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Tag: executive power

  • Supreme Court sounds ready to give Trump power to oust officials of independent agencies

    WASHINGTON — The Supreme Court’s conservatives sounded ready on Monday to overrule Congress and give President Trump more power to fire officials at independent agencies and commissions.

    The justices heard arguments on whether Trump could fire Rebecca Slaughter, one of two Democratic appointees on the five-member Federal Trade Commission.

    The case poses a clash between Congress’ power to structure the government versus the president’s “executive power.”

    A ruling for Trump portends a historic shift in the federal government — away from bipartisan experts and toward more partisan control by the president.

    Trump’s Solicitor General D. John Sauer said the court should overturn a 1935 decision that upheld independent agencies. The decision “was grievously wrong when decided. It must be overruled,” he told the court.

    The court’s three liberals strongly argued against what they called a “radical change” in American government.

    If the president is free to fire the leaders of independent agencies, they said, the longstanding civil service laws could be struck down as well.

    It would put “massive, uncontrolled and unchecked power in the hands of the president,” Justice Elena Kagan said.

    But the six conservatives said they were concerned that these agencies were exercising “executive power” that is reserved to the president.

    It was not clear, however, whether the court will rule broadly to cover all independent agencies or focus narrowly on the FTC and other similar commissions.

    For most of American history, Congress has created independent boards and commissions to carry out specific missions, each led by a board of experts who were appointed with a fixed term.

    But the court’s current conservative majority has contended these commissions and boards are unconstitutional if their officials cannot be fired at will by a new president.

    Past presidents had signed those measures into law, and a unanimous Supreme Court upheld them 90 years ago in a case called Humphrey’s Executor vs. U.S.

    In creating such bodies, Congress often was responding to the problems of a new era.

    The Interstate Commerce Commission was created in 1887 to regulate railroad rates. The FTC, the focus of the court case, was created in 1914 to investigate corporate monopolies. The year before, the Federal Reserve Board was established to supervise banks, prevent panics and regulate the money supply.

    During the Great Depression of the 1930s, Congress created the Securities and Exchange Commission to regulate the stock market and the National Labor Relations Board to resolve labor disputes.

    Decades later, Congress focused on safety. The National Transportation Safety Board was created to investigate aviation accidents, and the Consumer Product Safety Commission investigates products that may pose a danger. The Nuclear Regulatory Commission protects the public from nuclear hazards.

    Typically, Congress gave the appointees, a mix of Republicans and Democrats, a fixed term and said they could be removed only for “inefficiency, neglect of duty or malfeasance in office.”

    Slaughter was first appointed by Trump to a Democratic seat and was reappointed by President Biden in 2023 for a seven-year term.

    But conservatives often long derided these agencies and commissions as an out-of-control “administrative state,” and Chief Justice John G. Roberts Jr. said he believes their independence from direct presidential control is unconstitutional.

    “The President’s power to remove — and thus supervise — those who wield executive power on his behalf follows from the text” of the Constitution, he wrote last year in his opinion, which declared for the first time that a president has immunity from being prosecuted later for crimes while in office.

    Roberts spoke for a 6-3 majority in setting out an extremely broad view of presidential power while limiting the authority of Congress.

    The Constitution in Article I says Congress “shall have the power…to make all laws which shall be necessary and proper for carrying into execution…all other powers vested” in the U.S. government. Article II says, “the executive power shall be vested in a President of the United States.”

    The current court majority believes that the president’s executive power prevails over the power of Congress to set limits by law.

    “Congress lacks authority to control the President’s ‘unrestricted power of removal’ with respect to executive officers of the United States,” Roberts wrote last year in Trump vs. United States.

    Four months later, Trump won reelection and moved quickly to fire a series of Democratic appointees who had fixed terms set by Congress. Slaughter, along with several other fired appointees, sued, citing the law and her fixed term. They won before federal district judges and the U.S. Court of Appeals.

    But Trump’s lawyers filed emergency appeals at the Supreme Court, and the justices, by 6-3 votes, sided with the president and against the fired officials.

    In September, the court said it would hear arguments in the case of Trump vs. Slaughter to decide on whether to overturn the Humphrey’s Executor decision.

    At the time, conservatives applauded the move. “For far too long, Humphrey’s Executor has allowed unaccountable agencies like the FTC to wield executive power without meaningful oversight,” said Cory Andrews, general counsel for the Washington Legal Foundation.

    In defense of the 1935 decision, law professors noted the court said that these independent boards were not purely executive agencies, but also had legislative and judicial duties, like adopting regulations or resolving labor disputes.

    During Monday’s argument, Justice Ketanji Brown Jackson said the principle of “democratic accountability” called for deferring to Congress, not the president.

    “Congress decided that some matters should be handled by nonpartisan experts. They said expertise matters with respect to the economy and transportation. So having the president come in and fire all the scientists and the doctors and the economists and the PhDs and replacing them with loyalists is actually is not in the best interest of the citizens of the United States,” she said.

    But that argument gained no traction with Roberts and the conservatives. They said the president is elected and has the executive authority to control federal agencies.

    The only apparent doubt involved the Federal Reserve Board, whose independence is prized by business. The Chamber of Commerce said the court should overrule the 1935 decision, but carve out an exception for the Federal Reserve.

    Trump’s lawyer grudgingly agreed. If “an exception to the removal power exists,” he wrote in his brief in the Slaughter case, it should be “an agency-specific anomaly” limited to the Federal Reserve.

    David G. Savage

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  • Trump administration asks the Supreme Court to allow it to fire head of US Copyright Office

    The Trump administration on Monday asked the Supreme Court to allow it to fire the director of the U.S. Copyright Office.The administration’s newest emergency appeal to the high court was filed a month and a half after a federal appeals court in Washington held that the official, Shira Perlmutter, could not be unilaterally fired.Nearly four weeks ago, the full U.S. Court of Appeals for the District of Columbia Circuit refused to reconsider that ruling.The case is the latest that relates to Trump’s authority to install his own people at the head of federal agencies. The Supreme Court has largely allowed Trump to fire officials, even as court challenges proceed.But this case concerns an office that is within the Library of Congress. Perlmutter is the register of copyrights and also advises Congress on copyright issues.Solicitor General D. John Sauer wrote in his filing Monday that despite the ties to Congress, the register “wields executive power” in regulating copyrights.Perlmutter claims Trump fired her in May because he disapproved of advice she gave to Congress in a report related to artificial intelligence. Perlmutter had received an email from the White House notifying her that “your position as the Register of Copyrights and Director at the U.S. Copyright Office is terminated effective immediately,” her office said.A divided appellate panel ruled that Perlmutter could keep her job while the case moves forward.”The Executive’s alleged blatant interference with the work of a Legislative Branch official, as she performs statutorily authorized duties to advise Congress, strikes us as a violation of the separation of powers that is significantly different in kind and in degree from the cases that have come before,” Judge Florence Pan wrote for the appeals court. Judge Michelle Childs joined the opinion. Democratic President Joe Biden appointed both judges to the appeals court.Judge Justin Walker, a Trump appointee, wrote in dissent that Perlmutter “exercises executive power in a host of ways.”Perlmutter’s attorneys have argued that she is a renowned copyright expert. She has served as register of copyrights since then-Librarian of Congress Carla Hayden appointed her to the job in October 2020.Trump appointed Deputy Attorney General Todd Blanche to replace Hayden at the Library of Congress. The White House fired Hayden amid criticism from conservatives that she was advancing a “woke” agenda.

    WASHINGTON —

    The Trump administration on Monday asked the Supreme Court to allow it to fire the director of the U.S. Copyright Office.

    The administration’s newest emergency appeal to the high court was filed a month and a half after a federal appeals court in Washington held that the official, Shira Perlmutter, could not be unilaterally fired.

    Nearly four weeks ago, the full U.S. Court of Appeals for the District of Columbia Circuit refused to reconsider that ruling.

    The case is the latest that relates to Trump’s authority to install his own people at the head of federal agencies. The Supreme Court has largely allowed Trump to fire officials, even as court challenges proceed.

    But this case concerns an office that is within the Library of Congress. Perlmutter is the register of copyrights and also advises Congress on copyright issues.

    Solicitor General D. John Sauer wrote in his filing Monday that despite the ties to Congress, the register “wields executive power” in regulating copyrights.

    Perlmutter claims Trump fired her in May because he disapproved of advice she gave to Congress in a report related to artificial intelligence. Perlmutter had received an email from the White House notifying her that “your position as the Register of Copyrights and Director at the U.S. Copyright Office is terminated effective immediately,” her office said.

    A divided appellate panel ruled that Perlmutter could keep her job while the case moves forward.

    “The Executive’s alleged blatant interference with the work of a Legislative Branch official, as she performs statutorily authorized duties to advise Congress, strikes us as a violation of the separation of powers that is significantly different in kind and in degree from the cases that have come before,” Judge Florence Pan wrote for the appeals court. Judge Michelle Childs joined the opinion. Democratic President Joe Biden appointed both judges to the appeals court.

    Judge Justin Walker, a Trump appointee, wrote in dissent that Perlmutter “exercises executive power in a host of ways.”

    Perlmutter’s attorneys have argued that she is a renowned copyright expert. She has served as register of copyrights since then-Librarian of Congress Carla Hayden appointed her to the job in October 2020.

    Trump appointed Deputy Attorney General Todd Blanche to replace Hayden at the Library of Congress. The White House fired Hayden amid criticism from conservatives that she was advancing a “woke” agenda.

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  • Lawsuit Challenges Trump’s $100,000 H-1B Visa Fee

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    Yesterday, a broad coalition of groups filed the first lawsuit challenging President Trump’s imposition of a $100,000 fee on applications for H-1B visas, which are used by tech firms, research institutions, and other organizations to hire immigrant workers and researchers with various specialized skills. If allowed to stand, the fee would effectively end most H-1B visas, by making them prohibitively expensive, thereby inflicting serious harm on the US economy.

    The case is called Global Nurse Force v. Trump. The plaintiffs are a broad coalition including the Global Nurse Force (which supplies nurses to health care providers), education groups (e.g. – the American Association of University Professors), religious organizations, and labor unions. I am a little surprised that multiple labor unions joined this lawsuit, as one might think they would want to keep out potential competitors to their members. However, I would guess they have H-1B visa holders among those members. In addition, studies show that H-1B workers actually increase wages for many US-citizen workers by increasing productivity and innovation.

    The complaint argues the H-1B visa is illegal for a number of different reasons. Here’s a brief excerpt that summarizes some of them:

    Defendants’ abrupt imposition of the $100,000 Requirement is unlawful. The
    President has no authority to unilaterally alter the comprehensive statutory scheme created by Congress. Most fundamentally, the President has no authority to unilaterally impose fees, taxes or other mechanisms to generate revenue for the United States, nor to dictate how those funds are spent. The Constitution assigns the “power of the purse” to Congress, as one of its most fundamental premises. Here, the President disregarded those limitations, asserted power he does not have, and displaced a complex, Congressionally specified system for evaluating petitions and granting H-1B visas. The Proclamation transforms the H-1B program into one where employers must either “pay to play” or seek a “national interest” exemption, which will be doled out at the discretion of the Secretary of Homeland Security, a system that opens the door to selective enforcement and corruption.

