Week-end Wrap – Political Economy – May 18, 2025
by Tony Wikrent
The (anti)Federalist Society assault on the Constitution
Trump in TROUBLE as Amy Coney Barrett SNAPS at Supreme Court (YouTube video)
[Legal AF, May 16, 2025]
[TW: Leah Litman, Michael Popok and Alex Aronson discuss the Supreme Court hearings on Friday 5-16-2025. This is ostensibly about birthright citizenship, but perhaps the more important issue is whether US District courts can impose injunctions nationwide. I do not recall ever before having linked to a discussion of Supreme Court hearings, but these were extraordinary in showing how (anti)Republicans and conservative are attempting to obliterate two and a half centuries of legal development and reasoning in the USA republic’s experiment in self government. Recall that the (anti)Republicans and conservatives / libertarians repeatedly sought and obtained injunctions to stop implementation of Biden policies they disliked. But now that Democrats and liberals are stopping Trump policies with court injunctions, (anti)Republicans and conservatives / libertarians are arguing that only the Supreme Court can impose nationwide injunctions.
[But it’s even worse: Trump’s former personal attorney, now serving as U.S. Solicitor General, D. John Sauer, actually argued that a court injunction can apply only to the particular case and the particular litigant. (This was the point in the hearings that Justice Amy Coney Barrett sputtered “Really?” with some incredulity.) In other words, according to Sauer, if you want to prevent Trump / Musk / DOGE from disposing of 12,351 workers from an agency, you would need 12,351 injunctions for each of the 12,351 agency workers to protect all of them. As Justice Sonya Sotomayor, pointedly asked Sauer, “You’re talking about the hundreds and thousands of people who weren’t part of the judgment of the court. They would all have to file individual actions?”
Litman, Popok and Aronson also discuss how (anti)Republicans and conservatives / libertarians are pushing for laws and legal decisions that would almost totally restrict the path for class action lawsuits, the only alternative to using court injunctions to legally protect large groups of people. With this, you see the outlines of the legal assault on American law and jurisprudence that has been developed during the past half century in the seminars and conferences by the Heritage Foundation, Federalist Society, Mercatus Center, and the rest of the apparatus of plutocrat-funded conservatives and libertarian entities.
[As I have argued before, the “left’s” response to this assault on American law and jurisprudence has been crippled by the “left” rejecting the legitimacy of American history and institutions for being based on racism and misogyny. I firmly believe this is the primary reason the doctrines and ideas being developed by conservatives and libertarians were largely ignored for the past half century. The “left” has yet to deal with the question of why the plutocrats are expending so much to reinterpret and change American law and jurisprudence. What was there in place before the plutocratic assault that plutocrats want to obliterate, and the “left” has been ignoring?
[Especially frightening is that “Justices” Thomas and Alito appear to have accepted Sauer’s arguments.]
In Birthright Citizenship Case, Trump DOJ Asks Supreme Court Justices to Make Themselves Irrelevant
Garrett Epps, May 16, 2025 [Washington Monthly]
… Thursday’s argument had two aspects, which appeared and disappeared like the Katzenjammer Kids playing peekaboo throughout the nearly three hours of oral argument. The Court had formally assembled to hear the first: When is it okay for one federal district judge to block a government policy nationwide?
The second was: Has every Congress, every Court, and every administration for the past century and a half read the Fourteenth Amendment’s Citizenship Clause wrong, leaving Donald Trump, on his sole authority, to upend the rule that all babies born in the U.S., except the children of diplomatic families, are citizens at birth?
Though Sauer began his argument by boldly proclaiming the administration’s novel interpretation of the Amendment (it applied, he said, only to the children of free slaves in 1868 and has no effect on the children of immigrants today), he quickly moved to the administration’s real aim in bringing this “emergency docket” application before the Court.
In Sauer’s view, the case was about a broader issue than the permissibility of “universal injunctions” (federal district court orders that block new executive policies nationwide). Article III of the Constitution, which created the federal judiciary and gives it its powers, he argued, does not permit any federal court, at any level, to issue such injunctions.
This raises the question: What if the government loses in the district court—and then loses again in the Court of Appeals? What if it loses in the Supreme Court? What court can order it to stop engaging in behavior that Article III courts have found to violate the Constitution?
Without quite saying so, Sauer let it be known that the answer is: None.
