There’s a great deal that is absurd about copyright law in America, but its most basic absurdity remains the length of time for which the copyright monopoly applies. The length of copyright protection a work gets depends on a number of factors. Was the work published before or after 1978? Was it renewed, if the former? Was it published anonymously or by a named individual? Was it work for hire? The answer to all of these impact the term length of copyright for an individual work. Keep that preamble in mind as we go through the rest of this conversation.
Fanin County High School in northern Georgia had scheduled a two day, two play production of The Crucible, the famed play by Arthur Miller which tells the story of the Salem Witch Trials as an allegory for McCarthyism. The school canceled the second day’s production, however, due to what it said is a copyright issue.
In a statement released by the high school, Principal Dr. Scott Ramsey and other school leaders said they’d “received several complaints as to an unauthorized change in the script of the play.”
While the changes themselves were not detailed, and Channel 2 Action News has reached out for more information, school officials said the copyright violation from their license of the play made their decision for them.
“Upon investigation, we learned that the performance did not reflect the original script. These alterations were not approved by the licensing company or administration. The performance contract for The Crucible does not allow modifications without prior written approval. Failing to follow the proper licensing approval process for additions led to a breach in our contract with the play’s publisher,” school officials said. “The infraction resulted in an automatic termination of the licensing agreement. The second performance of The Crucible could not occur because we were no longer covered by a copyright agreement.”
Unfortunately some key details here are hidden behind the school’s vague statements. What were the changes? That seems important, as it would be good to know just how substantial these changes were. Who discovered the changes and raised the alarm over the licensing? Was a member of the licensor really in the audience during the first performance and blew the whistle? Did the school do this proactively, indicating some sort of chilling effect?
While those are all valid questions, let’s really take a step back to get a sense of how absurd this is. A school made apparently some material performance changes to a play and that violated its licensing agreement such that performances would then violate the play’s copyright. A play, mind you, that was first published in 1953 and the author for which died in 2005. So, in a world where The Crucible is 72 years old, 23 years from its copyright expiration, and the creator dead for two decades… a group of high school children can’t put on the play they worked so hard to prepare for because of vague changes to the performance?
In what world would we call that copyright sanity?
When NPR sued Donald Trump Tuesday, it had an easy argument to go with. Normally, in First Amendment retaliation cases against the government, you have to pull together a bunch of disparate strands to prove the retaliatory intent of the actions. But as NPR noted in its filing, and as Justice Scalia once wrote about obvious constitutional violations: “this wolf comes as a wolf.” Trump’s executive order cutting public media funding doesn’t even pretend to hide its retaliatory nature — it literally calls NPR and PBS “biased media” in the title.
Republicans have been gunning for public media for decades, but historically, every time Congress tries to cut funding, outcry from their constituents is so overwhelming that nothing ever happens. It turns out tons of people (including Republican voters) actually like NPR and PBS. But Trump skipped Congress entirely and simply declared that public media wouldn’t be receiving any more federal funding — because he thinks their coverage hurts his feelings.
Federal funding for public media is already a bit confusing because very little of it actually goes directly to NPR and PBS. The funding mostly goes to local affiliates, many of which then do use it to purchase syndicated programming from NPR and PBS.
NPR’s complaint is refreshingly straightforward: this is textbook viewpoint discrimination that violates the First Amendment, separation of powers, and due process. As the lawsuit notes, the Supreme Court made clear just last year (in the Moody v. NetChoice case) that “it is no job for government to decide what counts as the right balance of private expression — to ‘un-bias’ what it thinks biased.”
“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox” in matters of politics or opinion. West Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943). As the Supreme Court reiterated just last year, “it is no job for government to decide what counts as the right balance of private expression— to ‘un-bias’ what it thinks biased, rather than to leave such judgments to speakers and their audiences.” Moody v. NetChoice, LLC, 603 U.S. 707, 719 (2024). These fundamental First Amendment principles apply in full force in the context of public media and doom Executive Order 14290, which expressly aims to punish and control Plaintiffs’ news coverage and other speech the Administration deems “biased.” The Order also violates due process, the Separation of Powers and the Spending Clause of the Constitution. See U.S. Const. Art. I, § 8, cl. 1. It cannot stand.
