16th July 2025
Yesterday a raft of court judgments and other legal materials were published in respect of an extra-ordinary super-injunction.
And this was not just a super-injunction, it was also one against the world – contra-mundum.
This is heady stuff.
You can read the materials here.
I do not offer any quick hot-take as these things should be read properly, but at first glance they are fascinating.
More to come soon.
2nd July 2025
Some dissents are for the ages. In the United Kingdom, one such momentous dissent from a judge in the minority was that of Lord Atkin in the wartime case of Liversidge v Anderson.
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In the recent – and horrible – case of Trump vs Casa there is another such dissent, this time from Justice Sotomayor.
This blog has already introduced the case (here) and set out why the majority opinion is shoddy even on its own terms (here).
Instead of summarising and paraphrasing her dissent, there are passages which need to be read in the original. Some people are deterred from reading formal(-looking) documents like judgments, and so in this post I am setting out what she said. Please read what is set out below (which I have broken up into smaller paragraphs).
“Children born in the United States and subject to its laws are United States citizens. That has been the legal rule since the founding, and it was the English rule well before then.
“This Court once attempted to repudiate it, holding in Dred Scott v. Sandford, 19 How. 393 (1857), that the children of enslaved black Americans were not citizens.
“To remedy that grievous error, Congress passed in 1866 and the States ratified in 1868 the Fourteenth Amendment’s Citizenship Clause, which enshrined birthright citizenship in the Constitution.
“There it has remained, accepted and respected by Congress, by the Executive, and by this Court.
“Until today.
“It is now the President who attempts, in an Executive Order (Order or Citizenship Order), to repudiate birthright citizenship.
“Every court to evaluate the Order has deemed it patently unconstitutional and, for that reason, has enjoined the Federal Government from enforcing it.
Undeterred, the Government now asks this Court to grant emergency relief, insisting it will suffer irreparable harm unless it can deprive at least some children born in the United States of citizenship. […]
“The Government does not ask for complete stays of the injunctions, as it ordinarily does before this Court.
“Why?
The answer is obvious: To get such relief, the Government would have to show that the Order is likely constitutional, an impossible task in light of the Constitution’s text, history, this Court’s precedents, federal law, and Executive Branch practice.
“So the Government instead tries its hand at a different game. It asks this Court to hold that, no matter how illegal a law or policy, courts can never simply tell the Executive to stop enforcing it against anyone.
“Instead, the Government says, it should be able to apply the Citizenship Order (whose legality it does not defend) to everyone except the plaintiffs who filed this lawsuit.
“The gamesmanship in this request is apparent and the Government makes no attempt to hide it.
“Yet, shamefully, this Court plays along. A majority of this Court decides that these applications, of all cases, provide the appropriate occasion to resolve the question of universal injunctions and end the centuries-old practice once and for all. In its rush to do so the Court disregards basic principles of equity as well as the long history of injunctive relief granted to nonparties.
“No right is safe in the new legal regime the Court creates. Today, the threat is to birthright citizenship. Tomorrow, a different administration may try to seize firearms from lawabiding citizens or prevent people of certain faiths from gathering to worship.
“The majority holds that, absent cumbersome class-action litigation, courts cannot completely enjoin even such plainly unlawful policies unless doing so is necessary to afford the formal parties complete relief. That holding renders constitutional guarantees meaningful in name only for any individuals who are not parties to a lawsuit.
“Because I will not be complicit in so grave an attack on our system of law, I dissent.
[…]
“The rule of law is not a given in this Nation, nor any other. It is a precept of our democracy that will endure only if those brave enough in every branch fight for its survival.
Today, the Court abdicates its vital role in that effort. With the stroke of a pen, the President has made a “solemn mockery” of our Constitution. Peters, 5 Cranch, at 136.
“Rather than stand firm, the Court gives way.
“Because such complicity should know no place in our system of law, I dissent.”
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Justice Jackson concurs (again broken into shorter paragraphs, and emphasis added):
“I agree with every word of Justice Sotomayor’s s dissent. I write separately to emphasize a key conceptual point: The Court’s decision to permit the Executive to violate the Constitution with respect to anyone who has not yet sued is an existential threat to the rule of law.
“It is important to recognize that the Executive’s bid to vanquish so-called “universal injunctions” is, at bottom, a request for this Court’s permission to engage in unlawful behavior.
“When the Government says “do not allow the lower courts to enjoin executive action universally as a remedy for unconstitutional conduct,” what it is actually saying is that the Executive wants to continue doing something that a court has determined violates the Constitution— please allow this. That is some solicitation.
“With its ruling today, the majority largely grants the Government’s wish.
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Like Atkin’s famous war-time speech, these dissents should endure.
These dissents have got the fundamental issue right, and they have said the right things about that fundamental issue.
What is currently happening in the United States is nothing other than a polity voluntarily sabotaging itself.
Congress and the courts could stop it. Yes, there is Trump – but there are always Trumps. But instead of checking and balancing Trump, Congress and the courts are nodding and clapping instead.
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The next post in this series will be an overall assessment of this unfortunate case.
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Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.
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1st July 2025
This week this blog is looking at the United States Supreme Court case of Trump vs Casa. You can read the judgment here.
This is the judgment where the court held by a majority that federal courts could not grant “universal” injunctions against the federal government, but instead could only grant injunctions as between the parties to that particular law suit.
The main reason for this case warranting a good hard look is that, on the face of it, the judgment is highly significant.