    The plaintiffs also argue that the government’s assertion of virtually unlimited power to impose visa fees goes against the major questions doctrine (which requires Congress to speak clearly when it delegates broad powers to the executive over issues of vast economic and political significance), and the constitutional nondelegation doctrine, which limits delegation of legislative power to the executive branch.

    I made similar points in an earlier post about the H-1B visa fee policy, where I explained why it goes against the statutory scheme enacted by Congress, and why it would violate the nondelegation doctrine if Congress had delegated this power.

    As the Global Nurse Force complaint notes, enforcing nondelegation is particularly crucial when it comes to the power to raise revenue, which is a specifically enumerated congressional power. The $100,000 fee goes far beyond anything that could plausibly be described as defraying administrative expenses, and is essentially a form of taxation.  The Framers of the Constitution were careful to ensure that only the legislative branch could impose taxes, in order to avoid the abusive executive taxation pursued by 17th century British monarchs. This is one of several areas where Trump is attempting to usurp this legislative power. Others include his unilateral imposition of massive tariffs, and his unconstitutional export taxes (which even Congress lacks the power to impose under the Constitution).

    I hope the plaintiffs prevail here. I expect there may also be other lawsuits challenging the H-1B fee.

    Ilya Somin

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  • Trump’s planned farm bailout should require congressional approval

    By hiking tariffs on nearly all imports to the United States earlier this year, President Donald Trump effectively imposed one of the largest tax hikes in American history—and did so without congressional approval.

    Now, the Trump administration is reportedly preparing to spend some of the revenue from those tax increases—also without congressional approval.

    The White House is preparing a bailout for farmers harmed by the trade war. The exact contours of the package remain unclear for now, but Politico and The Wall Street Journal both report that the administration is eying at least $10 billion in aid. We’ll know more early next week, as Treasury Secretary Scott Bessent says an announcement of “substantial support” is expected on Tuesday.

    This much seems clear: tariffs paid by American importers will be used to fund some of the bailout.

    That’s likely to happen, in part, because the slush fund that Trump tapped to bail out farmers during his first term is running dry. That fund—the Commodity Credit Corporation, a New Deal-era program within the Department of Agriculture—has just $4 billion in it, according to Politico. Meanwhile, the government has collected about $150 billion in tariff revenue during the first eight months of the year.

    It also seems likely because that’s what Trump keeps saying he wants to do. “We’re going to take some of that tariff money that we made, we’re going to give it to our farmers,” he said last month.

    Regardless of how it is funded, a farm bailout would be a wasteful and counterproductive bit of policy—and one that could inspire other tariff-hurt industries to start looking for their own handouts. If the bailout is funded with the tariff revenue (without congressional approval), then it would also be another attack on the separation of powers that are fundamental to our constitutional system of government.

    It is Congress that has the sole authority to lay and collect taxes, per Article I of the Constitution. It is also Congress that has the sole authority to determine how tax dollars are spent. If the Trump administration wants to use some of that $150 billion to bail out farmers, it must ask Congress to approve that spending—ideally as part of a budget bill, but even a one-off emergency or supplemental bill would be better than having the executive branch make this decision on its own.

    There is one other complication that should stop the administration from unilaterally spending the tariff revenue, even if the White House decides to ignore the constitutional argument.

    If the Supreme Court rules that Trump’s tariffs are unlawful—as lower courts already have—then it is possible that the federal government would have to refund all that money to the people and businesses that paid the tariffs in the first place.

    If that money has been given away to farmers, then taxpayers will be on the hook to refund the tariff payments—the same American taxpayers who are already paying higher prices because of the tariffs. That’s literally adding insult to injury.

    There is, of course, an easy way out of this mess. If the Trump administration wants to spare farmers the consequences of the trade war, it doesn’t need a messy, possibly unconstitutional bailout. It just needs to end the tariffs.

    Eric Boehm

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  • Fifth Circuit Will Rehear Alien Enemies Act Case En Banc

    AI-generated image.

    Earlier this week the US Court of Appeals for the Fifth Circuit decided to grant an en banc rehearing in W.M.M. v. Trump. The panel decision in that case ruled that Trump’s invocation of the Alien Enemies Act of 1798 was illegal, because illegal migration and drug trafficking and other activities of the Venezuelan drug gang Tren de Aragua do not qualify as a war, “invasion,” or “predatory incursion.” The AEA can only be used to detain and deport immigrants when one of these extraordinary conditions, or a threat thereof, exists.The case will now be reheard by all 17 active Fifth Circuit judges.

    In an amicus brief I coauthored in the case on behalf of the Brennan Center, the Cato Institute, and others, we argue that “invasion” and “predatory incursion” require a military attack, and that courts should not defer to presidential assertions that these extraordinary conditions exist. As James Madison put it in addressing this issue, “invasion is an operation of war.”

    Otherwise, the AEA and the Constitution’s grant of extraordinary emergency powers when an “invasion” exists could be invoked by the president anytime he wants, thereby creating grave dangers to civil liberties and to the separation of powers. For example, the Constitution states that, in the event  of “invasion,” the federal government can suspend the writ of habeas corpus, thereby authorizing indefinite detention without due process – not only of recent immigrants, but also US citizens.

    Prominent conservative Judge Andrew Oldham wrote a lengthy dissent to the panel decision, arguing that the definition of “invasion” and other terms in the AEA is left to the unreviewable discretion of the executive. I outlined some key flaws in his argument here. In a solo concurring opinion in United States v. Abbott, a previous Fifth Circuit en banc case, Judge James Ho, another well-known conservative, similarly argued  the definition of “invasion” is an unreviewable “political question,” left to the determination of the executive, and also of state governments (under Ho’s approach, they too can claim and “invasion” exists whenever there is illegal migration or drug smuggling). I criticized Judge Ho’s reasoning here.

    Both Ho’s approach and Oldham’s would give the president (and, in Ho’s case, also state governments) unlimited authority to declare an “invasion” at any time, and thereby wield sweeping authority to undermine civil liberties and the separation of powers. The federal government could use this power to detain and deport even legal immigrants, and to suspend the writ of habeas corpus (including for US citizens). Under the Constitution, in the event of “invasion” state governments can “engage in war” even without congressional authorization. I wrote about the dangers of that in greater detail here, as well as in the amicus brief.

    Such vast unilateral authority goes against the text and original meaning of both the Constitution and the Alien Enemies Act. British violations of the writ of habeas corpus were one of the main grievances that led to the American Revolution, and the Founding Fathers did not intend to give the president  the power to replicate those abuses anytime he might want.

    I will have more to say about these issues as the AEA litigation continues in this case and in other cases currently before various federal courts. We will likely file an updated version of our amicus brief before the en banc Fifth Circuit.

    Ilya Somin

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  • Will a shutdown finally shrink government?

    This week, editors Peter Suderman, Katherine Mangu-Ward, Nick Gillespie, and Matt Welch discuss whether the impending government shutdown will actually rein in the federal bureaucracy. They consider whether there is anything to gain from a shutdown, how past shutdowns have played out, and whether the risk of growing executive power outweighs the risk of uncontrolled spending.

    They also examine the indictment of former FBI Director James Comey and whether it’s about retribution or substance, President Donald Trump’s deployment of federal troops to Portland, and New York Mayor Eric Adams’ decision to exit the mayoral race. A listener question prompts a conversation about cyclical theories of history and whether frameworks like The Fourth Turning help explain our current moment or merely provide the illusion of clarity.

     

    0:00—Shutdown showdown and shrinking the government

    9:24—Russell Vought and the growth of executive power

    25:34—James Comey faces an indictment

    31:38—Eric Adams drops out of NYC mayoral race

    40:42—Listener question on cyclical frameworks in history

    48:06—Trump sends federal police to Portland

    56:30—Weekly cultural recommendations

     

    “Government Set To Shut Down Tomorrow,” by Liz Wolfe

    “The American New Right Looks Like the European Old Right,” by Jack Nicastro and Phillip W. Magness

    “How GOP Fiscal Sanity Died, in 7 Easy Steps,” by Matt Welch

    “Shutdown Highlights Basic Fact: Most of Government is ‘Non-Essential’,” by Nick Gillespie

    “The Libertarian Case for Postmodernism,” by Nick Gillespie

    “In Trump’s Tussle With James Comey, You Should Hope Everybody Loses,” by J.D. Tuccille

    “Trump’s Public Comments Could Further Complicate the Shaky Case Against James Comey,” by Jacob Sullum

    “Kash Patel Tellingly Ties James Comey’s Indictment to the Legally Unrelated ‘Russiagate Hoax,’” by Jacob Sullum

    “The Deep-State Liars of the #Resistance,” by Matt Welch

    “What Does It Mean for Trump To Designate Antifa a ‘Terrorist Organization’?” by Matthew Petti

    “The Tom Cotton Do-Over,” by Matt Welch

    “The Dream of the ’90s Died in Portland,” by Nancy Rommelmann

    “Assata Shakur Stood With the Oppressors,” by Billy Binion

    r/NYC on Reddit: “Eric Adams wore this custom made robe to a Rosh Hashanah service in Brooklyn yesterday.”

     

    Upcoming Reason Events

    “Is mass immigration good for America?” Join us for a Reason Versus live debate on October 2 in Washington, D.C.

     

     

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    Peter Suderman

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  • Brendan Carr says networks must serve the ‘public interest.’ What does that mean?

    On his ABC late-night show last Monday, Jimmy Kimmel criticized President Donald Trump and his followers for their actions since Charlie Kirk’s murder. Within days, Kimmel’s show was suspended, after Federal Communications Commission (FCC) Chairman Brendan Carr publicly threatened reprisal. (Kimmel’s show is set to return to the air Tuesday.)

    The entire affair was blatantly improper, as a federal official leaned on a private company to censor an employee’s protected speech. Carr, meanwhile, says he’s just pursuing the “public interest.” What does that actually mean? Just about anything a regulator wants, it turns out.

    Unlike other forms of media, radio and network TV stations broadcast over public airwaves, which the FCC polices by issuing broadcast licenses. Federal law authorizes the FCC to ensure licensees serve “the public interest, convenience, and necessity.”

    “Generally, this means [a broadcaster] must air programming that is responsive to the needs and problems of its local community of license,” the FCC claims.

    Carr often cites the “public interest” as his goal for FCC actions. “Broadcast media have had the privilege of using a scarce and valuable public resource—our airwaves. In turn, they are required by law to operate in the public interest,” he wrote in November 2024, the day after Trump announced he would appoint Carr to head the agency. “When the transition is complete, the FCC will enforce this public interest obligation.”

    In his current role, Carr has evoked the “public interest” to justify numerous FCC actions—including investigations of Comcast’s relationship with NBC affiliates and a San Francisco radio station’s coverage of immigration enforcement in San Jose, and accusing NBC of “news distortion” for its coverage of an immigration case.

    “One thing that we’re trying to do is to empower those local stations to serve their own communities,” Carr told conservative podcaster Benny Johnson last week. “And the public interest means you can’t be running a narrow partisan circus and still meeting your public interest obligations.”