If plaintiffs won in the Supreme Court, he graciously conceded, they could take the judgment to the bank—for themselves, that is. But Sotomayor asked him, once the Court decided the constitutional issue, would its order bind the government to stop the unconstitutional action against anyone?
Well . . . said Sauer . . . Not so much.
The result of such a case, Sauer said, would not be a Supreme Court order binding everyone else, but instead a Supreme Court precedent. And of course, plaintiffs still being injured by a government policy (for example, by being rendered stateless by an executive order) could cite that precedent in their cases. “If there was a decision that violated the precedent of the Court, then the affected plaintiffs could get a separate judgment,” he said.
Responded Sotomayor, “You’re talking about the hundreds and thousands of people who weren’t part of the judgment of the court. They would all have to file individual actions?”
Maybe not, said Sauer—if the case could satisfy “the rigorous criteria of Rule 23,” to be certified as a class action.
But if not, said Sotomayor, “you are claiming that not just the Supreme Court—that both the Supreme Court—and no lower court can stop an executive from universally, from violating those holdings by this Court.”….
If a president can simply wave away that much adverse authority—and then only grudgingly apply his losses in court—then the role of the federal courts will be, from now on, quite different from the one they have played for the past 100 years. American-style judicial review would become something like the Mexican writ of amparo, by which parties can get a judgment blocking an unconstitutional law only as to their individual cases; others in the same situation must go to court to get their own amparo. In the atomized world envisioned by the administration, judicial review might be called the Writ of Sisyphus. No matter how often a court pushes the rock up the hill, it will face the same task over and over if the government so chooses.
McKay Coppins, May 16, 2025 [The Atlantic, via ownwithtyranny.com]
…Vought’s critics have warned that elements of his agenda— for example, unilaterally cutting off funding for congressionally established agencies such as USAID— are eroding checks and balances and pushing the country toward a constitutional crisis. But in interviews over the past several weeks, some of his allies told me that’s the whole point. The kind of revolutionary upending of the constitutional order that Vought envisions won’t happen without deliberate fights with Congress and the judiciary, they told me. If a crisis is coming, it’s because Vought is courting one.Bannon told me that mainstream Republicans have long complained about runaway federal bureaucracy but have never had the stomach to take on the problem directly. Vought, by contrast, is strategically forcing confrontations with the other branches of government. “What Russ represents, and what the Romneys and McConnells don’t understand, is that the old politics is over,” he said. “There’s no compromise here. One side is going to win, one side is going to lose, so let’s get it on.”… Vought himself has written that we are living in a “post-Constitutional time.” Progressives, he argues, have so thoroughly “perverted” the Founders’ vision by filling the ranks of government with unaccountable technocrats that undoing the damage will require a “radical” plan of attack. “The Right needs to throw off the precedents and legal paradigms that have wrongly developed over the last two hundred years,” he wrote in an essay for The American Mind, a journal published by the Claremont Institute.What exactly would such an approach look like in practice? Mike Davis, a Republican lawyer and a friend of Vought’s who helped steer judicial nominations in Trump’s first term, told me that he expects an escalating series of standoffs between the Trump administration and the judicial branch. He went so far as to say that if the Supreme Court issues a decision that constrains Trump’s executive power in a way the administration sees as unconstitutional, the president will have to defy it. “The reptiles will never drain the swamp,” Davis told me. “It’s going to take bold actions.”
J. Michael Luttig, May 14, 2025 [The Atlantic]
When Trump again assumed the presidency in January, he— like every American president before him— swore an oath to faithfully execute the laws of this nation, as commanded by the Constitution. In the short time since, Trump hasn’t just refused to faithfully execute the laws; he has angrily defied the Constitution and laws of the United States. In America, where no man is above the law, Trump has shown the nation that he believes he is the law, even proclaiming on social media soon after assuming office that “He who saves his Country does not violate any Law.”
From the moment he entered the White House on January 20, 2025, Trump has waged war against the rule of law. He not only instigated a worldwide economic crisis with his hotheaded, unlawful tariffs leveled against our global trading partners and our enemies alike; he deliberately provoked a constitutional crisis with his frontal assault on the federal judiciary, the third and co-equal branch of government and guardian of the rule of law— grabbing more and more power for nothing but power’s sake.