As this blog averred yesterday, it seems that while onlookers were (mis-)directed into worrying about what would happen if the Trump administration ignored court orders, the conservative majority on the US Supreme Court, with more subtlety and artistry, has now robbed federal judges from making many of the most unwelcome court orders in first place.
This sequence of blogposts is an exercise in testing whether this adverse impression is correct.
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United States Supreme Court judgments are structured in a particular way. This one has first a syllabus, effectively a summary of the decision of the court and a record of the court’s decision.
Next, on pages 7 to 32 of the pdf, is the Opinion of the (majority of the) court as given by Justice Barrett. It is with this Opinion that this blogpost is concerned.
Barrett is one of more junior members of the court and is the most junior on the conservative side of the court. From time to time she shows flashes of independent thinking, though that independent thinking often still leads to conservative conclusions. That said, it is often worth while reading her opinions, as opposed to those of some of her colleagues.
But this is not one of her more impressive judgments.
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Here we can quickly go from the United States of the 2020s to the English courts of the 1960s, and in particular to the hallowed and seminal 1963 case of Ridge v Baldwin.
In that judgment, which is one of the founding cases of modern English administrative law (that is the special area of law dealing with public administration), Lord Reid said:
“We do not have a developed system of administrative law – perhaps because until fairly recently we did not need it.”
In other words: there had been changes in the role and configuration of the state – and the courts now had to keep up, and so develop both the substantive law and the remedies available to the court.
(To adapt Philip Larkin: English administrative law began in 1963, between the end of the Chatterley ban and the Beatles’ first LP.)
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Now if we go back the the Barrett opinion, we read her setting out the increase in universal injunctions granted by federal courts against the federal administration (references and citations removed):
“[…] universal injunctions were not a feature of federal court litigation until sometime in the 20th century. […] The D. C. Circuit issued what some regard as the first universal injunction in 1963. […] Yet such injunctions remained rare until the turn of the 21st century, when their use gradually accelerated. […] One study identified approximately 127 universal injunctions issued between 1963 and 2023. […] Ninety-six of them—over three quarters—were issued during the administrations of President George W. Bush, President Obama, President Trump, and President Biden. […] The bottom line? The universal injunction was conspicuously nonexistent for most of our Nation’s history.”
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Now, why would this be the case?
Why would the growth of such injunctions have accelerated in recent years?
Why, as Barrett states in another part of her Opinion, would it be that “[d]uring the first 100 days of the second Trump administration, [federal] district courts issued approximately 25 universal injunctions”?
If you read only Barrett’s Opinion, you would think that this increase of the use of such remedies against public bodies was solely because of the courts.
But courts do not exist in a vacuum.
Following Lord Reid in Ridge v Baldwin, one explanation is that perhaps until recently the federal courts did not need to use such injunctions.
The increasing use of executive orders under Trump to do thing for which he has no legal basis – including in respect of matters which are really for Congress or other agencies – is left unremarked.
To adapt an economics phrase, Barrett looks at the use of such injunctions entirely as a “supply side” issue.
For her, the courts have gone off on a frolic of their own and developed this jurisdiction to grant such injunctions.
By ignoring this context of the changing nature of the state, Barrett shows that whatever she is as a judge, she is no Lord Reid.
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Of course, this context by itself would not give the courts a jurisdiction that they would not otherwise have.
But by ignoring this context Barrett provides a one-sided and misleading view of why these injunctions have been applied for and why they have been granted.
And the reason context here is especially important is because we are dealing with what lawyers call “equity”. Equity is, in general terms, about the courts ensuring things are done which should be done.
There are a number of equitable remedies, but the most famous of which is the injunction: an order of a court to stop someone doing something until further order of the court. Injunctions can be permanent, but they also can be on an interim basis – to “hold the ring” so to speak.
And courts develop equitable remedies over time. In England for example, the courts have developed all sorts of orders so as to ensure things are done which should be done – for example here, here, and recently by the United Kingdom Supreme Court with “contra mundum” injunctions against persons unknown.
As the United Kingdom Supreme Court set out in that last decision:
“the court will be guided by principles of justice and equity and, in particular:
(a) that equity provides a remedy where the others available under the law are inadequate to vindicate or protect the rights in issue;
(b) That equity looks to the substance rather than to the form;
(c) That equity takes an essentially flexible approach to the formulation of a remedy; and
(d) That equity has not been constrained by hard rules or procedure in fashioning a remedy to suit new circumstances.
These principles may be discerned in action in the remarkable development of the injunction as a remedy during the last 50 years.”
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But instead of setting out the development of universal injunctions in the United States, Barrett insists that there should have been no development at all.
Although she mentions the need for equity to be flexible, Barrett says that flexibility has to be exercised within inflexible limits:
“Though flexible, this equitable authority is not freewheeling. We have held that the statutory grant encompasses only those sorts of equitable remedies “traditionally accorded by courts of equity” at our country’s inception.”
And:
“The issue before us is one of remedy: whether, under the Judiciary Act of 1789, federal courts have equitable authority to issue universal injunctions.”
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This reads both strangely and unconvincingly. Even without reading the dissent, the Opinion of Barrett is not compelling.
Sometimes you can read one judge and then only after reading another judge can you work out who has the stronger position. Even conservative judges can make out a convincing position: that is the nature of judicial rhetoric.
But here you have a weak judgment on its own terms, which ignores both context and the nature of equity.
And given the United Supreme Court has not previously ruled against such injunctions even though the remedies have been around since about 1963, such a ruling needed not a weak judgment but a strong one – both for looking back and looking forward.