    Who’s to say if Carr’s actions are in those local communities’ best interest? Law and judicial precedent actually give him some pretty considerable leeway.

    “Perhaps no single area of communications policy has generated as much scholarly discourse, judicial analysis, and political debate over the course of the last seventy years as has that simple directive to regulate in the ‘public interest,’” Erwin G. Krasnow and Jack N. Goodman wrote in a 1998 article for the Federal Communications Law Journal, a publication of Indiana University’s Maurer School of Law. “If the history of this elusive regulatory standard makes anything clear, it is the fact that just what constitutes service in the ‘public interest’ has encompassed different things at different times.”

    Congress first included the phrase “public interest, convenience, and necessity” in the Radio Act of 1927, but did not define it—leaving it for future regulators to interpret. “Our opinions have repeatedly emphasized that the [FCC]’s judgment regarding how the public interest is best served is entitled to substantial judicial deference,” the U.S. Supreme Court wrote in 1981’s FCC v. WNCN Listeners Guild. Subsequent legislation expanded the government’s regulatory power but largely kept the “public interest” standard intact.

    “Few independent regulatory commissions have had to operate under such a broad grant of power with so few substantive guidelines,” Krasnow and Goodman wrote.

    One would imagine the “public interest” is best served by respecting the First Amendment and defending free speech. “The FCC has long held that ‘the public interest is best served by permitting free expression of views,’” according to the agency’s website. “Rather than suppress speech, communications law and policy seeks to encourage responsive ‘counter-speech’ from others. Following this principle ensures that the most diverse and opposing opinions will be expressed, even though some views or expressions may be highly offensive.”

    But that would directly contradict Carr’s actions: Over the past week, Carr not only pressured a broadcaster to punish one of its hosts over intemperate comments, he gloated over the host’s suspension and pledged daytime chat show The View might be next in his crosshairs.

    The “public interest standard” is in fact “not really a standard because it doesn’t tell you what they can’t do,” Thomas W. Hazlett, an economics professor at Clemson University, tells Reason. “There is some formal structure to the process, but in terms of an actual regulatory standard, it basically means that we’re going to make rules according to what we think is right. And of course, if you want to do things that are different and exercise power in a certain direction, you’ll talk a lot about public interest because it’s a very wide berth for justifying what you’re trying to do. It does dress it up a little bit, that it’s not just politics, it’s bigger than that, but not really: It’s what the five members of the commission vote to do, and that’s the beginning and the end.”

    As Reason‘s Robby Soave noted, one person who understood this was Ayn Rand, who wrote in 1962 that a government-enforced public interest standard was simply a more sophisticated form of censorship, “for stifling the freedom of men’s minds.”

    Joe Lancaster

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  • Trump’s Harmful and Illegal Plan to Gut H-1B Visas by Imposing $100,000 Fees

    The president recently issued an executive “proclamation” imposing a $100,000 fee on applications for H-1B visas. This would effectively end most such visas, which are used by tech firms and research institutions to hire immigrant workers and researchers with a variety of specialized skills. My Cato Institute colleague David Bier, a leading immigration policy expert, has a helpful summary of the policy and the harm it is likely to cause, if not struck down by courts:

    President Trump is imposing a $100,000 fee to obtain an H-1B visa—the primary visa for skilled foreign workers. To be clear, this $100,000 fee is in addition to the salary, lawyer fees, and other costs of hiring an H-1B worker. This fee would effectively end the H-1B visa category by making it prohibitive for most businesses to hire H-1B workers. This would force leading technology companies out of the United States, reduce demand for US workers, reduce innovation, have severe second-order economic effects, and lower the supply of goods and services in everything from IT and education to manufacturing and medicine.

    H-1B visa holders are extremely valuable contributors to research and innovation, and some have gone on to be world-leading scientists and industry leaders, making truly massive advances.

    Defenders of the visa fee argue that, if these workers are so great, then it will be worth it for employers to pay the $100,000 price to get them. But a fee that high likely exceeds the average expected profit from one worker during the time he or she is going to work for the sponsoring employer.  There are individuals who produce much more than that, but such extraordinary success is hard to predict in advance. As I have argued previously, this is one of many reasons to avoid immigration restrictions and other government restrictions on labor mobility. In any large group of new workers, there are likely to be a few extraordinary innovators and entrepreneurs, but government planners cannot identify them in advance, and should not try. “Ordinary” workers are still useful, and the extraordinary minority who go far beyond the ordinary will become evident once given a chance. Keeping them out harms migrants and natives, alike, depriving both groups of the benefits of  scientific and entrepreneurial breakthroughs.

    H-1B workers, it is argued, drive down wages for natives who compete with them. But, by that reasoning, any new entrants into the work force are bad for existing workers. The truth is that benefits to the overall economy and society far outweigh any detriment to direct competitors. We readily see this when it comes to new native workers entering the work force, and the same logic applies here. We should reject the zero-sum game “lump of labor” fallacy that assumes there is a fixed pot of labor opportunities. A dynamic economy helps new and old workers prosper together, bolstered by growth and innovation.  This is why deportations destroy more jobs for US citizens than they create, and the same is likely to be true for keeping out H-1B visa holders.

    As David Bier notes, the new $100,000 fee is likely illegal, because the statutes authorizing H-1B fees only allow for fees to recoup administrative costs and some other types expenses. They certainly don’t authorize anything remotely resembling a $100,000 fee.

    Trump is trying to get around these constraints by relying on  8 U.S.C. Section 1182(f), gives the president the authority to “bar the entry of any aliens or of any class of aliens into the United States” whose admission he finds “would be detrimental to the interests of the United States.” This is the same provision used to impose the anti-Muslim “travel ban” upheld by the Supreme Court in its badly flawed ruling in Trump v. Hawaii (2018).

    But it is far from clear that Section 1182(f) and Trump v. Hawaii give the president a blank check to exclude any potential immigrants for any reasons he wants, or to impose any fees he wants. In 2020, as David Bier also notes, Trump tried to impose a similar ban on new H-1B visas, but a federal district court ruled against the ban. As the court pointed out, ” there must be some measure of constraint on Presidential authority in the domestic
    sphere in order not to render the executive an entirely monarchical power in the immigration context, an area within clear legislative prerogative.”

    The Supreme Court has repeatedly indicated that immigration is an area of legislative power. If so, there must be at least some constraint on how far it can be delegated to the executive.

    In an article published in June, I advocated a nondelegation challenge to Trump’s sweeping new travel ban barring all or most immigration from numerous nations. If Section 1182(f) really does give the president unlimited authority to impose massive fees on visa applications, overriding all other statutes, the same reasoning applies here.

    in the same article, I also responded to arguments that the executive branch has inherent authority to impose immigration restrictions:

    Prominent Founding Fathers such as James Madison and Thomas Jefferson rejected the notion that the federal government possessed any general power to restrict immigration. The Supreme Court only held otherwise in the Chinese Exclusion Case in 1889…. But if this governmental power does indeed exist – as longstanding Supreme Court precedent holds – the most plausible place for it is Congress. In the 1889Chinese Exclusion Case – that upheld the deeply racist Chinese Exclusion Act of 1882 – the Supreme Court stated that the authority belongs to “the legislative department…”

    [A] few academics have argued that immigration power is actually an inherent executive power. Supreme Court Justice Clarence Thomas has suggested the same in a solo opinion joined by any other justice…. But this executive power theory makes little sense. If the president possesses inherent, virtually unlimited power to exclude non-citizens, there would be no need for the many congressional statutes that grant him some degree of authority to do so, going all the way back to the Alien Enemies Act of 1798, a wartime authority that Trump has been (illegally) trying to use to facilitate peacetime deportations without due process.

    Under the inherent executive power theory, all such laws would become superfluous. The president could just exclude any immigrants he wants without any need for legislative authority. Indeed, there would be no need for Section 1182(f), either….

    Since 1889, the Supreme Court has indicated that immigration restriction is a legislative power on several other occasions. For example, in Fiallo v. Bell (1977), the Court noted it “has repeatedly emphasized that over no conceivable subject is the legislative power of Congress more complete than it is over the admission of aliens.”  Such “complete” legislative power is incompatible with giving the executive a blank check to impose fees and restrictions.

    I don’t claim the current H-1B system is ideal. But improving it would make the visas easier to get and more flexible (e.g. – by making it easier for visa holders to switch employers). Trump’s new policy would effectively gut them entirely.

    Ilya Somin

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  • Trump has a habit of asserting broad, unreviewable authority

    In separate attacks this month, the U.S. military blew up two speedboats in the Caribbean Sea, killing 14 alleged drug smugglers. Although those men could have been intercepted and arrested, President Donald Trump said he decided summary execution was appropriate as a deterrent to drug trafficking.

    To justify this unprecedented use of the U.S. military to kill criminal suspects, Trump invoked his “constitutional authority as Commander in Chief and Chief Executive” to protect “national security and foreign policy interests.” That assertion of sweeping presidential power fits an alarming pattern that is also apparent in Trump’s tariffs, his attempt to summarily deport suspected gang members as “alien enemies,” and his planned use of National Guard troops to fight crime in cities across the country.

    Although Trump described the boat attacks as acts of “self-defense,” he did not claim the people whose deaths he ordered were engaged in literal attacks on the United States. His framing instead relied on the dubious proposition that drug smuggling is tantamount to violent aggression.

    While that assumption is consistent with Trump’s often expressed desire to kill drug dealers, it is not consistent with the way drug laws are ordinarily enforced. In the absence of violent resistance, a police officer who decided to shoot a drug suspect dead rather than take him into custody would be guilty of murder.

    That seems like an accurate description of the attacks that Trump ordered. Yet he maintains that his constitutional license to kill, which apparently extends to civilians he views as threats to U.S. “national security and foreign policy interests,” transforms murder into self-defense.

    Trump has asserted similarly broad authority to impose stiff, ever-changing tariffs on goods imported from scores of countries. Last month, the U.S. Court of Appeals for the Federal Circuit rejected that audacious power grab, saying it was inconsistent with the 1977 statute on which Trump relied.

    The Federal Circuit said the International Emergency Economic Powers Act (IEEPA), which does not mention import taxes at all and had never before been used to impose them, does not give the president “unlimited authority” to “revise the tariff schedule” approved by Congress. The appeals court added that “the Government’s understanding of the scope of authority granted by IEEPA would render it an unconstitutional delegation.”

    Trump’s invocation of the Alien Enemies Act (AEA) against alleged members of the Venezuelan gang Tren de Aragua has also run into legal trouble. This month, the U.S. Court of Appeals for the 5th Circuit concluded that Trump had erroneously relied on a nonexistent “invasion or predatory incursion” to justify his use of that 1798 statute.

    Trump argued that the courts had no business deciding whether he had complied with the law. “The president’s determination that the factual prerequisites of the AEA have been met is not subject to judicial review,” Deputy Assistant Attorney General Drew Ensign told the 5th Circuit.

    Trump took a similar position in the tariff case. As an opposing lawyer noted, it amounted to the claim that “the president can do whatever he wants, whenever he wants, for as long as he wants, so long as he declares an emergency.”

