This is, as they say, why we can’t have nice things.
This week Senator Ron Wyden — one of the few U.S. Senators who takes public and consumer privacy seriously — attempted to pass two bills that would have expanded privacy laws that currently only apply to government employees.
S.2850, or Protecting Americans from Doxing and Political Violence Act, would have extended restrictions on the sale of government official location and behavior data to all Americans. Meanwhile, S.2851 would have extended privacy protections for federal officials and lawmakers to state officials and their staff, in addition to survivors of domestic violence and sexual assault.
“Members of Congress should not receive special treatment,” Wyden said of the effort. “Our constituents deserve protection from violence, stalking, and other criminal threats.”
“Cruz was the sole objecting senator, who claimed without evidence that Wyden’s bill could disrupt law enforcement, “such as knowing where sexual predators are living.”
A survey from U.S. News and World Report last year found that 84% of the public, across partisan ideologies, wants Congress to pass tougher privacy laws. But as we’ve noted repeatedly, our broken oligarchy is too corrupt to function, which has prevented us from passing even basic internet-era privacy protections or regulating dodgy data brokers who track your every click and movement.
The other reason the country doesn’t pass useful privacy laws is because the U.S. government has found it’s trivial to skip warrants and just buy domestic surveillance data from said data brokers. However, so can other international governments and bad actors, a national security hole in our logic that America, once again, has been too corrupt to functionally square.
That’s resulting in increasingly dangerous outcomes, and the country is absolutely begging for a modern privacy scandals that make all past scandals look like some sort of grade school picnic. When that day comes, of course, Ted Cruz (and all the industry-backed “think tankers” who claimed that having even baseline privacy protections would “stifle innovation”) will be nowhere to be found.
Well, the RFK Jr. congressional hearing is now over. And, to the shock of very few thinking persons, it was a complete and total shitshow. I’m sure I will be writing something up on the hearing soon, but the short version is that Congress members on both sides of the aisle went in fairly directly and hard on Kennedy, who attempted to play word games and/or lie in response, when he wasn’t delving into industry-based conspiracy theories.
Preceeding the hearing, however, was a letter signed by over a thousand staffers at HHS, sent both directly to RFK Jr. and to Congress, which demanded his resignation as Secretary of HHS.
More than 1,000 current and former employees of the US Department of Health and Human Services wrote a letter to Secretary Robert F. Kennedy Jr. on Wednesday, arguing that his leadership has “put the health of all Americans at risk” and demanding his resignation.
“Secretary Kennedy continues to endanger the nation’s health,” the employees wrote in Wednesday’s letter, citing actions including the facilitation of Monarez’s firing, the resignations of key, longtime CDC leaders, the appointment of what they called “political ideologues” to influential roles in vaccine policy, and the rescinding of emergency use authorizations for Covid-19 vaccines without, they said, “providing the data or methods used to reach such a decision.”
Now, as he was in the congressional hearing, Kennedy is mostly a one-trick pony when it comes to anyone criticizing his policies on medicine, health, or really anything else. If you disagree with him, you’re paid off by whatever industry he claims to be attacking. Think he’s an anti-vaxx nutbar? You’re paid off by big pharma. Don’t think chemtrails are a thing? You’re part of the conspiracy to control Americans’ thoughts. Sign a letter with a bunch of HHS colleagues asking him to resign because he’s a conspiracy-mongering travesty of an HHS Secretary?
Well, that’s just because these people are all completely broken, you see.
In a statement Wednesday, HHS Communications Director Andrew Nixon told CNN, “Secretary Kennedy has been clear: the CDC has been broken for a long time. Restoring it as the world’s most trusted guardian of public health will take sustained reform and more personnel changes.
“From his first day in office, he pledged to check his assumptions at the door—and he asked every HHS colleague to do the same,” Nixon continued. “That commitment to evidence-based science is why, in just seven months, he and the HHS team have accomplished more than any health secretary in history in the fight to end the chronic disease epidemic and Make America Healthy Again.”
Kennedy is in a leadership position. He can do very little without the team that rolls up to him. And that very team is in complete disagreement with Kennedy’s self-assessment of how amazing he is.
Kennedy is now being pressured from within his own agencies, from Congress, from health-focused NGOs, and from several other places too. I know Donald Trump doesn’t like to admit a single mistake… but is Kennedy really worth all of this trouble?
A New York business frozen out of its checking account. A Georgia chemotherapy patient denied a credit card refund after a product dispute. A New Jersey service member defrauded out of their savings.
These consumers — along with hundreds of others — reached out to their congressional representatives for help in the past 12 months.
“I have been unable to pay my rent, utilities, personal bills, student loans, or my credit card. I have been unable to buy groceries or put gas in my car,” wrote the New Yorker, who contacted Rep. Nicole Malliotakis’ office.
Records show their representatives — all Republicans — referred them to the Consumer Financial Protection Bureau, the watchdog agency formed in the wake of the Great Recession to shield Americans from unfair or abusive business practices. All three consumers got relief, according to agency data.
Then the lawmakers — along with nearly every other Republican in Congress — voted to slash the agency’s funding by nearly half as part of President Donald Trump’s signature legislative package, the One Big Beautiful Bill Act, a step toward the administration’s goal of gutting the agency.
Republicans have long been critical of the CFPB, accusing it of imposing unreasonable burdens on businesses. Already, the CFPB under Trump has dropped a number of cases and frozen investigations into dozens of companies.
