We are inevitably headed, whether it’s in this case or another, to a confrontation between a president who has rejected the rule of law and a judge sworn to enforce it. We are in an exceedingly dangerous moment for democracy.
This week's featured post is "Rights, Privileges, and Mahmoud Khalil"
This week everybody was talking about the shutdown that didn't happen
Congress passed a continuing resolution keeping the government open for the rest of this fiscal year, i.e. until September 30. I have to own up to some disappointment here. Three weeks ago I wrote this:
The real test happens when the government runs out of money on March 14. It’s easy to be for or against things until somebody puts price tags on them and adds them all up. In order to get the bill he wants, Trump will need support from almost all of the Republicans in the House. If Democrats stay united and only two Republicans vote against a spending deal, it fails.
If that happens, that’s when congressional Democrats begin to have negotiating leverage.
But Speaker Mike Johnson wrote his continuing resolution without any input from Democrats, and he passed it through the House because he lost only one Republican vote. Heather Cox Richardson summarizes what's in it:
The new measure is not a so-called clean CR that simply extends previous funding. Instead, the Republican majority passed it without input from Democrats and with a number of poison pills added. The measure increases defense spending by about $6 billion from the previous year, cuts about $13 billion from nondefense spending, and cuts $20 billion in funding for the Internal Revenue Service. It forces Washington, D.C., to cut $1 billion from its budget, protects President Donald Trump’s ability to raise or lower tariffs as he wishes, and gives him considerable leeway in deciding where money goes.
When that CR went to the Senate, Democrats could have blocked it if they had hung together. (It takes 60 votes to kill a filibuster, and Republicans only have 53 senators.) For a while it looked like that would happen, with many people speculating about whether 7 Democrats would break ranks.
Then Democratic Senate Leader Chuck Schumer flipped to support the CR. This move is very unpopular inside the Democratic base, and was denounced by Democrats from AOC to Nancy Pelosi.
Schumer wrote an op-ed to explain. I'm going to try to express his view more convincingly than he did, not because I agree with it, but because I'm trying to evaluate it.
Ordinarily, a government shutdown is like a labor strike against a company: It hurts both sides, and the conflict is over who can endure the most pain before giving in. In a typical shutdown, both Republicans and Democrats understand that the American people don't like it. So they maneuver to blame each other while looking for some acceptable compromise that will end it.
But what if Trump likes ruling over a shut down government? What if he'd be content to let the shutdown run until the end of the fiscal year in September? During a shutdown, only "essential" services are provided: the military stays on duty, Social Security checks still get mailed, and so on. But isn't the whole point of all the DOGE firings and cutbacks to eliminate anything not "essential"?
If that's the case, then Trump doesn't feel pain and doesn't come under more and more pressure to make a deal as the shutdown continues. Eventually the Democrats have to capitulate and get nothing, so why not capitulate and get nothing now?
I admit that I have trouble evaluating whether or not that's how a shutdown would play out. Maybe it would. But even if I grant Schumer that point, I'm not impressed with his leadership, because he apparently didn't see this situation coming and had no plan to deal with it when it arrived.
OK, I admit I also didn't think Speaker Johnson would keep his ducks in a row and get a CR passed without Democrats. But it was always at least a possibility. Somebody on the Democratic side should have gamed out how to respond. There should have been a plan and a message: "We can't fight Trump this way, so we're going to fight him that way." There should have been talking points, and major Democrats should have united in pushing those points.
Instead, Schumer was talking about defeating the CR right up until the moment he turned around. Democrats are presenting no plan for resisting Trump going forward, and they're bickering among themselves about what they just did. They look weak and Trump looks masterful. Good going, Chuck!
The one saving grace in all this is that a shutdown itself is not in the headlines. Instead we can focus on the ever-weakening Trump economy, the assault on constitutional rights, and the crashing stock market. If only there were an opposition party with a plan to turn everything around.
and Mahmoud Khalil
His deportation case, and what it means for freedom of speech in general, is the subject of the featured post.