Looking back: there have been, according to Barrett quoting a study, 127 universal injunctions since 1963 – and the import of this judgment is that each and every one of those would seem to have been outwith the jurisdiction of the federal court. That is a big step.
(Universal injunctions seemingly also began in 1963, between the end of the Chatterley ban and the Beatles’ first LP.)
Looking forward: federal courts now have been robbed it seems of the most effective remedy in dealing with presidential Executive Orders that are outwith any legal or constitutional basis. That also is a big step.
And so this required a similarly big judgment, not this little one.
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These, however, are initial views on an important judgment. It may be that a more considered view will reveal nuances and meanings that were not obvious on first readings.
But even a more developed view will not generate within the majority Opinion context which is not there, and nor will it remove the inflexibility of insisting equity cannot have significantly developed since 1789.
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The last word should perhaps go to Barrett, and here you can form your own views:
“No one disputes that the Executive has a duty to follow the law. But the Judiciary does not have unbridled authority to enforce this obligation—in fact, sometimes the law prohibits the Judiciary from doing so.”
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The last word there being the “But”.
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Next in this series of posts I will look at the dissents in this case.
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Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.
More on the comments policy is here.
30th June 2025
Now the federal government does not have to comply with certain irksome court orders because the federal courts can no longer make them
This week I will be looking closely at what seems at a highly significant judgment of the United States Supreme Court. It is 119 pages and you can read it here.
At first glance it seems that while onlookers were (mis)directed into worrying about what happens if the Trump administration ignores court orders, the conservative majority on the US Supreme Court, with more subtlety and artistry, has now robbed federal judges from making many of the most unwelcome court orders in first place.
If so, the problem of the federal government disobeying many irksome court orders in large part goes away, because federal judges cannot now even make the most effective court orders!
Such a judgment does not require just a hot-take, but a considered view. I will post more shortly.
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Comments Policy
This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.
More on the comments policy is here.
22nd April 2025
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Over at his Substack the great historian of strategy Lawrence Freedman has provided a magisterial account of why the economic strategy of President Trump is in such a mess.
From Freedman’s conclusion:
“Some bad strategies are the result of incompetence, miscalculation, and inattention. Most fail to consider how other key actors will behave. But the worst are the result of bad theories, so detached from reality that efforts are directed towards achieving goals that are unattainable, employing methods that are bound to fail. To extricate a country or an organisation from a bad strategy it is essential to acknowledge its wrongness and retreat, but with a truly bad theory that requires abandoning an embedded world view.
“In this case a bad theory, nurtured over decades, has led to calamitous policies devised in haste and enacted impetuously in defiance of all received wisdom on the impact of tariffs on the national and international economy. The severity of the impact was accentuated by the chaotic and contradictory nature of the implementation. Much of what has been lost over the past month, in trading rules and economic trust, may never be recovered.”
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Much of Freedman’s conclusion, and indeed much of the content of his detailed and insightful post, can be transferred from economic policy to Trump’s use and misuse (and abuse) of law and the courts.
Same problem, different context.
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It must have seemed so clever and – for the instigators – fun.
They would invoke an ancient law and then, in a show of brute power, they would deport human beings to another country to be held indefinitely in a terrifying super-prison. The human beings would not have any access to due process, and indeed there may even be no evidence against them.
The instigators would then clap and cheer at their public display of cruelty.
And when it seemed a court order had come too late, the president of the receiving country tweeted “Oopsie” and this, in turn was re-tweeted, by the actual Secretary of State from his personal account.
What larks: they must have found it hilarious.
And as this blog has set out, this a point where it became clear there was a constitutional crisis in the United States.
Not only were the orders of the courts not being taking seriously, the courts were being mocked openly by senior members of the administration.
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It is now becoming apparent that not only was this policy nasty, but it was also not thought-through legally.
There was a rush on 15 March to put in place this shock-and-awe policy, but there was no underlying legal or litigation strategy.
And that lack of a legal or litigation strategy explains the frustrations the administration is now having with pushing on with this policy.
Indeed, the policy now is blocked by an extraordinary order of the supreme court of the United States, issued at just after midnight on Good Friday.
All but two of the justices of the supreme court – including all three of Trump’s appointees from his first term – supported this order. The only dissents were from justices Thomas and Alito.
(“Justice Alito dissents” is a welcome legal phrase in any supreme court judgment, and it perhaps should be set to music to the tune of “Miss Otis Regrets”.)
The sheer extraordinariness of this emergency supreme court order can be seen from Alito’s dissenting statement (which significantly the court did not wait for before issuing the order).
So incensed is Alito you will see that he loses all power of normal judicial prose and is reduced to listing his grievances in bullet points.
Alito was not a happy Easter bunny.
And in his bullet points he makes what would otherwise be some sound points: the majority of supreme court did act of its own volition, and at speed, and in highly unusual circumstances.
But what his bullet points miss is why the majority of the supreme court – including four usually conservative judges, including three Trump appointees – felt the need to do this remarkable judicial act.
Why did the majority of the supreme court feel there was no alternative?
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Earlier on Good Friday, the official White House Twitter account published this remarkable tweet.
Back on 15 March the Secretary of State was (perhaps) careful to re-tweet the sarcasm of the El Salvador president from his personal and not official Twitter account.
Now the official White House Twitter account was itself stating that an order of the court will not be taken seriously.
You will recall that the supreme court – unanimously – ordered the United States government to “facilitate” the return of Abrego Garcia.