Yet the agency has historically benefited consumers across the political spectrum, securing around $20 billion in relief through its enforcement actions.
Data obtained by ProPublica through a public records request shows that many of the same Republican members of Congress who have targeted the CFPB for cuts have collectively routed thousands of constituent complaints to the agency.
Rep. Darrell Issa of California and Rep. Rob Wittman of Virginia, for example, voted to reduce the CFPB’s budget. Yet each of their offices has referred more than 100 constituents to the CFPB for help, among the most of any House members. The office of Sen. John Cornyn of Texas, who also voted for the CFPB cuts, has routed more than 800 constituent complaints to the agency, the most of any current lawmaker from either party, ProPublica found.
A spokesperson for Issa said in an email that most of his office’s referrals to the agency “occurred several years ago” and reflected “a conventional way” to handle constituents’ consumer issues.
Wittman and Cornyn didn’t respond to questions from ProPublica about the disconnect between their offices’ use of the CFPB’s services and their votes to cut it. Neither did New Jersey Rep. Chris Smith, whose office fielded the defrauded service member’s complaint, or Malliotakis, who was approached by the New York business owner, or Rep. Rick Allen, whose office directed the Georgia chemotherapy patient to the agency.
Overall, members of Congress have steered nearly 24,000 complaints to the CFPB since it opened its doors in 2011. Roughly 10,000 of those were referred by the offices of current and former Republican lawmakers, ProPublica found.
“This is how members of Congress from both parties get help for the people who live in their districts,” said Erie Meyer, the CFPB’s former chief technologist, who left the agency in February. The agency has a particular mandate to help service members and seniors, she noted. “This is how, if a service member is getting screwed on an auto loan, this is the only place they can go.”
Sen. Richard Blumenthal, D-Conn., has referred more than 200 constituents to CFPB since its creation. In a statement to ProPublica, he accused Republicans in Congress of “pursuing senseless cuts that will undermine their own ability to protect their constituents, who will be left in the lurch when they fall victim to scams or deceptive and unfair business practices.”
“Republicans have made clear that they stand on the side of big businesses — not consumers,” he added. “Their irresponsible pursuit of dismantling the CFPB will have far-reaching and long-lasting consequences.”
An Irreplaceable System
In recent years, the CFPB’s public database shows the number of complaints has exploded, from around 280,000 in 2019 to more than 2.7 million last year.
Complaints have grown across many categories, including credit cards and debt collection. Last year, most of the complaints filed, over 2.3 million, were about mistakes or other problems involving credit reporting agencies, and more than half of them resulted in relief, CFPB data shows.
“These credit score formulas govern so many factors of your life. It’s not just your ability to get a loan, it’s your ability to secure housing or qualify for a job,” said Adam Rust, director of financial services at the Consumer Federation of America. “It’s important that you can resolve something, but it’s difficult to do it on your own.”
Once a complaint is submitted, it is routed to the company, which has 15 days to respond. Companies can request an additional 45 days to reach a final resolution.
Many consumers end up getting nonmonetary relief, such as fixes to erroneous credit reports or an end to harassment by debt collectors, but some get financial help as well. More than $300 million has been returned to Americans through the complaint system, including $90 million just last year.
Normally, staff at the CFPB monitor the complaints to identify systemic issues and escalate complaints involving consumers who are at immediate risk of foreclosure, although that didn’t happen for a few weeks this year when the agency’s acting director halted its work.
The CFPB also shares complaint information with other federal agencies, states and localities to help them protect consumers. No other government or private entity has the capacity to effectively handle the volume of complaints that the CFPB does, experts and current and former employees say.
In legal filings opposing the Trump administration’s steps to effectively shut down the CFPB, 23 Democratic attorneys general noted that their states collectively have referred thousands of complaints to the agency and that its services can’t be replaced by state-level operations.
“In the CFPB’s absence, consumers will be left without critical resources,” they wrote.
The complaint system has also lessened the burden on congressional offices, which can route constituent problems to an agency dedicated to, and expert in, addressing consumer issues. Yet that hasn’t stopped Republicans from pursuing dramatic cuts to the agency.
The CFPB receives its funding from the Federal Reserve instead of annual appropriations bills. The structure is meant to safeguard the agency’s independence, though critics say this makes the agency less accountable, giving elected officials less power over its operations.
Initially, Republicans pressed for extreme cuts to the CFPB as part of Trump’s legislative package. House members approved a 70% cut. The Senate Banking Committee attempted to go even further, zeroing out the agency’s funding entirely.
Ultimately, the final version of the bill signed into law by Trump on July 4 cut the CFPB’s budget by around 46%, reducing the agency’s funding cap — the maximum amount it can request from the Federal Reserve — from $823 million to $446 million for this fiscal year. The agency requested $729 million last fiscal year.
The offices of lawmakers who voted for the bill have referred about 3,400 complaints to the agency, running the gamut of consumer problems — from crushing debt to mortgage issues to financial scams, ProPublica’s data analysis shows. (In some of these cases, consumers also took complaints to the CFPB themselves in addition to reaching out to their representatives. Consumers’ names aren’t disclosed in the data.)
Their constituents are sometimes desperate: “I’m about to be homeless because of this,” wrote a Florida resident whose bank account was frozen.
Others have expressed frustration at getting the runaround from a company. “I’ve spent countless hours on hold trying to speak with a representative, only to be met with silence or outdated instructions to send letters,” wrote one Virginian in a complaint about their bank.
