, the foregoing points put the Court in an unusually difficult position, and things might get worse over time.
How should the Court respond? Some people think that over the last months, the Court has been “capitulating” to the executive branch. In their view, the Court has been cowardly.
Other people think that this is in some sense Trump’s Court, and some of the justices, or even a majority, are “on his side.” I don’t think that is close to an adequate account.
Monday, August 11, 2025
Sunday, August 10, 2025
is the Voting Rights Act really dead? Marc Elias
Supreme Court cutting down Voting Rights Act + NY Times
Saturday, August 9, 2025
LDEF: The Voting Rights Act Turns 60 - Where do we go from here>?
The Voting Rights Act of 1965 was the most significant statutory change in the relationship between the federal and state governments in the area of voting since the Reconstruction period following the Civil War; and it was immediately challenged in the courts. Between 1965 and 1969, the Supreme Court issued several key decisions upholding the constitutionality of Section 5 and affirming the broad range of voting practices for which preclearance was required. [See South Carolina v. Katzenbach, 383 U.S. 301, 327-28 (1966) and Allen v. State Board of Elections, 393 U.S. 544 (1969)] In 2013, the Court struck down a key provision of the act involving federal oversight of voting rules in nine states.
Noone has done more to vindicate the right to vote in the last 100 years than the NAACP LEGAL DEFENSE FUND. * Now called the LDEF they continue to provide essential leadership...while Republicans seek to knock Black voters out with five new white-dominated Texas districts. And John Roberts - the Chief Justice - is no ally. He was the author of the disastrous 2013 Shelby County v. Holder decision. But Roberts has sometimes done the right thing, as Michael Dorf explains HERE:
In Allen v. Milligan, Chief Justice Roberts again delivered the opinion of the Court, but this time he rejected a challenge to the VRA. Joined by the Court’s three Democratic appointees and (in nearly all of the opinion) Justice Brett Kavanaugh, the Chief Justice reaffirmed a key 37-year-old precedent—Thornburg v. Gingles—that allows VRA plaintiffs to sue to block legislative redistricting maps that have the effect of diluting minority voting strength.
* See Kevin Boyle's 2004 National Book Award winning Arc of Justice , A Saga of Race, Civil Rights, and Murder in the Jazz Age
LDEF: The Voting Rights Act Turns 60 - Where do we go from here>?
"There is no denying, however, that the conditions that originally justified these measures no longer characterize voting in the covered jurisdictions." - John J. Roberts for the majority
SIXTY YEARS AND COUNTING: While most consider July 4 the start of American democracy, the United States’ “true” birthday happened not in 1776, but nearly 200 years later, in 1965. With the passage of the Voting Rights Act (VRA), our multiracial and multiethnic democracy finally had a birth certificate to represent the founding of a nation that allowed all of its citizens — through their votes — a fair shot at shaping its evolution.
Sixty years ago today, on August 6, President Lyndon B. Johnson signed the VRA into law, enshrining protections for voters across the country who were historically denied access to the ballot box. The VRA was one of the most significant achievements of the civil rights movement, ending Jim Crow-era tactics that were employed to stop Black voters from exercising their fundamental right. The legislation was visionary and game-changing: It established “preclearance” requirements that stopped voting discrimination before it occurred and provided voters across the country with essential tools to fight discriminatory election rules and practices.
Thursday, August 7, 2025
Happy birthday voting rights act - get ready to die - Harry Litman
The parties are directed to file supplemental briefs addressing the following question raised [in] the Brief for Appellees: Whether the State’s intentional creation of a second majority-minority congressional district violates the Fourteenth or Fifteenth Amendments to the U. S. Constitution. Supplemental briefs for appellants are due on or before Wednesday, August 27, 2025. Supplemental brief for appellees is due on or before Wednesday, September 17, 2025. Reply briefs are due on or before 2 p.m., Friday, October 3, 2025
[T]hese cases highlight the intractable conflict between this Court’s interpretation of §2 of the Voting Rights Act of 1965 (VRA), 52 U. S. C. §10301, and the Equal Protection Clause of the Fourteenth Amendment to the Constitution. The Constitution is supreme over statutes, Marbury v. Madison, 1 Cranch 137, 178 (1803), and no intervening developments will change that. I thus see no reason to avoid deciding these cases now. In doing so, I would make clear that where this Court’s interpretation of §2 breaches the Constitution’s equal protection guarantee, the Constitution controls