What makes this case so obvious is that Trump hasn’t even tried to hide the retaliatory motive (because he doesn’t realize it’s unconstitutional and doesn’t much care about that). The executive order and accompanying materials openly attack NPR’s editorial choices:
On May 1, 2025, President Trump issued Executive Order 14290, entitled “Ending Taxpayer Subsidization of Biased Media” (the Order), 90 Fed. Reg. 19415, which contradicts these statutory precepts and violates the Constitution. Contrary to Congress’s intent to support an independent public radio and television system, and statutory requirements that expressly shield the Corporation and entities like Plaintiffs from governmental interference, the Order directs federal agencies as well as the Corporation to withhold all federal funding from NPR and the Public Broadcasting Service (PBS). The Order further directs the Corporation to “cease indirect funding to NPR and PBS” by mandating that local radio and television stations that receive grants from CPB, like the Local Member Stations, not use those federal funds to acquire NPR or PBS programming, and by revising existing grant agreements to prohibit grantees “from funding NPR or PBS.”…
It is not always obvious when the government has acted with a retaliatory purpose in violation of the First Amendment. “But this wolf comes as a wolf.” Morrison v. Olson, 487 U.S. 654, 699 (1988) (Scalia, J., dissenting). The Order targets NPR and PBS expressly because, in the President’s view, their news and other content is not “fair, accurate, or unbiased.” Order § 1. And the “Fact Sheet” and press release accompanying the Order, which echo prior statements by President Trump and members of his Administration, only drive home the Order’s overt retaliatory purpose. They deride NPR’s content as “left-wing propaganda,” and underline the President’s antipathy toward NPR’s news coverage and its editorial choices. See “Fact Sheet: President Donald J. Trump Ends Taxpayer Subsidization of Biased Media” (May 1, 2025) (asserting that NPR published articles “insist[ing] COVID-19 did not originate in a lab” and “refused to cover the Hunter Biden laptop story”); 1 Press Release, “President Trump Finally Ends the Madness of NPR, PBS” (May 2, 2025) (asserting that NPR “apologized for calling illegal immigrants ‘illegal’”).
It’s a bit surprising that PBS and NPR aren’t suing together, though the news side of NPR reports that PBS is looking into suing:
PBS is not a party to the lawsuit. The television network issued a statement Tuesday morning saying, “PBS is considering every option, including taking legal action, to allow our organization to continue to provide essential programming and services to member stations and all Americans.”
NPR also notes that the case has been assigned to the same judge, Randolph Moss, who is handling a different, but similar lawsuit, in which the Corporation for Public Broadcasting had sued Trump after he tried to fire a bunch of its board members.
Look, you can argue the federal government shouldn’t fund any media (though that would devastate rural communities that rely on public broadcasting). But even if that’s your position, such decisions belong to Congress, not a president with hurt feelings. And they absolutely cannot be made based on viewpoint discrimination.
Trump managed to violate both principles simultaneously — casually torching separation of powers while engaging in the kind of obvious retaliation against media that would be more fitting in authoritarian countries with dictators Trump admires. NPR’s lawsuit should be a slam dunk, assuming we still have courts willing to enforce the Constitution when it’s inconvenient for presidents.
Elon Musk may claim he’s leaving the government, but regardless of whether he or anyone DOGE leaves the damage has been done, and their potential legal exposure to it remains. And with this decision earlier this week, some of the litigation pursuing it made headway.
As we’ve written before, Judge Chutkan has had Musk and DOGE’s number for months, noting early on in this case, New Mexico v. Musk, one of the first challenges brought directly against them, that it appeared they had been acting without constitutional authority as it vandalized the federal government. Nevertheless, despite these suspicions she declined to enjoin them because it was then not clear that the states could plead adequate irreparable harm. And then her award of expedited discovery was overturned on appeal because the government’s motion to dismiss was still pending. There is now a ruling on that motion, and in a brand new decision she has allowed the case against them to continue.
It is an important ruling in an important case, although at this point maybe not in the way it originally seemed when first filed. It was first filed as a vehicle to get DOGE out of the government altogether, and before they had the chance to do much more damage. Unfortunately the TRO was denied. Nevertheless, the dicta in the decision denying it observed that DOGE was probably acting unlawfully, and that language may have helped judges addressing other, more agency-specific cases challenging Musk and DOGE issue orders constraining what DOGE can do. However, none have managed to remove the DOGE blight completely, which has still been rampaging across the government (and even beyond!) breaking things, which then all require separate lawsuits to address and only after plenty of damage has already been done (and likely unlawfully). And this decision, at such an early stage, will not remove it either, although it does move us all one step closer to its potential eradication (even if Musk or anyone DOGE leaves under their own power, it might not be enough to contain the scourge without a court ensuring that the door is locked behind them adjudicating relief from the mess they’ve already made).
And it is notable in at least two other ways. One relates the issue of “ratification,” which has been confounding courts. It comes up when DOGE has done something destructive within an agency but then the agency personnel legitimately endowed with power make it seem like what DOGE did was actually their doing. Courts are still struggling to figure out what to do with all this wrongfulness, because there may be a slight but important legal difference between DOGE causing damage with absolutely no lawful authority versus agency officials causing damage by misusing the authority they do lawfully have. (This is why it appears that hybrid cases suing both DOGE and the agency officials may be the most successful because they target both actors.)