Whatever the meaning of the Good Friday tweet, it shows that the United States government is not taking seriously that they must “facilitate” the return of Abrego Garcia.
He is, according to the White House, “never coming back”.
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The Good Friday tweet was unpleasant and crass and infantile – but crucially from a litigation perspective, it was also unwise.
And here we go back to Freedman’s post, and to the importance of strategic thinking.
In litigation a properly thought-through strategy means that one should not close down options and, in particular, one should not alienate the courts. The courts are the source of most useful options in serious litigation – courts can make orders, impose stays, strike cases out.
But the US government here advertised that they are not taking court orders seriously – and not just from a sly re-tweet from a personal account, but from the official White House account itself.
And the tweet does not stand in isolation – it is in the context of the ongoing failure of the United States government to properly provide requested and required information to the courts about the deportation cases.
In essence: the courts simply do not believe what the government is telling them.
And in litigation, there is no worse situation for any party to that litigation to be in than to lose the confidence of the judges.
Generally it means that at each round of litigation – each interim hearing, each application, each appeal – the judges will go against you.
And at its extreme, the courts will, of their own volition, make orders against you.
For the supreme court of the United States to make that midnight order was an absolute rebuttal of whatever litigation “strategy” the United States government was following with these cases.
Perhaps those at the US government thought the conservative majority of the Supreme Court meant that favourable decisions were in the bag.
But all they have now been left with are Alito’s worthless bullet points instead.
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And this brings us to another point about litigation strategy.
You do not really need a litigation strategy for when things go well straight away.
You need a strategy for when things go badly: to work out what you do in various foreseeable unwelcome situations that may flow from your initial decisions.
But the evidence of the deportation cases indicates that there was no thought put into what would happen – other than a vague notion of weaponising a clash with the court – if the policy had setbacks.
Take the case of Abrego Garcia.
Taking the government’s position seriously for a moment, what should have happened when it was obvious a mistake was made and someone had been deported in breach of an order, was for that mistake to be rectified.
The government could then have used rectifying that mistake to show that its general policy had safeguards, and so should not be legally challenged.
But instead the government doubled-down, thereby indicating the whole policy scheme had no safeguards.
There had been no contingent thinking about what to do if a mistake was made.
If Abrego Garcia had been returned promptly and safely, it would have perhaps made the rest of the scheme harder for critics to discredit as being unfair.
Of course, the whole scheme is nasty and inhumane – but here we are looking at what strategic options could have been open to a supporter of this evil scheme.
Again, it seemed that the US government had not thought this through beyond the 15 March flights.
As with the tariffs, no thought was put into what could happen next.
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A similar lack of strategic thinking is apparent in the attempts to bully Harvard University.
Those attacking the university seem to have not thought about what would happen if the university rejected the demands and sued instead.
But Harvard seem to be putting serious thought into their strategy, as this post indicates.
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Overall, Trump and his government appear to have three general impulses:
– to demonise and monster in the media and the courts those who can be demonised and monstered and thereby humiliated;
– to intimidate those who are capable of being intimidated, such as law firms and universities with weak leaderships; and
– to manipulate and gain leverage over those who cannot be demonised or intimidated, such as foreign trading states, so as to do “deals”.
None of these bullying impulses add up to a strategy – or even to a tactic. They lead only to first-move antics, which may or may not work depending to the Trump government’s cynical assessment of those involved.
And this is true not only of their approach to law and litigation – but also, as Freedman avers, to economic strategy.
This is not say that that the bullying impulses set out above will fail – many rulers have managed to keep power a long time with such an approach, for it is based on unwelcome truths about human nature.
But such an approach will tend to fail with complex processes such as litigation and trade negotiations, where the confidence of other parties is essential to keep options open, and where contingent planning is required for when things do not go as originally intended.
Shock-and-awe can work – and keep working – in certain limited contexts, but in complex matters, the shock-and-awe approach can soon become shockingly awful.
10th April 2025
A good way to commentate is to start with a puzzle: something that does not make sense – or at least does not make sense at first glance.
And one puzzle about the tariff policy of Donald Trump is why he as president is devising general United States trade policy himself, by a sequence of what can only be called decrees.
This is a puzzle because the constitution of the United States expressly provides that trade policy is for Congress.
Article I of the constitution provides that Congress is “to regulate Commerce with foreign Nations”.
The same Article also provides that Congress is to have the final word on imports and exports – though that provision is framed in terms of it not being for the individual states to have the final word:
“No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it’s inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.”
Neither the so-called “commerce clause” or the “import-export clause” mentions the presidency having any role in trade policy.
And if you look at Article II – which provides for the powers of the presidency (and is the Article beloved by exponents of presidential power) – you will not not see mention of trade or commerce there either.
But there he is, conducting trade policy on a whim, by decree.
There he is, not imposing tariffs on one particular foreign nation, but recasting the entire tariff policy of the United States in respect of almost every country in the world – and the only exceptions are the ones he chooses.
How is Trump able to do this, when the constitution so plainly says that it is for Congress to set international trade policy and not the presidency?
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This is the question to which I have set out an answer over at Prospect – please click and read here.
In essence, Trump is able to do so because he is (mis)using old emergency legislation passed by Congress, which was not designed for the purpose of setting general trade policy and has never before 2025 been used for this purpose (or even used to impose tariffs on another country, let alone every country).
And Congress is letting him do so.
As such, this tariff policy is not so much an example of presidential power, but of congressional impotence.
