by Tony Wikrent
The (anti)Federalist Society assault on the Constitution
Trump in TROUBLE as Amy Coney Barrett SNAPS at Supreme Court (YouTube video)
[Legal AF, May 16, 2025]
[TW: Leah Litman, Michael Popok and Alex Aronson discuss the Supreme Court hearings on Friday 5-16-2025. This is ostensibly about birthright citizenship, but perhaps the more important issue is whether US District courts can impose injunctions nationwide. I do not recall ever before having linked to a discussion of Supreme Court hearings, but these were extraordinary in showing how (anti)Republicans and conservative are attempting to obliterate two and a half centuries of legal development and reasoning in the USA republic’s experiment in self government. Recall that the (anti)Republicans and conservatives / libertarians repeatedly sought and obtained injunctions to stop implementation of Biden policies they disliked. But now that Democrats and liberals are stopping Trump policies with court injunctions, (anti)Republicans and conservatives / libertarians are arguing that only the Supreme Court can impose nationwide injunctions.
[But it’s even worse: Trump’s former personal attorney, now serving as U.S. Solicitor General, D. John Sauer, actually argued that a court injunction can apply only to the particular case and the particular litigant. (This was the point in the hearings that Justice Amy Coney Barrett sputtered “Really?” with some incredulity.) In other words, according to Sauer, if you want to prevent Trump / Musk / DOGE from disposing of 12,351 workers from an agency, you would need 12,351 injunctions for each of the 12,351 agency workers to protect all of them. As Justice Sonya Sotomayor, pointedly asked Sauer, “You’re talking about the hundreds and thousands of people who weren’t part of the judgment of the court. They would all have to file individual actions?”
Litman, Popok and Aronson also discuss how (anti)Republicans and conservatives / libertarians are pushing for laws and legal decisions that would almost totally restrict the path for class action lawsuits, the only alternative to using court injunctions to legally protect large groups of people. With this, you see the outlines of the legal assault on American law and jurisprudence that has been developed during the past half century in the seminars and conferences by the Heritage Foundation, Federalist Society, Mercatus Center, and the rest of the apparatus of plutocrat-funded conservatives and libertarian entities.
[As I have argued before, the “left’s” response to this assault on American law and jurisprudence has been crippled by the “left” rejecting the legitimacy of American history and institutions for being based on racism and misogyny. I firmly believe this is the primary reason the doctrines and ideas being developed by conservatives and libertarians were largely ignored for the past half century. The “left” has yet to deal with the question of why the plutocrats are expending so much to reinterpret and change American law and jurisprudence. What was there in place before the plutocratic assault that plutocrats want to obliterate, and the “left” has been ignoring?
[Especially frightening is that “Justices” Thomas and Alito appear to have accepted Sauer’s arguments.]
In Birthright Citizenship Case, Trump DOJ Asks Supreme Court Justices to Make Themselves Irrelevant
Garrett Epps, May 16, 2025 [Washington Monthly]
… Thursday’s argument had two aspects, which appeared and disappeared like the Katzenjammer Kids playing peekaboo throughout the nearly three hours of oral argument. The Court had formally assembled to hear the first: When is it okay for one federal district judge to block a government policy nationwide?
The second was: Has every Congress, every Court, and every administration for the past century and a half read the Fourteenth Amendment’s Citizenship Clause wrong, leaving Donald Trump, on his sole authority, to upend the rule that all babies born in the U.S., except the children of diplomatic families, are citizens at birth?
Though Sauer began his argument by boldly proclaiming the administration’s novel interpretation of the Amendment (it applied, he said, only to the children of free slaves in 1868 and has no effect on the children of immigrants today), he quickly moved to the administration’s real aim in bringing this “emergency docket” application before the Court.
In Sauer’s view, the case was about a broader issue than the permissibility of “universal injunctions” (federal district court orders that block new executive policies nationwide). Article III of the Constitution, which created the federal judiciary and gives it its powers, he argued, does not permit any federal court, at any level, to issue such injunctions.
