“Claiming vast executive powers and “the mandate of the electorate,” the Justice Department on Monday night informed a federal judge that it was invoking the state secrets privilege and refusing to answer a judge’s orders for more information on several deportation flights of alleged Venezuelan gang members.
Attorney General Pam Bondi and other high-ranking Justice Department officials filed a “Notice Invoking State Secrets Privilege” claiming that it “would pose reasonable danger to national security and foreign affairs” to comply with U.S. District Judge James Boasberg’s fact-finding inquiries to determine if the U.S. government violated his order to turn those deportation flights around.”
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“Boasberg has repeatedly ordered the Justice Department to produce detailed information on those flights to determine if officials knowingly defied his orders. The Trump administration has offered various explanations for why it did not comply—that it didn’t consider Boasberg’s verbal order valid, and that Boasberg didn’t have jurisdiction once the flights crossed into international space, for instance.
As Boasberg’s fact-finding orders have proceeded toward considering contempt, the Justice Department’s responses have grown more obstinate, culminating in Monday night’s invocation of the state secrets privilege.”
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“the Trump administration is claiming that it can declare a war by executive order and send immigrants to a labor camp in another country, all without meaningful judicial review of the facts. As Ilya Somin recently wrote at The Volokh Conspiracy, the Trump administration’s policy violates the Due Process Clause of the Constitution and is “obviously unjust.”
“Imprisoning people without any due process whatsoever is a cruel and evil practice usually used only by authoritarian states,” Somin wrote. “And if the Trump administration gets away with it here, there is an obvious danger it will expand the practice.”
The Trump administration’s attempt to invoke the state secrets privilege raises another, tertiary danger: that we won’t even be able to know if they’re expanding the practice.”
“There are many excellent reasons why Boasberg should not be impeached, including the fact that Boasberg’s judgment against Trump is both persuasive and well-grounded in the law. Trump may claim that he has the unilateral authority to deport alleged criminal aliens without due process. But the administration’s arguments in support of that sweeping claim fail to pass muster on multiple counts.
Under the Alien Enemies Act of 1798, “whenever there shall be a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion shall be perpetrated, attempted, or threatened against the territory of the United States, by any foreign nation or government,” the president may direct the “removal” of “all natives, citizens, denizens, or subjects of the hostile nation or government, being males of the age of fourteen years and upwards, who shall be within the United States, and not actually naturalized.”
Trump invoked that law in his March 15 proclamation ordering the “immediate apprehension, detention, and removal” of alleged members of the street gang Tren de Aragua, who are allegedly “conducting irregular warfare and undertaking hostile actions against the United States…in conjunction with Cártel de los Soles, the Nicolas Maduro regime-sponsored, narco-terrorism enterprise based in Venezuela.”
Except there is no “declared war” between the United States and Venezuela. And while Trump and his allies have certainly promoted the idea of a rhetorical “invasion” of the U.S. by unlawfully present aliens, that is merely a talking point. Such rhetoric does not alter the plain text of the Alien Enemies Act, which refers to military invasions by a “foreign nation or government.” As James Madison explained in his “Report on the Alien and Sedition Acts,” published on January 7, 1800, “invasion is an operation of war.” The alleged crimes of the alleged members of a nonstate street gang do not magically become “an operation of war” just because the president says so in the hopes of unlocking extra powers.
Speaking of James Madison, he said that the role of the judiciary was to stand as “an impenetrable bulwark against every assumption of power in the legislative or executive.” That description is probably as good of an explanation as any for why Trump, just like Roosevelt before him, is so eager to stop the courts from doing their job.”
“Any decision by the administration to defy federal courts would immediately implicate profound constitutional questions about separation of powers that have kept each branch of the government in check for centuries. That’s in large part because it would test the power of courts to enforce rulings that are supposed to be the final word.
The issue reached a fever pitch on over the weekend when the Trump administration deported hundreds of alleged gang members to El Salvador despite a federal judge’s order that the 19th Century Alien Enemies Act could not be used.”
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“Legal experts say there are few options to force compliance with its pronouncements. Judges could hold an agency or official in civil or criminal contempt – but that’s about it.
Fears that the Trump administration might deliberately break into a pattern of not following judicial rulings with which it disagrees were amplified last month when a federal judge in Rhode Island, for the second time, told the Trump administration it can’t cut off grant and loan payments after Democratic-led states complained that the administration wasn’t obeying the judge’s previous court order.”
“In the states’ case, filed in Baltimore’s federal court, the attorneys general argued that the administration had violated a 6-day notice requirement for so-called reductions in force – or RIFS – as well as other procedural steps for such mass terminations. The administration countered that no such notice was required for the layoffs, done quickly in early days of the administration, because federal law allows the government to terminate probationary employees under certain circumstances without any heads up.
Bredar on Thursday rejected the administration’s arguments that the terminations fit into a category not requiring notice because the employees were fired because of their substandard performance.
