"They were going to build an F.B.I. headquarters three hours away in Maryland, a liberal state. We’re going to stop it."

Said Trump, last year, quoted in "Judge Rules Trump Administration Can’t Scrap F.B.I. Move to Maryland/The ruling is almost certainly not the end of the lengthy fight over the F.B.I.’s future headquarters, which has lasted for years" (NYT gift link).

In a 47-page ruling, Judge Theodore Chuang of the Federal District Court in Maryland wrote that “the F.B.I. erroneously concluded” that it could select a new headquarters for itself without consulting Congress. In reality, Judge Chuang wrote, Congress had already approved the Biden administration plan for the F.B.I. to move to Maryland.... Maryland state officials cheered the ruling, which blocked the Trump administration from diverting about $1 billion to be spent on a sprawling campus near the Greenbelt Metro station in Prince George’s County....

"[T]he court overruled its 91-year-old decision in Humphrey’s Executor v. United States... [M]ore broadly, Monday’s decision was a major victory for proponents of the 'unitary executive' theory..."

"... the idea that the president should have complete control over the executive branch. Under this theory, the president should be able to fire any member of the executive branch, and laws – like the one that the court struck down – that restrict his ability to do so violate the separation of powers. Writing for the majority, Chief Justice John Roberts contended that 'the President must have the assistance of officers he can trust. Although it is up to the Senate to decide whether to confirm those with whom the President would prefer to work, neither Congress nor the courts may saddle him with those with whom he cannot work. Subordinates who exercise the President’s power are subject to removal by him. Then, and only then, can they remain accountable to the President, and the President to the people.'..."

I'm reading "Supreme Court allows Trump to fire FTC commissioner and overturns major restraint on presidential power" by Amy Howe at SCOTUSblog, writing about yesterday's Trump v. Slaughter.

"In a 36-page opinion... Roberts first emphasized that the Constitution gives the president '[t]he executive Power,' as well as the responsibility to 'take Care that the Laws be faithfully executed.' The Framers of the Constitution, Roberts explained, wanted to create a system in which the one person, the president, was in charge of the executive branch. The officials who work for him, Roberts continued, are there to help him, but the president must be able to fire them if they are not performing well – so that he can carry out his own job.

Trump loses the tariff case.

"The Supreme Court ruled on Friday that President Trump exceeded his authority when he imposed sweeping tariffs on imports from nearly every U.S. trading partner, a major setback for his administration’s second-term agenda. The court’s 6-3 decision has significant implications for the U.S. economy, consumers and the president’s trade policy. The Trump administration had said that a loss at the Supreme Court could force the government to unwind trade deals with other countries and potentially pay hefty refunds to importers...."

NYT link.

Here's the opinion, Learning Resources v. Trump. Thomas, Alito, and Kavanaugh are the 3 dissenters. The Chief Justice writes the opinion of the Court for Parts I, II–A–1, and II–B. His opinion for Parts II–A–2 and III is joined by Gorsuch and Barrett, who also file concurring opinions. Kagan has a concurring opinion joined by Sotomayor and Jackson, and Jackson has a concurring opinion. 

So there is a lot of complicated reading to do.

ADDED: From the Opinion of the Court:

"Mom called what we did 'unschooling'..."

"... a concept championed by the home-schooling pioneer John Holt. She agreed with his assertion that 'schools are bad places for kids,' or at least for a certain kind of kid; my brother Aaron, she decided, was better suited for public school and was sent off on the bus each morning. I, on the other hand, was a 'creative global learner,' and Mom said that she was going to give me a 'free-form education' in order to 'pursue passions.' Other than math, which I began to do by correspondence course, I mostly spent my days with her visiting shops, libraries and restaurants of our rapidly-growing suburb, or else having 'project time' — drawing superheroes, rereading my David Macaulay and Roald Dahl books, or writing short stories.... Mom had been going through a hard time — ever since we’d moved to Plano, Texas, her social life was dim, her career as a children’s magazine editor had been put on hiatus, and her own mother had begun a long decline into dementia — but... 'You are better than any grown-up, Stef. You are more than all I need'...."

