A new episode of The Josh Marshall Podcast is live! This week, Kate and Josh discuss Musk’s big loser energy, Joni Ernst’s generational gaffe and the unprecedented corruption of the Trump regime.
Continue reading “Listen To This: Elon And The Big, Ugly Bill”5 Points On Boasberg’s Big Alien Enemies Act Ruling
After being mostly scuttled by the Supreme Court, the original Alien Enemies Act case has re-entered the conversation.
While the high court took most of the Alien Enemies Act challenges out of the hands of U.S. District Judge James Boasberg of D.C. and distributed them to the individual judicial districts where Venezuelan nationals are being detained under the act, it left unresolved the fate of the deportees already removed to CECOT in El Salvador.
In a significant ruling yesterday, Boasberg concluded that the CECOT detainees were denied due process when they were removed March 15. He ordered the Trump administration to propose a plan within a week for how to “facilitate” giving the detainees the due process they were denied.
While President Trump’s invocation of the Alien Enemies Act was itself historic and the cases challenging his proclamation are testing the robustness of due process, the real import of these cases is that they are where the executive branch is threatening to and in fact is running roughshod over the judicial branch. In defying court orders, including to “facilitate” the return of other wrongfully deported foreign nationals, the Trump administration has provoked a constitutional clash, practically daring the judicial branch to try to stop it.
Boasberg’s decision sets up another potential focal point for that constitutional clash. Here are 5 points on how Boasberg’s ruling anticipates that confrontation:
Why did Boasberg take such a circular route to get to the same place?
Boasberg’s ruling wasn’t a complete victory for the CECOT detainees. He found it unlikely that they would win their habeas corpus claims. For the detainees to prevail on the habeas claim, they had to show that they were in the “constructive custody” of the United States, meaning under U.S. control or held at its behest. It’s troubling that Boasberg was unconvinced on this point and even he seemed troubled by it, but by taking it off the table, he eliminates one ripe avenue of appeal for the government. By grounding his ruling in the due process clause of the 5th Amendment instead, he aligned with the Supreme Court’s recent strong defense of due process in this very case. And in the end, he winds up at roughly the same place because he concluded that the remedy for violating the detainees due process was to allow them the chance to pursue the habeas claims they were denied in the first place.
Boasberg grapples with the limits of judicial power.
Boasberg seems keenly aware that this Supreme Court is going to give maximum deference to the executive branch. I suspect that’s one reason he effectively sidestepped the “constructive custody” issue. The Roberts Court isn’t going to get involved in foreign policy by ordering the administration to make demands on El Salvador, and so Boasberg is walking a fine line. “Although the Court is mindful that such a remedy may implicate sensitive diplomatic or national-security concerns within the exclusive province of the Executive Branch, it also has a constitutional duty to provide a remedy that will ‘make good the wrong done,’” Boasberg wrote.
The CECOT detainees aren’t being released anytime soon.
In open court previously, Boasberg had mused about how due process could be provided without having to return the detainees to the United States. In his written opinion, Boasberg said that facilitating a return of the CECOT detainees is “not necessarily” the only presumed remedy for the due process violation.
Boasberg was vague about what kind of process he was looking for to provide the detainees with their denied due process. “Exactly what such facilitation must entail will be determined in future proceedings,” he wrote. His invitation to the government to propose a process invites some sort of remote habeas proceeding.
But in the short term it may not matter because the Trump administration will almost certainly appeal Boasberg’s preliminary injunction to the D.C. Circuit Court of Appeals and ask it to pause the case so that it doesn’t have to propose a plan for giving the detainees belated due process, before the deadline Boasberg set for next week. From there, the case is a sure bet to go to the Supreme Court. In the meantime, the CECOT detainees, who are approaching the three-month mark of their confinement there, will remain in indefinite custody.
Was Boasberg being coy when he set a nominal injunction bond of $1?
Plaintiffs typically must post an Injunction bond, which is intended to make defendants whole if it turns out the injunction was improperly granted. It’s common for judges to waive an injunction bond when the injunction is against the federal government. I was left wondering whether Boasberg set a nominal bond of $1 here to sidestep the yet-to-pass House GOP’s reconciliation bill which contains a provision that would prohibit federal judges from enforcing contempt citations unless a bond was posted when an injunction was issued. No way to confirm Boasberg’s intentions, but it caught my eye.