“Here, the terminated probationary employees were plainly not terminated for cause,” Bredar wrote in a 56-page opinion. “The sheer number of employees that were terminated in a matter of days belies any argument that these terminations were due to the employees’ individual unsatisfactory performance or conduct.””
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“The upshot of Bredar’s ruling, as he acknowledged at a hearing Tuesday, is that the administration would be allowed to lay off the employees en masse if it went through the proper RIF procedures, including the advance notice. His ruling also noted the administration is free to fire individualized employees without following the RIF rules if they are being fired for cause, “on the basis of good-faith individualized determinations.””
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“The Trump administration has been targeting probationary workers because they have fewer job protections and can be dismissed more easily. Federal probationary employees have typically been in their positions for one year, but some jobs have two-year probationary periods. The employees may be new to the federal workforce, but they also could have been recently promoted or shifted to a different agency.”
“A federal judge has ruled that Elon Musk’s Department of Government Efficiency is wielding so much power that its records will likely have to be opened to the public under federal law.
U.S. District Judge Christopher Cooper said the vast and “unprecedented” authority of DOGE, formally known as the U.S. Digital Service, combined with its “unusual secrecy” warrant the urgent release of its internal documents under the Freedom of Information Act.
“The authority exercised by USDS across the federal government and the dramatic cuts it has apparently made with no congressional input appear to be unprecedented,” Cooper wrote in a 37-page opinion.”
“In fact, most federal criminal prosecutions are immigration, drug and gun cases. The largest numbers of federal inmates are in custody because they were convicted of drug, weapon and sex offenses. The story is similar in state prison systems, where roughly 90 percent of the inmates are in custody because they were convicted of a violent offense, property crime or a drug offense.
The legal system is far from flawless — and plenty of Americans sincerely believe that there are too many laws and regulations in the country — but Gorsuch’s selective and misleadingly presented case studies do not tell us anything particularly useful about it.
To be sure, there are some redeeming features of the book. Gorsuch criticizes occupational licensing requirements, the exorbitant cost of legal services in this country and the ways in which they burden working- and middle-class Americans.
But what’s left out of the book is often just as instructive — if not more so — than what’s in it. His interest in government overreach stops short when it comes to liberal causes.
In an anecdotal book about overzealous prosecutors, there are no stories about people being sent to prison because they mistakenly tried to vote when they weren’t eligible or about laws that make it illegal to give voters water while they wait in line. There are no stories about women being arrested because they had miscarriages, part of the ongoing fallout from the decision by Gorsuch and his fellow Republican appointees to overturn Roe v. Wade.”
“It’s astonishing how little thought many past presidents put into their Supreme Court appointments. In the past, justices were often chosen for idiosyncratic personal reasons, or to please a particular interest group or voting bloc, and without much, if any, inquiry into how the nominee was likely to decide cases.
President Woodrow Wilson, for example, appointed Justice James Clark McReynolds — an awful judge and an even worse human being who Time magazine once described as a “savagely sarcastic, incredibly reactionary Puritan anti-Semite” — in large part because Wilson found McReynolds, who was US attorney general before he joined the Court, to be so obnoxious that the president promoted him to get him out of the Cabinet.
Similarly, President Dwight Eisenhower complained late in his presidency that appointing Justice William Brennan, one of the most consequential left-liberal jurists in American history, to the Supreme Court was among the biggest mistakes he made in office. But Ike’s White House never vetted Brennan for his ideological views, and Brennan was selected largely because Eisenhower was running for reelection when he made the nomination, and he thought that appointing a Catholic like Brennan would appeal to Catholic voters.
Even in 1990, after top Republican officials had published lengthy documents laying out their party’s vision for the Constitution, they still hadn’t developed a reliable system for vetting Supreme Court nominees to ensure that they were on board with the party’s agenda. Bush chose the center-left Justice Souter over other, more right-wing candidates largely due to misguided advice from his top legal advisers.
As journalist Jan Crawford Greenburg reported in a 2007 book, Souter beat out early frontrunner Ken Starr — the same Ken Starr who would go on to hound President Bill Clinton in the Monica Lewinsky investigation — in large part because Bush’s right-wing advisers feared that Starr was too liberal. According to Crawford Greenburg, then-Deputy Attorney General Bill Barr opposed Starr because of a low-stakes dispute over “a federal law that permitted private citizens to sue for fraud against the federal government.”
Much has changed since 1990. On the Republican side, the Federalist Society — a kind of bar association for right-wing lawyers with chapters on most law school campuses and in most major cities — now starts vetting law students for elite legal jobs almost as soon as they begin their studies. And Republican presidents can rely on the Federalist Society to identify ideologically reliable candidates for the bench. As Trump said in 2016 while campaigning for president, “We’re going to have great judges, conservative, all picked by the Federalist Society.”