Writes the novelist Stefan Merrill Block, in "Home-Schooled Kids Are Not All Right" (NYT).

Here's his memoir, "Homeschooled" (commission earned).

I'm interested in seeing "unschooling" again.

"I’ll put my cards on the table," said Justice Gorsuch. "Maybe... there is no such thing in our constitutional order as a fourth branch of government...."

In the oral argument this morning in Trump v. Slaughter, Justice Gorsuch questioned Amit Agarwal, counsel for Rebecca Kelly Slaughter, the FTC commissioner fired by President Trump. This is the entire back-and-forth, centering on the idea of the President's duty to execute all the laws. All you lawyers can see where this is going: If the President has a duty, then he must have the power.

JUSTICE GORSUCH: You agree that [the President] has a duty to faithfully execute all the laws. 

MR. AGARWAL: Yes.

JUSTICE GORSUCH: Civil and criminal.

MR. AGARWAL: We agree that the Constitution imposes on the President a duty to faithfully execute the laws, absolutely.

JUSTICE GORSUCH: All the laws?

Moments away — we'll be getting the last cases of this Supreme Court term.

The cases will be posted on the Court's website, here. And here's the live-blogging at SCOTUSblog.

Here's Grok's summary of the remaining cases — birthright citizenship, racial gerrymandering, the nondelegation doctrine, Obamacare, access to on-line porn, and parents opting their kids out of woke school lessons.

UPDATE 1: "Universal injunctions likely exceed the equitable authority that Congress has given to federal courts. The Court grants the Government’s applications for a partial stay of the injunctions entered below, are broader than necessary to provide complete relief to each plaintiff with standing to sue" — Trump v. CASA. This is the "birthright citizenship" case, but it did not address the issue "whether the Executive Order violates the Citizenship Clause or Nationality Act. Instead, the issue the Court decides is whether, under the Judiciary Act of 1789, federal courts have equitable authority to issue universal injunctions." Decided 6-3 (in the usual 6-3 breakdown).

From Justice Barrett's opinion: "The universal injunction was conspicuously nonexistent for most of our Nation’s history. Its absence from 18th- and 19th-century equity practice settles the question of judicial authority. That the absence continued into the 20th century renders any claim of historical pedigree still more implausible. Even during the “deluge of constitutional litigation that occurred in the wake of Ex parte Young, throughout the Lochner Era, and at the dawn of the New Deal,” universal injunctions were nowhere to be found....Had federal courts believed themselves to possess the tool, surely they would not have let it lay idle."

Addressing Justice Jackson's dissent, Barrett writes: "JUSTICE JACKSON decries an imperial Executive while embracing an imperial Judiciary. 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. See, e.g., Marbury v. Madison, 1 Cranch 137 (1803) (concluding that James Madison had violated the law but holding that the Court lacked jurisdiction to issue a writ of mandamus ordering him to follow it). But see post, at 15 (JACKSON, J., dissenting) ('If courts do not have the authority to require the Executive to adhere to law universally, . . . compliance with law some-times becomes a matter of Executive prerogative'). Observing the limits on judicial authority—including, as relevant here, the boundaries of the Judiciary Act of 1789—is required by a judge’s oath to follow the law. JUSTICE JACKSON skips over that part. Because analyzing the governing statute involves boring 'legalese,' post, at 3, she seeks to answer 'a far more basic question of enormous practical significance: May a federal court in the United States of America order the Executive to follow the law?' Ibid. In other words, it is unnecessary to consider whether Congress has constrained the Judiciary; what matters is how the Judiciary may constrain the Executive. JUSTICE JACKSON would do well to heed her own admonition: '[E]veryone, from the President on down, is bound by law.' Ibid. That goes for judges too."