This is not an instance of Trump running with a power provided for the presidency by Article II and running with it as far as possible.
It is instead an example of him reaching over to Article I and stealing a power expressly allocated to Congress.
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In essence: the way this is being done is as follows.
A statute from 1977 enables a president to take measures in the event of an emergency – that there is an “unusual and extraordinary threat”.
Once the president formally declares an emergency, the president can then put in place measures – measures which are defined (if defined at all) in the most general terms.
Before 2025, it would appear that the 1977 Act was used regularly by president but only against particular individuals and to impose particular sanctions.
As such, it in a way made sense for this Act to be used in the way it was.
But in 2025 came this executive order.
This executive order – really a decree – contains this extraordinary passage:
“I, DONALD J. TRUMP, President of the United States of America, find that underlying conditions, including a lack of reciprocity in our bilateral trade relationships, disparate tariff rates and non-tariff barriers, and U.S. trading partners’ economic policies that suppress domestic wages and consumption, as indicated by large and persistent annual U.S. goods trade deficits, constitute an unusual and extraordinary threat to the national security and economy of the United States. That threat has its source in whole or substantial part outside the United States in the domestic economic policies of key trading partners and structural imbalances in the global trading system. I hereby declare a national emergency with respect to this threat.”
The rest of the decree (which should be read in full) sets out how this “threat” has come about since 1945 – indeed the decree contains a potted (if one-sided) history of post-war international trade.
In summary the deficits are structural and they have been in place a long time.
In other words: the deficits are usual and ordinary.
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Words like “unusual” and “extraordinary” can have wide and expansive meanings.
But – logically – however wide the meaning of a word can be expanded, it (normally) cannot include its own antonym.
Unusual cannot mean usual.
Extraordinary cannot mean ordinary.
But here Trump is formally declaring that the usual and ordinary trading conditions of the United States “constitute an unusual and extraordinary threat to the national security and economy of the United States”.
And that is an unusual and extraordinary thing for a President to do with emergency legislation – or at least it should be.
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What Trump is doing is that easy.
Regardless of the constitution expressly stating regulating trade is a matter for Congress, Trump can simply declare an emergency and so take it upon himself to recast the tariff policy of the United States with almost every country in the world.
In any sensible polity, this constitutional expropriation would face instant challenge.
The legislature would instantly check the executive, either by mechanisms within the statute or by repealing the law outright.
The judiciary would also check the executive, by ruling that acts outside the scope of the statute were outside the legal powers of the executive.
These would be the checks that would balance the overall constitution of a polity where the executive misused – abused – power provided to it by legislation.
But in the United States the separation of powers currently means little or nothing, because those powers are aligned.
A Republican majority in both houses of Congress is complemented by a conservative majority on the Supreme Court.
And so, in the current circumstances, the United States may as well not have the separation of powers at all.
Indeed, it may as well not have a written constitution, for all the good it is doing at the moment.
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Once rulers get a taste for emergency powers they tend to carry on using them.
And if a polity has a compliant legislature and a deferent judiciary, there is little or nothing that can limit the executive’s use – misuse, abuse – of emergency powers.
What has already happened has been pretty significant – a 1977 Act has been used for Trump to recast the entire trading policy of the United States.
Similarly Trump invoked the Alien Enemies Act of 1798 – even though Congress has not declared any war – and has used it to deport humans to an industrial-sized prison in another country.
The only limits to what Trump and his circle want to do with emergency or wartime legislation seem to be set by their own imaginations.
The extent to which emergency or wartime legislation is already being put is alarming.
And it thereby is not especially alarmist to say that the current presidency may use – misuse, abuse – other emergency and wartime legislation, because they can, and nobody will stop them.
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The Prospect article was published before Trump caved a little on tariffs.
Some of the more onerous tariffs were suspended for a period.
But think about this.
Something which was necessary because of “an unusual and extraordinary threat to the national security and economy of the United States” suddenly became unnecessary.
What Trump described in his decree as “an unusual and extraordinary threat to the national security and economy of the United States” had not itself changed – though stock and other market conditions certainly had changed.
Yet suddenly the most onerous of the emergency measures to be rushed into place were not needed.
The most obvious explanation is that what he described as “an unusual and extraordinary threat to the national security and economy of the United States” was not an unusual and extraordinary threat at all.
If it were still such a threat, then he would not have so casually suspended the measures supposedly necessary to meet that threat.
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Trump and his circle’s taste for emergency and wartime legislation is a bad thing.
And it can only get worse, despite him caving on some tariffs.
This is not a strong, robust presidency using to the full its designated powers under Article II of the constitution.
This is a presidency taking powers allocated elsewhere in the constitution and misusing and abusing those powers – with the support or forbearance of Congress and the courts.
And this is the real emergency.
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Comments Policy
This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.
More on the comments policy is here.
2nd April 2025
Overnight came the news that one candidate for the supreme court of Wisconsin won in an election instead of another.
In normal times, few would know about such things outside of Wisconsin, and even fewer would care. Other than thinking something about judges being elected, and perhaps why they really should not be, it would hardly register a thought for someone seeing it in the news, if the result was reported at all.
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But.
We are not in normal times. And so the strangest things become important and significant – even special court elections in away states of which few in England will know anything.
The two candidates were nominally non-partisan, with no party affiliation.
But in reality, one was a liberal, and the other one certainly was not.