In a statement after the CFPB funding cut passed, the chair of the Senate Banking Committee, Tim Scott, R-S.C., applauded the measure for saving taxpayer money but insisted it would not affect the agency’s mandatory functions, which include handling complaints.
Consumer experts as well as current and former CFPB employees, however, said the cuts will likely hinder the agency’s effectiveness.
“I think the whole process is at risk,” said Ruth Susswein, director of consumer protection at the nonprofit advocacy group Consumer Action. “If you starve the system, it cannot provide the benefits that it now offers.”
Signs of Strain
The Trump administration’s initial efforts to unilaterally hobble the CFPB give a hint of what may lie ahead for the complaint system.
In February, acting Director Russell Vought issued a stop-work order to all CFPB employees and canceled a slew of contracts, including for antivirus software that scanned files attached to consumer complaints.
The actions largely froze the complaint system for about a week. More than 70,000 complaints were submitted, but most were not sent to companies for their response during that period, data shows.
Although some issues were later fixed, the work stoppage spawned a backlog of more than 16,000 complaints that required manual review, according to court records from a lawsuit filed by the union that represents CFPB employees. About 75 complaints from consumers at risk of imminent foreclosure, which would normally be escalated to CFPB staff, weren’t acted upon.
In late March, U.S. District Judge Amy Berman Jackson ordered the CFPB to end the work stoppage, reverse contract terminations and reinstate probationary employees who were fired. However, an appeals court allowed layoffs to proceed, triggering a frenzied effort by the administration to cut about 90% of the CFPB’s staff.
The layoffs included the vast majority of the roughly 130-member team that manages the complaint system as well as nearly every staffer in legally mandated offices focused on service members and seniors.
The CFPB has fielded over 440,000 complaints from current and former service members and their families since 2011, according to CFPB data, more than 100,000 of which have resulted in relief.
The CFPB did not respond to multiple requests for comment. In a court declaration, Mark Paoletta, the CFPB’s chief legal officer, said that the agency’s leadership had “been assessing how the agency can fulfill its statutory duties as a smaller, more efficient operation. In making this assessment, leadership discovered vast waste in the agency’s size.”
Paoletta also said the agency would have a “much more limited vision for enforcement and supervision activities, focused on protecting service members and veterans, and addressing actual tangible consumer harm and intentional discrimination.”
In April, Jackson issued an order blocking the firings made at the CFPB after the appeals court decision. The administration has appealed Jackson’s ruling.
Lawsuits won’t protect the CFPB or its complaint apparatus from the cuts included in the recently passed spending bill, current and former agency employees pointed out.
These changes are likely to hit home with consumers no matter which party they favor, said Lauren Saunders, associate director of the National Consumer Law Center, which is a plaintiff in the union’s lawsuit.
“Republicans don’t want to be abused by big corporations that ignore them any more than Democrats do,” she said.
As the Jeffrey Epstein scandal continues apace, and MAGA grapples with the gaslit reality they live in, the Trump Administration continues to negotiate so-called trade deals, which are negotiated and implemented using pure executive fiat, under emergency powers, under an emergency declaration which has no rational basis, while everyone pretends this isn’t an example of a constitutional coup. It’s actually an exercise in sedition, if one were to avoid putting a finer point on it.
The mechanism is breathtakingly brazen: declare a fake national emergency, invoke emergency trade powers designed for genuine crises, bypass Congress entirely, and conduct billions of dollars in international agreements through personal presidential decree. When Japan agrees to invest $550 billion based on Trump’s “Strategic Trade Agreement,” they’re being asked to legitimize constitutional fraud that exists only through Trump’s personal authority rather than constitutional process.
Our allies aren’t stupid. They understand perfectly that what Trump is doing is illegal. The Constitution explicitly grants Congress the power “to regulate Commerce with foreign Nations”—not the president. Foreign governments have constitutional lawyers who can read Article I, Section 8 as clearly as anyone. They know there is no emergency, no “unusual and extraordinary threat” that justifies bypassing Congress to negotiate trade policy through executive decree. They must be horrified by how few Americans seem to care that their government operates through systematic constitutional violation.
They’re also not holding out hope that the Supreme Court’s conservative majority, with its expansive view of executive authority, will do much to stop this constitutional arson. Foreign leaders understand that when courts create doctrines of presidential immunity and presumptive constitutionality, they’re watching American institutions actively eliminate their own constraints rather than enforce them.
Congress could terminate these fraudulent emergencies at any time under the National Emergencies Act. Instead, Republican leaders have chosen to become active accomplices in constitutional destruction. They literally suspended the flow of time itself—declaring that calendar days would not constitute calendar days—to avoid voting on Trump’s fake emergency tariffs. When that proved insufficient, Speaker Mike Johnson simply shut down the People’s House entirely to prevent oversight votes. Senator Markwayne Mullin confessed the conspiracy on the House floor: “What we’re simply trying to do here is give President Trump cover.”
This demonstrates what a fundamentally unserious country we’ve become, with a political economy increasingly designed toward the maintenance of Trump’s personal power rather than constitutional governance. These vulgar arsonists in Congress have voluntarily transformed from co-equal branch into presidential protection service, abandoning their constitutional duties to serve one man’s authority. Every avoided vote, every suspended timeline, every shutdown of democratic process serves the same seditious purpose: eliminating constitutional constraints on executive power.
Foreign governments make contingency plans that don’t depend on American institutional reliability because American institutions have demonstrated they are no longer reliable. When your legislature suspends time to avoid constitutional duties, when your president conducts policy through fake emergencies, when your courts create immunity doctrines that make accountability impossible—you signal to the world that constitutional government has ceased to function.