UPDATE 2: Kennedy v. Braidwood rejects the Appointments Clause challenge to the U. S. Preventive Services Task Force. The members of the task force are deemed "inferior officers," thus not needing appointment by the President and Senate confirmation. This one is 6-3 in an unusual way. Sotomayor, Kagan, and Jackson join the majority opinion written by Kavanaugh (and also joined by Roberts and Barrett). The dissenters are Thomas, Alito, and Gorsuch.

UPDATE 3: FCC v. Consumers' Research — "The universal-service contribution scheme does not violate the nondelegation doctrine." Another 6-3 the unusual way — with a dissent from Thomas, Alito, and Gorsuch.

UPDATE 4: Mahmoud v. Taylor, 6-3, the usual way. "Parents challenging the Board’s introduction of the 'LGBTQ+-inclusive' storybooks, along with its decision to withhold opt outs, are entitled to a preliminary injunction." Justice Alito writes for the majority:

The Board of Education of Montgomery County, Maryland (Board), has introduced a variety of “LGBTQ+-inclusive” storybooks into the elementary school curriculum. These books—and associated educational instructions provided to teachers—are designed to “disrupt” children’s thinking about sexuality and gender. The Board has told parents that it will not give them notice when the books are going to be used and that their children’s attendance during those periods is mandatory. A group of parents from diverse religious backgrounds sued to enjoin those policies. They assert that the new curriculum, combined with the Board’s decision to deny opt outs, impermissibly burdens their religious exercise. 

Today, we hold that the parents have shown that they are entitled to a preliminary injunction. A government burdens the religious exercise of parents when it requires them to submit their children to instruction that poses “a very real threat of undermining” the religious beliefs and practices that the parents wish to instill. Wisconsin v. Yoder, 406 U. S. 205, 218 (1972). And a government cannot condition the benefit of free public education on parents’ acceptance of such instruction. Based on these principles, we conclude that the parents are likely to succeed in their challenge to the Board’s policies....

I added the boldface. The school was so out front in its desire to reprogram children. They must have been pious believers... or at least people who felt called to pose as pious believers. 

UPDATE 5: Free Speech Coalition v. Paxton, 6-3, the usual way, upholding the Texas law that restricts access to on-line porn. How do you exclude minors without burdening access for everyone? Here, the state required age verification. "But adults have no First Amendment right to avoid age verification. Any burden on adults is therefore incidental to regulating activity not protected by the First Amendment. This makes intermediate scrutiny the appropriate standard under the Court’s precedents." And the law "advances important governmental interests unrelated to the suppression of free speech and does not burden substantially more speech than necessary to further those interests." 

Kagan writes in dissent: "[I]f a scheme other than H. B. 1181 can just as well accomplish that objective and better protect adults’ First Amendment freedoms, then Texas should have to adopt it (or at least demonstrate some good reason not to). A State may not care much about safeguarding adults’ access to sexually explicit speech; a State may even prefer to curtail those materials for everyone. Many reasonable people, after all, view the speech at issue here as ugly and harmful for any audience. But the First Amendment protects those sexually explicit materials, for every adult. So a State cannot target that expression, as Texas has here, any more than is necessary to prevent it from reaching children."

UPDATE 6: The racial gerrymandering case — Louisiana v. Callais — will be reargued. Justice Thomas, alone, dissents: "These cases also warrant immediate resolution because, due to our Janus-like election-law jurisprudence, States do not know how to draw maps that 'survive both constitutional and VRA review.'"

"But during the transition Ramaswamy and Musk increasingly disagreed about how to make the government more efficient."

"Ramaswamy, who had apparently come around to the fact that significant cuts would require an act of Congress, began meeting regularly with a small group of legislators. Musk mostly did not attend. A source close to doge told me that Musk seemed to regard members of Congress as irrelevant, sometimes referring to them as 'N.P.C.s,'—non-player characters—the often mute and nameless figures who populate the backgrounds of video games. Musk was more interested in cutting spending via the executive branch, and spoke often, according to the source close to doge, of a need to 'control the computers.' In meetings, Ramaswamy resorted to using metaphors from the tech world to emphasize the importance of deregulation, calling the government’s rules 'the matrix' and insisting that doge needed to rewrite its source code. Musk was unmoved...."