This case, however, targets only Musk and DOGE (and Trump initially, although this decision did dismiss him). But it is still useful and important. Not only because, if DOGE were squashed, there would then be no DOGE actions for any agency official to ratify. But it may also bear on the ratification issue because courts are starting to realize that if DOGE is acting unlawfully then it would be impossible for any agency official to legitimately ratify what it has done. Unfortunately the DC Circuit has yet to see things that way, but in this decision Judge Chutkan explained how an earlier case where it had accepted ratification as a way of excusing DOGE was inapplicable here. First she explains what happened in that case:
Alternatively, Defendants argue that, even if Musk directed others to take the “complained-of-actions,” States fail to establish that the actions “were not formally approved by a relevant agency actor with proper authority.” MTD at 23. Defendants insist Andrade v. Regnery, 824 F.2d 1253 (D.C. Cir. 1987) thus bars States’ claim. MTD at 24.
In Andrade, the D.C. Circuit held that the termination or demotion of federal employees under a reduction in force (RIF) program did not violate the Appointments Clause because a duly appointed officer with the statutory responsibility for demoting or firing employees ratified all actions taken in connection with the RIF before it went into effect. 824 F.2d at 1255–57. Even though unappointed staff planned and largely executed the RIF, it “did not abridge the requirements of the Appointments Clause” because a duly appointed official had “final authority” on the day it took effect and was “the legal architect” of the RIF. Id. at 1257. The D.C. Circuit explained that “it is an everyday occurrence in the operation of government for staff members to conceive and even carry out policies for which duly appointed or elected officials take official responsibility.”
But even if the government were correct, that ratification should sink this case because it would explain and legitimize all the complained-of harm, it couldn’t be grounds for dismissing the case yet:
The D.C. Circuit made that determination following summary judgment proceedings and with the benefit of a factual record that clearly established a duly appointed official ratified the contested actions. Id. at 1255–56. At this juncture, the court lacks a factual record and must accept States’ allegations as true. Iqbal, 556 U.S. at 678. States allege that Musk and DOGE personnel, not a relevant agency actor with proper authority, took the challenged actions. Compl. ¶¶ 60, 64–225. The court cannot accept Defendants’ contrary claim that agency actors signed off on all decisions.
But then she made a separate and likely more important point about how far ratification could actually go to exonerate DOGE’s offenses:
Moreover, Defendants improperly invert Andrade’s holding. They read Andrade to hold that Musk can lawfully direct actions by agency actors, so long as those actors were duly appointed. MTD at 22–23. But Andrade addressed the “everyday occurrence” of “staff members” carrying out policies adopted by “duly appointed or elected officials.” 824 F.2d at 1257. The apt analogy would be an appointed agency head directing Musk to carry out a policy, not the opposite. States allege that, rather than subordinate himself to duly appointed officials, Musk “reports only to President Trump,” Compl. ¶ 71, removes agency officials that stand in his way, id. ¶¶ 84–85, 137–38, or obtains compliance through threats and intimidation, id. ¶ 95. Andrade did not resolve whether an individual who has not been duly appointed may direct the actions of appointed officials, and extending its holding to encompass that scenario would be particularly inappropriate in the face of allegations that agency actors obeyed Musk’s directions to avoid legal action or termination.
The issue remains unresolved, and this language is also likely dicta, but it makes an important point. Agency officials have a lot of legitimate power but statutes, like the APA and other more agency-specific statutes, constrain that power, so there’s a limit to what they could do on their own volition (like, for instance, not close down their own agency). But the record seems to be showing that they are making these moves not of their own volition but at Musk and DOGE’s direction, and our constitutional order prevents them from legitimizing what Musk and DOGE have done via that path. The agency-specific cases will address that there was no lawful way to impose the harms that have ensued, but this case is about Musk and DOGE having tried to wield unlawful power to cause it. Those efforts are still wrongful even if they are not the only thing wrongful that happened to lead to the harm. And what the court seems to be suggesting here is that because the APA (etc.) forbade these actions, and yet they happened anyway, it helps show that Musk and DOGE were indeed the cause.
Which is another reason why this case is important, because Musk and DOGE ultimately need to be held personally liable for the resulting harm of how they exercised their lawless power. The decision summarizes much of it what they have done to date:
Controlling Expenditures and Disbursements of Public Funds: States allege that DOGE obtained “full access” to payment systems at multiple agencies and used that access to halt payments. Id. ¶¶ 78–79, 85, 127–30. For instance, after the acting-Secretary at U.S. Department of Treasury refused to “halt” payments, DOGE personnel threatened the acting Secretary with “legal risk [] if he did not comply with DOGE.” Id. ¶ 84. Then, on February 2, DOGE obtained “full access” to Treasury’s Bureau of the Fiscal Services payment systems, which disburses funds for social security benefits, veteran’s benefits, childcare tax credits, Medicaid and Medicare reimbursements, federal employee wages, federal tax refunds, and facilitates state recovery of delinquent state income taxes. Id. ¶¶ 78–79, 85. That day, Musk posted on X that “[t]he @DOGE team is rapidly shutting down these illegal payments,” in response to a post by a non-profit organization receiving funds pursuant to government contracts. Id. ¶ 86.
