Not tonight.
@ksvesq.bsky.social’s husband; father of daughters; professor @georgetownlaw.bsky.social; #SCOTUS nerd @CNN.com Bio: www.law.georgetown.edu/faculty/stephen-i-vladeck "One First" Supreme Court newsletter: stevevladeck.com Book: tinyurl.com/shadowdocketpb
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Not tonight.
And the Mets won!
This *exact* case, actually!
Can that be the end of legal news for today? Please??
Well then, sure. :-)
There are also district-wide injunctions already in place in the Southern and Western Districts of Texas: www.stevevladeck.com/p/150-the-st...
It’s mostly just overlapping timing. The convergence is going to happen next term at #SCOTUS, as I wrote about yesterday: www.stevevladeck.com/p/175-tariff...
And as a reminder, this ruling has no immediate effect because #SCOTUS *already* blocked any AEA removals from the Northern District of Texas back in May.
This obviously won’t be the last word here. The question to me is just whether DOJ goes straight to #SCOTUS or seeks rehearing en banc from the Fifth Circuit first.
A different majority (Southwick & Oldham, over Ramirez’s dissent) holds that the notice currently provided to AEA detainees satisfies due process—which doesn’t matter that much if they can’t be lawfully removed under the statute.
#BREAKING: Fifth Circuit (Southwick & Ramirez, JJ.) holds that President Trump’s invocation of the Alien Enemies Act against Tren de Aragua is unlawful, and blocks AEA removals in the Northern District of Texas (over a lengthy dissent from Judge Oldham): www.ca5.uscourts.gov/opinions/pub...
1) Yes. 2) No more so than this, and, as the post suggests, almost certainly a lot less so. 3) That's the question reporters should be asking.
Um that post is from 2020, when he was.
Via "One First," my quick stab at the legal authority President Trump will likely claim allows him to deploy un-federalized Texas National Guard troops to Illinois; why such a deployment without Illinois's consent *ought* to be unlawful; and the options Illinois will have for litigating that issue:
Yup. And I still think Gorsuch was out of line: www.stevevladeck.com/p/174-justic...
I think Illinois can and should sue Texas in the Supreme Court’s original jurisdiction and seek a preliminary injunction against the use of any un-federalized Texas National Guard troops in Illinois.
That’s not true. Even before the 2020 D.C. example, there were cases in which out-of-state NG units were sent, e.g. to the border. There was usually implicit consent in those cases.
I think Illinois has a good case against Texas.
That’s not how this works. The Texas Guard is being deployed to support a “federal mission.” There’s no comparable mission for Pritzker to send the Illinois Guard to Texas to carry out. My own view is that this is unlawful, but not the last step before what you’re describing.
It matters plenty. The government is complying with 99% of the judicial decisions in cases it’s losing. Don’t get distracted by doomers.
More background here: www.lawfaremedia.org/article/why-...
When President Trump used 32 U.S.C. § 502(f)(2) in 2020, that was to have out-of-state National Guard troops sent to D.C.—which has no sovereignty of its own. Sending the un-federalized TX National Guard into IL without the latter’s consent raises *serious* Article IV problems that 2020 … didn’t.
#ICYMI, this week's "One First" looks at the circuit rulings in the tariffs and Venezuelan TPS cases—and the reasons why they're likely to be the edge of a wave of cases in which #SCOTUS during its upcoming term will *have* to reach the underlying merits of suits challenging various Trump policies:
I was trying to post it quickly. This should also now work: storage.courtlistener.com/recap/gov.us...
Better link: storage.courtlistener.com/recap/gov.us...
For those asking why Judge Breyer stayed the ruling, the answer is because, if he didn't, someone else (the Ninth Circuit or #SCOTUS) would have, at least temporarily. I know it's frustrating, but the stay is designed to avoid provoking either a less-sympathetic Ninth Circuit panel or the justices.
#BREAKING: Judge Breyer has held that the Trump admin. *violated* the Posse Comitatus Act in its military deployments in and around Los Angeles, and has enjoined further use of those troops for law enforcement tasks. The order is stayed through 12 PDT on 9/12: georgetown.app.box.com/file/1973361...