Writes Benjamin Wallace-Wells, in "What Did Elon Musk Accomplish at DOGE? Even before Musk fell out with Donald Trump, the agency’s projected savings had plummeted. But he nevertheless managed to inflict lasting damage to the federal government" (The New Yorker).

"[Al] Gore said he believed the courts would prevent Trump from implementing some of his most extreme moves."

"I don’t think he’s going to be able to get away with that,' he said. 'I think we’re more resilient as a constitutional, representative democracy than a lot of people of fear.'"

From "Why Al Gore Is Shifting His Climate Activism Abroad/Given the Trump administration’s recent moves relating to climate, the former vice president is looking to the developing world for the next generation of climate activism" (NYT).

When Biden was President, "democracy" meant gracefully accepting the result of the election and working on winning the next election. But with Trump as President, "democracy" means stopping the duly elected President from doing what voters heard him promise he'd do.

I'm just asking for a stable definition of "democracy" to go along with the demand for our devotion to it. I agree with Gore that the courts have role to play. But it's a counter-majoritarian role. And we can argue about the scope of their role and whether they are doing too much or too little. We'll see how they do.

"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....

"There's only so much he can do."

Remember when the left kept perpetuating the lie that “there's only so much Biden can do”about the border crisis? pic.twitter.com/HePFhZdLbL

— Lucy (@TheLucyShow1) March 6, 2025

To be fair, it's possible that the things Trump is doing to shut the border are things a court will one day tell him he actually can't do. For now, he's doing it anyway. Those who want to preserve their dignity after leaning hard into "There's only so much he can do" have a big stake in the litigation. We're still in the middle of things.

And here's the key line from Trump's March 4, 2025 address to Congress: "The media and our friends in the Democrat party kept saying we needed new legislation, we must have legislation to secure the border. But it turned out that all we really needed was a new President."

If the President wants to do something, he'll push the boundaries of power. If he doesn't, he'll see those boundaries where they justify his inaction. 

"If there’s one through line in this administration so far, it’s the amassing of power. And if there’s another through line, it’s the destruction of anything that might restrain power, and that’s bureaucracy."

Said David Brooks, quoted in "David Brooks on Why the Democrats Are Losing to Trump" (NYT)(free-access link).

Why does he keep saying "through line"? It seems to mean theme... but on a time line... or narrative... but with one clear idea... except there are 2 "through lines" in Brooks's telling. Is it a vogue phrase? I don't think I've used it or quoted it before in the 20+ year history of this blog.

But I didn't quote David Brooks to muse on the words "through line." I quoted him because I was astounded to see bureaucracy touted as if it were part of the system of checks and balances in the American constitutional system.

Or am I misreading him?

"Until this week, government officials had resisted answering inquiries as to who was formally in charge of [DOGE], except to say that it was not Mr. Musk."

"(Nor is Mr. Musk among its employees, the government said.) On Tuesday, a White House official said that Amy Gleason, a former health care investment executive, was serving as the acting administrator. On Friday, Joshua E. Gardner, a lawyer in the Justice Department’s civil division, denied that Mr. Musk had any role with the Department of Government Efficiency. This despite Mr. Musk’s clearly driving its initiatives, including an email blasted out last weekend that attempted to require all federal employees to respond with a list of five accomplishments from the previous week. Although the email was sent by the Office of Personnel Management, the federal government’s human resources arm, Mr. Musk said on Wednesday that he had suggested it and that the president had approved...."

"Judge Appears Skeptical of Claims That Musk Isn’t Driving DOGE/The judge prodded government lawyers for additional clarity on Elon Musk’s role in a case that directly challenges the constitutionality of his operation and his part in the rapid reshaping of government" (NYT).

