Cromwell

On its face, the “major questions” doctrine, pulled out of thin air by the Roberts Court, should apply to actions by administrations of both parties. In practice, that won’t happen. I anticipate you will see the following exceptions created in the next three years to protect the interests of Trump and the GOP:

1. The doctrine only applies to actions taken by bureaucrats. Actions taken directly by the president are exempt;
2. The doctrine is inapplicable to any action that touches in any way on war powers and foreign affairs; and
3. The doctrine only applies when the government is attempting to extend its regulatory powers. Attempts to change the law by reducing regulatory burdens are exempt.

Imagine that you are an ICE agent participating in a raid in the parking lot of a Home Depot in Los Angeles. You approach a man with Hispanic features and ask him in Spanish to identify himself, which he does. You then ask him to show a driver’s license or other form of identification. He doesn’t have ID on him. He also doesn’t have any physical characteristics which suggest he is an illegal immigrant, such as Venezuelan gang tattoos. What do you do now?

While the basis for yesterday’s Supreme Court decision is not clear, since all we have to go on is Kavanaugh’s concurrence, we have to assume the initial inquiry is legal, as the agent has the reasonable suspicion necessary to ask it. But does he have probable cause to take him into custody–meaning, to handcuff him, throw him in a van, and take him involuntarily back to an ICE office–just based on his inability to produce ID on demand?

Kavanaugh’s concurrence tells us that the guy will go free if he establishes to the agent that he is a citizen. That suggests to me that the failure to produce a convincing form of ID is, in fact, probable cause in the eyes of the Court. That in turn means that even American citizens of Hispanic descent in areas with high numbers of illegal immigrants will be forced to carry their papers around everywhere they go; otherwise, they risk being lawfully arrested. The burden of proof on citizenship will be on the questioned party, not on the ICE agent.

Are you comfortable with that? I’m not.

During a public appearance on a bookselling tour, Justice Barrett opined that we are not, in fact, in a constitutional crisis. According to her, the rule of law is not crumbling, so the public’s anxiety is misplaced. What should we make of this?

Two things. First of all, the Supreme Court has already redefined the “rule of law” in this country in favor of Trump by routinely giving him emergency relief with little or no explanation on the shadow docket. For Trump and the Court, the “rule of law” no longer includes decisions by lower courts and compliance with normal appellate procedures. Second, it is clear that the majority of the justices are going to continue to assume that Trump and his minions are behaving in good faith when it is perfectly obvious that they aren’t. That will only encourage them to push the envelope as far as it can go.

A few days ago, I opined that the Democrats should, if possible, work for a limited shutdown in order to maximize their leverage and minimize their potential liabilities. Assume, for purposes of argument, that the limited shutdown isn’t practically possible. What should the Democrats consider as they ponder a full shutdown?

1. WHAT IS THE POINT OF THE SHUTDOWN? Ezra Klein thinks it would educate the public about how dire our condition really is. I don’t agree; a large percentage of America gets its information from right-wing influencers and Fox News, neither of which will be sending the right message. In addition, the shutdown would give Trump a reliable talking point at a time when the economy is starting to wobble. No, the only good reason to shut it down is to create leverage to prevent Trump from doing even more damage.
2. HAVE CONDITIONS CHANGED SINCE THE ISSUE LAST AROSE: Yes. A few months ago, Trump’s emphasis was on bringing the bureaucracy to heel through firings. That accomplished, he now wants to turn the “Deep State” to his advantage against his adversaries. Shutting down a government that he controls makes more sense than shutting it down when he is simply brutalizing it.
3. IS THE FEDERAL GOVERNMENT, AS A WHOLE, A FORCE FOR GOOD OR EVIL? The verdict here is mixed; the National Park Service, for example, is unequivocally good, while ICE is mostly evil. If the government as a whole is mostly evil, it should be shut down; you wouldn’t keep the Third Reich functioning just because it ran the trains and delivered the mail. In my opinion, we haven’t reached that stage yet, but we are getting close.
4. WHAT SHOULD THE DEMOCRATS DEMAND IN EXCHANGE FOR KEEPING THE GOVERNMENT OPEN? The ask should be something constitutionally consequential and relatively popular with the American people. I would suggest an end to the unauthorized use of the military and impoundment.
5. ON BALANCE, SHOULD THE BLUE TEAM SHUT IT DOWN? I don’t think the timing is good, because it would change the subject just as the economic impacts of the deportations and the tariffs are starting to show. It would be a mistake to give Trump a straw man argument to defend his misbegotten policies. The question is close, though, and the case for a shutdown will only improve over time.

It’s a perfectly fair question. If Joan of Arc causes you to believe in miracles–that is, paranormal events with no other plausible explanation–how does that fit in with a universal and unchanging God?

Joan believed the spirits who spoke to her were saints, not God. The Chinese, on the other hand, believe their ancestors intervene in their lives on a regular basis. In other words, there is a realm of unseen spirits that is responsible for miracles, not the universal and unchanging God.

I’m in the Chinese camp. Why? Because of personal experience. I will describe some of it in my next metaphysical post.

Trump grumbles that India appears to be slipping towards the Chinese orbit. Well, who is to blame for that?

With its vast size and historical affinity for non-alignment, India has always been a special case; it was never ours to lose. But to the extent that the question is relevant, the answer is Trump, of course. His tariffs, his inflammatory rhetoric, and his clumsy efforts to intervene in the India-Pakistan conflict have offended hundreds of millions of Indians. What did he think would happen?

Trump’s blundering undiplomatic offensives have made America weaker. Kaiser Wilhelm II would be proud.