Every trade deal negotiated through fake emergency powers establishes irreversible precedent that the presidency can operate beyond constitutional constraint by simply declaring emergencies. Trump has converted emergency powers designed to protect the republic into tools for dismantling republican government itself, while Congress provides the accelerant and courts provide the legal cover.
This is sedition: the systematic subversion of constitutional government by those sworn to preserve it. The American republic is being destroyed by constitutional arsonists who have discovered that the most effective way to eliminate democratic constraints is to declare them emergencies that require bypassing democracy itself. Our allies watch in horror as we demonstrate the complete transformation of American governance from constitutional republic to personal rule.
The United States is today one of the most corrupt countries in the world, as a result of the results of our election last November.
The center cannot hold when those charged with holding it have chosen to burn it down instead.
“If destruction be our lot, we must ourselves be its author and finisher. As a nation of freemen, we must live through all time, or die by suicide.” — Abraham Lincoln
Mike Brock is a former tech exec who was on the leadership team at Block. Originally published at his Notes From the Circus.
Men in masks kidnapping people off streets or turning businesses into ghost towns is now nothing more than an everyday occurrence in the United States. The Trump administration never actually cared whether or not the people it ejected from the country due to their race, color, or creed were, in fact, criminals. All it ever wanted to do was place its thumb on the scales of justice to ensure the population of non-white, non-MAGAs decreased steadily.
The United States once promised a better life for anyone fleeing oppression or simply seeking a better fortune than could be found in their own countries. We haven’t been that nation for most of the last decade, if not longer. Instead, we’re the kind of country that aligns itself with people who would rather see a boat full of refugees sink than agree to share “their” country with anyone who isn’t as big on bigotry as our current president.
The new budget bill barely passed and it took the assumption that Vice President JD Vance wouldn’t accidentally vote the wrong way to get it done. It’s a Trump bill, which means social services will be stripped of funding, rich white voters will be able to take advantage of new tax breaks, and the administration’s hateful expulsion of immigrants will be extremely well-funded. The same administration that created the Department of Government Efficiency (DOGE) under the pretense of making a big government smaller actually believes the parts of the government it likes should get much, much bigger.
This dissonance prompted a war of words between Trump and the former head of DOGE, Elon Musk — the white foreigner who spent a lot of his own money ensuring Trump’s return to office. Musk, for once, acted like a classic conservative, criticizing the billions being added to the deficit, despite Trump’s claims about trimming the federal fat while yanking the power of purse away from Congress as often as possible.
Perhaps the biggest beneficiary of the new budget is the current national focal point, Immigration and Customs Enforce. ICE — along with its private prison contractors — is getting an exponential increase in funding, making it clear this administration is little more than a one-issue presidency.
The legislation makes U.S Immigration and Customs and Enforcement the largest federal law enforcement agency, giving it $45 billion for building new detention centers in addition to $14 billion for deportation operations. It also includes $3.5 billion for reimbursements to state and local governments for costs related to immigration-related enforcement and detention.
The bill funds an expansion to approximately double immigrant detention capacity, from about 56,000 detention beds to potentially more than 100,000. Private prison firms — many of which were significant financial supporters of GOP candidates for Congress as well as the president’s election campaign — will reap major financial benefits from this spending, as nearly 90 percent of people in ICE custody are currently held in facilities run by for-profit firms.
In terms of national concern, immigration is very low on the list of things bothering most people. The people doing the most complaining about migrants are racists who have suddenly been given a megaphone by a president who shares many of their deliberate misconceptions. These people complain immigrants are taking jobs from US citizens but there’s been no rush by US citizens to fill the void left by ICE raids at meat packing plants, farms, and other labor-intensive occupations. They also claim migrants burden the government with their free-loading, ignoring years of data showing migrants not only pay more than their share of taxes, but also commit criminal acts less frequently than natural-born citizens.
ICE is now the largest law enforcement agency in the United States — the recipient of nearly $70 billion to fund work it doesn’t really even need to be doing. As CBP data shows, the flow of migrants into the country has slowed to a trickle. The people being hunted down by ICE’s Gestapo-esque squads are generally just people who work hard, pay taxes, respect laws, and are a net gain for this country. The criminal element has largely been removed already and whatever’s left simply isn’t enough to justify raids of businesses, neighborhoods, and public gatherings. All that’s doing is fluffing ICE’s detainment stats. And the only people who care about those numbers are the bigots currently serving as un-elected officials in the Trump Administration.
And this means that ICE will continue to be this terrible long after Trump leaves office (assuming, of course, he decides to respect this particular law). Once the money becomes part of an agency’s budget, it takes a concerted effort to roll back the expected annual funding. And from what we’ve seen of the federal government pretty much since its inception, funding only gets cut if it scores political points. Since ICE is part of the DHS and the DHS is still pretending it gives a single shit about homeland security, all it will take for ICE to remain the largest US law enforcement agency is periodic assertions about its national security-related efforts, even if those efforts are just regular-ass racism the agency pretends makes this country safer.
What may be one of the U.S. Supreme Court’s most important and far-reaching rulings in decades dropped in late May 2025 in an order that probably didn’t get a second – or even first – glance from most Americans.
But this not-quite-two-page ruling, as technical and procedural as they come, potentially rewrites a major principle of constitutional law and may restructure the operation of the federal government.
The case is dry in a way only lawyers could love, but its implications are enormous.