The argument is that the Appointments Clause applies and Senate confirmation is required because Musk is a "principal officer" and not an "inferior officer." I'll just give you this quote from the 1988 Supreme Court case, Morrison v. Olson:

"The Democrats... they're just yelling wolf... they're yelling wolf... they're screaming and yelling that there's a constitutional crisis..."

"Let me be very clear as a historian of the Constitution there has been one — one! — O-N-E — one! — count it:  one — one constitutional crisis in our history that our Constitution was incapable of solving and that, of course, was slavery...  The Constitution was not capable of resolving that issue without a war so we had indeed a constitutional crisis.... Compare that to what's going on today. If you listen to... Chuck Schumer you think we're going have a civil war. No! Listen to Donald Trump.... He said I will comply with every court order and then I will appeal it. And he didn't say this but obviously his lawyers... will seek a stay.... You can't allow hundreds and hundreds and hundreds of federal judges sitting in obscure parts of the country somewhere... in Rhode Island or somewhere in the south of  California to issue an injunction that covers everybody in the United States.... Democrats! Democrats! Don't yell wolf!... Don't tell us that there is no political recourse..... We have  three independent branches of the government — not a fourth. The bureaucracy is not in the Constitution.... It's very complicated. And president Trump for the first time has said let's look hard at these bureaucracies.... If you want to complain about what the administration is doing, that's your right...  but don't exaggerate...."

Says Alan Dershowitz in his excellent new podcast.

And Dershowitz thinks Trump is not necessarily wrong on the birthright citizenship question. He said "I'd love to argue it in front of the United States Supreme Court. I don't know how it would come out." That willingness has a limitation:

"In short, change needs to happen through the established channels of litigation in, and obedience to, the courts."

That's a vision of judicial supremacy seen in the NYT Editorial Board's "Trump Dares the Courts to Stop Him" (which I think was originally titled, using yesterday's phrase du jour, "Trump's Constitutional Crisis").

Did I rip that sentence out of context? Yes, but I gave you a gift link, so you can put it back.

The role of the judiciary is not to determine the meaning of every provision of law that is opined upon by someone in another branch of government, but only to say what the law is when that is needed to resolve a real dispute between adverse parties and only if the court has jurisdiction. The President is independently obliged to follow the law and must figure out what it is as he goes along. The courts don't answer questions of law as they happen to arise as the President does his work. This is basic separation of powers.

I note that the judge in the "Fork in the Road" case just found that the plaintiffs lacked standing and dissolved the temporary restraining order. He gave no advice on the legality of Trump's "fork" offer, because he lacked the power to do so. 

As the NYT tells us — in "Trump’s Federal Resignation Program Moves Ahead After Court Win/With a judge’s assent, the Trump administration moved to take next steps in the program and close it to new entrants" — Trump has now closed the offer.

"Judges often invoke the separation of powers to limit their own authority, to put certain classes of executive action off-limits from judicial review, or..."

"... to shape and constrain the remedies they provide. That has been true for as long as we have had courts and judicial review.... As a matter of separation of powers, the courts may themselves decide that courts ought not to be the ones to decide a given issue.... To date, all the Trump administration’s responses in court have embodied appeals to these principles. In response to a recent temporary restraining order that seemingly barred all political appointees at the Treasury Department from access to certain internal information, the administration argued in a filing that the work of executive agencies is overseen by the president, and 'a federal court, consistent with the separation of powers, cannot insulate any portion of this work from the specter of political accountability.' That was a straightforward legal appeal to the limits of judicial authority, made within a judicial proceeding as an argument under applicable law. Even where courts have jurisdiction to decide, it is always legally valid to argue that their decisions ought to respect the separation of powers...."

Writes lawprof Adrian Vermeule, in "JD Vance’s Tweet Is No Crisis/Judges also have an obligation to respect the separation of powers. Usually they do so" (Wall Street Journal, no paywall).

"A federal judge early Saturday temporarily restricted access by Elon Musk’s government efficiency program to the Treasury Department’s payment and data systems..."