A related issue is the Trump administration's attack on Columbia University, where Khalil was a student. The Harvard Crimson writes "First They Came for Columbia", charging that "The administration has weaponized the fight against antisemitism as a means to another end: punishing and weakening universities." It says that no university is in a better position to lead a fight against this than Harvard, which so far is doing nothing.
and the rule of law
With the failure of Congress to check Trump in any way, the full burden falls on the courts. From the beginning, two questions have loomed over all the cases challenging Trump's illegal actions:
- Will the Supreme Court invent new law to justify whatever Trump does?
- What happens if the Trump administration doesn't obey court orders?
We're getting closer and closer to finding out. This week, hundreds of non-citizens were deported under the aegis of the Alien Enemies Act of 1798. This is one of the notorious Alien and Sedition Acts you may remember from US History class. Heather Cox Richardson summarizes the history:
That law, which applies during wartime or when a foreign government threatens an “invasion” or “predatory incursion,” permits the president to authorize the arrest, imprisonment, or deportation of people older than 14 who come from a foreign enemy country. President James Madison used the law to arrest British nationals during the War of 1812, President Woodrow Wilson invoked it against Germans during World War I, and President Franklin Delano Roosevelt used it against Japanese, Italian, and German noncitizens.
During the 2024 presidential campaign, Trump said he would use the Alien Enemies Act to deport gang members, and in an executive order signed Friday night but released yesterday morning after news of it leaked, Trump claimed that thousands of members of the Tren de Aragua gang have “unlawfully infiltrated the United States and are conducting irregular warfare and undertaking hostile actions against the United States.” In connection with the Venezuelan government, he said, the gang has made incursions into the U.S. with the goal of “destabilizing democratic nations in the Americas, including the United States.”
This is pretty fanciful stuff. Maybe Tren de Aragua is operating in the US, though Trump has a long history of exaggerating immigrant gangs, so I'd be amazed if we're really talking about "thousands" of members. But the idea that they aren't just trying to make money the way all gangs do, but are instead "conducting irregular warfare" while conspiring with the Venezuelan government to "destabilize ... the United States" -- that seems like a fever dream to me. Is there any evidence to back that up?
So this was the justification for deporting 200 supposed gang members to El Salvador. El Salvador is getting paid $20K per man/year to imprison them (prior to any graft), so you can imagine the conditions they'll be held in.
The ACLU filed suit pointing out that the administration had presented no evidence these actually were gang members, or that Venezuela was using them to wage war against us, so a federal judge issued a temporary restraining order against invoking the AEA in this way. And then things got interesting.
Ryan Goodman of Just Security put together the timeline of what came next. At 5:00 last night, Judge Boasberg asked whether deportations would happen in the next 24–48 hours. The government’s attorney said he didn’t know; the ACLU attorney said the government was moving rapidly. Before 5:22, Boasberg ordered a break so the government attorney could obtain official information before the hearing resumed at 6:00.
At 5:45, Goodman reports, another flight took off.
Before 6:52, Judge Boasberg agreed with the ACLU that the terms of the Alien Enemies Act apply only to “enemy nations,” and blocked deportations under it. Nnamdi Egwuonwu and Gary Grumbach of NBC News reported that the judge ordered the administration to return the planes in flight to the United States. “Any plane containing these folks that is going to take off, or is in the air, needs to be returned to the United States,” the judge said. “Those people need to be returned to the United States.”
The plane did not turn around. Law Dork looks into the details. It appears that the administration's position is that the judge's order did not apply once the plane had left American airspace.
Of course that’s absurd — as many others also noted Sunday — because the U.S. government was still in control of the planes, and the Justice Department lawyer before Boasberg on Saturday evening had literally argued, albeit unsuccessfully, that there was no irreparable harm here — a factor in deciding whether to grant a TRO — because the challenge could continue even if individuals had been deported.