The National Labor Relations Board and the Merit Systems Protection Board, like the National Transportation Safety Board and the Federal Reserve, are among more than 50 independent agencies established by Congress to help the president carry out the law. Though technically located within the executive branch, independent agencies are designed to serve the public at large rather than the president.
Other executive branch agencies, such as the FBI, Food and Drug Administration and Department of Homeland Security are entirely under presidential command – if he wants their leaders out, out they go. But independent agencies, in existence since the late 19th century, are to carry out congressional policy free from the president’s purview and his political pressure.
Because independent agencies are creatures of Congress housed within the executive branch, there is long-standing disagreement among scholars about just how much power the president should have over them.
Limiting Congress, empowering the president
In the two firings, there was agreement that Trump had violated the relevant statute by firing Wilcox and Harris without “good cause.”
But the bigger issue was whether the law itself was constitutional: Could Congress limit why or how a president can remove employees of the executive branch?
The root of the problem lies within the Constitution. Although Article 2 specifically gives the president the power to “appoint” certain federal officials, it says nothing about the power to fire -– or “remove” – them.
Conservative legal scholars propose, under what’s called the “unitary executive theory,” that because the president “is” the executive branch, he has complete authority, including removal, over all who serve within it. Only with the unfettered ability to fire anyone who serves under him can the president fulfill his constitutionally mandated duty to ensure that “the Laws be faithfully executed.”
The Supreme Court first took up the issue in 1926 in Myers v. United States, when Chief Justice – and former president – William Howard Taft held that Congress could not limit the president’s ability to fire an Oregon postmaster, writing that “the power to remove inferior executive officers … is an incident of the power to appoint them.”
Less than a decade later, however, the court ruled in Humphrey’s Executor v. United States that the Constitution did not grant the president an “illimitable power of removal,” at least over certain types of officials. This included the head of the Federal Trade Commission, whose firing by President Franklin Roosevelt had sparked the case.
Humphrey’s Executor stood basically untouched for decades, until Justices John Roberts and Samuel Alito – both of whom had previously served in the executive branch – were appointed.
With a now-solid conservative majority, the Supreme Court invalidated restrictions on the president’s ability to remove members of the Public Company Accounting Oversight Board in 2009.
Rather than explicitly overrule Humphrey’s Executor, however, the justices declared that these agencies were factually distinct from the Federal Trade Commission – leaders of one were protected by a “two-layer” removal system and the other because it was run by a single individual, not a multimember board.
‘Massive change in the law’
Because Humphrey’s Executor was still good law, and the National Labor Relations Board and the Merit Systems Protection Board were structured like the Federal Trade Commission, district courts in 2025 initially held that the firings of Wilcoxand Harris were unlawful.
On April 9, 2025, Trump filed an emergency appeal with the Supreme Court, asking it to put the district court decisions on hold. On May 22, the Supreme Court granted that request, at least while the cases proceed through the lower courts.
The court did not decide on the constitutionality of the removal statute, but the ruling is nonetheless a major victory for Trump. He can now fire not only Wilcox and Harris but also potentially the heads of any independent agency. Low-level civil servants may also be at risk.
In the unsigned order, the high court echoed unitary executive theory, stating, “Because the Constitution vests the executive power in the Presidents … he may remove without cause executive officers who exercise that power on his behalf, subject to narrow exceptions.” It simply ignored Humphrey’s Executor altogether, leaving its value as precedent unclear.
The Supreme Court also said that the holding did not apply to the Federal Reserve Board. That “uniquely structured, quasi-private entity” would remain free from executive control via removal.
Such an explicit carve-out in legal doctrine is striking but responds directly to claims made by litigants and political commentators of the dire economic consequences that could result were the president to have free rein over the Federal Reserve’s chairman.
In dissent, Justice Elena Kagan blasted the majority for allowing the president to overrule Humphrey’s Executor “by fiat,” a result made even worse because the court had done so via the so-called shadow docket, in the absence of full briefing or oral argument. Such “short-circuiting” of the “usual deliberative process” is, she wrote, a wholly inappropriate way to make a “massive change in the law.”
The shadow of Humphrey’s Executor
What happens now?
The National Labor Relations Board is paralyzed, and the Merit Systems Protection Board is somewhat hamstrung, with both lacking the quorum necessary to act. Cases about the firing of Harris, Wilcox and multiple other officials will bedevil lower courts as they try to figure out whether Humphrey’s Executor still stands, even as a shadow of its former self.
And, already asked again to make major legal change on its emergency docket, the Supreme Court will need to determine whether such change warrants more than the few paragraphs of explanation it gave in the ruling on the Wilcox and Harris firings.
If, as seems likely, the court ultimately overturns Humphrey’s Executor, Kagan’s dissent serves as a warning voiced by others as well: A decision that allows the president to have total control over the heads of more than 50 independent agencies – agencies that pursue the public interest in areas from financial regulation to the environment, to nuclear safety – could shift their focus from serving the public to pleasing the president, profoundly affecting the lives of many Americans.
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.
In a brazen attempt to avoid oversight, Elon Musk’s DOGE team is now trying to “audit” the very agency tasked with auditing them. On Friday, NOTUS reported that DOGE officials showed up at the Government Accountability Office — Congress’s independent watchdog — to attempt their signature hostile takeover routine. There’s just one small problem: DOGE has no authority whatsoever over the legislative branch.