"... saying there was a risk of 'irreparable harm.' The Trump administration’s new policy of allowing political appointees and 'special government employees' access to these systems, which contain highly sensitive information such as bank details, heightens the risk of leaks and of the systems becoming more vulnerable than before to hacking, U.S. District Judge Paul A. Engelmayer said in an emergency order.... The order came in response to a lawsuit filed on Friday by Letitia James of New York along with 18 other Democratic state attorneys general, charging that when Mr. Trump had given Mr. Musk the run of government computer systems, he had breached protections enshrined in the Constitution and 'failed to faithfully execute the laws enacted by Congress.'... The Constitution says that a president 'shall take Care that the Laws be faithfully executed.'"

From "Judge Halts Access to Treasury Payment Systems by Elon Musk’s Team/The order came in response to a lawsuit filed by 19 attorneys general accusing the president of failing to faithfully execute the nation’s laws when he let DOGE comb through federal computer systems" (NYT).

Is the federal judge taking the position that in the name of enforcing the Take Care Clause, it is the role of the judiciary to oversee whatever the President does with the executive power that the Constitution vests in him?

Is there some extra-legal notion that the federal judge should seize the power to put on the brakes when a President with questionable judgment is moving too fast? (I'm hearing some lawprofs singing that tune.)

ADDED: Here is the request for a temporary restraining order, and here is the judge's order.

The New York Times has its Trumpiest headline ever.

Here's the article: "Trump Asserts a Muscular Vision of Presidential Power on First Day Back/In a flurry of unilateral executive actions, Mr. Trump revived disputed claims of broad presidential authority from his first term — and made some new ones. Court battles seem likely."

That's by Charlie Savage. Excerpt:

"The DOGE Plan to Reform Government" — by Elon Musk and Vivek Ramaswamy.

Read it in The Wall Street Journal. Excerpts:

We are entrepreneurs, not politicians.... We'll cut costs.... We will focus particularly on driving change through executive action based on existing legislation rather than by passing new laws. Our North Star for reform will be the U.S. Constitution, with a focus on two critical Supreme Court rulings issued during President Biden's tenure.

"About 30 percent said inflation or the economy was central to their vote. And Mr. Trump holds a wide advantage with those voters."

"The [abortion] amendment, which is one of several abortion-related ballot initiatives across the country this fall, is seen by Democrats as a potential opportunity to increase turnout, since abortion has come to be a motivating issue on the left. Polling on ballot initiatives is notoriously challenging. Ballot language can be complicated for voters to understand to begin with, and they do not always understand which side accurately represents their views. Translating ballot language into a clear polling question adds another degree of complexity."

I'm reading "A Majority in Arizona Supports Establishing Right to Abortion, Poll Finds/A ballot measure codifying 'the fundamental right to an abortion' is supported by 58 percent of the state’s likely voters, according to a New York Times/Siena College poll" (NYT).

The NYT links to the Arizona ballot initiatives. There are a lot of them! I had to scroll to find the one on abortion and struggle to read it — and I taught the law school course that covers the right to abortion! The all-caps are painful:

"The chief justice’s Feb. 22 memo, jump-starting the justices’ formal discussion on whether to hear the case... tore into the appellate court opinion greenlighting Mr. Trump’s trial..."

"... calling it inadequate and poorly reasoned. On one key point, he complained, the lower court judges 'failed to grapple with the most difficult questions altogether.' He wrote not only that the Supreme Court should take the case — which would stall the trial — but also how the justices should decide it. 'I think it likely that we will view the separation of powers analysis differently' from the appeals court, he wrote. In other words: grant Mr. Trump greater protection from prosecution."

From "How Roberts Shaped Trump’s Supreme Court Winning Streak/Behind the scenes, the chief justice molded three momentous Jan. 6 and election cases that helped determine the former president’s fate" (NYT)(reporting based on hearing from "several people from the court who saw the document").