"Justice Brett M. Kavanaugh.. opined that race can be considered along with other factors in forming reasonable suspicion to stop someone for an immigration check..."

"... such as where people are gathering and what jobs they are working. 'To be clear, apparent ethnicity alone cannot furnish reasonable suspicion; under this Court’s case law regarding immigration stops, however, it can be a "relevant factor" when considered along with other salient factors,’ Kavanaugh wrote. The court’s three liberal justices sharply dissented. 'We should not have to live in a country where the Government can seize anyone who looks Latino, speaks Spanish, and appears to work a low wage job,' Justice Sonia Sotomayor wrote in the dissent. 'Rather than stand idly by while our constitutional freedoms are lost, I dissent.'"

From "Supreme Court lifts limits on immigration raids in the Los Angeles area/The raids sparked major protests in Southern California. President Donald Trump deployed troops from the California National Guard and Marines in response" (WaPo).

"The Supreme Court on Monday allowed President Donald Trump to fire a member of the Federal Trade Commission despite a federal law..."

"... that is intended to restrict the White House’s power to control the agency.... Trump fired both Democratic commissioners on the five-person FTC in March, [Rebecca Kelly] Slaughter and Alvaro Bedoya. Both challenged the move, although Bedoya later dropped out of the case. Slaughter is currently listed as a serving commissioner on the agency’s website, as the case has made its way through the courts. The firings are a direct challenge to a 1935 Supreme Court precedent called Humphrey's Executor v. United States that upheld limits on the president’s ability to fire FTC commissioners without cause, a restriction Congress imposed to protect the agency from political pressure. Under the 1914 law that set up the agency, members can only be removed for 'inefficiency, neglect of duty, or malfeasance in office.'"

From "Supreme Court allows Trump to fire FTC commissioner/Trump's actions are in direct tension with a 1935 ruling that upheld restrictions on the president's ability to remove FTC commissioners without cause" (NBC News).

"Slaughter is currently listed as a serving commissioner on the agency’s website" — not anymore. 

ADDED: The fact that NBC News referred to the fired commissioners as "Democratic commissioners" gives away the game. According to Humphrey's Executor, the idea was that "The commission is to be nonpartisan; and it must, from the very nature of its duties, act with entire impartiality." And "It is charged with the enforcement of no policy except the policy of the law." 

Who even remembers to pretend that was supposed to be the idea these days?!

"I have long thought that Humphrey’s Executor should be overruled because it is inconsistent with the Constitution’s vesting of all executive power in the President..."

"... and with more recent Supreme Court decisions. Of course, I agree with my colleagues that only the Supreme Court may overrule its precedents.... Granting a stay of the district court’s injunction, however, does not require this court to claim that Humphrey’s Executor has been overruled. Instead, the stay is warranted by the Supreme Court’s decisions to stay injunctions ordering the reinstatement of removed officers.... Everyone agrees that FTC commissioners are principal officers who exercise 'substantial executive power.'... The Constitution establishes three departments of the federal government, and the so-called independent agencies are necessarily part of the Executive Branch, not some headless fourth branch. Commissioners of the FTC exercise 'considerable executive power,' and such officers are not entitled to reinstatement while they litigate the lawfulness of their removal...."

Writes Judge Neomi Rao, dissenting, in Slaughter v. Trump. 

The NYT article about the case is "Federal Appeals Court Reinstates an F.T.C. Commissioner Fired by Trump/The court said the commissioner, Rebecca Kelly Slaughter, had been illegally terminated 'without cause.'" Excerpt: "Since March, the F.T.C. has been led only by Republicans. Ms. Slaughter said in an interview Tuesday evening that she planned to go to the F.T.C. on Wednesday morning to work."

Here's the Wikipedia article on Humphrey's Executor. Excerpt: "The case involved William E. Humphrey, a commissioner of the Federal Trade Commission (FTC) whom President Franklin D. Roosevelt had fired. Roosevelt had fired Humphrey over their policy disagreements involving economic regulation and the New Deal, even though the Federal Trade Commission Act of 1914 prohibited firing an FTC commissioner for any reason other than 'inefficiency, neglect of duty, or malfeasance in office.'"