Just posted this week’s #SCOTUS update over at TikTok: www.tiktok.com/t/ZP8B7jBAk/
For today's "One First," I wrote about Friday's circuit-court rulings in the tariffs and Venezuelan TPS cases, and the procedural reasons why they're likely to be just the first of a slew of cases about the *merits* of Trump policies that #SCOTUS will have to address during the October 2025 Term:
For today's "One First," I wrote about Friday's circuit-court rulings in the tariffs and Venezuelan TPS cases, and the procedural reasons why they're likely to be just the first of a slew of cases about the *merits* of Trump policies that #SCOTUS will have to address during the October 2025 Term:
It sure would be nice if our mutual employer did too.
Some of us need to be admitted no matter what. Some may keep it up only if/when they incur no cost for doing so…
FWIW, Georgetown does *not* cover bar dues for non-clinical faculty, even those who are regularly practicing (the first school at which I’ve taught for which this is true). And I suspect the percentage of folks admitted will vary based upon whether the school does or doesn’t cover bar dues.
You’d need six for a majority on that court.
By a 7-4 vote, the full Federal Circuit has *affirmed* a lower-court ruling holding that many of President Trump’s tariffs exceed his statutory authority. The ruling won’t go into effect until October 14, though—which gives the Trump administration plenty of time to seek intervention from #SCOTUS:
Agree on the anecdotal evidence. I think it's also more common for left-of-center judges to object to even the *practice* of dissenting from denials of rehearing en banc (whatever we call such opinions) than for right-of-center judges to do so. Here's (my former boss) Judge Berzon's essay on this:
My own view is that it's not necessarily shady; a petition for rehearing may identify errors that the panel didn't appreciate, and that would merit en banc review if and only if the panel doesn't correct them. Why go en banc if the panel is willing to excise the offending analysis?
It's a regular occurrence at least in the Ninth Circuit for the original panel to issue an amended opinion accompanying a denial of rehearing en banc. Sometimes, the amendments are technical. But sometimes, they're substantive, and seem at least partly related to the denial. Example from last year:
The more I think about this, the more I think it’s actually a relatively positive development for the plaintiffs—who were able to get the full D.C. Circuit to revive some of their strongest claims (the amended panel ruling) in a way that’s not likely to provoke immediate intervention from #SCOTUS.
It’s not unusual for a petition for full Court rehearing to prompt a panel to amend its ruling, especially if it becomes clear through internal communication among the full Court that there will be enough votes for rehearing without the amendment.
These developments also effectively moot the government’s (deeply problematic) emergency application at #SCOTUS, which I wrote about yesterday. Some of the plaintiffs’ claims can go forward, but will have to go back to the district court first.
Lots of action from the D.C. Circuit just now on the foreign aid impoundment case. In a nutshell, the original panel amended its ruling (to narrow it significantly and let some claims go forward); the full Court denied rehearing given the amendment, and the new ruling goes into immediate effect:
The only real candidate for "something else to happen" is for the full D.C. Circuit to rule on the pending cross-motions to either keep the district court's injunction in place or to put into effect the 2-1 panel ruling vacating it. Whether Roberts *knows* that's coming or is just hoping, ¯\_(ツ)_/¯.
Chief Justice Roberts has yet to call for a response to the Trump administration's latest emergency application (in the foreign aid impoundment case), even though it was filed Tuesday and docketed yesterday. That's weird—and suggests he's waiting for something else to happen before doing anything.
#ICYMI: Me on Trump's latest request for "emergency" relief from #SCOTUS (on foreign aid impoundment), and how it depends upon an emergency the government manufactured and a claim that DOJ failed to properly preserve below. In other words, it relies upon the justices not caring about being played:
#ICYMI: Me on Trump's latest request for "emergency" relief from #SCOTUS (on foreign aid impoundment), and how it depends upon an emergency the government manufactured and a claim that DOJ failed to properly preserve below. In other words, it relies upon the justices not caring about being played:
Steve is turning out excellent breakdowns week after week. This one is on another level... How the Trump admin is trying to play SCOTUS as fools. (No Paywall)
Dynamite Jerry Maguire reference.