And this mattered, as the Wisconsin supreme court is finely balanced. A liberal supreme court judge has retired, thereby requiring a special election, and if the illiberal candidate won the court would swing against the liberals.
It was thereby an election which mattered – at least for the direction of the Wisconsin supreme court as they come to decide various contentious matters – including in respect of election districts but also many other issues.
And it was also an election that mattered more widely – and it certainly mattered to Elon Musk and other supporters of President Trump. Indeed, it mattered to them a lot.
Musk announced that this election would determine “the future of America and Western Civilisation.”
Indeed, Musk averred, the election was about “the entire destiny of humanity”.
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In normal times, this would be an odd thing to say about any election, not least a special election for the Supreme Court of Wisconsin.
And Musk certainly threw himself into campaigning.
He offered large amounts of money.
Usually such election interference stays hidden, but the openness of these attempts recall William Hogarth’s vivid caricatures of eighteenth-century elections in England.
Hogarth would certainly have relished depicting what is currently unfolding in America.
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And yet, overnight, the candidate favoured by Musk and Trump lost – and lost markedly.
In her winning speech, the successful candidate said that justice did not have a price and that the courts were not for sale.
In normal times, of course, this would not need to be said by anyone, let alone in a victory speech of a newly elected judge.
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Some will not get beyond the notion of having elections for judges. Most sensible people will see this as a least problematic, but this maybe is a discussion for another time.
Suffice to say: if there are going to elections for judges, it is better that the liberals win than illiberals, if that is the significant point of difference.
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But more widely, this is a welcome sign.
It does not indicate that the tide is turning – and that is for the simple reason that the tide has not turned.
But it does indicate that the tide has not (yet) risen as high as the illiberals would like to do.
Liberals and progressives should welcome such victories as and when they happen (though many will still grumble and nit-pick), for such victories are currently rare.
If the tide is ever to turn, then this result may become – in hindsight – an early pointer.
And in the meantime, on to the next skirmish, and then the next battle, and so on, and so on, as there is no alternative. For that is the only way the illiberals will eventually lose.
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Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.
More on the comments policy is here.
19th March 2025
We are in strange constitutional times.
Yesterday there were two public statements, from the heads of their respective branches of the United States constitutional system.
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The first was from the president of the United States Donald Trump on social media:
“This Radical Left Lunatic of a Judge, a troublemaker and agitator who was sadly appointed by Barack Hussein Obama, was not elected President – He didn’t WIN the popular VOTE (by a lot!), he didn’t WIN ALL SEVEN SWING STATES, he didn’t WIN 2,750 to 525 Counties, HE DIDN’T WIN ANYTHING! I WON FOR MANY REASONS, IN AN OVERWHELMING MANDATE, BUT FIGHTING ILLEGAL IMMIGRATION MAY HAVE BEEN THE NUMBER ONE REASON FOR THIS HISTORIC VICTORY. I’m just doing what the VOTERS wanted me to do. This judge, like many of the Crooked Judges’ I am forced to appear before, should be IMPEACHED!!! WE DON’T WANT VICIOUS, VIOLENT, AND DEMENTED CRIMINALS, MANY OF THEM DERANGED MURDERERS, IN OUR COUNTRY. MAKE AMERICA GREAT AGAIN!!!”
This social media post indicated Trump was perhaps a little disappointed with how the current case on deportations is going (covered on this blog in the last couple of days).
And unlike many of the documents examined on this blog, this Trump post really is not a difficult text to parse.
Once upon a time, when things were normal, such a statement by a president or anyone else in a position of power would have caused consternation, and maybe even triggered its own impeachment.
Now, we just expect these things – and one’s eyes glaze over such missives, with their lines of block capitals, just like one’s eyes can glaze over those irksome American contracts which insist in putting dozens provisions in block capitals so as to make them (supposedly) duly prominent.
And the fact that Trump was attacking a judge and calling for their impeachment also registered hardly a shrug.
So what? This is what he does. Next news item, please.
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But.
It is a text not without interest – not for what it says, but for its context.
The timing of this post would accord with when Trump was probably being told of how the court case was going, with federal lawyers briefing him on the merits of the success of the defence.
As this blog has said, the US federal government are facing a hard time in this particular case – and there seems no obvious way that the government was not in breach of a court order.
If that was the substance of what Trump was being told, there is no wonder his response was this social media text. He would not take such news well.
But even after setting out this possible context, few would give such blather a second thought. More of the same.
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But.
Then something unexpected happened.
John Roberts, the chief justice of the United States Supreme Court, put out his own public statement.
Such statements are as rare as Trumps posts are ubiquitous, and so it had the sudden effect that Trump’s posts have lost long lost.
Roberts simply said this, in a mere two sentences, and without any block capitals or exclamation marks:
“For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision. The normal appellate review process exists for that purpose.”
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Bang.
Of course, this does not mention Trump expressly. And nor it is it an exceptional statement – it states the obvious.
In and of itself, it is not a radical text.
Yet the context of this text maybe makes it very potent indeed, and for at least two possible reasons.
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First, it perhaps indicates that Roberts – part of the nominal conservative majority on the court – is not happy with threats to impeach judges over how cases are decided.
And if Roberts is not happy, it is likely that other conservative justices such as Amy Coney Barrett are unhappy too.
Given that Trump and his supporters hope and expect the conservative majority on the supreme court to ultimately uphold a lot of what they are currently doing, this statement was a signal that this majority cannot be taken for granted.