FDR wrote to Humphrey: "You will, I know, realize that I do not feel that your mind and my mind go along together on either the policies or the administering of the Federal Trade Commission, and, frankly, I think it is best for the people of this country that I should have a full confidence."

"Notwithstanding the Supreme Court’s rulings on First Amendment protections, the Court has never held that American Flag desecration conducted in a manner that is likely to incite imminent lawless action..."

"... or that is an action amounting to 'fighting words' is constitutionally protected. See Texas v. Johnson, 491 U.S. 397, 408-10 (1989). My Administration will act to restore respect and sanctity to the American Flag and prosecute those who incite violence or otherwise violate our laws while desecrating this symbol of our country, to the fullest extent permissible under any available authority.... The Attorney General shall prioritize the enforcement to the fullest extent possible of our Nation’s criminal and civil laws against acts of American Flag desecration that violate applicable, content-neutral laws, while causing harm unrelated to expression, consistent with the First Amendment...."

From President Trump's executive order, "Prosecuting Burning of the American Flag."

Does that violate the First Amendment even though it explicitly limits itself to what is "consistent with the First Amendment"?

Here's Texas v. Johnson. 

I feel like rereading the dissent:

"For 10 years, I’ve been hearing that we needed to fight fire with fire, to oppose Trump by becoming him, to protect our supposedly sacred liberal institutions by taking some shortcut..."

"... that carved a destructive path straight through them: cracking down on speech, abandoning the norms of journalistic objectivity, making unprecedented use of prosecutorial power. These were bad ideas in their own right, and they did absolutely nothing to stop Trump."

Writes Megan McArdle, in "When the rule of law becomes rule of lawfare/Friday’s Bolton raid and the rebuke of Trump’s $500M fine show what happens when justice is not impartial" (WaPo).

Bad ideas... and they did absolutely nothing to stop Trump. But what if they had stopped Trump? That was the biggest of the ideas, and it might have worked. McArdle asserts that now — now that Trump is back with a vengeance — now we should see that neutral principles are best. If only the lawfare hadn't backfired, it would have been delightful to go on ignoring them.

Delightful for whom? Who are we talking about? Not McArdle herself. She's reporting on what she'd "been hearing" for 10 years. She also says "it was depressing watching so many people on the left thrill to this abusive lawfare." Well, "so many people on the left" think a lot of awful things, including that the so-called "rule of law" is a con.

Did the ordinary liberals of America buy into the fight-fire-with-fire approach? Let them take responsibility, not merely gesture at the "many people on the left." But it's not as though admitting you were wrong now will carry any weight. You played a game of tit for tat and now you're sad that the game continues.

ADDED: Trump plays openly, on Truth Social, just yesterday:

"Weaponizing the Department of Justice to try to punish an elected official for doing her job is an attack on the rule of law and a dangerous escalation by this administration."

"If prosecutors carry out this improper tactic and are genuinely interested in the truth, we are ready and waiting with facts and the law."

Said Abbe Lowell, lawyer for Letitia James, quoted in "Justice Department Subpoenas Office of Letitia James, a Trump Nemesis/Ms. James, New York’s attorney general, won a civil fraud case against President Trump that is on appeal. One of the two subpoenas is related to that case" (NYT).

Department of Poetic Justice.

Well, then that's it: "Judge Denies Request to Unseal Epstein Grand Jury Transcripts in Florida."

The NYT reports.

A federal judge in Florida on Wednesday denied a request by the Trump administration to release grand jury transcripts from an investigation into the disgraced financier Jeffrey Epstein, stymying efforts by President Trump to blunt criticism from many of his supporters.

Either that or it's a great relief.

What do you think is Trump's reaction?

Stymied

Relieved

 

pollcode.com free polls

AND: Follow on NYT headlines:

1. "Polls show Republicans breaking with Trump over the Epstein files" ("The incident has revealed a schism among Mr. Trump’s base, with anger over the Epstein files appearing more concentrated among the traditional Republican wing of the party. Republicans who do not identify as part of Mr. Trump’s MAGA movement were more likely to be dissatisfied with how the administration has handled the files...").