This is an excellent piece by @stevevladeck.bsky.social. Not only does he lay out the case in a way that's easy to understand, but he talks about why the Trump administration feels like it can improperly run straight to SCOTUS. Definitely worth the read.
The Trump administration's latest application for emergency relief from #SCOTUS (on foreign aid impoundment) rests on a contrived procedural emergency and a forfeited substantive claim—apparently banking on the view that the justices don't mind being played. My (very) deep dive, via "One First":
The Trump administration's latest application for emergency relief from #SCOTUS (on foreign aid impoundment) rests on a contrived procedural emergency and a forfeited substantive claim—apparently banking on the view that the justices don't mind being played. My (very) deep dive, via "One First":
Via @chrisgeidner.bsky.social, here’s the Trump administration’s 23rd emergency application to #SCOTUS, this one seeking a partial stay of the latest injunction in the foreign aid funding case: storage.courtlistener.com/recap/gov.us...
Yup. Wilcox. More on why that was nonsense: www.stevevladeck.com/p/153-living...
I’ve written in detail about the Trump administration’s strategic behavior in picking the cases it’s taking to the Court—and how it tends to distort claims (by *everyone*) that it “always” wins. That said, I think KBJ’s argument about the majority twisting the stay factors in Trump cases is right.
Every word of this important piece by @stevevladeck.bsky.social: 174. Justice Gorsuch's Attack on Lower Courts open.substack.com/pub/stevevla...
1) “Your.” 2) Justice Kagan didn’t accuse the district court of defying SCOTUS; she explained why she thought the district court read the Court’s earlier ruling too narrowly. That’s not the same. As for suggesting it’s dishonest I didn’t tell readers about it, I have an entire prior post about it:
In the NIH funding case, Justice Gorsuch (joined by Justice Kavanaugh) claimed that this was the third time in recent weeks that lower courts had "defied" a #SCOTUS ruling. As today's "One First" explains, that claim is not only nonsense; it's enabling a dangerous anti-court narrative on the right:
🎯”to then criticize lower-court judges—who, unlike the justices, are moving heaven and earth to provide lengthy, written rationales of their decisions—is not just profoundly disrespectful; it is further enabling an increasingly loud (and increasingly dangerous) anti-judiciary narrative on the right”
In the NIH funding case, Justice Gorsuch (joined by Justice Kavanaugh) claimed that this was the third time in recent weeks that lower courts had "defied" a #SCOTUS ruling. As today's "One First" explains, that claim is not only nonsense; it's enabling a dangerous anti-court narrative on the right:
“Then they came for Cracker Barrel…”
I definitely take the point about Barrett. I’ll just say that her pattern in these cases is usually to vote in line with her views of the merits, even when she says she isn’t. That could be proven wrong, of course; but that’s the basis for my read.
You know that it's a rough day at #SCOTUS when it hands down a ruling from which *eight* justices dissent (albeit in different parts).
Just posted a video to TikTok about what #SCOTUS did in the NIH funding case. It’s too long to embed on Bluesky, but here’s a link: www.tiktok.com/t/ZPHG57sTnM...
TL;DR: 5 justices say Trump doesn't have to immediately restore the funding, but 5 *also* signal that the underlying directives are unlawful. That sends a fairly strong (if mixed) message that Trump will lose these cases *eventually,* but only once they're brought in the Court of Federal Claims.
Of note, it's also 5-4 the *other* way on the district courts' power to block the underlying guidance, with Justices Thomas, Alito, Gorsuch, and Kavanaugh dissenting. Barrett is the only justice who voted to split the difference, hence the complex result here.
Splitting 5-4 (with Chief Justice Roberts joining the three Democratic appointees in dissent), #SCOTUS grants *partial* stay to Trump administration in NIH funding case; holds that challenges to grant terminations (but *not* the underlying guidance) need to be filed in the Court of Federal Claims:
For today’s bonus “One First,” I wrote about Abraham Lincoln’s commitment to holding the Election of 1864—even when he thought he’d probably lose and his successor would sue for peace, thus ending the war (and, likely, the Union). Respecting and preserving the will of the people was more important:
For today’s bonus “One First,” I wrote about Abraham Lincoln’s commitment to holding the Election of 1864—even when he thought he’d probably lose and his successor would sue for peace, thus ending the war (and, likely, the Union). Respecting and preserving the will of the people was more important:
Whatever the policy wisdom of having JAG lawyers prosecute civilian crimes in civilian courts, this isn’t anything close to “martial law.” These are still prosecutions for civilian crimes; in front of civilian judges and civilian juries; and based upon civilian laws in civilian courts.