This latest overreach comes after months of DOGE attempting to position itself as some kind of revolutionary government auditor — despite lacking the expertise or process knowledge that actual auditing requires. As we’ve covered before, everything DOGE claims to be doing was already being handled by skilled professionals within government — professionals whom Musk promptly fired, like the technical experts at 18F. Real government auditors have been watching in horror as DOGE has been doing the opposite of proper auditing procedures.
The GAO’s investigation of DOGE has been building for months. For decades, the office has earned bipartisan respect for its methodical, nonpartisan audits of government operations. So when reports emerged in April that Congress’s watchdog had begun examining DOGE’s activities, it suggested serious concerns about DOGE’s operations. The GAO requested comprehensive documentation about systems access, risk assessments, and potential misuse of agency data.
Records show that the GAO—an independent auditing, research, and investigative agency for Congress—appears to be requesting comprehensive information from the agencies in question, including incident reports on “potential or actual misuse of agency systems or data” and documentation of policies and procedures relating to systems DOGE operatives have accessed, as well as documentation of policies for the agency’s risk assessments, audit logs, insider threat programs, and more.
Just last week, while DOGE was busy slashing budgets without understanding the consequences, the GAO demonstrated what actual government efficiency looks like. The office identified over $100 million in potential IT savings — real cost reductions found through careful analysis of redundant systems and unnecessary investments, not arbitrary cuts.
Cost-trimming in the US federal government is all the rage right now – and a new report finds more than $100 million in savings available to the Feds by doing nothing but eliminating redundant and unnecessary IT investments.
Those savings are part of a much more significant $100 billion in potential cost reductions recommended by Uncle Sam’s Government Accountability Office (GAO), as detailed in the auditors’ 15th annual “fragmentation, overlap, and duplication”report, released this week. The annual federal budget is about $7 trillion total, for reference.
The contrast between GAO’s methodical approach and DOGE’s slash-and-burn tactics couldn’t be clearer.
The Register’s reporting highlighted an uncomfortable truth for DOGE supporters: when asked about DOGE’s role, GAO director Lucas-Judy diplomatically noted that while they’re “always happy if other groups want to implement our recommendations,” DOGE has largely ignored GAO’s existing work — except when cherry-picking recommendations that align with their predetermined cuts.
Rather than engage constructively with GAO’s findings, DOGE responded by attempting to assert control over the congressional watchdog itself. This move isn’t just inappropriate — it’s obviously unconstitutional. If DOGE has any authority at all (which multiple ongoing lawsuits dispute), it would be limited to executive branch agencies. Yet here they are, attempting to extend their reach into Congress’s independent oversight arm.
Elon Musk’s DOGE team is now starting to target government agencies outside of the executive branch, notifying the U.S. Government Accountability Office — the congressional watchdog that performs studies for legislators about federal waste, fraud and abuse — that it has “assigned a team” to assail that agency, according to an internal email obtained by NOTUS.
The GAO’s response was appropriately direct. In an internal email obtained by NOTUS, the office informed its staff that it had “sent a letter to the acting administrator of DOGE stating that GAO is a legislative branch agency that conducts work for the Congress. As such, we are not subject to DOGE or executive orders.” The office also notified congressional committees about DOGE’s attempted overreach.
This confrontation exposes two critical issues: first, DOGE’s constitutional illiteracy in attempting to assert executive branch authority over a congressional agency. Second, and perhaps more troubling, it reveals DOGE’s apparent strategy of trying to neutralize any meaningful oversight of its own activities.
Given Musk’s track record of lashing out when told “no,” this situation is likely to escalate. But the real story here isn’t just about DOGE’s continued incompetence — it’s about their increasingly desperate attempts to avoid actual accountability while masquerading as government watchdogs themselves.
You probably recall Ajit Pai, Trump’s first FCC boss. Pai took a mindless hatchet to broadband consumer protection and media consolidation limits with no shortage of scandal. Like that time he turned a blind eye as the telecom industry used dead and fake people to generate fake support for shitty policies (like killing net neutrality). Or that time he made up a DDOS attack on the FCC to downplay massive public backlash to those same, unpopular policies.
Pai, who conflated having an outsized coffee mug with charm, has joined the proud revolving door tradition of lobbying for the telecom industry. After spending a little time at a PE firm, Pai has emerged as the new CEO of the CTIA, the wireless industry’s top lobbying organization:
“I am honored to lead CTIA. The wireless industry is a key driver of technology innovation and investment in the U.S. And it helps advance America’s global competitiveness, national security, and economic security,” Pai said.”
Pai is replacing Meredith Attwell Baker, a former FCC Commissioner who previously lobbied for Comcast. To pretend any of this is ethical, FCC officials often sign a loyalty pledge stating they won’t go work for the industries they regulate for at least two years. It’s corruption that we’ve broadly normalized.
Sadly Pai, who basically rubber stamped the wishes of the telecom industry’s biggest players with ruthless efficiency, almost makes current Trump FCC boss Brendan Carr look competent in comparison. Both men are the textbook definition of regulatory capture, but Carr’s abuse of FCC authority to threaten companies and journalists that refuse to kiss Trump’s ass was something that even Pai refused to do.
Either way it remains an embarrassment that our top telecom policy makers are routinely mindless sycophants for industry. Any effort to disrupt this paradigm and install popular reformers, gets quickly dismantled by a corrupt Congress, as we saw with the scuttled FCC nomination of popular consumer advocate Gigi Sohn.