2. "Attorney General Alerted Trump He Was Named in Epstein Files/It was not clear in what context Trump’s name was raised in the files" ("One person close to Mr. Trump, who spoke only on the condition of anonymity, said that White House officials were not concerned about the latest disclosures given that Mr. Trump’s name appeared in the first round of information that Ms. Bondi released").

"Biden aides look to Fifth Amendment as autopen probe widens/The former president’s allies are seeking legal protections amid fear that they have become the latest targets for political retribution."

Headline at The Washington Post. I'd make that a free-access link, but I only have 4 left to give this month and it's only the 18th. And it's one of these 31-day months, too, so I've got to be extra stingy.

I'll cherry-pick the lawprof talk:

“They have little options here in terms of protecting their interests,” said Jonathan Shaub, who teaches law at the University of Kentucky and has advised previous White Houses on the use of executive privilege. “Some have claimed the Fifth Amendment, even though I don’t think they actually think that they have committed any crimes. But given the language that has been used and the insinuations, I can understand why their counsel would say, ‘Just don’t say anything, because we don’t know what they’re willing to do and what they’re willing to prosecute.’”

You don't think they actually think that they have committed any crimes. But what do they need to believe? Is it enough that they believe that the current administration will do anything to get revenge on political adversaries? Professor Shaub can understand why their counsel would say they should plead the Fifth, but would he advise his clients to plead the Fifth based on the idea of not knowing what the Trump administration is willing to do?

"Supreme Court Allows Trump Administration, for Now, to End Biden-Era Migrant Program."

The NYT reports.

Subheadline: "The Trump administration had asked the court to allow it to end deportation protections for more than 500,000 people facing dire humanitarian crises in their home countries."

The court’s order was unsigned and provided no reasoning, which is typical when the justices rule on emergency applications. Justice Ketanji Brown Jackson, joined by Justice Sonia Sotomayor, dissented, saying the majority had not given enough consideration to “the devastating consequences of allowing the government to precipitously upend the lives and livelihoods of nearly half a million noncitizens while their legal claims are pending.”... 

In an emergency application to the Supreme Court on May 8, Solicitor General D. John Sauer argued that... the lower court had “needlessly” upended “critical immigration policies that are carefully calibrated to deter illegal entry” and had undone “democratically approved policies that featured heavily in the November election,” Mr. Sauer argued.

ADDED: "Justice Ketanji Brown Jackson, joined by Justice Sonia Sotomayor, dissented..." Not only didn't the Chief Justice join the dissenters, Justice Kagan went with the majority. The middle has spoken. I'm picturing many Trump victories to come in these "injunctivitis" cases.

AND: Here's Jackson's opinion. Excerpt:

The failure to rip a child from its mother's arms.

I'm reading "2-Year-Old U.S. Citizen Deported 'With No Meaningful Process,' Judge Suspects/A federal judge in Louisiana said the deportation of the child to Honduras with her mother, even though her father had filed an emergency petition, appeared to be 'illegal and unconstitutional'" (NYT).

“The government contends that this is all OK because the mother wishes that the child be deported with her,” wrote Judge Doughty, a conservative Trump appointee. “But the court doesn’t know that.”

Asserting that “it is illegal and unconstitutional to deport” a U.S. citizen, Judge Doughty set a hearing for May 16 to explore his “strong suspicion that the government just deported a U.S. citizen with no meaningful process.”

"The passport policy does indeed impose a special disadvantage on the plaintiffs due to their sex and the court therefore concludes that it discriminates on the basis of sex."

Wrote Judge Julia E. Kobick, quoted in "Judge Rules Against Trump Administration on Passport Changes/A group of transgender plaintiffs sued President Trump and the State Department over a new rule prohibiting passports from including a gender different from the sex listed on an original birth certificate" (NYT).

"The Trump administration has begun to scrutinize the real estate transactions of New York’s attorney general, Letitia James, in what could be the opening move..."