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Second, it appears to also be a signal of judicial leadership. Roberts is implicitly telling the other federal judges across America who are having to adjudicate legal claims arising from the current political turmoil not to be intimidated by threats of impeachment.
(Any impeachment would also require two-thirds of the senate – votes which the conservatives have not (yet) got.)
If it is such a signal of leadership then, again, this is not good news for Trump and his bullying supporters.
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Was it proper for Roberts to make such an extra-judicial statement?
Already conservative senators are saying that Roberts has trespassed onto the arena of the legislature, for it is Congress that decides whether to impeach.
(Such senators, of course, are silent on whether it was proper for the president to usurp the role of Congress on impeachment – but presumably such intellectual consistency is for the hobgoblin of little minds.)
But in any case Roberts was correctly stating the appropriate response to disagreeing with a court decision – you appeal, which is certainly proper for a chief justice to say.
And by saying what is the appropriate response, you are also necessarily saying what is not the appropriate response, and there is nothing wrong with him doing that expressly.
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One never would have expected the president and chief justice to engage in, what is in effect, a twenty-first century pamphlet war – to have such a row in public.
To his credit Roberts avoided joining with Trump expressly, but the meaning of his speech act was plain: it was a public correction, if not a contradiction, of the president of the United States. It was a public rebuke.
Roberts would not have enjoyed doing this, and so there must have been for him a compelling reason to overwhelm his usual reluctance to make such statements.
(One wonders if he is also tempted to make a general statement that court orders should also be complied with unless appealed – though that may be too close to the facts of many currently contested cases.)
Many – fully aware of Roberts’ own rather illiberal judicial record – were unimpressed with this intervention. It was too little, too late and he only has himself to blame for much of the current law and policy dumpster fires.
Perhaps.
But here Roberts did do the right thing, and for that he should be commended – even if much of the rest of his record should be condemned.
And if politics is about getting people to shift their position to a better position, then any such move should always be welcomed.
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Of course, the Roberts statement will make little difference to the current spectacular legal and political breakdown of the United States.
But it is a signal that those seeking to bring about this breakdown are not going to have it all their own way.
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This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.
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18th January 2025
So far this blog (here and here) has provided an immediate close reading of the libel letter sent by the former Prime Minister to the current Prime Minister, and yesterday it set out a more considered approach.
But there is one further thing which perhaps should be noted about the letter.
Let us look again at the first and final pages (which for reasons given in the previous points, I have taken out the letterhead of the law firm, though there is a reference to it on the the final page, which was unavoidable if I were to show the letter did not have a “wet ink” signature).
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There is something else missing, apart from the “wet ink” signature.
It is something which would normally be at the top of the first page, or maybe sometimes at the bottom of the last page.
The letter circulated to the media does not include any of the usual “furniture” of a legal letter: a reference number, the identity of the lawyer sending it, the email address for the recipient to respond to, and so on.
As this was a letter which explicitly was sent by email, then an email address for a response would be normal.
And given the law firm sending the letter lists three postal addresses for three offices, there would be a need at least for a file reference number or other identifying paraphernalia.
But there is nothing.
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Taken together with the evidence already detailed in the previous posts that this is a weak litigation letter, then this suggests one of the following scenarios:
1. the version of the letter sent did not have a “wet ink” signature, no reference number and no identifying information as to the lawyer and office which sent it;
2. the version circulated to the press was an unsigned “client copy” of the version of the letter sent, and the letter which was sent did have a reference number and identifying information as to the lawyer and office, and either Truss or someone in her circle leaked their “client copy” version of the letter;
3. the version sent and circulated to the press was not “leaked”, but was instead deliberately crafted and intended as a publicity version for release to the media, and so care was taken that this publicity version removed any identifying details.
Normally(!) the first option would the least likely, because it would odd indeed for a multi-office law firm (as opposed, say, to a High Street one-person firm) to have no identifying information whatsoever on a litigation letter for any reply to be directed to the right person.
Yet if it is the third option, then this would mean that the letter was never intended by Truss to be taken seriously by the recipient: it was always and entirely a media-political exercise.
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On balance, taking together both the muddled content (and lack of content) of the letter and the accumulation of telling details, this letter was never intended to be a credible litigation letter, it was always an exercise in publicity.
Your response to this may be (and perhaps should be) “duh, no surprise there, Sherlock” – but it is one thing to assert that a letter has no credible legal purpose, and another to demonstrate it could have no credible legal purpose, and to demonstrate on balance that it could have no credible legal purpose is what this short series of posts set out to do.
And, if so, it is an unwelcome development that lawyers’ letters are being. used for such a media-political purpose.
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Comments Policy
This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.
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17th January 2025
Before we start, the “lettuce before action” (for “letter before action”) line has been taken from the estimable Paul Magrath, whose weekly legal email is a must-read.
I really wish I had thought of the line for last week’s post.
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The post last week provided a quick close reading of the gloriously bad libel letter sent on behalf of the former Prime Minister Elizabeth Truss to the current Prime Minister Keir Starmer.
That post was done at speed: I wanted to respond to what the letter actually said, before I was aware of what others said it said. This is always the best way of engaging any formal document: work out what you can from reading the text yourself, before seeing what others tell you the text says.
This approach has its advantages – and also its disadvantages, not least that one can miss things others will see.
There was also the problem I did not then have access to the second page – though it was fun to speculate what could be on that second page.
This is now a more considered post, adding to the points made in the first post (which I think stands quite well), with the bonus of what seems to be the second page.