Trump isn’t just anti-union; if anything, he is even more anti-consumer. One of his first “accomplishments” was to dismantle the CFPB. Yesterday, he scrapped a Biden rule requiring airlines to compensate customers for delays that are within their control. More such actions can be expected in the future.

Is this just the usual GOP animus against business regulations? If you look at Trump’s record as a businessman, you know the answer to that question.

You would think that, at some level, Trump would welcome a Mamdani victory; that way, he could spend 2026 riling up the base by complaining about the “communists” in NYC rather than explaining away the economy. Trump apparently doesn’t see it that way, however; he is actively intervening in the race to elect Andrew Cuomo.

Nothing would rile up the New York voters more than the sight of the Hegseth neo-Confederate militia marching up Fifth Avenue under the stony gaze of the man on golf cart. As a result, there will be no occupation of NYC until after the election.

Up until now, the point of the tariffs and the mass deportations, in the eyes of reactionary visionaries, was to create a massive American labor shortage by encouraging the construction of new manufacturing plants and cutting down the size of the workforce. That would lead to large wage increases, which would make the Godly Society economically possible.

In his NYT column, Cass is making a subtle but important change to this argument. He is now contending that the labor shortage will cause American businesses to invest in new technology, which will result in higher productivity, which will in the end result in higher wages. He is no longer trying to give labor more bargaining power; he is instead making the case for traditional GOP trickle-down economics, albeit from an unusual starting point.

Productivity increases can, in time, result in wage increases. The experience of the last 50 years tells us, however, that the benefits of technological change are not automatically shared equitably between capitalists and labor. In addition, there is no guarantee that technology-forcing will work; small businesses, in particular, will have difficulty finding the money to invest, and will suffer greatly from the labor shortages. Finally, the GOP has traditionally objected to efforts to force technological change as an unwarranted interference in the market. How does Cass propose to get past that political problem?

Oren Cass agrees that Trump is very good at wrecking things. Cass applauds this; in his view, there are plenty of things that need to be wrecked. But now is the time to start building the new order. Kindly Uncle Donald needs to build bipartisan majorities in Congress to create a stable and predictable economic system upon which Americans can rely and invest. Otherwise, the chaos will bring him and the country down.

Either Cass is an idiot or he believes in the power of wishful thinking. There is no kindly, constructive Uncle Donald. Trump’s agenda, above all, is to show the world that he is the boss. He does this primarily through the arbitrary use of power. Working with Congress to create stability and predictability for his new system, to the extent it actually exists, is completely inconsistent with his need to be the center of attention at all times. He would be surrendering power. Why would he do that?

It is likely that the tariff case will be the first really important one involving presidential power to get a Supreme Court decision on its merits. The fascinating thing here is that Trump’s opponent is not some sort of squishy liberal icon; it is the conservative legal establishment representing small business groups. This will be a battle between two wings of the GOP with different views about the executive branch and economics. Call it Trump v. Reagan.

Will the Court, as usual, appease Trump, or will it side with the traditionalists? My guess is that the Chief Justice, who desperately wants to avoid a confrontation with Trump unless he absolutely has no alternative, will decide that this is the wrong place to take a stand. There is little doubt that American liberal democracy will survive the imposition of tariffs by the president, as opposed to, say, the military occupation of New York, so why draw the line here?

The Fifth Circuit judge who dissented in the Alien Enemies case was outraged. The court, he spluttered, was treating President Trump as if he were just another litigant. Trump had to plead and prove his case just like anyone else. How could that be?

Well, Judge Oldham, that’s exactly the point. In your court, Donald Trump is just another litigant, and he is subject to the same rules as everyone else. He’s not a king.

It is fair to assume that Judge Oldham would not have written those same words about Joe Biden. His idea of deference doesn’t apply to the federal government as a whole or just the presidency–it is purely personal to Donald Trump. That’s how MAGA thinks.

The hits just keep coming for Trump and the DOJ. First, a trial court, based on what appears to be a solid record, found that the military violated the Posse Comitatus Act with some of its activities in Los Angeles. This is a narrow, fact-based ruling that won’t keep Trump from sending troops to other cities, but it should have an impact on what they do there. Second, the D.C. Circuit found that the record did not support the firing of an FTC commission for “cause,” which should help Lisa Cook and some other independent agency members. Third, the D.C. Circuit also upheld a lower court decision invalidating most of Trump’s tariffs. Finally–and this one really has to hurt–the staunchly conservative Fifth Circuit ruled that the Alien Enemies Act could not be applied to alleged members of foreign drug cartels.

Not that Trump will care much about any of this. He has already made it clear that he only considers himself bound by the decisions of “his” Supreme Court; even Fifth Circuit decisions don’t count. Whether he will actually comply with a Supreme Court order he dislikes is very much up in the air.

Life in the time of Trump.

The strongmen stood as one.

They sent a message to the world

Trump’s will must not be done.

What did our fearless leader say

When Modi met with Xi?

Not a peep from him was heard

And no apology.

Between the party that believes in government and the party that hates it, the risks of a government shutdown are asymmetrical. Why would the Democrats, for example, shut down the national parks and take the blame for it? It might create a short-term high for the blue base, but that would wear off very quickly.

But there are parts of Trump’s government which clearly do more evil than good–the DOJ and ICE are the obvious examples. Why not limit the shutdown to them? That kind of shutdown would actually create some leverage against the administration on critical issues such as impoundment.

I don’t know if such a limited shutdown is practically possible, but if it is, it should be tried.