"... of President Trump’s first investigation into one of his foremost adversaries. The head of the Federal Housing Finance Agency sent a criminal referral letter to the Department of Justice this week, saying that Ms. James 'appeared to have falsified records' related to properties she owns in Virginia and New York in order to receive favorable loan terms.... When purchasing the Virginia residence, Ms. James signed notarized paperwork attesting that she would use it as a principal residence.... The referral letter also accused Ms. James of misrepresenting the number of units in a Brooklyn home she purchased in 2001, possibly in order to receive better interest rates.....The month before Ms. James’s lawsuit against Mr. Trump went to trial, anonymous complainants began to file documents with New York City’s Department of Buildings, several of them related to the number of units in the home.... One of the complaints, in October 2024, asked why Ms. James was 'NOT being prosecuted for fraud and filling false documents when other people have been persecuted for far less crimes,' then added a pointed question: 'a Double Standard???'"

From "Trump Official Scrutinizes N.Y.’s Attorney General Over Real Estate/The head of a U.S. housing agency told prosecutors that Letitia James appeared to have falsified real estate records, a move that could be the start of an investigation of a key Trump adversary" (NYT).

Facilitate and effectuate.

From the Supreme Court's statement in Noem v. Abrego Garcia:

On Friday, April 4, the United States District Court for the District of Maryland entered an order directing the Government to "facilitate and effectuate the return of [Abrego Garcia] to the United States by no later than 11:59 PM on Monday, April 7." ... 

The order properly requires the Government to “facilitate” Abrego Garcia’s release from custody in El Salvador and to ensure that his case is handled as it would have been had he not been improperly sent to El Salvador. The intended scope of the term “effectuate” in the District Court’s order is, however, unclear, and may exceed the District Court’s authority. The District Court should clarify its directive, with due regard for the deference owed to the Executive Branch in the conduct of foreign affairs....

That's what you call "minimalism." 

"Under what theory of the constitution does a single marxist judge in San Francisco have the same executive power as the Commander-in-Chief elected by the whole nation to lead the executive branch?"

Tweet Stephen Miller, quoted by David French in "Trump Is Coming for Every Pillar of the State" (NYT). 

French continues:

As Miller put it in a press briefing last month, “The whole will of democracy is imbued into the elected president.” He is the only elected official who represents the whole of the American people, and he embodies the people’s general will....  

Trump and his team are furious at the federal judiciary, but they’re to blame for their own legal struggles. Trump has issued a host of poorly drafted executive orders. Trump’s administration has snatched people off the streets without adequate due process. The so-called Department of Government Efficiency is unilaterally wrecking agencies that were established by Congress, usurping Congress’s primacy in America’s constitutional structure.

It is not the judiciary’s fault that Trump has chosen to attack the constitutional order, and it is hardly the case that he’s losing only to liberal judges....

"President Barack Obama... claimed the right to kill U.S. citizens abroad without trial, used the Espionage Act against whistleblowers and expanded domestic counterterrorism."

"He helped perfect the arsenal that Trump would later inherit. It was the left, not the right, that normalized censoring disfavored online speech during the pandemic, often using intelligence-linked partners to do so. It was establishment liberals who applauded when the FBI investigated Trump-world operatives — not on the basis of principle, but because they liked the target. Now the weapon is back in circulation, only in different hands.... That’s how weapons work.... Power, once created and normalized, rarely stays dormant — and never stays partisan...."

From "Trump is using weapons that liberals helped build," by Vinnie Rotondaro (at The Hill).

ADDED: It's as though Trump is saying: I am your mirror image — don't you hate it?

"The chairman of Paul Weiss sought to reassure employees at the giant law firm that the deal it had reached with President Trump was consistent with principles that the 150-year-old firm has long stood by."

From "Paul Weiss Chair Says Deal With Trump Adheres to Firm’s Principles/In an email message, the law firm’s chairman, Brad Karp, reassured employees that its deal with President Trump was in keeping with its principles" (NYT)(free-access link).

Here's Trump's post on the subject:

"You have a President who has sworn to get tough on the border and get tough on crime expelling from the United States — by his description — hundreds of criminal gang members."

"And so that's an easy narrative to understand. You know, who in the world wouldn't want a bunch of criminal gang members kicked out of the country? And what kind of crazy liberal judge would order those gang members back into America? And if you watch conservative media, that's the argument they're putting out. You know, this judge wants these gang members roaming around the streets, attacking your family and loved ones. You know, obviously this is terrain the Trump administration chose carefully to fight on, and they believe in the court of public opinion, most people will be on their side of this issue."

