Independence Update
A number of you have expressed concern about two events today, the passage by the Congress of the Big Beautiful and the Supreme Court decision a second time to fail to support the District Court judge who sought to provide due process rights to non-citizens being sent to countries that they have no association. They are both disappointing but not surprising and demonstrate that the resistance still has a lot more work to do, as we all know. There will be a messaging battle about whether those events are good or bad for the country. Most people/voters have no idea what the big beautiful bill does, but there are encouraging signs in some of the items below as well as recent polling, such as that described in the July 2, 2025 Washington Post report entitled, The one thing about Mamdani’s win that should worry Republicans- Trump is losing ground with the same voter groups that powered the mayoral candidate’s primary win., although his support is still greater than during his first administration. Thus, there is still a need for considerably more work to change more minds, which may be helped by the President continuing to overinterpret his mandate.
· July 1, 2025 Memorandum Decision and Order to Show Cause by Judge Brian Cogan of the Eastern District of New York that contrary to the Homeland Secretary’s announcement “temporary protected status,” for up to 500,000 Haitians living in the United States will not expire on September 2, 2023 but on its scheduled expiration date of February 3, 2026. Another item slowing down the damage, which may resume when the appellate court considers this matter as has done by other courts.
· July 2, 2025 Memorandum Opinion by Judge Randolph D. Moss of the Federal District of the District of Columbia that the administration may not categorically deny asylum claims from people crossing the southern border. Again, let’s see what the appellate courts do.
· July 3, 2025 unsigned Supreme Court opinion staying district court injunction with respect to non-citizens sent to Djibouti/Sudan, concurring opinion by Elena Kagan and dissenting opinion by Sonia Sotomayor and Ketanji Brown Jackson. Justice Sotomayor’s dissent concludes with the following clarion call:
o ““In a democracy, power implies responsibility. The greater the power that defies law the less tolerant can this Court be of defiance. As the Nation’s ultimate judicial tribunal, this Court, beyond any other organ of society, is the trustee of law and charged with the duty of securing obedience to it.” Mine Workers, 330 U. S., at 312 (Frankfurter, J., concurring in judgment). This Court continues to invert those principles. Today’s order clarifies only one thing: Other litigants must follow the rules, but the administration has the Supreme Court on speed dial. Respectfully, I dissent.”
· July 3, 2025 United States Court of Appeals for the District of Columbia Circuit order permitting President Trump to remove a Democratic member of the Federal Labor Relations Authority. This is, unfortunately, consistent with the Supreme Court stays of injunctions trying to stop other removals.
· July 2, 2025 NYT Guest Essay by Linda Greenhouse entitled, This Is the Real Impact of the Supreme Court’s Planned Parenthood Decision. This raises the question of the lack of care of the opinions of the conservative justices that deprive Americans of the ability to seek legal redress.
· July 3, 2025 NYT Guest Essay by Kate Shaw, William Baude and Stephen I. Vladeck entitled, ‘There’s Just Too Much Lawlessness’: Three Legal Experts on an Embattled Supreme Court See also June 30, 2025 One First substack posting by Stephen I. Vladeck entitled, 163. A New Kind of Judicial Supremacy. Both these items are quite critical of the quality of the legal reasoning and consistency set forth in Supreme Court opinions, and warn that this will be necessary if the court intends to challenge the President successfully.
· July 3, 2025 Civil Discourse substack posting by Joyce Vance entitled Update: Abrego Garcia’s Civil & Criminal Cases. This describes the atrocious treatment of Mr. Abrego-Garcia and other non-citizens being kept in the El Salvador facility as well as the expedited treatment the judge seems to be providing to see if he may be freed without fear of being deported by the government
· July 2, 2025 Bloomberg.com column by Noah Feldman entitled, The Supreme Court’s Majority Is Playing the Long Game. Prof. Feldman claims the Supreme Court is biding its time waiting for the right moment to curtail the administration.
· July 3, 2025 Balls and Strikes substack posting by Jay Willis entitled, The Supreme Court’s Majority Is Playing Noah Feldman Like a Fiddle . Mr. Willis focuses on the damage that is being done by the Justices’ unwillingness to rein in the President and repeated decisions that enlarge his power. He is correct the Justices, like many American leaders, have failed to display much courage. On the other hand, that does not mean we may not be able to persuade them to show such courage, but it does indicate this will not be an easy task.
· June 30, 2025 Just Security column by Harold Hongju Koh, Alan Charles Raul and Fred Halbhuber entitled, After CASA: The Administrative Procedure Act Option for Challenging the Birthright Citizenship and Other Illegal Executive Actions. This article points out that the Court did observe that the Administrative Procedure Act may be used to obtain in effect a universal injunction in many challenges to administration actions (including the birthright challenge), but the court declined to take a position on the claim. Let’s see how formalistic/pragmatic the Court will be when confronted with this approach.
· June 30, 2025 Politico report by Josh Gerstein, Ben Johansen, Sophia Cai And Irie Sentner entitled, Law firms in the hot seat. Latham and Watkins, one of the capitulating law firms, seems to be pursuing a Supreme Court challenge to show that federal courts must review de novo whether the mistreatment suffered by a noncitizen meets the legal standard for persecution. This raises the question of how constrained the capitulating firms must/will be in challenging the administration in litigation. This may be an encouraging sign if Latham does not withdraw.
· July 1, 2025 NPR report by Sequoia Carrillo entitled, The Trump admin is withholding over $6 billion in education grants for schools . No reason has been given for this withholding of grants that were appropriated in the prior budget. The funds were intended to pay for after-school and summer programs, programs for students who are learning English, teacher training, classroom technology, and more. This freeze this may erode support for the President in rural areas where there often no readily available alternative funding sources and these programs are highly valued
· July 3, 2025 Washington Post article by María Luisa Paúl entitled, Newlywed detained by ICE freed after 141 days and two deportation attempts. This is another example of the ICE excesses that need to be widely shared so Americans, not only the readers of the Washington Post are aware of these incidents and become less willing to give ICE the kind of blank check that the Big Beautiful Bill is providing. Support for ICE deportations is eroding as described in a recent PBS report but with more effort could be further decreased. In November we will see a good test of the potency of the appeal of ICE, when New Yorkers elect a mayor with only one candidate firmly opposed to ICE policies.
· July 3, 2025 Bloomberg.com column by Jessica Karl entitled, If the Job Market’s So Good, Why Do We Feel So Bad? I attach this article so you can see if this may appear to be Biden redux, where American voters believed vibes rather than traditional economic statistics. A majority of Americans now believe that Trump is responsible for the economy. Let’s see if the resistance can win this messaging battle and convince a majority Americans, not only those in blue areas, that the President is responsible for a troubled economy rather than the greatest economy in history as he describes it.