Terminating Federal Contracts and Exercising Control over Federal Property: States allege that Musk and DOGE asserted responsibility for terminating federal contracts across the Executive Branch. Id. ¶ 203–04. DOGE reported the cancellation of “104 contracts related to diversity, equity, inclusion and accessibility (DEIA) at more than a dozen federal agencies” on January 31, id. ¶ 205; of “thirty-six contracts across six agencies” on February 3, id. ¶ 206; of “twelve contracts in the GSA and the Department of Education” on February 4, id. ¶ 207; and “cuts of $250 million through the termination of 199 contracts” on February 7, id. ¶ 208. States also allege that DOGE and Musk exercise control over federal property by demanding access to secure facilities and threatening intervention by U.S. Marshals when agency officials refuse, id. ¶¶ 94–95; by “push[ing]” high-ranking officials out of their offices at agency headquarters, id. ¶¶ 164–66, by terminating leases for federal property, id. ¶ 206, and by announcing plans to “liquidate as much as half of the federal government’s nonmilitary real estate holdings,” id. ¶ 160.
Binding the Government to Future Financial Commitments without Congressional Authorization: States point to the Fork in the Road Email, which offered federal employees pay and benefits through September 2025 if they resigned by February 6, as entering into binding financial commitments. Id. ¶¶ 116–20, 212.
Eliminating Agency Regulations and Entire Agencies and Departments: States allege that DOGE personnel took steps to dismantle USAID and CFPB. On February 3, DOGE personnel allegedly “handed” USAID’s acting leadership “a list of 58 people, almost all senior career officials, to put on administrative leave.” Id. ¶ 102. The next day, USAID placed “nearly its entire workforce on administrative leave.” Id. ¶ 103. When “USAID contract officers emailed agency higher-ups” for authorization to cancel programs, DOGE personnel responded directly. Id. ¶ 101. Musk posted on X “CFBP RIP” on the same day that Musk’s aides “set up shop . . . at CFPB’s headquarters” and CFPB’s website was taken down. Id. ¶¶ 146–47. Three days later, CFPB’s acting Director Russell Vought told all employees to “[s]tand down from performing any work task” and “not come into the office.” Id. ¶ 148.
Directing Action by Agencies: States allege that Musk and DOGE obtain compliance from agency officials and employees by threatening action by U.S. Marshals, legal risks, or termination. Id. ¶ 84 (threatening acting-Treasury Secretary with “legal risk”); id. ¶ 95 (threatening USAID personnel blocking access to facility with action by U.S. Marshals); id. ¶¶ 176–178 (DOL employees told to comply or “face termination”). States claim that if agency officials object or raise concerns, Musk and DOGE ignore or override the agency and place on administrative leave or otherwise remove non-compliant individuals. Id. ¶¶ 84–85 (acting-Treasury Secretary “placed on administrative leave” after refusing to halt payments); id. ¶ 110 (DOGE “gained full and unfettered access to OPM systems over the existing CIO’s objection”); id. ¶¶ 137–38 (DOGE representative was “installed” as the Department of Energy’s (“DOE”) “chief information officer” after DOE’s general counsel’s office and chief information office opposed DOGE’s access to DOE’s IT system); id. ¶ 166 (DOGE personnel “pushed” the “highest-ranking officials” at the Department of Education (“ED”) “out of their own offices”).
Acting as a Principal Officer Unsupervised by Heads of Departments: States allege that Musk acts and directs DOGE’s conduct without supervision by agency heads. For instance, States allege that Musk and his team sent the Fork in the Road Email “via a custom-built email system . . . withot consultation with other advisers to the President or OMB officials,” id. ¶ 120; that DOGE personnel at agencies do not “interact at all with anyone who is not part of their team,” id. ¶ 165; and that Musk “reports only to President Trump,” id. ¶ 71.
Obtaining Unauthorized Access to Secure Databases and Sensitive Information: States allege that Musk and DOGE personnel obtained access to secure databases and systems at Treasury, id. ¶ 85, USAID, id. ¶ 95, OPM, id. ¶ 110, the Department of Health and Human Services, id. ¶ 127, DOE, id. ¶ 137, ED, id. ¶¶ 164, 167, DOL, id. ¶¶ 177–78, National Oceanic and Atmospheric Administration, id. ¶ 190, Federal Emergency Management Agency, id. ¶ 194, and Small Business Association, id. ¶ 198.
While it would have been nice if personal liability could have been pursued earlier, to at least scare the minions away from helping Trump and Musk complete their destructive mission, the litigation that will eventually pursue it may be stronger with a judicial finding that Musk and DOGE’s actions were indeed illegal. And not something that any of them can escape even if they voluntarily stop – while it’s great if Musk or any DOGErs give up their access to government systems and services and stop causing even more harm, they should still be liable for the harm they have already caused.
And this decision in this case gets us one significant step closer to that day where they may have to pay.
Any bit of data that isn’t nailed down by court precedent will apparently find its way into the hands of the US government.
For years, the DEA has been data mining traveler data in hopes of finding people carrying around “too much” cash. This effort has been such a windfall for the DOJ that the DEA has paid hundreds of thousands in rewards to airline and Amtrak employees that tip them off to travelers they might think might be boarding planes and trains with cash to seize.