    Trump also thinks his presidential powers include a mandate to protect public safety by deploying the National Guard, with or without the approval of state or local officials. In pursuing that plan, he claimed at a Cabinet meeting last month, he has “the right to do anything I want to do,” because “I’m the president of the United States.”

    As Trump sees it, that means “if I think our country is in danger—and it is in danger in these cities—I can do it.” In effect, Trump is asserting the sort of broad police power that the Constitution reserves to the states.

    If Trump’s crime-fighting plan provokes legal challenges, he is apt to argue that his authority is not only vast but unreviewable. That dangerous combination is emerging as a hallmark of his administration.

    © Copyright 2025 by Creators Syndicate Inc.

    Jacob Sullum

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  • Trump’s Unjust and Illegal Killing of 11 Venezuelans

    A General Atomics MQ-9 Reaper drone practices landings at March Air Reserve Base on Thursday, Aug 17, 2023 in Moreno Valley, Calif.
    A General Atomics MQ-9 Reaper practices landings at March Air Reserve Base on Thursday, Aug 17, 2023 in Moreno Valley, Calif. (Dylan Stewart/AP/Newscom)

     

    On September 2, at President Trump’s order, US military forces used a drone strike to kill 11 Venezuelans on a small boat in the Caribbean Sea. The claimed justification for this action is that the people on the boat were drug traffickers. Even if that claim is true, the killings were unjust and illegal.

    In my view, the entire War on Drugs is fundamentally unjust. It kills and imprisons many thousands of people every year, for no good reason, and in the process stimulates the growth of organized crime and associated violence. It has also severely undermined the Constitution.  Under the principle of “my body, my choice,” the government should not be in the business of deciding what drugs adults, at least, are allowed to consume.  And the way to get rid of drug gangs like Venezuela’s Tren de Aragua (TdA) is to end it, just as ending the similarly unjust Prohibition regime was what largely put paid to the organized crime involved in the alcohol trade then. But even if we assume the War on Drugs has some justification, it is a matter of ordinary law enforcement and doesn’t justify gratuitously killing people without due process.

    US officials admit they could have interdicted the boat and detained the people on board. They did not pose any imminent threat of violence, and they were not combatants in any war against the US. Calling them “narco-terrorists” does not change these obvious facts.

    In addition, it is not even clear these people were drug traffickers at all (they might have been migrants fleeing Venezuela’s horrible socialist dictatorship). If they were shipping drugs, it is not clear they were going to the US, as opposed to Trinidad and Tobago (which was much closer to their location) or somewhere else. It is not illegal for people on a ship in international waters to transport drugs that are banned in the United States. US law only applies, if at all, if they were planning bring their cargo into US territorial waters.

    As GOP Senator Rand Paul put it, “The reason we have trials and we don’t automatically assume guilt is what if we make a mistake and they happen to be people fleeing the Venezuelan dictator? … off our coast it isn’t our policy just to blow people up … even the worst people in our country, they still get a trial.” He’s right.

    I won’t go through the legal issues in detail here, because national security law expert Brian Finucane has already done so in a thorough Just Security article. The bottom line is that these were illegal, extrajudicial killings.

    I would call it a war crime, except that there is no war here, despite Trump’s (also illegal) efforts to use TdA’s activities to invoke the Alien Enemies Act against Venezuelan migrants. So really it’s just an old-fashioned regular crime. Perhaps the president has immunity for his part in it under the Supreme Court’s dubious immunity ruling in Trump v. United States (which is far from a model of clarity). But if so that just means he can’t be prosecuted. It does not not make his actions either legal or right.

    I have previously warned against Republicans’ dangerous plans to try to turn the War on Drugs into a real war, thereby making an already awful policy much worse (though at that time they seemed more focused on Mexico than Venezuela). We shall have to see if this strike is just the first of a series of similarly terrible actions; administration officials say it may be.

    Back in 2013, I testified before a Senate subcommittee on President Obama’s use of targeted drone strikes in the War on Terror. Ironically (in light of recent events), I was called as a witness by Republicans who worried that Obama was going too far; some Democrats on the committee also had concerns. I argued that targeted killing of Al Qaeda terrorist leaders was legal and justified (citing precedents like the targeted killing of Admiral Yamamoto and SS General Reinhard Heydrich during World War II) but also that there should be somewhat greater due process to prevent inadvertent targeting of the innocent. See my testimony here.

    I have not kept up with this issue in detail since then, instead focusing my writings on other matters). But the concerns I and others expressed at that time apply with much greater force to targeting alleged drug smugglers. And unlike Heydrich, Yamamoto, and Al Qaeda leaders, suspected drug traffickers are simply not proper military targets, except perhaps in rare situations where they are themselves about to launch an attack.

    Perhaps, though I am skeptical, evidence will emerge to prove that the people killed in the strike were planning a dangerous terrorist attack, or the like. Otherwise, the president committed an utterly indefensible and criminal act here.

    Ilya Somin

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  • How Many Court Cases Can Trump Lose in a Single Week?

    Is Donald Trump tired yet of all the losing? During the past week alone, federal judges across the country have rejected some of the most important and far-reaching of Trump’s initiatives—from his efforts to reshape the global economy with tariffs and mobilize the military to act as police in American cities to his refusal to spend billions of dollars in congressionally appropriated funds. The President continues to cite nonexistent emergencies to justify his executive overreach and judges continue to call him out on it, issuing stern rebukes in the tradition of Judge Beryl Howell, who, during a case this spring about the firings of civil servants, observed that “an American President is not a king—not even an ‘elected’ one.”

    I’m not sure that this week’s epic losing streak has received the attention that it deserves, no doubt in part because America had other things to worry about, such as whether Trump was actually alive, despite all the internet rumors. It speaks to the present moment that the President is not only very much still with us but has already started fund-raising off the social-media frenzy surrounding his supposed death over Labor Day weekend. (“These rumors are just another desperate attack from the failing left who can’t stand that we’re WINNING and bigly!” the e-mail pitch that arrived in my inbox on Thursday morning said.) But what does it say about the state of things that disputing rumors of his death turns out to be a welcome distraction from underlying political realities for Trump?

    In fact, the President enters the first fall of his second term in office with historically low approval ratings—the only President with worse marks at this point was Trump himself, in his first term—and a radically disruptive agenda whose fate has yet to be determined. I am well aware that this is not currently the dominant narrative about Trump 2.0, which, whether you like it or hate it, has generally been covered as a sweeping and surprisingly successful attack on pillars of the American establishment in and out of government. But, depending on how the next few months play out, it could be. And that’s the point: What’s clear from Trump’s first seven months back in power is that he has embarked on a breathtaking effort to reshape the American Presidency. What’s far from apparent yet is whether and to what extent he will succeed.

    The latest string of defeats began last Friday, when the U.S. Court of Appeals for the Federal Circuit ruled that Trump’s so-called reciprocal tariffs imposing double-digit duties on key trading partners such as Canada, China, and the European Union were illegal. Over the holiday weekend, a federal district judge intervened to stop migrant children from being deported to Guatemala while some of them were already loaded on planes. On Tuesday, the U.S. Court of Appeals for the D.C. Circuit reinstated a Federal Trade Commissioner, saying that Trump did not have the power that he claimed to fire her. Also that day, another federal judge ruled that, in sending hundreds of National Guard personnel to Los Angeles amid protests of Trump’s immigration crackdown, the President had violated a nineteenth-century law prohibiting the use of troops for domestic law-enforcement purposes. On Wednesday, yet another judge, in Boston, rejected billions of dollars in cuts to research funding for Harvard University, part of a broad war on liberal academia that Trump has made an unlikely centerpiece of his second term. And late on Wednesday night, a federal judge in Washington blocked billions of dollars in Trump-ordered cuts to foreign aid, saying that he was usurping Congress’s power of the purse in refusing to spend the money. This, I should add, is an incomplete list. If nothing else, it shows the extraordinary scope and scale of the battles that Trump has chosen to pursue—suggesting not so much a strategic view of the Presidency as an everything-everywhere-all-at-once vision of unchecked Presidential power.

    Important caveats apply, of course, most notably that all these rebuffs to Trump can and may well be overturned on appeal; September’s losing streak could soon enough become next spring’s winning streak, especially with a Trumpified Supreme Court, which, in the first few months after Trump’s return, failed to check many of Trump’s initial excesses, almost certainly emboldening him to push further and faster in applying his favored constitutional theory, what one might call the “I can do anything I want to do” doctrine. Already this week, Trump has appealed the tariff ruling to the Supreme Court, asking for an expedited review in a case that will test not only the legality of his favorite economic tool but his broad assertions of emergency authority to override constitutional constraints. In the foreign-aid case, U.S. District Judge Amir Ali made clear that his word would hardly be the last on the matter, anticipating “definitive higher court guidance” given the “immense legal and practical importance” surrounding the question of whether a President can simply decide to flout Congress’s appropriations bills.

    There’s also the matter of the damage that Trump has already wrought, even if he were to ultimately lose some or even all of these cases—unspent aid that could have saved lives, families divided by harsh immigration policies, companies whose supply chains have been broken or disrupted by a single man’s peremptory demands. So let’s stipulate that winning by losing might be a fine outcome as far as Trump is concerned; when smashing stuff is the goal, the more that’s smashed, the better, whether the judges ultimately agree or not.

    Susan B. Glasser

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  • Fifth Circuit Rules Trump’s Use of Alien Enemies Act is Illegal

    A prison guard transfers Alien Enemies Act deportees from the U.S., alleged to be Venezuelan gang members, to the Terrorism Confinement Center in Tecoluca, El Salvador. Mar. 16, 2025 (El Salvador Presidential Press Office)

     

    Yesterday, in W.M.M. v. Trump, the US Court of Appeals for the Fifth Circuit ruled that President Trump’s invocation of the Alien Enemies Act of 1798 as a tool to deport Venezuelans is illegal. While multiple federal district courts have issued similar rulings, as have individual concurring opinions by judges on two other circuit courts, this is the first full-blown appellate court decision on the subject. It is therefore an important precedent. There is a lengthy 130 page dissenting opinion by Judge Andrew Oldham. But it’s serious flaws merely confirm the weaknesses of the government’s position.

    The AEA allows detention and deportation of foreign citizens of relevant states (including legal immigrants, as well as illegal ones) “[w]henever there is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government.” Trump has tried to use the AEA to deport Venezuelan migrants the administration claims are members of the Tren de Aragua drug gang.

    The Fifth Circuit majority opinion by Judge Leslie Southwick (a Republican George W. Bush appointee) holds that TdA’s activities – drug smuggling, illegal migration, and related crimes – don’t qualify as an “invasion” or a “predatory” incursion and therefore the AEA cannot be used here. Everyone agrees there is no declared war.

    On the definition of “invasion,” Judge Southwick concludes, after a review of the evidence:

    Congress’s use of the word in the AEA is consistent with the use in the Constitution, that “invasion” is a term about war in the traditional sense and requires military action by a foreign nation. Petitioners have the sense of the distinctions in saying that responding to another country’s invasion is defensive; declaring war is an offensive, assertive action by Congress; and predatory incursion is for lesser conflicts. Of course, after this country has been attacked by an enemy with invading forces, Congress might then declare a war. That occurred in World War II after the attack on Pearl Harbor. Still, when the invasion precedes a declaration, the AEA applies when the invasion occurs or is attempted. Therefore, we define an invasion for purposes of the AEA as an act of war involving the entry into this country by a military force of or at least directed by another country or nation, with a hostile intent.