Says Luke Broadwater, in "Trump’s Showdown With the Courts," the new episode of the NYT podcast "The Daily."

The court of public opinion is part of the system of checks and balances. In the long run, the courts need public support. The law needs public support. The Chief Justice can assert that judges are neutral arbiters, just doing their job in a meticulously professional way, but if people don't believe that, it's not going to work. And if it isn't true, should you hope that people will nevertheless believe, because without the courts carrying out their traditional rituals with solemnity we're lost?

"Democrats seem to have no ability to stop him... So that leaves the courts, but for the courts to hold Trump accountable, to stop Trump...

"... they need for people to bring lawsuits and matters before them. And the people best equipped to do that are the big law firms in Washington. But if those firms are afraid that if they enter that fight, they could lose all of their business, Trump is then essentially taking one of his biggest adversaries off the playing field.... There are other lawyers who can bring these matters and that are skilled, but the ones with the most horsepower are potentially being sidelined. I've been reporting on this for the past week and a half, and I've learned that the leaders of these law firms have gone back and forth with each other about what to do.... Privately, they will all tell me how horrific they think this is. But publicly, they're saying very little."

Said Mike Schmidt, on "How Trump Is Scaring Big Law Firms Into Submission," today's episode of the NYT podcast, "The Daily" (link goes to Podscribe, with full transcript and audio).

And here's Schmidt's article from a few days ago: "Trump’s Revenge on Law Firms Seen as Undermining Justice System/The president’s use of government power to punish firms is seen by some legal experts as undercutting a basic tenet: the right to a strong legal defense" ("With the stroke of a pen last week, Mr. Trump sought to cripple Perkins Coie, a firm that worked with Hillary Clinton’s 2016 presidential campaign, by stripping its lawyers of security clearances needed to represent some clients and limiting the firm’s access to government buildings and officials. That action came after he revoked security clearances held by any lawyers at the firm Covington & Burling who were helping provide legal advice to Jack Smith, the special counsel who brought two federal indictments against Mr. Trump.)

"A federal judge in Washington declined to grant a request by 14 state attorneys general to temporarily bar Elon Musk and his associates from accessing data at seven federal agencies..."

"... and moving forward with their efforts to slash the federal work force. The judge said the states had not shown specific examples of how the work of Mr. Musk’s so-called Department of Government Efficiency could cause the states irreparable harm."

The NYT reports.

AND: Here's the opinion, written by Tanya S. Chutkan of the D.C. District Court. Excerpt: "Plaintiffs' declarations are replete with attestations that if Musk and DOGE Defendants cancel, pause, or significantly reduce federal funding or eliminate federal-state contracts, Plaintiff States will suffer extreme financial and programmatic harm.... But the 'possibility' that Defendants may take actions that irreparably harm Plaintiffs 'is not enough.'... Plaintiffs ask the court to take judicial notice of widespread media reports that DOGE has taken or will soon take certain actions, such as mass terminations.... The court may take judicial notice of news articles for their existence, but not for the truth of the statements asserted therein.... Plaintiffs legitimately call into question what appears to be the unchecked authority of an unelected individual and an entity that was not created by Congress and over which it has no oversight. In these circumstances, it must be indisputable that this court acts within the bounds of its authority."

"The 14th Amendment Right of American Citizenship never had anything to do with modern day 'gate crashers,' illegal immigrants who break the Law by being in our Country..."

"... it had everything to do with giving Citizenship to former slaves. Our Founding Fathers are 'spinning in their graves' at the idea that our Country can be taken away from us. No Nation in the World has anything like this. Our lawyers and Judges have to be tough, and protect America!"

Writes Trump, this morning, on Truth Social.

And let me just point you to yesterday's post — "Trump Might Have a Case on Birthright Citizenship" — about a NYT column by Randy E. Barnett and Ilan Wurman (in the NYT), which has an update I put up this morning linking to Ilya Somin's response (in Reason) — "Birthright Citizenship - A Response to Barnett and Wurman" (Reason).