WYD DC Circuit?
In his opinion, Boasberg highlights more than once the Trump administration’s poor conduct in this case from the beginning. You’ll recall he already found probable cause that the administration violated his order when it proceeded with the deportations on March 15 and didn’t turn the planes around. He references his contempt of court inquiry in the opinion.
All of which serves as good reminder that the D.C. Circuit Court of Appeals placed an administrative stay on the contempt of court inquiry more than six weeks ago. It’s been fully briefed since April 28. And still no ruling from the appeals court. Meanwhile, several other courts have begun incipient contempt of court proceedings against the administration in other Alien Enemies Act cases and adjacent “facilitate” cases.
It’s not at all clear what is taking the D.C. Circuit so long.
The Stench of Loser Stuck on Mr. Elon
We seem to be moving toward a bit more real animus between Elon Musk and Donald Trump. Musk keeps attacking Trump’s budget bill on Twitter. Trump has now stopped saying they’re actually best buds. In comments today he’s saying, albeit very tepidly, that the friendship seems to be over. I remain agnostic on where this dispute goes and whether it will amount to anything. What I see mostly is that Musk just looks incredibly small and diminished at the moment. The response from Republican members of Congress seems like a general, “Thank you so much for sharing your views” kind of thing.
I hear from the D.C. publications that Republican electeds are on edge. But they don’t seem on edge. They don’t seem afraid of Musk. Or perhaps it’s better to say they’re much, much more afraid of Trump, which amounts to the same thing. But even his criticisms, while notionally biting and intense, feel sulky and ineffectual.
Continue reading “The Stench of Loser Stuck on Mr. Elon”Thoughts on the ‘Centrist’ Hoedown
I wanted to flag your attention to this Dave Weigel piece in Semafor. It’s about an event (“WelcomeFest”) put on by a centrist PAC called WelcomePAC, which is presenting itself as a kind of latter-day Democratic Leadership Council or punchy and centrist group focused on picking fights with the party’s left wing. It’s a kind of set piece for a lot of stuff that’s going on among Democrats right now. The big push is to defang the power of “the groups” and then, on a secondary level, get the party away from various litmus tests and speech policing. Then there’s a secondary push for “abundance” politics. They brought together several centristy members of Congress — Rep. Ritchie Torres (NY), Rep. Jake Auchincloss (MA), Sen. Elissa Slotkin (MI) — and then commentator Matt Yglesias, data influencer David Schor and former Senate staffer Adam Jentleson, among others.
As Weigel reports, moments after Torres starts his remarks, this happens …
Continue reading “Thoughts on the ‘Centrist’ Hoedown”In Historic First, Trump Orders Investigation Of Biden White House
A lot of things happened. Here are some of the things. This is TPM’s Morning Memo. Sign up for the email version.
Another Crossing The Rubicon Moment
In a new executive order, President Trump has unleashed his White House counsel and attorney general to conduct a wide-ranging investigation of his predecessor and the Biden White House staff.
The predicate for the investigation is comical, alleging that “former President Biden’s aides abused the power of Presidential signatures through the use of an autopen to conceal Biden’s cognitive decline and assert Article II authority.”
But from that launching point, the executive order is quite serious. It calls for two open-ended areas of inquiry that could, if a DOJ investigation follows, keep former Biden staffers tied up in defending themselves for months or years:
(i) whether Biden White House aides conspired to cover up “Biden’s mental and physical health”; and
(ii) “the circumstances surrounding Biden’s supposed execution of numerous executive actions during his final years in office.”
On one level this is all laughable, but it is also an unprecedented targeting of a former president by a subsequent White House with the clear intention of delegitimizing his predecessors official acts – like presidential pardons – to clear the way for declaring them invalid and supplanting them with his own prerogatives.
Trump Administration Returns Improperly Deported Man
In a first, the Trump administration has complied with a court order to return to the United States an improperly deported foreign national.
The gay Guatemalan man, identified in court filings by his initials O.C.G., feared persecution in his home country. The Trump administration abruptly deported him instead to Mexico, where he claimed to have already been raped and targeted for being gay. He ultimately wound up back in Guatemala.