For some employees of travel entities, it’s a viable side hustle they can engage in while still showing up for their day jobs.
[A]mtrak’s inspector general revealed that agents had paid a secretary $854,460 over nearly two decades in exchange for passenger information.
There’s doubtlessly a mercenary angle to this latest news on data purchases by federal law enforcement agencies, first reported by Edward Hasbrouck for Papers, Please!
A company you’ve probably never heard of is selling copies of every airline ticket issued by a travel agency in the US to the US Department of Homeland Security (DHS) and a plethora of other Federal law enforcement and immigration agencies — and who knows who else.
According to the document found by Ms. Schwenk on SAM.gov, ICE is entering into a no-bid contract with the Airlines Reporting Corporation (ARC) “to procure, on a sole source basis, licenses for Travel Intelligence Program (TIP)… The vendor listed is the only company that can provide the required software licenses.”
If you’re using a third party to purchase airline tickets, odds are your data is running through ARC. It’s almost unavoidable. That means any sharing of data with ARC isn’t “voluntary,” at least not in the traditional sense. It’s the voluntary nature of the exchange that gives the Third Party Doctrine its power. Or at least it should be. Of course, that particular facet of this opportunistic sale of traveler data will get buried under the government’s protests that it’s entitled to obtain third party data without having to bother with warrants (or even subpoenas).
It’s the same reason ICE and others are buying location data from third party data brokers. It’s cheap, easy, and doesn’t create a publicly-observable paper trail the way search warrants do.
ARC has plenty to say on its site about the positive aspects of its data-sharing agreements with private companies like Expedia and its competitors. Nowhere on its site will you find any direct mention of its sale of this same ticket data to federal law enforcement agencies.
While travelers may understand they’re sharing information with the third party travel agents they’re doing business with, it’s highly unlikely they understand there’s yet another third party harvesting all of this information and providing it in bulk to the US government.
ARC doesn’t really want airline passengers to know it exists. And it certainly doesn’t want any of them to know its selling their ticket data to government agencies. While it’s unlikely to cause much of a constitutional issue here in the United States thanks to the courts’ very liberal interpretations of the Third Party Doctrine, the clearinghouse may be violating other countries’ laws by collecting, storing, and re-selling this information.
We’ve never heard of the “Travel Intelligence Portal” through which ARC offers access to ticket records before now. TIP isn’t mentioned anywhere on ARC’s website, in ARC’s privacy policy, or in the privacy policy of any airline or travel agency we’ve reviewed. Travelers and ticket purchasers who don’t know that ARC exists aren’t likely to ask what it has done with their data. We don’t know whether TIP is a service offered by ARC exclusively to Federal agencies, or if it has other government or commercial users in the US and/or abroad.
The previously unnoticed ARC contracts with ICE and other US government agencies also raise substantial doubt as to whether travel agencies or airlines — including foreign airlines that process payments for their ticket sales in the US through ARC, and travel agencies that act as their agents in the US — are complying with foreign laws including PIPEDA in Canada and the GDPR in Europe.
Hiding this program from passengers makes it clear ARC doesn’t feel it would be well-received by those affected by it. Letting it run in the background while cluttering its front page with articles and press releases that suggest ARC is just dealing in aggregate data (i.e., total number of travelers and ticket prices per quarter, etc.) is, at best, deliberately misleading.
Like any other company with access to a ton of third party data, ARC has found plenty of willing buyers in government agencies. These agencies are similarly uninterested in informing the public about the sources they buy from and what data they’re obtaining with the public’s tax dollars. While this collection probably isn’t much help in finding travelers with cash in their pockets, it’s yet another way the government is collecting more information than it truly needs just because it can.
Remember “Liberation Day”? The day when Trump launched those apparently freedom-loving taxes on all Americans by declaring war on global commerce so hard that we were even planning on taxing penguins on uninhabited islands? Well, some of you might recall that the Constitution distributes power, and doesn’t give it all to the President. And Trump’s tariffs are supposedly based on “emergency” powers. The president can impose certain regulations on foreign countries during emergencies, Congress said — you know, like if Canada nukes us or something. Trump looked at this law and thought: “Perfect! Americans buying stuff from other countries is clearly an emergency.”
His theory (to the extent it can be called a “theory”) goes something like this: trade deficits are an “unusual and extraordinary threat” to America, so the president can declare a perpetual national emergency about… international commerce existing. Every purchase of a Toyota is basically another Pearl Harbor.
Anyway, two courts looked at this theory this week and had some thoughts.
First up: the US Court of International Trade, which is exactly what it sounds like — the court that deals with trade stuff. They took one look at Trump’s tariffs and said, essentially, “The Constitution gives Congress the power to impose tariffs, not the president. This isn’t complicated.”
Now, Congress did pass a law saying the president can “regulate a variety of economic transactions” during emergencies. But here’s the thing: The court noted that declaring every trading relationship with every country to be an emergency is… not really how emergencies work.