On his first day back, foreshadowing his all-out assault on the rule of law, Trump pardoned or commuted the sentences of 1,200 January 6 rioters. Soon, he began to persecute his political enemies— of whom there are now countless numbers— and to fire the prosecutors for the United States who attempted to hold him accountable for the grave crimes against the Constitution that he committed after losing the 2020 election.
Also within those first 100 days, the FBI arrested the Wisconsin state judge Hannah Dugan in her Milwaukee courthouse on federal criminal charges that she was “obstructing or impeding a proceeding before a department or agency of the United States” and “concealing an individual to prevent his discovery and arrest,” because she invited an undocumented immigrant appearing before her on misdemeanor charges to exit her courtroom by way of the jury door rather than the front door of the courtroom. The evidence, at least as revealed so far, does not come close to supporting these charges.
The arrest and prosecution of judges on such specious charges is where rule by law ends and tyranny begins. The independent judiciary is the only constraint of law on a president. It is the last obstacle to a president with designs on tyrannical rule.
Appearing on Fox News, the attorney general of the United States, Pam Bondi, defended the evidently unlawful arrest: “What has happened to our judiciary is beyond me,” she said. The judges “are deranged, is all I can think of. I think some of these judges think that they are beyond and above the law. They are not, and we are sending a very strong message today if you are harboring a fugitive … we will come after you and we will prosecute you. We will find you.”No, Ms. Bondi, our judges do not think they are above the law, and no, judges are not deranged. They are simply upholding their oath to support and defend the Constitution of the United States— the same oath you took.
It is now entirely foreseeable that arrests of judges will occur in the federal courts across the country as well. To read the criminal complaint and related FBI affidavit that led to Judge Dugan’s arrest is to understand at once that neither the state courts nor the federal courts could ever hope to administer justice if the spectacle that took place in Judge Dugan’s courthouse on April 18 was to occur in state and federal courthouses across the country.
It’s impossible to imagine that the federal government could ever prove the charges against Judge Dugan. But that was not the point of the FBI’s arrest.
…The rule-of-law casualties of these presidentially provoked national crises are mounting by the day. America cannot withstand three-and-a-half more years of this president if his first few months are a harbinger of what lies ahead.
Trump has spoiled for this war against the federal judiciary, the Constitution, and the rule of law since January 6, 2021. He has repeatedly vowed to exact retribution against America’s justice system for what he falsely maintains was the partisan “weaponization” of the federal government against him.No one other than Trump and his most sycophantic supporters believes that the government’s attempts to hold him and others accountable for their actions that day amount to “weaponization.” With the world as witness, Trump attempted to thwart the peaceful transfer of power— committing perhaps the gravest constitutional crime that a president could ever commit. The United States had no choice but to prosecute him for those crimes, lest he be allowed to make a mockery of the Constitution of the United States.
It is Trump who is actually weaponizing the federal government against both his political enemies and countless other American citizens today.
Judge Michael Luttig on Trump’s 100 Days of Lawlessness (YouTube Video)
[Telos News from Ryan Lizza, May 8, 2025]
[TW: while I appreciate that Luttig is not only opposing Trump, but doing so with monumental erudition and powerful articulation, I still cannot help thinking that the crucial point has yet to be reached: when conservatives such as Luttig realize — and admit — that the conservative project was inevitably going to result in Trump or some other authoritarian, and they begin the autopsy of their ideology to discover why.]
Trump’s clash with the courts raises prospect of showdown over separation of powers
NICHOLAS RICCARDI, May 18, 2025 [Associated Press, via politico.com/playbook]
Tucked deep in the thousand-plus pages of the multitrillion-dollar budget bill making its way through the Republican-controlled U.S. House is a paragraph curtailing a court’s greatest tool for forcing the government to obey its rulings: the power to enforce contempt findings….
Is Rule Of Law Still All That Important To Americans… In the 21st Century?
Howie Klein, May 15, 2025 [downwithtyranny.com]
…Rule of law isn’t some abstract ideal— it’s the firewall between freedom and fascism.
And it wasn’t some afterthought or accidental feature of the American experiment— it was baked into the foundation from the start, because the founders knew exactly what it meant to live under arbitrary power. Many of them had watched, in real time, as the British monarchy wielded authority without accountability: imposing taxes without representation, quartering soldiers in private homes, arresting dissidents without fair trial. That experience of imperial overreach wasn’t just a political grievance— it was a lesson in what happens when law serves rulers instead of the people….