At this point, it’s extremely difficult to appoint real reformers to key government agencies without the approval of corporate power. So what we wind up usually getting are charmless careerists (too feckless to challenge corporate power) or just absolutely corrupt knobs whose entire mission involves maximizing quarterly revenues for some of the least popular companies on Earth.
And it doesn’t matter how badly you abuse the trust of the U.S. electorate, harm the public welfare, or undermine competitive markets, you can always rest assured that there’s a six figure salary at a think tank or lobbying org waiting for you at the end of the line.
Here’s a puzzle: When does a Supreme Court justice believe courts can review executive branch decisions? The answer, at least for Justice Alito, appears to be “whenever a Democrat is president, but only then.”
There is plenty of commentary making the rounds regarding yesterday’s 5-4 Supreme Court decision confirming that of course a judge can issue a Temporary Restraining Order to maintain the status quo and require USAID pay out the money that it owes to contractors for work already done. But beneath the straightforward legal question lies a revealing pattern of inconsistency from some of the Court’s conservatives.
The eye-opening thing about Alito’s dissent is how completely it contradicts positions he took just months ago. And not in subtle ways — we’re talking about fundamental questions of judicial power that Alito seems to view entirely differently depending on which party controls the White House.
To understand this claim — and how there’s basically no other explanation — we need to look at what actually happened here. Elon Musk and his DOGE crew went into USAID and halted nearly all payments, which created an interesting legal problem that had been mostly theoretical prior to the current administration. Congress has “the power of the purse” and requires the executive branch to spend money as directed. Not spending appropriated money (known as “impoundment”) is pretty clearly illegal.
While this has kicked off a bunch of lawsuits, the one at issue here involves two contractors — AIDS Vaccine Advocacy Coalition and the Global Health Council — who pointed out that they already completed the work for which they have contracts, and they are owed money on those contracts. Musk freezing the payouts violated the law.
The judge in the District Court, Amir Ali, agreed that this seemed like a pretty big issue and issued a Temporary Restraining Order. TROs are supposed to be used in rare situations, mainly to return things to the status quo to avoid irreparable harms. In this case, contractors not getting paid by the US government for work they already performed, on contracts and appropriations already blessed by Congress and the executive branch, could do real damage. And thus, Ali ordered them to proceed to abide by the contracts and the constitutionally required situations in which the executive branch does, in fact, pay out the money that Congress has appropriated.
However, after doing so, the White House ignored the order and did not pay out the money. Judge Ali brought the DOJ back into court two weeks later to ask WTF, followed by issuing an order that they pay out the money they owed by that very night. This is when the DOJ tried to appeal, which quickly bumped its way up to the Supreme Court. With little time to spare, Chief Justice Roberts issued an “administrative stay” on the TRO, basically putting it on hold.
This administrative stay created an oddity worth examining. The whole point of both TROs and administrative stays is generally to “preserve the status quo” while the court can look at things more closely. But which status quo? The one where the government follows the law and pays its bills to contractors who already did the work? Or the one where Musk’s DOGE team is illegally impounding funds denying lawfully contracted work from being paid for? It sure feels like the former is the only status quo worth preserving.
After sitting on the issue for nearly a week, the Court finally ruled 5-4 in support of Judge Ali’s basic position, though they told him to come up with a new implementation plan since the original payment deadline had passed. But the really appalling part isn’t the majority ruling — it’s Alito’s dissent, which reads like it was written in an alternate universe where a bunch of other opinions, many of which Alito supported, don’t exist.
Alito’s dissent starts with what might charitably be called selective amnesia, both of the facts of this case, as well as recent Supreme Court jurisprudence that he supported:
Does a single district-court judge who likely lacks jurisdiction have the unchecked power to compel the Government of the United States to pay out (and probably lose forever) 2 billion taxpayer dollars? The answer to that question should be an emphatic “No,” but a majority of this Court apparently thinks otherwise. I am stunned.
Stunned, are you?
Let’s pause here and note what Alito is doing. He’s framing this as a question of judicial power over executive spending. Which would be a reasonable framing, if not for two rather enormous elephants in the room: First, Congress has already directed this spending, as its power under the Constitution. Second, Alito himself has repeatedly insisted that courts must enforce such congressional directives against presidential overreach — at least when Democrats are in office.
Look, I know some people (including Chief Justice John Roberts) will get mad that I suggest Alito is an extreme partisan, but that paragraph, combined with some recent rulings that went in the other direction when Joe Biden was President, seem to make it pretty clear that Alito’s guiding philosophy is “When Republicans are in power, the president is a king; When Democrats are in power, presidents have no power at all.”
Let’s call out two previous rulings, both written by the Chief Justice, but to which Alito readily signed on. First was Biden v. Nebraska, the case in which the Supreme Court said that the President has no authority to cancel student loan debt without an act of Congress. In that case, the Court repeatedly made clear: the executive branch has zero authority to reinterpret or ignore an act of Congress, especially involving funds.
As Roberts wrote in that case, and which all of the Justices in the dissent on yesterday’s case agreed to:
The dissent is correct that this is a case about one branch of government arrogating to itself power belonging to another. But it is the Executive seizing the power of the Legislature
Fast forward to the present USAID case, and suddenly Alito is “stunned” that a district court would prevent the Executive from seizing Congress’s power of the purse. The contradiction couldn’t be more glaring.
So, in the student loan case, Alito, Thomas, Gorsuch and Kavanaugh were insistent that the executive branch may not “seize power” from the Legislature. The same ruling also stated:
Among Congress’s most important authorities is its control of the purse.U. S. Const., Art. I, §9, cl. 7;… It would be odd to think that separation of powers concerns evaporate simply because the Government is providing monetary benefits rather than imposing obligations.