The court’s reasoning was pretty straightforward:
IEEPA does not authorize any of the Worldwide, Retaliatory, or Trafficking Tariff Orders. The Worldwide and Retaliatory Tariff Orders exceed any authority granted to the President by IEEPA to regulate importation by means of tariffs.The Trafficking Tariffs fail because they do not deal with the threats set forth in those orders.
Translation: You can’t just declare everything an emergency and use emergency powers forever.
But wait! There’s more. Yesterday, a regular federal court in DC also blocked the tariffs. Judge Rudolph Contreras was equally unimpressed with Trump’s legal theory:
This case is not about tariffs qua tariffs. It is about whether IEEPA enables the President to unilaterally impose, revoke, pause, reinstate, and adjust tariffs to reorder the global economy. The Court agrees with Plaintiffs that it does not
The judge made some pretty devastating points about why Trump’s theory falls apart. First, there’s the basic constitutional problem:
The Court agrees with Plaintiffs that the power to regulate is not the power to tax… The Constitution recognizes and perpetuates this distinction. Clause 1 of Article I, Section 8provides Congresswith the “Power To lay and collect Taxes, Duties, Imposts and Excises.” Clause 3 of Article I, Section 8 empowers Congress “To regulate Commerce with foreign Nations.”
In other words, the Constitution specifically separates the power to tax from the power to regulate trade and gives both to Congress. If Trump could just call tariffs “regulation,” then that whole separation becomes meaningless.
Congress has also been careful when delegating tariff authority to presidents. Every other law giving the president tariff powers comes with “express procedural, substantive, and temporal limits.” But Trump’s reading of the emergency law would “eviscerate” all those careful limits:
Those comprehensive statutory limitations would be eviscerated if the President could invoke a virtually unrestricted tariffing power under IEEPA…. The Court will not assume that, in enacting IEEPA, Congress repealed by implication every extant limitation on the President’s tariffing authority….
Even worse, if the court were willing to accept Trump’s interpretation of the IEEPA, then that would make the IEEPA unconstitutional. Oops!
Defendants’ interpretation could render IEEPA unconstitutional. IEEPA provides that the President may “regulate . . . importation or exportation.” … The Constitution prohibits export taxes. See U.S. Const. art. I, § 9, cl. 5 (“No Tax or Duty shall be laid on Articles exported from any State.”). If the term “regulate” were construed to encompass the power to impose tariffs, it would necessarily empower the President to tariff exports, too. The Court cannot interpret a statute as unconstitutional when any other reasonable construction is available.
Finally, the court notes that in the fifty years since this emergency law was passed, literally no president has ever used it to impose tariffs. That’s… probably relevant.
And, of course, the markets loved this news. Global stock futures jumped when the courts blocked the tariffs, which tells you everything you need to know about how seriously financial markets take Trump’s trade policies.
The White House press secretary, Karoline Leavitt, responded by claiming that courts have no authority to review presidential tariffs at all, which is… an interesting constitutional theory. If you squint, it almost sounds like she’s arguing that federal judges have absolutely no role overseeing executive uses of power, which might come as news to the Supreme Court. Or anyone who is familiar with how the three branches of government work.
Leavitt: The courts should have no role here. There is a troubling & dangerous trend of unelected judges inserting themselves into the presidential decision making process. America cannot function if President Trump has his sensitive diplomatic or trade negotiations railroaded by activist judges.
Leavitt spews this constitutional nonsense with such conviction that you’d almost think she believes it. But despite her protests about “unelected… activist judges” (some of whom were appointed by Trump himself), it remains a simple fact: Donald Trump is no king, and multiple courts keep ruling to that effect.
Meanwhile, late Thursday, Trump himself blew up at the CIT judges and used it to take a surprising swipe at the Federalist Society and Leonard Leo:
If you can’t see that screenshot, here is the jumbo-sized word salad for you:
The U.S. Court of International Trade incredibly ruled against the United States of America on desperately needed Tariffs but, fortunately, the full 11 Judge Panel on the U.S. Court of Appeals for the Federal Circuit Court has just stayed the order by the Manhattan-based Court of International Trade. Where do these initial three Judges come from? How is it possible for them to have potentially done such damage to the United States of America? Is it purely a hatred of “TRUMP?” What other reason could it be?
I was new to Washington, and it was suggested that I use The Federalist Society as a recommending source on Judges. I did so, openly and freely, but then realized that they were under the thumb of a real “sleazebag” named Leonard Leo, a bad person who, in his own way, probably hates America, and obviously has his own separate ambitions. He openly brags how he controls Judges, and even Justices of the United States Supreme Court — I hope that is not so, and don’t believe it is! In any event, Leo left The Federalist Society to do his own “thing.” I am so disappointed in The Federalist Society because of the bad advice they gave me on numerous Judicial Nominations. This is something that cannot be forgotten!