Nor is the Federalist Society the only way Republicans vet potential Supreme Court nominees. Every single one of the Court’s current Republican members except for Barrett previously served as a political appointee in a GOP administration, roles that allowed high-level Republicans to observe their work and probe their views.
Democrats’ vetting process, meanwhile, is more informal. But it’s been no less successful in identifying Supreme Court nominees who reliably embrace their party’s stance on the most contentious issues. The last Democrat appointed to the Supreme Court who broke with the party’s pro-abortion rights stance, for example, was Justice Byron White — a dissenter in Roe v. Wade appointed by President John F. Kennedy in 1962.
The result is a modern-day Supreme Court where every single member was carefully selected by their party to ensure that they will not stray on any of the issues where the two parties have settled views. Every Republican justice voted to abolish affirmative action on nearly all university campuses, with every Democratic justice in dissent. Every Republican voted to give the leader of the Republican Party broad immunity from criminal prosecution, with every Democrat in dissent. Every Republican except for Roberts voted to overrule Roe (and Roberts merely argued that the Court should have waited a little longer), while every Democrat dissented.”
“All three of the Court’s Democrats, meanwhile, appeared sympathetic to Glossip’s arguments, and spent much of the case batting down Alito’s proposals to dismiss the case on procedural grounds — though Justice Ketanji Brown Jackson showed some openness to forming an alliance with Thomas to send the case back down to the state courts in order to gather additional evidence.
That leaves Justices Brett Kavanaugh and Amy Coney Barrett, conservative Republicans who asked some questions that appeared sympathetic to Glossip, as the wild cards in this case. It is possible that they could provide the fourth and fifth vote to save Glossip’s life, but far from certain.
The alleged constitutional violation that is before the Court — that prosecutors withheld evidence that a key witness has a serious mental illness, and failed to correct this witness when he lied on the stand — is fairly marginal. It turns on four words in handwritten notes by prosecutor Connie Smothermon that were not turned over to Glossip’s lawyers until January 2023. The state agrees with Glossip’s legal team that these four words reveal a sufficiently serious constitutional violation to justify giving him a new trial.
But while this narrow legal issue, which is the only issue before the Supreme Court, is the kind of legal question that reasonable judges could disagree upon, Smothermon’s notes are only one piece of a wide range of evidence suggesting that Glossip’s criminal conviction is unconstitutional: Oklahoma conducted two independent investigations, both of which concluded that Glossip’s trial was fundamentally flawed.
Among other things, those investigations found that Justin Sneed — the man who actually committed the murder at issue here — was pressured by police to implicate Glossip in the crime. They also show that police and the prosecution lost or destroyed evidence that could potentially exonerate Glossip. And they show that police inexplicably did not question potentially important witnesses or search obvious places for evidence.
Now, however, Glossip’s life likely turns upon whether Kavanaugh and Barrett are moved by the procedural arguments pressed by the Court’s right flank, or by the arguments pressed by both Glossip and the state: That four words in Smothermon’s notes reveal a serious constitutional violation.”
“a judge struck down Arlington, Virginia’s missing middle reforms that had briefly allowed smaller, four- to six-unit multifamily developments in the D.C. suburb’s single-family neighborhoods.
In a Friday ruling, Judge David Schell said that the county had violated a number of procedural requirements when it unanimously passed its Enhanced Housing Option (EHO) last year and had failed to adequately study the impact of increased residential density.”
“You can’t yell fire in a crowded theater. I’m sure you’ve heard somebody say that before when discussing free speech and limitations on free speech and the First Amendment. Well, it’s actually one of the most widely misunderstood quotes in American law. It’s routinely parroted as the status of why there can be or are limitations on free speech, but it is a big fat myth. I will explain here in just a moment, so stick around.”
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“the interesting about it is the Schenck case wasn’t about fires, it wasn’t about theaters, it kind of wasn’t even about free speech. It was in a way, but it was really about a guy that was being charged with violations of the Espionage Act because he was a member of the socialist party and he was speaking out against the draft. And the other bizarre thing about why this quote gets attributed to why it’s okay to limit free speech is, the Schenck case, which has now actually been overturned and has been for like 60 years, actually stood for the exact opposite. The Schenck case was applying a pretty large degree of censorship on free speech. That’s why it was overturned is because it was actually found to be completely contrary toward what the First Amendment stood for.
So, the idea that you can’t yell fire in a crowded theater, Justice Holmes was using that as an analogy to simply say that free speech can’t go completely unchecked. And that idea has maintained it’s truth throughout the years. That’s still true. There are limitations on what is considered protected speech and what is not considered protected speech, and that’s a topic for a different video. But it’s just always been interesting to me that this quote, which is just dicta, it’s not the holding of the case, it’s not really the law of the land, and it’s not Justice Holmes saying that’s what the law of the land should be, has somehow withstood the test of time and is still, to this day”