And yet in the current case, these same justices suddenly find it “stunning” that a court would enforce Congress’s power of the purse against executive overreach. Did Alito and the others just forget the Biden case?
Or how about this part of that same ruling:
… our precedent— old and new—requires that Congress speak clearly before a Department Secretary can unilaterally alter large sections of the American economy.
Does that not apply equally in this case? Then why is Alito somehow stunned that the lower court made the same ruling that Alito agreed to less than two years ago?
Okay, so maybe that’s too far back in history. Let’s consider last summer’s ruling in the Loper Bright case, that got rid of Chevron deference. This case was also about separation of powers and whether the judiciary has the right to step in and overrule the executive branch.
In this case, which again came out just months ago, Alito enthusiastically endorsed the judiciary’s authority to check executive power. Yet now he’s “stunned” that a district court would enforce congressional appropriations law against executive impoundment. Even more tellingly, Alito’s dissent summary in his opening paragraph strategically omits crucial facts — that Congress had appropriated these funds, contracts were signed, and work was completed — instead framing it as a judge arbitrarily “compelling” government payment.
Stunning! But not the way Alito thinks. It’s Alito’s blatant partisanship that should be seen as stunning.
In Loper Bright, the conservative wing of the Supreme Court was unanimous that the judiciary must always check the executive when it exceeds authorities granted by Congress. In that ruling, which again Alito joined, Roberts emphatically made clear that the judicial branch is the interpreter of the laws:
The Framers also envisioned that the final “interpretation of the laws” would be “the proper and peculiar province of the courts.” Id., No. 78, at 525 (A. Hamilton). Unlike the political branches, the courts would by design exercise “neither Force nor Will, but merely judgment.” Id., at 523. To ensure the “steady, upright and impartial administration of the laws,” the Framers structured the Constitution to allow judges to exercise that judgment independent of influence from the political branches. Id., at 522; see id., at 522–524; Stern v. Marshall, 564 U. S. 462, 484 (2011).
This Court embraced the Framers’ understanding of the judicial function early on. In the foundational decision of Marbury v. Madison, Chief Justice Marshall famously declared that “[i]t is emphatically the province and duty of the judicial department to say what the law is.” 1 Cranch 137, 177 (1803). And in the following decades, the Court understood “interpret[ing] the laws, in the last resort,” to be a “solemn duty” of the Judiciary. United States v. Dickson, 15 Pet. 141, 162 (1841) (Story, J., for the Court). When the meaning of a statute was at issue, the judicial role was to “interpret the act of Congress, in order to ascertain the rights of the parties.”
And, as the ruling (again, I need to stress, this was from just a few months ago) states, the Judiciary often has to say no to the Executive:
The views of the Executive Branch could inform the judgment of the Judiciary, but did not supersede it. Whatever respect an Executive Branch interpretation was due, a judge “certainly would not be bound to adopt the construction given by the head of a department.” Decatur, 14 Pet., at 515; see also Burnet v. Chicago Portrait Co., 285 U. S. 1, 16 (1932). Otherwise, judicial judgment would not be independent at all. As Justice Story put it, “in cases where [a court’s] own judgment . . . differ[ed] from that of other high functionaries,” the court was “not at liberty to surrender, or to waive it.”
Alito signed on to that opinion just months ago. And now he’s “stunned” that a judge is, indeed, independently determining that the executive branch is violating the law.
There’s a broader point here worth considering. The Supreme Court’s role in our constitutional system isn’t just about deciding individual cases — it’s about establishing clear, consistent principles that lower courts and other government actors can rely on. When those principles shift dramatically based on which party controls the White House, it undermines the entire project of constitutional law.
Consider what message this sends to lower court judges. If you’re a district court judge facing an executive branch that’s defying Congress by refusing to spend appropriated money, what are you supposed to do? Follow the guidance from the student loan case that says you must vigorously check executive overreach? Or follow Alito’s (thankfully minority opinion for now) guidance from yesterday that says you should be “stunned” at the very idea of telling the executive branch how to spend money?
The answer, apparently, is to check the party affiliation of the current president first. Which is exactly the kind of outcome the Founders were trying to avoid when they created an independent judiciary.
But there’s an even more troubling aspect to all this. By making such nakedly partisan distinctions, Alito and his colleagues are effectively creating two different constitutions: one that applies when Democrats are in power (featuring strict separation of powers and aggressive judicial review) and another for Republican administrations (featuring expansive executive authority and judicial deference).
This isn’t just about Alito being inconsistent. It’s about whether we can maintain any coherent theory of constitutional law when Supreme Court justices treat identical legal questions differently based purely on partisan considerations.
What we’re witnessing is not principled judicial philosophy but raw partisan power dynamics. The judicial doctrines these justices claim to revere — textualism, separation of powers, judicial independence — appear to be selectively deployed based on who occupies the White House. The message couldn’t be clearer: Republican presidents deserve kingly deference, while Democratic presidents require constant judicial constraint.
Which brings us back to Chief Justice Roberts, who continues to insist it’s unfair and inappropriate to suggest his colleagues might be motivated by partisan considerations rather than consistent legal principles. Perhaps he’s right that we shouldn’t question the motives of Supreme Court justices. But when those justices write opinions that directly contradict their own recent precedents based on nothing more than which party holds the White House, what other conclusion are we supposed to draw?