This raises the question: What if the government loses in the district court—and then loses again in the Court of Appeals? What if it loses in the Supreme Court? What court can order it to stop engaging in behavior that Article III courts have found to violate the Constitution?
Without quite saying so, Sauer let it be known that the answer is: None.
If plaintiffs won in the Supreme Court, he graciously conceded, they could take the judgment to the bank—for themselves, that is. But Sotomayor asked him, once the Court decided the constitutional issue, would its order bind the government to stop the unconstitutional action against anyone?
Well . . . said Sauer . . . Not so much.
The result of such a case, Sauer said, would not be a Supreme Court order binding everyone else, but instead a Supreme Court precedent. And of course, plaintiffs still being injured by a government policy (for example, by being rendered stateless by an executive order) could cite that precedent in their cases. “If there was a decision that violated the precedent of the Court, then the affected plaintiffs could get a separate judgment,” he said.
Responded Sotomayor, “You’re talking about the hundreds and thousands of people who weren’t part of the judgment of the court. They would all have to file individual actions?”
Maybe not, said Sauer—if the case could satisfy “the rigorous criteria of Rule 23,” to be certified as a class action.
But if not, said Sotomayor, “you are claiming that not just the Supreme Court—that both the Supreme Court—and no lower court can stop an executive from universally, from violating those holdings by this Court.”….
If a president can simply wave away that much adverse authority—and then only grudgingly apply his losses in court—then the role of the federal courts will be, from now on, quite different from the one they have played for the past 100 years. American-style judicial review would become something like the Mexican writ of amparo, by which parties can get a judgment blocking an unconstitutional law only as to their individual cases; others in the same situation must go to court to get their own amparo. In the atomized world envisioned by the administration, judicial review might be called the Writ of Sisyphus. No matter how often a court pushes the rock up the hill, it will face the same task over and over if the government so chooses.
The Visionary of Trump 2.0: Russell Vought is advancing a radical ideological project decades in the making.
McKay Coppins, May 16, 2025 [The Atlantic, via ownwithtyranny.com]
…Vought’s critics have warned that elements of his agenda— for example, unilaterally cutting off funding for congressionally established agencies such as USAID— are eroding checks and balances and pushing the country toward a constitutional crisis. But in interviews over the past several weeks, some of his allies told me that’s the whole point. The kind of revolutionary upending of the constitutional order that Vought envisions won’t happen without deliberate fights with Congress and the judiciary, they told me. If a crisis is coming, it’s because Vought is courting one.
Bannon told me that mainstream Republicans have long complained about runaway federal bureaucracy but have never had the stomach to take on the problem directly. Vought, by contrast, is strategically forcing confrontations with the other branches of government. “What Russ represents, and what the Romneys and McConnells don’t understand, is that the old politics is over,” he said. “There’s no compromise here. One side is going to win, one side is going to lose, so let’s get it on.”
… Vought himself has written that we are living in a “post-Constitutional time.” Progressives, he argues, have so thoroughly “perverted” the Founders’ vision by filling the ranks of government with unaccountable technocrats that undoing the damage will require a “radical” plan of attack. “The Right needs to throw off the precedents and legal paradigms that have wrongly developed over the last two hundred years,” he wrote in an
essay for
The American Mind, a journal published by the Claremont Institute.
What exactly would such an approach look like in practice? Mike Davis, a Republican lawyer and a friend of Vought’s who helped steer judicial nominations in Trump’s first term, told me that he expects an escalating series of standoffs between the Trump administration and the judicial branch. He went so far as to say that if the Supreme Court issues a decision that constrains Trump’s executive power in a way the administration sees as unconstitutional, the president will have to defy it. “The reptiles will never drain the swamp,” Davis told me. “It’s going to take bold actions.”
The End of Rule of Law in America
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