No.
The former. It’s a civilian criminal trial in every (other) respect.
If you’d like to know more about this history, see pages 4-8 of this brief: www.scotusblog.com/wp-content/u...
In a 1983 opinion by Ted Olson(!), DOJ’s Office of Legal Counsel concluded that assigning JAG lawyers to serve as Special Assistant U.S. Attorneys violated a statute that bans military officers from exercising the duties of a civil office. Then, Congress authorized it. This is dumb—but legal.
To say nothing of the numbering scheme for addresses!
My work here is done.
It's a good thing the Trump administration is so laser-focused on reducing all of the violent crime in... Oh never mind.
Already flagged my error, thanks: bsky.app/profile/stev...
Sorry—Florida, not Tennessee.
Over no public dissents, #SCOTUS has denied a trio of emergency applications by Tennessee death-row inmate Kayle Bates—who’s scheduled to be executed tonight. Among other things, this means the current (October 2024) Term has now had more full Court rulings on emergency applications than any other.
That’s the plan!
Always. And the real home for my #SCOTUS analysis is the newsletter.
Here’s the full post that I mention in the video: www.stevevladeck.com/p/173-justic...
Just posted my first regular #SCOTUS update video to TikTok: www.tiktok.com/t/ZPHGjnA7we...
By voting to keep Mississippi's social media age-verification law in place even though he believes that it *does* violate the First Amendment, Justice Kavanaugh's opinion last Thursday bespeaks a flatly inconsistent approach to how he is voting on emergency applications. Me in today's "One First":
And if your response is “well, laws don’t matter anymore,” I’ll point you to the literally dozens of ways in which that’s not true. Even a lot of the bad stuff Trump is doing (e.g., in DC) is based on invocations of legal authorities, not outright defiance of those laws. Let’s try for nuance, folks.
And for those saying “but Congress won’t do anything,” yes, that’s exactly the point. As of now, all of the things Trump says he wants to do would take *new* legislation—which may well get passed by the (feckless) House, but has no chance of overcoming a filibuster in the Senate.
Not from me: www.stevevladeck.com/p/172-federa...
The U.S. Constitution gives a heck of a lot of power over elections for the House, Senate, and President to *Congress.* It gives precisely zero power over elections to the President. Trump’s bluster is scary, but it’s also bluster.
More on the letter here: www.stevevladeck.com/i/171200191/...
By voting to keep Mississippi's social media age-verification law in place even though he believes that it *does* violate the First Amendment, Justice Kavanaugh's opinion last Thursday bespeaks a flatly inconsistent approach to how he is voting on emergency applications. Me in today's "One First":
I’m good, thanks.
We’re literally going in circles. I’m muting you now, but here’s my answer to the exact same question from earlier. I wish you well in your quest to learn how to make logical and analytically coherent arguments. bsky.app/profile/stev...
For those of you on TikTok, I’m going to start posting there more often, especially on #SCOTUS news and other pressing legal topics: tiktok.com/@stevevladeck
You’ve changed your argument several times, and I’ve responded each time. But yes, having responded to each of your efforts to move the goalposts, I’m moving on to more profitable uses of my time. Good luck.
The latest example of an important lower-court ruling adverse to Trump that the administration *isn’t* appealing is last Saturday’s D.C. Circuit decision about restoring public access to data on how the executive branch is (or isn’t) spending appropriated funds. That ruling goes into effect today:
Trying to reason with you is like trying to reason with a bowl of Jello. Please move your goalposts elsewhere.
Well, how’d it go the last time Trump tried this? www.supremecourt.gov/opinions/18p...
Yes, which is why the text had to explicitly *exempt* them.
TRUTH: Are undocumented immigrants “persons”? Unless your answer is no, I think we’re done here.