After the Trump administration retracted its initial assertions about O.C.G. in court, U.S. District Judge Brian Murphy of Massachusetts ordered the administration to facilitate his return in a case challenging the legality of third party removals done without notice or hearing. O.C.G. returned aboard a commercial flight and was taken into custody, his lawyer said.
The Trump administration’s compliance with Murphy’s order has implications in the handful of other cases where the executive branch is defying, stonewalling, and rejecting court orders to “facilitate” wrongfully deported foreign nationals. Unlike the other deportees, O.C.G. was not in a foreign prison at the time of his return to the U.S.
Boasberg Weighs In On Fate Of AEA Detainees At CECOT
In a significant ruling, U.S. District Judge James Boasberg of D.C. granted a preliminary injunction, finding that the Venezuelan nationals removed to El Salvador under the Alien Enemies Act were denied the due process to which they were entitled when they were abruptly flown to the CECOT prison on March 15. Boasberg gave the Trump administration one week to propose a plan for how to “facilitate” giving the detainees a chance to pursue their habeas corpus claims.
Boasberg’s written opinion was complex and somewhat circular; and while it compared their fates to a scene from a Kafka novel, it was not a total victory for the detainees. He ruled that they are not entitled to file habeas claims now because he was not convinced that they are in the “constructive custody” of the United States. But he concluded that their removals without due process violated the Fifth Amendment and that the remedy for that violation is to let them file habeas claims.
It doesn’t appear that the detainees will be freed anytime soon, as Boasberg had previously pondered aloud in court and left the door open in his order for the detainees’ legal challenges to proceed while they remain in custody in El Salvador.
The Trump administration is likely to appeal the preliminary injunction; and this case, which is the primary vehicle for the CECOT AEA detainees, is likely headed ultimately to the Supreme Court.
Trump II Travel Ban: Still Heavily Muslim
President Trump ordered a full travel ban on citizens from 12 countries: Afghanistan, Myanmar, Chad, Republic of Congo, Equatorial Guinea, Eritrea, Haiti, Iran, Libya, Somalia, Sudan and Yemen. Five of the seven countries from Trump’s original 2017 Muslim ban are on the new list. He imposed new lesser travel restrictions on citizens from Burundi, Cuba, Laos, Sierra Leone, Togo, Turkmenistan and Venezuela.
Trump’s Attack On Higher Ed: Ivy League Edition
- Harvard: President Trump purported to suspend Harvard University from participating in the student visa program, effectively prohibiting foreign nationals from attending the nation’s most prominent university.
- Columbia: The Trump administration claimed Columbia University failed to meet its accreditation standard for allegedly tolerating harassment of Jewish students on campus.
Collusive Lawlessness In Texas
In the course of six hours yesterday, the Trump DOJ and Texas Attorney General Ken Paxton colluded with U.S. District Judge Reed O’Connor to vitiate a two-decade-old state law that offered undocumented residents discounted in-state college tuition.
In rapid succession, the Trump DOJ filed a suit challenging the law, Paxton filed a joint motion asking the judge to permanently block the law, and the judge issued the order. O’Conner, sits in Wichita Falls, one of the most notorious single-judge divisions, meaning the lawsuit was assured of going to him.
The collusive lawsuit came after the Texas legislature failed to repeal or otherwise amend the in-state tuition law at its recent session. Steve Vladeck has more on the legal hijinks in Texas and what he calls “a stain on the federal courts.”
Big Beautiful Bill: By The Numbers
10.9 million: the number of people it would rob of health insurance coverage
$2.4 trillion: how much it would add to the federal budget deficit over the next 10 years
18,000: the estimated number of preventable deaths among dual Medicare/Medicaid enrollees who would lose their prescription drug subsidy
All The Best People
Meet the 22-year-old Trump’s Team picked to lead the DHS terrorism prevention program.
Hanging Tough
Since President Trump purported to fire her last week, Kim Sajet, the director of the Smithsonian National Portrait Gallery, has continued to report to work and carry out her duties, the WaPo reports.
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‘The Intern in Charge’: Meet The 22-Year-Old Trump’s Team Picked To Lead Terrorism Prevention
This article first appeared at ProPublica, a Pulitzer Prize-winning investigative newsroom. Sign up for The Big Story newsletter to receive stories like this one in your inbox.