    Every other court to have ruled on the definition of “invasion” has reached similar conclusions, and I argue for that conclusion in the amicus brief I coauthored in W.M.M. on behalf of the Brennan Center, the Cato Institute, and others.

    Here is the Fifth Circuit on the definition of “predatory incursion”:

    These different sources of contemporary meaning that we have identified from dictionaries, the writings of those from the time period of the enactment, and from the different requirements of the Alien Enemies Act and the Alien Friends Act, convince us that a “predatory incursion” described armed forces of some size and cohesion, engaged in something less than an invasion, whose objectives could vary widely, and are directed by a foreign government or nation. The success of an incursion could transform it into an invasion. In fact, it would be hard to distinguish some attempted invasions from a predatory incursion.

    This too is similar to previous court decisions, and to the approach outlined in our amicus brief, which explains that a “predatory incursion” is a smaller-scale act of war. The one exception is a district court opinion that adopted an extremely broad definition of “predatory incursion,” which I critiqued here.

    The majority also persuasively argues that the definitions of “invasion,” “predatory incursion” and other statutory terms are not unreviewable issues  simply left to executive discretion.

    The majority does, however, rule that courts must, to a degree, defer to presidential fact-finding regarding whether an “invasion” or a “predatory incursion” is occurring. It concludes, here, that the facts alleged in the President’s Proclamation do not meet the requirements of the correct definition of that term. This may leave open the possibility that the president could simply legalize the AEA by claiming the existence of different (more egregious) “facts,” even if the claims are patently false. I have criticized excessive deference on such factual issues in this recent article, and in the amicus brief. Deference on factual questions should not allow the president to invoke extraordinary emergency powers merely by mouthing some words and making bogus, unsubstantiated claims.

    That said, the majority does suggest that factual deference must be limited:

    The Supreme Court’s recent J.G.G. opinion shows Ludecke is to be understood as requiring courts to interpret the AEA after the President has invoked it…. Interpretation
    cannot be just an academic exercise, i.e., a court makes the effort to define a term like “invasion” but then cannot evaluate the facts before it for their fit with the interpretation. Thus, interpretation of the AEA allows a court to determine whether a declaration of war by Congress remains in effect, or whether an invasion or a predatory incursion has occurred. In other words, those questions are justiciable, and the executive’s determination that certain facts constitute one or more of those events is not conclusive. The Supreme Court informs us that we are to interpret, and we do not create special rules for the AEA but simply use traditional statutory interpretive tools.

    If courts must “use traditional… interpretive tools” and “determine… whether an invasion or a predatory incursion has occurred,” they cannot simply blindly acquiesce to whatever factual claims the government might make, no matter how specious. Otherwise, interpretation will indeed become “just an academic exercise.”

    Prominent conservative Judge Andrew Oldham wrote a lengthy 130 page dissent. He’s undoubtedly a highly capable jurist. But his herculean efforts here just underscore the radical and dangerous nature of the government’s position.

    Surprisingly, Judge Oldham doesn’t seriously dispute the definitions of “invasion” and “predatory incursion.” He just argues that these issues are left to the completely unreviewable discretion of the executive. If that’s true, the president could use the AEA to detain or deport virtually any noncitizens he wants, at any time, for any reason, so long as he proclaims there is an “invasion” or “predatory incursion,” regardless of whether anything even remotely resembling these things is actually happening. A power that is supposed to be used only in the event of a dire threat to national security would become a routine tool that can be deployed at the president’s whim.

    And, under Judge Oldham’s analysis, the president also could deport and detain these people with little, if any, due process. He contends the government has no obligation to prove that the people detained are actually TdA members. And in fact there is no evidence that most of those deported under the AEA are members of the gang or have committed any crimes at all.  Thus, Judge Oldham is essentially claiming the AEA gives the president unlimited, unreviewable power to detain and deport non-citizens – including legal migrants – whenever he wants (again, so long as he proclaims the right words).

    Nothing in the text or history of the AEA even approaches this. Instead the text says that the AEA can only be used when a war, invasion, predatory incursion or threat thereof, exists, not merely when the president says so.

    Oldham argues in detail that various precedents require the latter outcome. But, as the majority notes, those precedents – including the Supreme Court’s recent decision in J.G.G. specifically indicate that there is room for judicial review. Moreover, if the AEA really did grant the president such unlimited power, one would have expected contemporaries in 1798 to point that out and object on constitutional grounds, as they did in the case of the contemporaneous Alien Friends Act, which really did give the president sweeping deportation and detention powers, even in peacetime, and which was duly denounced as unconstitutional by James Madison and Thomas Jefferson, among others. The Alien Enemies Act, by contrast, was far less controversial, precisely because it was understood to be limited to genuine wartime situations, not anything the president might speciously label as such.

    Moreover, under Suspension Clause of the Constitution, in the event of an “invasion,” the federal government can suspend the writ of habeas corpus, and thereby detain people – including US citizens – without any due process. There is no way the Founders understood themselves to have given the president unreviewable authority to trigger that power anytime he wants.

    I won’t try to go through all of Judge Oldham’s analysis of precedent here. But I will give one example of how problematic it is. The judge argues that Supreme Court’s 1862 decision in The Prize Cases gives the president unreviewable authority to determine there is a war going on, and exercise war powers accordingly. The majority opinion in that case does no such thing. Rather, it emphasized the fact that then-ongoing Civil War was a conflict “which all the world acknowledges to be the greatest civil war known in the history of the human race.” Thus, President Lincoln’s power to establish a blockade in response could not be negated by “by subtle definitions and ingenious sophisms.”

    The Court then went on to make the point cited by Oldham:

    Whether the President, in fulfilling his duties as Commander-in-chief in suppressing an insurrection, has met with such armed hostile resistance and a civil war of such alarming proportions as will compel him to accord to them the character of belligerents is a question to be decided by him, and this Court must be governed by the decisions and acts of the political department of the Government to which this power was entrusted. “He must determine what degree of force the crisis demands.” The proclamation of blockade is itself official and conclusive evidence to the Court that a state of war existed which demanded and authorized a recourse to such a measure under the circumstances peculiar to the case.

    But notice the president only gets deference on the question of whether the “insurrection” he is “fulfilling his duties” by combatting is one of “such alarming proportions” as to justify a wartime blockade. He does not get deference on the question of whether an insurrection exists in the first place (in that case, as the Court noted, it obviously did). Had Lincoln instead imposed a blockade to prevent, say, illegal smuggling of contraband goods  and then claimed smuggling qualifies as war, he would not get the same deference.

    Judge Oldham’s reliance on other precedents has similar flaws. Nearly all of them also arose from genuinely massive wars, not attempts to pass off drug smuggling or other similar activity as an “invasion.” Oldham complains that “[f]or over 200 years, courts have recognized that the AEA vests sweeping discretionary powers in the Executive,” and that “until President Trump took office a second time, courts had never countermanded the President’s determination that an invasion, or other similar hostile activity, was threatened or ongoing.” But the AEA has previously only been invoked in connection with three indisputable international conflicts: the War of 1812, World War I, and World War II. You don’t have to be an expert to see the difference between these conflicts and the activities of a drug gang.

    The majority, the concurring opinion by Judge Ramirez, and the dissent also address a number of other issues, particularly various procedural questions. I will pass over them for now, as this post is already long.

    The Trump administration may well appeal this case to the Supreme Court. If the Court takes it, I hope they, too, will recognize that the AEA doesn’t give the president a blank check to wield sweeping extraordinary power whenever he wants.

    In the meantime, litigation over this issue continues in various federal courts around the country.

     

    Ilya Somin

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  • The rationale for the federal circuit’s ‘radical left’ tariff decision is fundamentally conservative

    After the U.S. Court of Appeals for the Federal Circuit ruled against his tariffs last week, President Donald Trump repeatedly condemned the decision, which he preposterously warned will ruin the country unless it is overturned by the Supreme Court. “It would be a total disaster for the Country,” Trump wrote in a Truth Social post on Friday. “If allowed to stand, this Decision would literally destroy the United States of America.” He reiterated that claim on Sunday: “Our Country would be completely destroyed, and our military power would be instantly obliterated,” he said, adding that “we would become a Third World Nation, with no hope of GREATNESS again.”

    Trump’s prophecies of doom were not the only implausible aspect of his comments. He described the appeals court as “Highly Partisan,” implying that its reasoning was driven by political affiliation, and said the majority was “a Radical Left group of judges,” implying that the result was dictated by ideology rather than a careful consideration of the facts and the law. Trump reflexively criticizes judges who rule against him in language like this, to the point that he has stripped ideological labels of all meaning. In this case, his complaints are especially hard to take seriously.

    The Federal Circuit’s tariff decision addressed two lawsuits, one brought by several businesses and one filed by a dozen states. Both sets of plaintiffs argued that Trump exceeded his statutory authority when he relied on the International Emergency Economic Powers Act (IEEPA) to impose stiff taxes on imports from scores of countries.

    Seven members of the 11-judge panel agreed. And while it is true that six of those judges were appointed by Democratic presidents (Bill Clinton, Barack Obama, and Joe Biden), the majority also included Alan D. Lourie, who was nominated by George H.W. Bush in 1990. Notably, Lourie was also one of four judges who went further than the majority, arguing that IEEPA “does not authorize the President to impose any tariffs” (emphasis added).

    Four judges dissented, saying the plaintiffs “have not justified summary judgment in their favor on either statutory or constitutional grounds.” Two of the dissenters were appointed by George W. Bush, and two were appointed by Obama.

    These breakdowns do not support Trump’s contention that the judges chose sides based on partisan considerations, as opposed to an honest assessment of the statutory and constitutional issues. That explanation looks even less plausible as applied to the May 28 Court of International Trade (CIT) decision that the Federal Circuit reviewed. Three CIT judges, including one nominated by Ronald Reagan and one nominated by Trump himself, unanimously concluded that the president’s tariffs were not authorized by IEEPA.

    When you consider the reasoning underlying these decisions, the claim that they can be explained only by anti-Trump animus or allegiance to a “Radical Left” ideology looks even sillier. Both courts noted that Trump’s use of IEEPA, which does not mention tariffs at all, was unprecedented and involved an assertion of authority that implicated the “major questions” doctrine, which aims to uphold the separation of powers.

    According to the Supreme Court, that doctrine applies when the executive branch asserts powers of vast “economic and political significance.” In such cases, “the Government must point to ‘clear congressional authorization’ for that asserted power,” the Federal Circuit noted. “The tariffs at issue in this case implicate the concerns animating the major questions doctrine as they are both ‘unheralded’ and ‘transformative.’” The Supreme Court “has explained that where the Government has ‘never previously claimed powers of this magnitude,’ the major questions doctrine may be implicated.”

    Trump claimed to have discovered a heretofore unnoticed delegation of unlimited tariff authority in a statute that is nearly half a century old. That claim, the Federal Circuit concluded, “runs afoul of the major questions doctrine.”