What we’re seeing now is how the entire American project, flawed as it has always been, was built on the idea that law should restrain power— not serve it….
SCOTUS to Trump: Due Process! Alito and Thomas dissent
Joyce Vance, May 17, 2025
Friday afternoon, the Supreme Court ruled 7-2 In one of the many immigration cases currently in the courts as a result of Trump’s deportation of alleged Tren de Aragua gang members without any due process. In A.A.R.P. v. Trump, the Court enjoined the government from summarily deporting alleged gang members under the Alien Enemies Act while litigation over the constitutionality of those deportations works its way through the courts.
The decision is a per curiam opinion, which means no single justice signed it, but it represents the view of seven of them. You can read the full decision here. It runs to 24 pages, and is worth spending some time with, if only to get the Court’s tone. Suffice it to say, the majority is displeased with the government….
Federal grand jury indicts Milwaukee County Judge Hannah Dugan in ICE case
[Milwaukee Journal Sentinel, via Naked Capitalism 05-14-2025]
Joyce Vance, May 15, 2025 [Civil Discourse]
While this case is largely viewed as a politically motivated prosecution, it is worth noting that the acting U.S. Attorney in the Eastern District of Wisconsin, Richard Frohling, has been in the office since 2000. He has served as the First Assistant, the number two person in the office, since 2015. That means he was in that position for part of the Obama administration and through both the Trump and Biden administrations. He served as the acting U.S. Attorney during the Biden administration. He also served as the Criminal Chief during the Obama administration. In other words, he doesn’t look like a political hack.
Trump not violating any law
‘He who saves his Country does not violate any Law’
Joe DePaolo, May 4th, 2025 [mediaite.com]
Hasan Piker detained at the border and questioned for hours over politics
[User Mag, via Naked Capitalism 05-14-2025]
Past presidents couldn’t keep gifts of lions or horses. How could Trump accept a jet from Qatar?
[CNN, via Naked Capitalism 05-13-2025]
‘Gestapo Nation’ – Inside the ICE Arrest of Newark Mayor Ras Baraka
[Work-Bites, via Naked Capitalism 05-13-2025]
Trump administration welcomes 59 white South Africans as refugees to the US
[Aljazeera, via Naked Capitalism 05-13-2025]
Feds Begin Political Vetting for American Citizens
Ken Klippenstein, May 14, 202 [via Naked Capitalism 05-15-2025]
Men DOGEbags at Work
Blitzscaling for tyrants: The lightning-fast path to tearing down due process
Henry Farrell, May 12, 2025
Here are some features of DOGE’s approach to changing government:
- DOGE is all about scaling. Its fundamental ambition is to get big things done very quickly, and on the cheap.
- DOGE looks to scale through data. Humans don’t scale well – hiring and firing take time and come with a lot of politics. Data and algorithms can be scaled up much more easily.
- DOGE is highly tolerant of mistakes. You can’t build big and build quickly without making messes along the way.
- DOGE looks to overwhelm the opposition before the opposition can even figure out what is happening. Scale up fast enough, and you will be able to set the rules of the game before the other players even realize that there is a game to win.
- DOGE relies on a small elite team to completely reshape a much larger organization.
- DOGE is hostile to regulation. Rules are made to be broken.
DOGE went looking for phone fraud at SSA — and found almost none
Natalie Alms, May 15, 2025 [GovernmentExecutive]
Since SSA installed new anti-fraud checks on claims made over the phone, only two claims out of over 110,000 were found to likely be fraudulent, according to internal documents obtained by Nextgov/FCW….
“No significant fraud has been detected from the flagged cases,” the internal document said.
The attention to fraud, however, did cause delays, as SSA changed its phone procedures to add the checks on the backend.
The lags stem from the three-day hold placed on telephone claims in order to run the antifraud claims, a move that “delays payments and benefits to customers, despite an extremely low risk of fraud,” as the document noted….
The additional slowdown to retirement processing comes as the agency deals with an influx of retirement claims this year that surpasses previous numbers, according to an internal SSA email announcing a sprint to bring that number down. SSA has over 140,000 unprocessed retirement claims that are over 60 days old.