When Thomas Fugate graduated from college last year with a degree in politics, he celebrated in a social media post about the exciting opportunities that lay beyond campus life in Texas. “Onward and upward!” he wrote, with an emoji of a rocket shooting into space.
Continue reading “‘The Intern in Charge’: Meet The 22-Year-Old Trump’s Team Picked To Lead Terrorism Prevention”GOP Leadership Not Worried About Forcing Members To Go On Record On Worst Of DOGE
The White House finally sent over a rescissions package request — a move the administration has been dragging its feet on for months — asking Republicans in Congress to swallow a chunk of the sweeping cuts that Elon Musk has enacted with his DOGE destruction so far this year.
Continue reading “GOP Leadership Not Worried About Forcing Members To Go On Record On Worst Of DOGE”The US Institute of Peace Digs Out of Under DOGE’s Weed Stash and Tries to Rebuild
If you’ll remember, back in March we ran a number of stories on the DOGE takeover of the U.S. Institute for Peace. The USIP is a unique entity, publicly funded but not part of the government. Certainly not part of the executive branch. That contention was the centerpiece of the legal case that unfolded. DOGE tried to take it over on orders of the President. It was rebuffed. It eventually threatened the Institute’s private security contractor into switching sides, threatened criminal investigations out of Ed Martin’s corrupt rule of the DC U.S. Attorney’s office, and, on March 17th, succeeded in taking control of the Institute by force. This involved the still-not-fully-explained involvement of the DC police force, the MPD. So DOGE won.
But that wasn’t the end of the story. Eventually, the expelled leadership of the USIP won in court. And it wasn’t one of these small-bore incremental wins we’ve seen so many of over the course of the Spring. They completely won — though their victory is still on appeal. But they fully won in the sense that a judge ruled the entire takeover was unlawful and undid all of it. They retook control of the Institute and the building it owns and what’s left of its budget. And they’re now in the process of trying, at various levels, to clean up the mess DOGE created, literal and figurative, and get the Institute back on its feet.
Yesterday, I talked to George Foote, longtime lawyer for the Institute and, as luck would have it, a longtime TPM Reader as well. He walked me through some of what has happened since all the fireworks earlier this spring.
Continue reading “The US Institute of Peace Digs Out of Under DOGE’s Weed Stash and Tries to Rebuild”This Russian Dissident Won Political Asylum. ICE Refuses To Release Him.
Two months ago, 25-year-old Ilia Chernov beat long odds and convinced an immigration judge to grant him political asylum in the U.S.
Normally, that finding would have been enough for Chernov to obtain legal status and live freely in the U.S. Chernov’s judge told him that he would soon be released.
But Immigration and Customs Enforcement has refused to free Chernov, stranding him in detention.
Continue reading “This Russian Dissident Won Political Asylum. ICE Refuses To Release Him.”Donald Trump Sets Out To Create His Own Deep State
A lot of things happened. Here are some of the things. This is TPM’s Morning Memo. Sign up for the email version.
First Came The Purges …
It’s always the same with Trump. His attacks on his foes usually telegraph not what they’re doing, but what he plans to do himself. So it is with the Deep State.
You have probably seen by now the Trump OPM’s new hiring policy which was unveiled last week. It is a road map for creating a politicized federal workforce – a Deep State, if you will. It is a marked departure from decades of efforts to professionalize federal workers and protect them from raw partisan politics. But it is also a logical next step following the mass purges of federal workers: replace them with loyalists.
Most glaringly problematic in the new policy is the essay-writing requirement for applications for positions at GS-05 and above. One of the four required essays comes with this prompt: “How would you help advance the President’s Executive Orders and policy priorities in this role?”
It is a green light for hiring to be done on a politicized basis, as political scientist Don Moynihan notes:
I cannot think of anything like this level of politicization being formally introduced into the hiring process. Under the George W. Bush administration, it was a scandal when appointees in the Justice Department were caught scanning candidate CVs for civil servant positions to try to discern their political leanings. Now they will just ask them to explain how they can serve President Trump’s agenda. Within the space of a generation, backdoor politicization practices went from being a source of shame to a formal policy.