    Far from the invention of “Radical Left” judges, the major questions doctrine stems from a series of Supreme Court decisions spearheaded by conservative justices. The late Antonin Scalia, whom Trump has described as the very model of a “great” jurist, explained the rationale for the doctrine this way in the 2001 case Whitman v. American Trucking Associations: “Congress, we have held, does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions—it does not, one might say, hide elephants in mouseholes.”

    The Supreme Court has applied that logic in several decisions rejecting assertions of agency authority, including the Food and Drug Administration’s attempt to regulate tobacco products without explicit congressional authorization, the national eviction moratorium imposed by the Centers for Disease Control and Prevention in response to the COVID-19 pandemic, the COVID-19 vaccine mandate that the Occupational Safety and Health Administration tried to impose on employers in 2021, and the Biden administration’s student debt relief plan. Whatever you might think of those decisions, they are hardly evidence of a “Radical Left” mindset.

    As in those cases, the central question in the tariff case was whether Congress had actually delegated the broad powers claimed by the executive branch. Another issue was whether Congress could, consistent with the Constitution’s separation of powers, delegate such authority. In addition to concluding that IEEPA did not authorize Trump’s tariffs, the Federal Circuit noted that “the Government’s understanding of the scope of authority granted by IEEPA would render it an unconstitutional delegation.”

    The rationale for that ruling is not, by any stretch of the imagination, the product of “Radical Left” thinking. It is conservative in the best sense, aiming to preserve the structure of government established by the Constitution.

    Jacob Sullum

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  • The federal circuit’s tariff ruling highlights the audacity of Trump’s power grab

    In ruling against the sweeping tariffs that President Donald Trump purported to impose under the International Emergency Economic Powers Act (IEEPA), the U.S. Court of Appeals for the Federal Circuit did not settle the question of whether that law authorizes import taxes. Nor did it uphold the injunction that the Court of International Trade (CIT) issued against the tariffs on May 28. But the Federal Circuit agreed with the CIT that the tariffs are unlawful, and its reasoning highlights the audacity of Trump’s claim that IEEPA empowers him to completely rewrite tariff schedules approved by Congress.

    The decision addresses two challenges to Trump’s tariffs, one brought by several businesses and one filed by a dozen states. Both sets of plaintiffs argued that Trump had illegally seized powers that belong to Congress.

    The Constitution gives Congress, not the president, the power to “lay and collect taxes, duties, imposts and excises.” And although Congress has delegated that authority to the president in “numerous statutes,” the Federal Circuit notes in an unsigned opinion joined by seven members of an 11-judge panel, it has always “used clear and precise terms” to do so, “reciting the term ‘duties’ or one of its synonyms.” Furthermore, Congress always has imposed “well-defined procedural and substantive limitations” on the president’s tariff powers.

    IEEPA, by contrast, “neither mentions tariffs (or any of its synonyms) nor has procedural safeguards that contain clear limits on the President’s power to impose tariffs.” Yet under Trump’s reading of the statute, it empowers him to impose any tariffs he wants against any country he chooses for as long as he deems appropriate, provided he perceives an “unusual and extraordinary threat” that constitutes a “national emergency” and avers that the import taxes will “deal with” that threat.

    To justify his tariffs, Trump declared two supposed emergencies, one involving international drug smuggling and the other involving the U.S. trade deficit. The former “emergency,” he said, justified punitive tariffs on goods from Mexico, Canada, and China, with the aim of encouraging greater cooperation in the war on drugs. The latter “emergency,” he claimed, justified hefty, ever-shifting taxes on imports from dozens of countries, which he implausibly described as “reciprocal.”

    Leaving aside the question of whether it makes sense to characterize drug trafficking and trade imbalances, both of which are longstanding phenomena, as “unusual and extraordinary” threats, Trump’s attempted power grab is striking even for him. “Since IEEPA was promulgated almost fifty years ago, past presidents have invoked IEEPA frequently,” the Federal Circuit notes. “But not once before has a President asserted his authority under IEEPA to impose tariffs on imports or adjust the rates thereof. Rather, presidents have typically invoked IEEPA to restrict financial transactions with specific countries or entities that the President has determined pose an acute threat to the country’s interests.”

    Trump claims to have discovered a heretofore unnoticed tariff power in an IEEPA provision that authorizes the president to “regulate…importation.” And that power, he avers, is not subject to any “procedural and substantive limitations” except for the pro forma requirement that he declare a national emergency based on a foreign threat. As the Federal Circuit dryly observes, “it seems unlikely that Congress intended, in enacting IEEPA, to depart from its past practice and grant the President unlimited authority to impose tariffs.”

    Trump’s assertion of that authority “runs afoul of the major questions doctrine,” the Federal Circuit says. According to the Supreme Court, that doctrine applies when the executive branch asserts powers of vast “economic and political significance.” In such cases, “the Government must point to ‘clear congressional authorization’ for that asserted power,” the appeals court notes. “The tariffs at issue in this case implicate the concerns animating the major questions doctrine as they are both ‘unheralded’ and ‘transformative.’” The Supreme Court “has explained that where the Government has ‘never previously claimed powers of this magnitude,’ the major questions doctrine may be implicated.”

    The Federal Circuit was unimpressed by the government’s citation of United States v. Yoshida International, a 1975 case in which the now-defunct Court of Customs and Patent Appeals approved a 10 percent import surcharge that President Richard Nixon had briefly imposed in 1971 under the Trading With the Enemy Act (TWEA). Although Nixon relied on a different statute, the government’s lawyers noted, the court concluded that the phrase “regulate importation” in TWEA encompassed tariffs.

    Even assuming that conclusion was correct, the Federal Circuit says, Yoshida “does not hold that TWEA created unlimited authority in the President to revise the tariff schedule, but only the limited temporary authority to impose tariffs that would not exceed the Congressionally approved tariff rates.” Trump, by contrast, claims IEEPA gives him carte blanche to set tariffs, regardless of what Congress has said.

    “The Government’s expansive interpretation of ‘regulate’ is not supported by the plain text of IEEPA,” the Federal Circuit says. “The Government’s reliance on the ratification of our predecessor court’s opinion in [Yoshida] does not overcome this plain meaning.” The appeals court adds that “the Government’s understanding of the scope of authority granted by IEEPA would render it an unconstitutional delegation.”

    Four judges agreed with the majority that IEEPA “does not grant the President authority to impose the type of tariffs imposed by the Executive Orders.” But they went further in a separate opinion, arguing that the statute does not authorize the president to impose any tariffs at all.

    As Reason‘s Eric Boehm notes, the appeals court nevertheless vacated the CIT’s injunction and remanded the case for further consideration in light of the Supreme Court’s June 27 decision in Trump v. CASA. In that June 27 ruling, the Court questioned universal injunctions that judges had issued in two birthright citizenship cases “to the extent that the injunctions are broader than necessary to provide complete relief to each plaintiff with standing to sue.”

    Although the Supreme Court “held that the universal injunctions at issue ‘likely exceed the equitable authority Congress has granted to federal courts,’” the Federal Circuit notes, “it ‘decline[d] to take up…in the first instance’ arguments as to the permissible scope of injunctive relief. Instead, it instructed ‘[t]he lower courts [to] move expeditiously to ensure that, with respect to each plaintiff, the injunctions comport with this rule and otherwise comply with principles of equity’ as outlined in the opinion. We will follow this same practice.”

    On remand, the Federal Circuit says, “the CIT should consider in the first instance whether its grant of a universal injunction comports with the standards outlined by the Supreme Court in CASA.” The CIT, in other words, is tasked with deciding what sort of order is appropriate to grant the plaintiffs “complete relief.” Alternatively, as Boehm suggests, Congress could intervene by asserting the tariff authority that Trump is trying to usurp.

    Jacob Sullum

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  • Federal Circuit Rules Against Trump’s Massive IEEPA Tariffs in Our Case Challenging Them

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    Today the US Court of Appeals for the Federal Circuit ruled against President Trump’s massive “Liberation Day” tariffs in VOS Selections v. Trump, a case filed by Liberty Justice Center and myself on behalf of five small US businesses (we have since been joined by prominent Supreme Court litigators Michael McConnell and Neal Katyal; Neal skillfully conducted the oral argument before the Federal Circuit). The ruling also covers the case filed by twelve states led by Oregon; they prevailed, as well. On these points, a 7-4 majority of the en banc Federal Circuit affirmed the earlier trial court decision issued by the Court of International Trade. The court also remanded the issue of how broad the injunction against the tariffs should be to the Court of International Trade. That litigation is, however, postponed until October 14, to give the government a chance to ask the Supreme Court to review the case.

    The majority concluded that the tariffs in question are not authorized by the International Emergency Economic Powers Act of 1977  (IEEPA), and that the major questions doctrine precludes interpreting IEEPA to give the president the virtually unlimited tariff authority he claims.

    The majority, concurring and dissenting opinions, are 127 pages long, and I will not attempt to cover everything in them here. I will merely highlight some key points.

    Here is an excerpt from the per curiam majority decision (issued in the name of all seven majority judges), explaining why IEEPA doesn’t authorize the tariffs imposed by the president:

    [I]n each statute delegating tariff power to the President, Congress has provided specific substantive limitations and procedural guidelines to be followed in imposing any such tariffs. It seems unlikely that Congress intended, in enacting IEEPA, to depart from its past practice and grant the President unlimited authority to impose tariffs. The statute neither mentions tariffs (or any of its synonyms) nor has procedural safeguards that contain clear limits on the President’s power to impose tariffs….

    [W]henever Congress intends to delegate to the President the authority to impose tariffs, it does so explicitly, either by using unequivocal terms like tariff and duty, or via an overall structure which makes clear that Congress is referring to tariffs. This is no surprise, as the core Congressional power to impose taxes such as tariffs is vested exclusively in the legislative branch by the Constitution; when Congress delegates this power in the first instance, it does so clearly and unambiguously…

    Contrary to the Government’s assertion, the mere authorization to “regulate” does not in and of itself imply the authority to impose tariffs. The power to “regulate” has long been understood to be distinct from the power to “tax.” In fact, the Constitution vests these authorities in Congress separately. U.S. Const. art. I, § 8 cl. 1, 3; see also Gibbons v. Ogden, 22 U.S. 1, 201 (1824) (“It is, that all duties, imposts, and excises, shall be uniform. In a separate clause of the enumeration, the power to regulate commerce is
    given, as being entirely distinct from the right to levy taxes and imposts, and as being a new power, not before conferred. The constitution, then, considers these powers as
    substantive, and distinct from each other.”); Nat’l Fed’n. of Indep. Bus. v. Sebelius, 567 U.S. 519, 552, 567 (2012) (holding that the individual mandate provision of the Patient
    Protection and Affordable Care Act was a permissible exercise of Congress’s taxing power but exceeded Congress’s power to regulate commerce). While Congress may use its taxing power in a manner that has a regulatory effect,… the power to tax is not always incident to the power to regulate…

    Upon declaring an emergency under IEEPA, a President may, in relevant part, “investigate, block during the pendency of an investigation, regulate, direct and compel, nullify, void, prevent or prohibit” the “importation or exportation of . . . any property in which any foreign country or a national thereof has any interest.” 50 U.S.C. § 1702(a)(1)(B). “Regulate” must be read in the context of these other verbs, none of which involve monetary actions or suggest the power to tax or impose tariffs…

    The majority also emphasized that the government’s claim to unlimited tariff authority goes against the major questions doctrine:

    The Government’s interpretation of IEEPA as providing the President power to impose unlimited tariffs also runs afoul of the major questions doctrine. See, e.g., Oral Arg.16at 19:28–19:39 (the Government stating “there is no limit on the cap of the tariff in IEEPA itself”). The Supreme Court has explained that the doctrine applies in “cases in
    which the ‘history and the breadth of the authority . . . asserted’” by the Government entails vast “economic and political significance.”West Virginia v. EPA, 597 U.S. 697,
    721 (2022)…. In such cases, there may be a “‘reason to hesitate before concluding that Congress’ meant to confer such authority.” Id…. When the major questions doctrine is
    implicated, the Government must point to “clear congressional authorization” for that asserted power. Id. at 732….