With all of that being said, I am very proud of many of our picks, but very disappointed in others. They always must do what’s right for the Country! In this case, it is only because of my successful use of Tariffs that many Trillions of Dollars have already begun pouring into the U.S.A. from other Countries, money that, without these Tariffs, we would not be able to get. It is the difference between having a rich, prosperous, and successful United States of America, and quite the opposite.
The ruling by the U.S. Court of International Trade is so wrong, and so political! Hopefully, the Supreme Court will reverse this horrible, Country threatening decision, QUICKLY and DECISIVELY. Backroom “hustlers” must not be allowed to destroy our Nation!
The horrific decision stated that I would have to get the approval of Congress for these Tariffs. In other words, hundreds of politicians would sit around D.C. for weeks, and even months, trying to come to a conclusion as to what to charge other Countries that are treating us unfairly. If allowed to stand, this would completely destroy Presidential Power — The Presidency would never be the same!
This decision is being hailed all over the World by every Country, other than the United States of America. Radical Left Judges, together with some very bad people, are destroying America. Under this decision, Trillions of Dollars would be lost by our Country, money that will, MAKE AMERICA GREAT AGAIN. It would be the harshest financial ruling ever leveled on us as a Sovereign Nation. The President of the United States must be allowed to protect America against those that are doing it Economic and Financial harm. Thank you for your attention to this matter!
Since I don’t hate you quite as much as Trump does, I broke up his nonsensical spew into paragraphs to make it marginally more readable.
But there are a few notable points in here: first, Trump believes that any judge that rules against him is somehow bad and hates America. And if they were appointed by him, he’ll now blame Leonard Leo and the Federalist Society. That’s pretty incredible, since the rise of Trump was very, very much enabled by Leo and the Federalist Society, and their efforts to pack the courts with partisan ideological lackeys who would push Christian nationalism and GOP politics forward.
It’s no surprise but is yet another data point confirming Trump’s view that anyone telling him he broke the law must be anti-American. It’s a dangerous authoritarian stance, but not a new one.
Second, Trump, who positions himself as the world’s greatest dealmaker, effectively admits that he can’t get a Republican Congress to actually approve these tariffs.
Third, Trump is the fucking President. Pretending he’s some poor little victim of the Federalist Society ramming through judges he doesn’t like is so stupid. Trump is basically admitting he was played like a fiddle by Leo, which just demonstrates how weak and unqualified he is as President.
Unfortunately, as Trump noted, the Court of Appeals for the Federal Circuit already put the first ruling on hold while they figure out how to handle it and related cases. But, honestly? The legal reasoning in both rulings is quite solid. Trump’s emergency powers don’t extend to “I don’t like trade deficits” any more than they extend to “I don’t like Mondays.” He may never realize that, but the rest of us must retain that basic reality.
This seems likely to reach the Supreme Court fairly quickly, at which point it’s anyone’s guess how those “unelected activist judges” will rule. But for now, we have two federal courts saying the same thing: the Constitution still applies, even to Trump’s economic theories. It may make Trump sad, but it certainly doesn’t make him right.
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Hey, if we have to be fair (and we don’t), we can trace some of this intranational movement to policies that predate the current shitshow we’re somehow expected to believe is the host to the Leader of the Free World.
A patchwork of marijuana legalization laws has led directly to law enforcement camping out on the borders of weed-friendly states, hoping to bust (but hoping even more to steal money from) people entering those states for the sole purpose of enjoying a substance that’s currently illegal in their own state.
After the Supreme Court decided Roev. Wadewas no longer good law, a new form of awfulness began. Law enforcement and local prosecutors starting arresting and bringing criminal charges against people who traveled to states where abortion was legal, rather than subject themselves to local laws outlawing their bodily autonomy.
It keeps getting worse. Florida has enacted new immigration laws that are even more draconian than Trump’s all-out war on anyone who looks less than full-on Caucasian. Those laws may have been blocked by courts, but that’s not stopping Florida from treating migrants entering the state like migrants illegally crossing US borders.
Florida, Texas, Idaho, New Hampshire: these are the main players in a recent article by The Guardian that details the experiences of people who find themselves refugees from their own former US states.
We’ll start with the story of a teacher who abandoned New Hampshire for Vermont because of the state’s efforts to erase critical race theory and other things that might inform students that white doesn’t always mean right.
John Dube, a high school teacher with 35 years of teaching under his belt, went up against local lawmakers’ attempts to ban CRT theory from being discussed in public schools. This put him in the crosshairs of far right activists, who engaged in a campaign of harassment so worrisome federal and local law enforcement stopped by to warn the teacher of what they had observed online..
The backlash was instant. Granite Grok, a local rightwing website, posted the names of all New Hampshire signatories, and within hours of that Dube received a Facebook message that read: “Whats up homo? I heard your teaching Marxist commie CRT in your classrooms. You can fuck right off you garbage human.”
Dube calmly replied that he would not be intimidated.
Within days, police officers turned up at his house, having been dispatched by the FBI. Dube’s name was circulating on obscure chatrooms frequented by violent militia members. He was urged to install security cameras at home, but when he asked why the police didn’t arrest the perpetrators of the threats, he was told that was impossible on free speech grounds.