What makes the Trump version of politicization arguably worse is that it’s not pinned to ideology or partisan leanings but to personal loyalty and fealty to him. In that, it is arbitrary, ever changing, and subject to constant re-evaluation.
All of this comes against the backdrop of Trump, with the Roberts Court’s blessing, having already neutered the Merit Systems Protection Board and other mechanisms for protecting federal workers. As Moynihan suggests, Trump in breaking the existing merit system is unleashing vast consequences that will take generations to fix.
The Corruption: The New Gilded Age Edition
- NBC News: “In four months, the Trump administration has dismantled key parts of that law enforcement infrastructure, creating what experts say is the ripest environment for corruption by public officials and business executives in a generation.”
- The New Yorker’s Evan Osnos wanders through the New Gilded Age America like a man in a foreign country: “In a matter of weeks, the flood of cash swirling around the White House swamped whatever bulwarks against corruption remained in American law and culture.”
- NBC News: Trump pardons drive a big, burgeoning business for lobbyists.
Quote Of The Day
“He’s dismantling not just the means of prosecuting public corruption, but he’s also dismantling all the means of oversight of public corruption. The law is only for his enemies now.”–Paul Rosenzweig, a George Washington University law professor who was a senior homeland security official in the Bush II administration, on President Trump
Peter Navarro Successfully Runs Out The Clock
The Trump DOJ has abruptly dropped the civil lawsuit to force Trump White House official Peter Navarro to turn over to the National Archives his Proton emails from the Trump I presidency.
Jan. 6 Prosecutor Resigns From DOJ
Greg Rosen, who was the chief of the Capitol Siege Section of the D.C. U.S. Attorney’s Office, resigned from the Justice Department last week after being demoted by former interim D.C. U.S. attorney Ed Martin.
Good Point
Lisa Rubin, on Trump’s one-two punch against the American Bar Association and the Federalist Society:
[I]n an era where fidelity to the whims of Trump is far more important than allegiance to any conservative legal agenda, much less the rule of law, Trump aims to be the sole arbiter of who’s qualified and fit for federal judgeships.
If Trump can reduce or even eliminate both the ABA’s and the Federalist Society’s impact on the judicial selection process, he’ll become the only judge of judges who matters — which is exactly, I would posit, how he wants it.
It Fooled Kristi Noem
A Milwaukee man allegedly tried to get a witness in the armed robbery case against him deported so he wouldn’t be able to testify. Seizing on anti-immigrant fervor, the man sent letters in the name of the witness threatening to assassinate President Trump. The witness was arrested, but law enforcement eventually figured out the scheme and have filed new charges against the imposter, but not before DHS Secretary Kristi Noem trumpeted the initial arrest.
Federal Judge Enforces Trans Care In Prisons
U.S. District Judge Royce Lamberth of D.C., an 81-year-old Reagan appointee, issued a preliminary injunction blocking the Trump administration from ending hormone therapy and social accommodations for transgender inmates in federal prisons, while the lawsuit proceeds.
Gratuitous
In a decision reportedly timed to coincide with Pride month, Defense Secretary Pete Hegseth has ordered the Navy to strip Harvey Milk’s name from an eponymous naval vessel. The assassinated gay icon was a Navy veteran.
“The Harvey Milk is a John Lewis-class oiler, a group of ships that are to be named after prominent civil rights leaders and activists,” Military.com reports.
Other ships in that class are also being targeted by Hegseth for renaming, CBS News reports. They include the:
- USNS Thurgood Marshall
- USNS Ruth Bader Ginsburg
- USNS Harriet Tubman
- USNS Dolores Huerta
- USNS Lucy Stone
- USNS Cesar Chavez
- USNS Medgar Evers
Clarification
Yesterday’s Morning Memo said the National Park Service’s decision to close D.C.’s Dupont Circle event for an upcoming Pride event this month was made on “what is clearly a pretextual basis,” but it’s subsequently been confirmed that the request for the closure came from the D.C. police chief, who reversed her position yesterday. It remains up to the U.S. Park Police, which has jurisdiction over the space, to decide whether to keep it open for the Pride event.
Happens In A Flash
The first eruption from Yellowstone’s Black Diamond Pool captured on video since last summer’s much larger hydrothermal explosion:
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