    The tariffs at issue in this case implicate the concerns animating the major questions doctrine as they are both “unheralded” and “transformative.” Id. at 722, 724; see also
    id. at 725 (“[J]ust as established practice may shed light on the extent of power conveyed by general statutory language, so the want of assertion of power by those who presumably would be alert to exercise it, is equally significant in determining whether such power was actually conferred.)” ….

    Since IEEPA was promulgated almost fifty years ago, past presidents have invoked IEEPA frequently. But not once before has a President asserted his authority under IEEPA to impose tariffs on imports or adjust the rates thereof. Rather, presidents have typically invoked IEEPA to restrict financial transactions with specific countries or entities that the President has determined pose an acute threat to the country’s interests….

    Additionally,…  tariffs are a core Congressional power. The “basic and consequential
    tradeoffs” that are inherent in the President’s decision to mpose the Trafficking and Reciprocal Tariffs “are ones that Congress would likely have intended for itself.” Ne-
    braska, 600 U.S. at 506 (quoting West Virginia, 597 U.S. at 730). Moreover, the United States imports more than $4 trillion of goods annually; these imports account for
    14 percent of the nation’s economy. J.A. 215. The Government itself has claimed that the Reciprocal Tariffs will “generate between $2.3 trillion and $3.3 trillion over the
    budget window….” The Executive’s use of tariffs qualifies as a decision of vast economic and political significance, so the Government must “point to clear
    congressional authorization” for its interpretation of IEEPA. West Virginia, 597 U.S. at 723…

    For the reasons discussed above, we discern no clear congressional authorization by IEEPA for tariffs of the magnitude of the Reciprocal Tariffs and Trafficking Tariffs.
    Reading the phrase “regulate . . . importation” to include imposing these tariffs is “a wafer-thin reed on which to rest such sweeping power.” Ala. Ass’n of Realtors v. Dep’t of Health & Hum. Servs., 594 U.S. 758, 765 (2021)

    The majority goes on to reject claims that the major questions doctrine does not apply to delegations to the president (their reasoning is similar to that which I outlined here). It also rejects the argument that the doctrine does not apply because tariffs are a “foreign affairs” power.

    The majority did not address whether the government’s claim of unlimited tariff authority would also run afoul of the nondelegation doctrine, which limits the extent to which Congress can delegate legislative authority to the executive. But it does note the significance of the fact that tariffs are a “core congressional power.”

    The majority explicitly chose not resolve the issue of whether IEEPA can be used to impose any tariffs at all. But their reasoning suggests either that such imposition is indeed categorically barred, or that any tariff authority that exists under IEEPA is strictly limited.

    The concurring opinion, written by Judge Cunningham, on behalf of four judges goes further than the majority. It concludes that IEEPA does not authorize any tariffs at all. It also indicates that the sort of sweeping delegation of tariff authority claimed by the president here is precluded by the nondelegation doctrine, which which limits the extent to which Congress can delegate legislative power to the president, relying in part on the Supreme Court’s recent ruling in FCC v. Consumers’ Research (which was helpful to our case in a number of ways):

    The Government’s interpretation of IEEPA would render it an unconstitutional delegation. Because taxation authority constitutionally rests with Congress, any delegation of that authority to the President must at least set out an intelligible principle that includes “both ‘the general policy’” that the President “must pursue and ‘the boundaries of [its] delegated authority.’” FCC v. Consumers’ Rsch., 145 S. Ct. 2482, 2497 (2025)… Similarly, Congress must “provide[ ] sufficient standards to enable both ‘the courts and the public [to] ascertain’” whether the President “has followed the law.” Id…. Because this is undoubtedly a case that “affect[s] the entire national economy,” the “‘guidance’ needed is greater . . . than when [Congress] addresses a narrow, technical issue.” Id…. For taxes, both “quantitative” and “qualitative limits on how much money” the President can raise are permissible, but it would “pose a constitutional problem” if the “statute gives the [executive branch] power, all on its own, to raise [a] hypothetical $5 trillion” with no “ceiling.” Id. at 2501–02.

    The Government’s interpretation of IEEPA would be a functionally limitless delegation of Congressional taxation authority.

    The majority did however vacate the trial court’s universal injunction against the tariffs, and remand the issue of the scope of the injunction to the trial court to determine how broad it should be, in light of the Supreme Court’s recent ruling restricting universal injunctions, in Trump v. CASA. We have a variety of arguments as to why a broad injunction is appropriate in this case, even after CASA (see relevant section of our brief).

    The dissent by Judge Taranto, on behalf of himself and three other judges, largely accepts many of the government’s arguments. I won’t go over them in detail here, as this post is already too long. Obviously, I have responded to these arguments in some detail in previous writings, and our legal team also did so in our briefs.

    The court has, for the moment, stayed its ruling until October 14, to give the government a chance to ask the Supreme Court to review the decision. We shall see what the justices choose to do.

    Ilya Somin

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  • $500 million to paint the border wall? 5 of Trump’s strangest, most expensive vanity projects

    It’s been nearly two weeks since President Donald Trump declared a crime emergency in the nation’s capital. But while the crime crackdown has yielded somewhat underwhelming results—”nearly 2,000 officers made fewer than 400 arrests,” reports Reason‘s Joe Lancaster—the campaign has been massively successful in galvanizing Trump’s base and providing the president and his Cabinet with ample P.R. opportunities.

    The takeover has allowed Trump to flex his muscles, but it’s coming at a steep cost to American taxpayers. The Intercept reports that the use of military forces in Washington, D.C., could cost $1 million per day. With more National Guard members flooding into the capital, the campaign could end up costing hundreds of millions of dollars, according to The Intercept.

    But this isn’t the first time that Trump has used—or suggested using—taxpayer money on expensive vanity projects. Here are five other especially wasteful examples.

    Joseph Mario Giordano / SOPA Images/Sipa USA/Newscom

    In June, Trump hosted a “big, beautiful” military parade to celebrate the 250th anniversary of the Army. The event, which happened to coincide with the president’s 79th birthday, included a barrage of tanks, jet flyovers, and soldiers walking through the nation’s capital, and ended up costing American taxpayers $25 million to $45 million. That’s “$277,778–$500,000 per minute,” Reason‘s Billy Binion reported.

    Trump has also displayed America’s military power at his Independence Day celebrations, including the 2019 “Salute to America,” which ran up a tab of more than $13 million, and the 2020 events in D.C. and Mount Rushmore that cost close to $15 million. Next year’s Independence Day, which will be America’s 250th birthday, is expected to be even bigger. The One Big Beautiful Bill Act (OBBBA) appropriated $150 million to the Interior Department for “events, celebrations, and activities surrounding the observance and commemoration of the 250th anniversary of the founding of the United States.”

     

    2. Iced Out ICE Vehicles

    Department of Homeland Security

    The OBBBA also allocated nearly $30 billion to Immigration and Customs Enforcement (ICE) for detention facility maintenance, transportation costs, and recruitment efforts at the agency. ICE appears to be sparing no expense.

    In addition to offering starting salaries of nearly $90,000 and signing bonuses up to $50,000, ICE has also wasted taxpayer money on marketing gimmicks and vehicle upgrades. Recently, the agency spent “$2.4 million for Chevrolet Tahoes, Ford Expeditions, and other vehicles, as well as custom graphic wraps,” writes Reason‘s Autumn Billings. These gold-detailed wraps include the words DEFEND THE HOMELAND, INTEGRITY, COURAGE, and ENDURANCE.

    This vehicle spending is on top of the $700,000 that ICE spent on two gold-wrapped trucks, which the Department of Homeland Security (DHS) used in a (cringe) recruitment campaign on X.

     

    Polaris/Newscom

    On Tuesday, DHS Secretary Kristi Noem announced that the entire U.S.-Mexico border wall will be painted black. “That is specifically at the request of the president, who understands that in the hot temperatures down here when something is painted black it gets even warmer and it will make it even harder for people to climb,” said Noem.

    During his first stint in the White House, Trump proposed an identical plan. The Washington Post reviewed a copy of federal painting estimates at the time, which showed “costs ranging from $500 million for two coats of acrylic paint to more than $3 billion for a premium ‘powder coating’ on the structure’s 30-foot steel bollards.”

    More than five years later, the cost to paint the border wall is sure to be higher.

    Avalon/Newscom

    In 2018, Trump signed a $3.9 billion agreement with Boeing that would see the airplane manufacturer deliver two new jets to the Air Force One fleet by 2022. The planes are now expected to be delivered by 2027, years behind schedule and billions of dollars over budget.

    Under the terms of the contract, the cost overruns will be paid for by Boeing. Despite these delays, Trump may soon be flying in a luxury jetliner that was gifted to him by the Qatari government. While the president has called this new Air Force One “free,” renovating the plane will cost Americans millions of dollars. As The New York Times reports, the Pentagon recently transferred $934 million from a nuclear missile project account to a classified project, which “congressional budget sleuths have come to think…almost certainly” includes the renovation of this new jet.

     

    Andrea Hank/ZUMA Press/Newscom

    In January, Trump revived an executive order that he signed in his first administration to establish a National Garden of American Heroes. The garden, which is expected to open next year on America’s 250th birthday, will include 250 life-sized statues of American heroes.

    But the $34 million project has run into a basic, but serious, issue: America doesn’t have enough quality sculptors to complete the garden by next July or a designated location to put it. Daniel Kunitz, editor of Sculpture magazine, told Politico that the idea “seems completely unworkable.”

    Jeff Luse

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  • War-Gaming for Democracy

    War-Gaming for Democracy

    It’s January 21, 2025, the first full day of the second Trump administration. Members of a right-wing paramilitary group, deputized by the president to patrol the border, have killed a migrant family. Video of the incident sparks outrage, sending local protesters swarming to ICE detention centers. Left-wing pro-immigrant groups begin arriving in border states to reinforce the protests, setting off clashes.

    In response, the Democratic governors of New Mexico and Arizona mobilize National Guard units, ordering them to disperse the paramilitaries. But these groups, having been deputized by the president, are recognized under Articles I and II of the Constitution as legal militias. The commander of the New Mexico National Guard refuses orders from the governor, saying that migrants pose the true threat, not patriotic Americans defending their homes. The governor summarily relieves him of command. On his way out the door, the general pledges to “continue to follow the lawful commands of POTUS.”