So much for the “Live Free or Die” state. It’s now just the “Fuck Off and Die” state, heavily populated by people who believe your rights (and possibly, your life) end where their beliefs begin.
Dube has since relocated to Vermont to teach. He’s not the only one fleeing persecution and/or prosecution in his former home state due to legislation passed by Trump sycophant’s or the disturbing actions of those who support Trump and his rampant destruction of constitutional rights.
The Guardian article also tells the story of two women who left Idaho because of its draconian abortion ban. It’s not just women affected by the ban, though. The article points out two-thirds of Idaho’s fetal medicine specialists have left the state because continuing to provide the care they have for years puts them in danger of being prosecuted under the state’s abortion law.
And another person left Texas to protect their trans teen from harassment and prosecution enabled by the state’s many attacks on trans rights and LGBTQ+ speech. And it isn’t just the simple matter of relocating a family. “Sandra” (the pseudonym used by The Guardian to protect this parent from prosecution or harassment) also had to shut their business and somehow hope it can continue to provide income for their family when (or if) they manage to re-open it.
There are more anecdotes in the Guardian article, ranging from people leaving California to escape wild fires President Trump refuses to provide aid to fight or protect against to pulling up stakes to avoid being subjected to censorship efforts that target not only what content students have access to in libraries to what they’re able to learn about while in class.
If you choose to believe this is nothing more than a few people over-reacting to local policies, you are, of course, free to continue entertaining this delusion. But this is something we simply don’t expect to be happening in the United States. Sure, some people may move to find better schools or better jobs, but they rarely pull up stakes because they feel they’re local government poses a tangible, ongoing threat to their beliefs, rights, and ongoing existence.
And don’t even pretend there aren’t a lot of legislators and state leaders secretly wishing they could just throw up Berlin Walls on their borders to prevent people who disagree with their politics from seeking somewhere else to live. This is all about control of everyone, not just those who simply adore the cool touch of a boot heel to their neck. They want the people who reject their impositions to suffer the most.
Florida has already tried to create a virtual border within the United States with its law that creates new criminal charges for any undocumented immigrant entering Florida from another state. Drug warriors have long pretended the US isn’t contiguous when it comes to selective enforcement of drug laws. And as long as cops and prosecutors are trying to hunt down scofflaws who leave the state to partake of legal goods and services offered in other states, there will always be a latent desire to set up “papers, please” checkpoints on state borders. The only difference now is there are people in power who are willing to explore that option.
The changes are, ironically enough, likely to cause some major additional delays in people actually getting broadband as states are forced to retool their compliance strategies after years of planning. One organization, the Benton Institute for Broadband and Society, estimates that the changes could result in up to a two year additional delay in people getting broadband:
“Mandated changes—if they come from either Congress or the U.S. Department of Commerce—could force states to rerun their entire BEAD sub-grantee selection processes. The resulting delays will cost ISPs across the country hundreds of millions of dollars in time and resources to plan for the new program guidelines and reapply for awards.”
Again, very ironic that Republicans would spend much of the last year complaining about delays in this program, only to introduce massive new delays. And not delays that are actually beneficial to the public, but delays that mostly help their buddies at AT&T/Comcast/Verizon and Elon Musk.
Apparently under the belief he was helping matters, Ezra Klein recently jumped into the broadband debate to make the unoriginal observation that government should make big promises and deliver on them. But his analysis of broadband was simplistically puerile; most of it seemed based on Republican angst, and ignored the real progress made on affordable fiber via ARPA and other initiatives.
Klein also ignored that a major reason BEAD moved slowly was due to corruption and telecom lobbyists trying to weaken and change the bill to their direct benefit (softening speed definitions, weakening map coverage, preventing competitors from getting grants). Corruption is something Klein’s new book tends to downplay as a primary issue of concern, despite its starring role in U.S. dysfunction.
BEAD was never going to win any awards for government efficiency. The bill was passed in 2021, yet states were only just starting to finalize deployment plans. But again there were some good reasons for this; creating a vast coalition of federal and local governments tasked with completely remapping broadband access, then vetting applicants to ensure they could deliver — takes a little time.
The great irony is that most of these delays were the direct result of government not wanting to repeat mistakes in past broadband government subsidy programs. Such as the FCC’s Rural Deployment Opportunity Fund, which was a giant boondoggle under the first Trump administration because the government didn’t do its homework on broadband mapping, or grant applicant credibility.
BEAD’s slower cadence was a direct result of fighting corruption and trying (with mixed results) to do things the right way. It was on the cusp of delivering real-world affordable fiber when Republicans showed up to fix things. By, again, making the resulting, reconstituted program take longer and deliver less. Ingenious. We are truly living in the golden age of populist abundance.
Republican (and Ezra Klein’s) angst over the slow speed of the BEAD broadband grant managed to get the press all hot and bothered for months. I’d wager that this angst curiously won’t be repeated now that pointless new delays were introduced by Republicans to the direct benefit of Elon Musk.