And for the reasons set out below, there is a worrying implication in the letter in respect of free expression. This is perhaps odd coming from a politician who often emphasises her free speech credentials.
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First, here is the full letter with what appears to be the second page (which has been taken with thanks from here):
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The second page, which I speculated must have contained all what was missing from the other pages, in fact adds nothing substantial to the letter.
Here it is again:
But, for completeness, the second page tells us that the words complained of were not said in parliament and so there is no issue of the absolute privilege for what is said in parliament (paragraph [7] and the footnotes to paragraph [4]).
And Paragraph [9] somehow manages to weaken what is already a very weak letter.
We already knew that this was a “cease-and-desist” letter that somehow did not set out what would happen if the recipient did not cease and desist. Paragraph [9] now sets out the sender is not even demanding a legal remedy at all.
In litigation terms, paragraph [9] should have instead been in an accompanying “without prejudice” proposing an offer for a compromised outcome. But for some reason it was included in, and thereby undermines, the “open” letter that would be placed before the court when the matter came to trial. It is a strange inclusion in such a letter.
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As set out last week, this libel threat is poor.
It is perhaps the weakest libel threat ever sent by an English law firm.
That said, it is in my view just about within the scope that a law firm could properly send, given very precise instructions.
But those very precise instruction would have to be to the effect of “send the weakest litigation letter you can”.
And so for that reason, I am not making a point of mentioning the law firm.
We should not visit the sins of a client upon a lawyer, and Truss – like you and me – is entitled to legal representation.
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Now are some further, more considered observations on the letter.
Notice the bulk of the letter is concerned with the appended expert’s report, including – impressively – a paragraph [16] with seven(!) sub-paragraphs.
This bulk makes the letter rather lop-sided.
The “legal” bits of the letter are nowhere near as detailed as the “economic” bits.
The impression this gives is that the origin of the letter was probably this report, which was then given to lawyers with the instruction of somehow building a legal letter on top of it.
The letter was thereby likely to be a device for promoting the content of the report, which it certainly did.
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And this then probably explains the existence of this letter.
As was set out last week, it is an utter failure as a libel threat.
Although – with a squint – one can see that it just about meets the requirements of a legal letter, it is plain that was not its purpose.
(And perhaps one error last week was for this blog to treat it earnestly, on its own terms, as a legal letter.)
It is not a serious legal document, but a political and media document.
And contrary to the “Private and Confidential” marking on its front page, it would appear that the intention of the client (if not of the law firm, who would have no control of the matter) was for it to be leaked and published.
That this is the case is further evidenced by the circulated version being unsigned.
For while some legal letters are not signed, and there is no strict requirement for an “ink” signature as such, it is also often the case that the client copies of correspondence are also not signed, just the letter which is actually sent.
It would seem that the letter must have been leaked either by the client or someone in her circle.
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As regards the expert report, a number of commenters have focused on the identity of the expert.
But it does not matter if the economist’s report on which the letter was relying was by John Maynard Keynes or Adam Smith.
It made no sense to rely on an expert’s report in respect of facts which the same letter also said were “clear”.
That is not what expert reports are for in civil litigation.
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And now we come to the possible implication of the letter for free expression.
Reading the letter as a whole, including the now non-missing page two, the threat made against the Prime Minister could be made by her against any person at all who said the words complained of.
There is nothing in the letter which would limit the alleged liability to the Prime Minister for saying those words.
Generally libel is blind to the identity and motives of the person who “publishes” the words – in this case says words reported in the media.
The framing of the letter is such that any person who published the words complained of would be liable to Truss for general damages.
The letter is addressed to Starmer, but it describes a claim Truss could also make against world.
Fortunately this letter is so hopeless that nobody will end up with legal liability.
But the premise of the letter is an extraordinary widening of legal liability for political speech, catching many political speech-acts on social media and other published media which most be people would assume was part of their everyday free speech in criticising Truss for what she did with the economy.
Given that the sender often promotes her belief in free speech, this is perhaps further evidence that the content of this letter was not really thought-through by Truss, beyond being the means of widely circulating a certain favourable (but probably legally inadmissible) report.
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The Prime Minister gave what must be the most appropriate response to this letter in PMQs on Wednesday.
“I got a letter this week from a Tory voter in a Labour seat.
“I hope that they do not mind me saying who it was—it was Liz Truss.
“It was not written in green ink, but it might as well have been.
“She was complaining that saying she had crashed the economy was damaging her reputation.
“It was actually crashing the economy that damaged her reputation.”
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There has been no announcement of any formal reply by Starmer to the letter, which is not surprising given the letter did not ask for a reply, still less (remarkably for a supposed cease-and-desist letter) demand any undertakings, and the letter also did not include any deadline.
Truss, however, seems to want to have the last word.
On X (previously Twitter) she responded to the Prime Minister’s jibe:
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Here, if Truss sincerely thinks accusing someone of crashing the economy is defamatory (subject to any defences), then she is with her “closer to home” comments herself defaming someone else in turn.
But at least she put “cease and desist” letter in ironic quotes.
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Politicians and others (and their lawyers) should always be careful in using any litigation documents – from letters before action to third party submissions – for the purposes of publicity.
Judges certainly do not like it.
And if done badly, you also end up looking very silly.
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At Substack, last week’s post on Truss has now overtaken the post on Taylor Swift to become the second most popular post ever published on that blog.
And this is fitting in a way.
For an alternative title for this post could have been: “Litigation (Liz Truss’s Version)”.
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Comments Policy
This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.
More on the comments policy is here.