    Last month, at one site in Washington, D.C., and another in Palo Alto, California, the advocacy group Veterans for Responsible Leadership hosted Constitutional Thresholds, a war game “designed to address the potential extra-constitutional actions of a second Trump presidential term.” The events described above were part of their scenario, an extrapolation based on statements from key Trump advisers. The game’s participants, a mix of former government officials, retired military officers, political operatives, and leaders of veterans’ organizations, were divided into a red pro-Trump cell and an anti-Trump blue cell. “As veterans, we are people who can uniquely communicate to the American public how important the Constitution is, because we took an oath to defend it,” Amy McGrath, a former Marine Corps pilot and a Democratic candidate for Senate in Kentucky who was one of the event’s organizers, told participants before it began. “That oath doesn’t go away just because you took off this uniform.”

    Read: North Korea—the war game

    I would think about this injunction repeatedly over the course of the war game, which I attended in D.C. The organizers were sincere in their concerns about a second Trump administration, and earnest in their desire to prepare for the potential challenges. But I still wondered about certain of their assumptions—about the ways veterans on the left and the right assert moral authority in our society, the ways the organizers’ political opponents might behave, and the ends to which each side might go to preserve their vision of our democracy. Perhaps most of all, I wondered whether any of them had paused to consider how these war games might look to those who do not share their assumptions.

    The war game started with some minor confusion. The red and blue cells were decamping to their respective conference rooms, but William Enyart, a former member of Congress and retired major general in the Illinois National Guard, didn’t know where to go. He was assigned to play the role of adjutant general of the New Mexico National Guard. Although his character worked for the Democratic governor, the scenario cast him as sympathetic to the Trump administration. He wasn’t sure whether to head for the red or the blue conference room. He would, as the game progressed, wind up shuttling between the two, dramatizing the divided loyalties that were a theme of the day.

    With the players settled into their respective war rooms, the scenario began with a social-media post from the governor of Texas:

    For too long, we Texans have paid the price as Democrat governors and a Democrat president failed to protect our borders. The American people voted out a weak president and replaced him with one who will enforce our laws, and who is now delivering justice on behalf of the people of Arizona and New Mexico. We stand with them and President Trump’s plan to end the open-border regime of the past.

    Donald Trump, somewhat improbably played by the Never-Trump conservative Bill Kristol, posted his own brief statement of support on social media: “Help is on the way.” In addition to sending National Guard units, the president deputized members of two right-wing groups. Soon, the video of these groups killing the migrant family was introduced into the scenario.

    The scenario reached an inflection point for the blue cell when Enyart, as commander of the New Mexico National Guard, refused to disperse the federally deputized militias. Kathy Boockvar, a former Pennsylvania secretary of state playing the role of New Mexico’s governor, pulled Enyart into a separate conference room to confront him. “I took a dual oath, one to the State of New Mexico and one to the Constitution,” Enyart told Boockvar. “I am obligated to follow the Constitution first and foremost. It is my duty to disregard any unconstitutional orders that I’m given. With all due respect, governor, I will obey your directions so long as they’re within the parameters of the Constitution.”

    He began debating Articles I and II, and their authorities for use of militias, with Boockvar and a man playing the role of her counsel. They also began to debate which was the larger threat, the crisis at the border or the militias who’d ostensibly arrived to secure it. Boockvar summarily relieved Enyart of his command, and her counsel told him not to communicate with any of his subordinate commanders or key leaders within the New Mexico National Guard if he “wanted to remain on the right side of history.”

    Read: Playing war—how the military uses video games

    Events in the red-cell war room, meanwhile, were moving briskly along. The White House seized on reports of tuberculosis to reinstate Title 42, the COVID-era provision that secured the border. In coordination with the speaker of the House, the president was planning a joint address to Congress that evening in which he’d update the American people on the situation. At that address, the president also planned to pardon those convicted after January 6. There was some internal White House debate as to whether Stewart Rhodes, the founder of the Oath Keepers, should be present at the Capitol for the mass pardoning. The consensus, however, was that he should instead be flown down to Las Cruces, New Mexico, to galvanize the militias.

    The situation at the border was deteriorating rapidly. In the last hour of the war game, the governors of New Mexico and Arizona ordered law enforcement to detain militia members. The Texas governor and Tucker Carlson hosted a mass militia-deputization ceremony next to the border crossing in El Paso. One of the right-wing groups warned that it might escalate; a left-wing veterans group responded by asking the Defense Department to remind veterans and National Guard members of their duty. Then, in the final minutes of the game, a shootout in El Paso left 14 members of a right-wing paramilitary group dead. This seemed to be the final provocation, the crescendo for which the entire scenario had been constructed, delivering the excuse Trump needed to invoke the Insurrection Act. Kristol demurred.

    “Trump can be canny when his future is on the line,” Kristol said later. “He’s got a sense that there’s things he could do that would go too far, that would lose him the support he really cares about. He’s a very effective demagogue.” Kristol believed that Trump might ultimately hang back in such a scenario, allowing the governors to carry the burden of securing their states. Given Trump’s history of shifting responsibility for his mistakes onto subordinates, Kristol’s assessment certainly didn’t seem far off.

    After the game, the participants gathered to debrief. They were struck by the speed at which events had unfolded. Some believed that the courts would, in reality, have slowed things down, serving as a check on executive power, while others were equally certain a second Trump administration would blow past the judiciary. “In the second term, there will be no grown-ups in the room. No one in that room will even have a moment mentally where they say, ‘This is against the law, Mr. President. We can’t do it,’” said Rick Wilson, a political operative and co-founder of the Lincoln Project, who’d played the White House chief of staff. “They’ll say, ‘This is against the law, Mr. President. How do we do it?’”

    Kristol wasn’t so sure. “There’s lots of ways to slow this down,” he said. “Trump can’t replace everyone on January 20.” He suggested that if Trump wins, the Biden administration can spend the months before his inauguration preparing for the challenge, and outside groups can ready legal challenges to the things he’s promising to do.

    Participants lamented that the left was too often caught flat-footed by the right, and started exploring ideas about how best to prepare. Some floated the idea of forming “a parallel government” or “government in exile” or “shadow government” focused on countering Trump’s administrative actions. Will Attig, one of the few participants with a background in organized labor, noted that a third of airline pilots are veterans. What if those pilots organized a boycott and decided that they wouldn’t fly into red states? At times, the participants spoke of veterans as a cohesive group, one that the left could corral. Yet veterans are divided politically, just like the rest of Americans—and a majority of veterans supported Trump in the 2020 election. No one seemed to consider that political action designed to appeal to veterans on one end of the political spectrum would inevitably invite a response from veterans on the other side.

    Veterans played a leading role in the day’s events. Most of the game’s key organizers were veterans. And although many participants were not, the veterans are the ones who argued most stridently that constitutional norms would do little to stymie Trump, and that veterans should help lead efforts to organize against a second Trump administration. Perhaps that’s because those who have experienced war—particularly the brutal insurgencies in Iraq and Afghanistan—need less convincing of civilization’s inherent fragility.

    Veterans have played a vital role in our civic life. A disproportionate number of veterans held elected office after the Second World War, the last era in which our politics was functional. Their shared experience helped ward off the endemic hyper-partisanship we suffer today. If you’ve fought a war together, you’re less likely to fight a war among yourselves.

    The idea that veterans should play a central role in resisting any constitutional overreach from Trump seemed to rely on the argument that the oath we swore to “support and defend the Constitution” extends to civilian life. But this neglects a far less frequently referenced, but equally essential, portion of the oath of office, which concludes with a commitment to “well and faithfully discharge the duties of the office on which I am about to enter.” When you take off your uniform, the term of your oath ends. When veterans assume an active role in civic life, they do so as civilians, not as extrajudicial defenders of the Constitution.

    The far-right has long urged veterans to remember their oaths. Does the left want to travel further down that same road? Imagine if the Heritage Foundation, or any other right-wing advocacy group, hosted a set of veteran-led war games based around countering the sort of extra-constitutional violations that some conservatives already allege that President Joe Biden is indulging: Biden has stolen the election through mail-in ballots; Biden has abandoned his obligation to seal the border. It’s not hard to anticipate the denunciations that would flood in from the left. In such exercises, the scenarios reveal as much about the participants and how they imagine their adversaries as they reveal about those adversaries themselves.

    Tom Nichols: Society needs scary computer games

    The war game I witnessed built to the question of whether the president would invoke the Insurrection Act. The organizers approached the federalization of the National Guard as an unconscionable act that would grant President Trump dangerous powers. A previous war game, organized by many of the same participants and turned into the documentary War Game, which recently premiered at the Sundance Film Festival, also featured the invocation of the Insurrection Act as the scenario’s climax. In the documentary, the scenario was built around a repeat of January 6, and centered on the question of whether the Democratic president would evoke the Insurrection Act to contain protesters at the Capitol, deploying the military to contain the protests with force. He did not.

    And yet, many presidents have made a different choice. Franklin Roosevelt, Eisenhower, Kennedy, LBJ, and Reagan all invoked the Insurrection Act at least once during their administrations. Kennedy and Johnson each invoked it three times, Kennedy twice to federalize the Alabama National Guard when the governor refused to integrate schools. The Insurrection Act was last invoked 32 years ago, in 1992, by President George H. W. Bush during the Los Angeles riots. Whether you identify as a Democrat or a Republican, a president of your own party has invoked the act within living memory of many of your fellow citizens. The problem, it seems, is not invoking the act, but the fact that Trump might be the one who has the power to invoke it. Follow that logic. Trump would reclaim that power only if he wins the election. And if he wins the election, it will be because enough Americans choose to give him their vote.

    This is where the logic of war games begins to break down in a democracy. Unless you believe a constitution that can deliver a Trump presidency is not worth upholding, you must accept a president’s legal use of his executive authority. Is it possible that war games in American politics are, at least in this moment, less about countering illegal actions and more about planning to undermine opposing administrations? If war games like the one I watched become a political norm, will that be healthy for our democracy?

    During the debrief, Kristofer Goldsmith touched on the role of the courts. Goldsmith is an Iraq War veteran who now works for an organization called Task Force Butler, focused on countering right-wing extremist groups. “I know gameplay for this type of scenario can feel very fast,” he said. “I just want to emphasize that this is the way things can develop on the ground, and there will not be time for the courts to intervene. The distance between deputizing an extremist organization and 14 people getting killed on the ground is minutes, and there’s no way to actually do a filing or to get a response from a judge.”

    I walked away from the war game wondering whether the participants were cognizant of how their actions might be perceived not only by those on the right, but also by those who don’t entirely share their views. If some on the left don’t believe that courts or systemic checks will be able to halt the extra-constitutional actions of a second Trump administration—or even its legal ones—does it follow that the opposition should abandon constitutional norms and establish “shadow governments” and resistance cells to check executive authority? Many of the war game’s participants seemed to think so.

    If the divide between the left and the right in America has become so wide that neither can conceive of the other wielding power legitimately, then perhaps the war game I observed wasn’t a game at all.

    Elliot Ackerman

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