One thing you can see across multiple court cases: Trump administration lawyers are not operating in good faith. They say whatever will allow illegal policies to continue. And if they have to say the opposite tomorrow, they don't care.
Jay Kuo summarizes the week's other legal news, which was pretty good.
A federal judge ordered the administration to rehire tens of thousands of the probationary workers it fired. Basically, the administration took advantage of a loophole allowing probationary workers to be fired for poor performance, and pretended that all probationary workers had performed poorly. The judge called this scheme "a sham".
A member of the National Labor Relations Board returned to work after a court found her firing illegal.
Perkins Coie, a private law firm targeted by a Trump executive order, won a temporary restraining order against enforcement of the executive order.
and you also might be interested in ...
Paul Krugman looks at the purely economic cost of Trump trashing America's image. He starts with Canada cancelling its order for F-35 fighter jets, which makes sense because "sophisticated military equipment requires a lot of technical support, so you don’t want to buy it from a country you don’t trust." Several European countries are also reconsidering buying new American weapon systems.
I had not appreciated how big US military exports are: $318.7 billion in 2024. That's 15% of total exports and twice as big as agricultural exports. And then there's tourism ($100 billion) and education ($50 billion). As the US becomes more suspicious of foreigners and less welcoming (not to mention Trump trashing our universities), those numbers should go down.
One way to think about this is to say that Trump is doing to America what Elon Musk is doing to Tesla, destroying a valuable brand through erratic behavior and repulsive ideology. ... Trump’s belief that America holds all the cards, that the rest of the world needs access to our markets but we don’t need them, is all wrong. We are rapidly losing the world’s trust, and part of the cost will be financial.
Krugman recognizes that as an academic economist, he's not particularly good at predicting short-term business cycles. So he interviews somebody who does that for a living. The upshot is that numbers look decent right now, but it wouldn't take much to change them. Both hiring and firing have been soft recently, so it wouldn't take much in the way of layoffs to spike the unemployment rate.
You know those measurements of CO2 in the atmosphere and how it increases every year? Those come from the Mauna Loa Observatory in Hawaii. Well, maybe not for long. The NOAA office in Hilo that oversees the observatory is being closed.
Remember when Trump wanted to limit Covid tests so that the number of reported cases would go down? Same thing here. If we stop measuring CO2 it won't be a problem any more.
Elon Musk has claimed that no one has died from his cutoff of foreign aid funds. Nicholas Kristoff provides some names and pictures of the victims Musk is denying.
Robert Morris, a Texas megachurch founder with connections to Donald Trump, was indicted in Oklahoma Wednesday for molesting a girl in the 1980s, when he was living with her family. I mention this not out of animus towards either Morris or the branch of Christianity he represents, but to make a point.
Certain cases become the center of movements; laws are named after them. For example, Lakin Riley was a nursing student murdered by an immigrant who had entered the US illegally. That led to the Lakin Riley Act, which requires the government to deport immigrants accused of certain crimes, even if they aren't convicted.
Whether a case takes on that kind of symbolic value depends on the popularity of the people in question. Undocumented immigrants are unpopular, so crimes they commit are candidates for becoming the center of campaigns, depending not at all on whether the perpetrators are typical of some larger trend.
Drag performers are also unpopular, and various laws restricting them have been pitched based on the threat they pose to children, despite the fact that there seems to be no such threat. But imagine what would happen if a single drag performer raped a single child. That child would become famous, and very likely would end up with a law named after him or her.
Christian ministers, on the other hand, are popular. So of course there will be no Cindy Clemishire Act, (named for Morris' victim) that puts restrictions on Christian ministers or abridges their rights in some way. It doesn't matter how many ministers molest children. None of those cases will become the kind of cause célèbre that Lakin Riley's murder was.
Trevor Noah's "What Now?" podcast is consistently good. I recommend his interview with Robert Putnam of "Bowling Alone" fame.
and let's close with something outrageously classical
A four-woman quartet turns Vivaldi and Mozart into a confrontational stage performance.
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