DOJ's move to toss out a lawsuit against xAI for illegally operating gas-burning turbines to power data centers turns on a dangerous new constitutional claim.
I wonder if any argument can be made that the natsec linkage is disclaimed by xAI itself, as they are selling the Colossus compute to Anthropic per their S-1 (creating a win-win as both companies IPO, a discounted compute rate for Anthropic and some positive revenue for xAI as part of SpaceX)
The most fundamental problem is highlighted by the executive branch's argument that "the claim in an FCA case belongs to the sovereign; Polansky simply held that the sovereign can reclaim a claim that belonged to it in the first place." That argument is based on fundamental, profound and egregious misrepresentations about who and what is "sovereign" according to our Constitution and why and how powers were divided and allocated in our Constitution.
As many SCOTUS justices have acknowledged, the federal government is not sovereign. As the first words (and much more) of the Constitution established , "We the People of the United States" are sovereign. All federal officials are only public servants whose duty is to represent our interests.
The primary principle of our Constitution (the real meaning of the word "revolution") was overturning old-world attitudes about power (including the power of royals, nobles and clerics over the people). Our Constitution converted "the people" from mere "subjects" (of other people's power) into the true sovereign. So the People, ourselves, are the first power and everyone in any government is a representative of the people, a public servant. The People, collectively, are sovereign, as Justice James Wilson and Chief Justice John Jay emphasized in 1793 in Chisholm v. Georgia (https://www.oyez.org/cases/1789-1850/2us419) and as many SCOTUS justices have emphasized, e.g., in Alden v. Maine in 1999 (https://www.oyez.org/cases/1998/98-436) and in Citizens United in 2010 (https://www.oyez.org/cases/2008/08-205).
Irrefutably and clearly, “the Constitution begins with the principle that sovereignty rests with the people” inasmuch as “the people” did “ordain and establish the Constitution.” Alden v. Maine, 527 U.S. 706, 759 (1999). This was “an assertion that sovereignty belongs” to “the whole of the people.” Gundy v. United States, 588 U.S. 128, 152 (2019) (Gorsuch, Thomas JJ., Roberts, C.J., dissenting).
“In our system of government, ultimate sovereignty rests with the people, and the people have the right to control their own destiny.” Obergefell v. Hodges, 576 U.S. 644, 741 (2015) (Alito, Scalia, Thomas, JJ., dissenting). “[T]he critical postulate” of our Constitution is “that sovereignty is vested in the people.” United States Term Limits v. Thornton, 514 U.S. 779, 794 (1995). “[T]he animating principle of our Constitution” was “that the people” are sovereign and the “source of all the powers of government.” Arizona State Legis. v. Arizona Independent Redistricting Comm’n, 576 U.S. 787, 813 (2015).
In 2019, Justice Gorsuch, joined by Chief Justice Roberts and Justice Thomas in Gundy v. United States published a dissenting opinion to emphasize the following about the separation of powers and how it was designed to serve and support the liberty and the sovereignty of the people, not to protect the mere turf of any of our public servants:
"Our founding document begins by declaring that 'We the People . . . ordain and establish this Constitution.' At the time, that was a radical claim, an assertion that sovereignty belongs not to a person or institution or class but to the whole of the people. From that premise, the Constitution proceeded to vest the authority to exercise different aspects of the people’s sovereign power in distinct entities. In Article I, the Constitution entrusted all of the federal government’s legislative power to Congress. In Article II, it assigned the executive power to the President. And in Article III, it gave independent judges the task of applying the laws to cases and controversies."
The people who wrote or ratified our Constitution knew and believed that "enforcing the separation of powers isn’t about protecting institutional prerogatives or governmental turf. It’s about respecting the people’s sovereign choice to vest [certain] power in Congress alone. And it’s about safeguarding a structure designed to protect [the people's] liberties, minority rights, fair notice, and the rule of law." Clearly, "the framers afforded [judges] independence from the political branches in large part to encourage exactly [the] 'fortitude . . . to do [our] duty as faithful guardians of the Constitution.' ”
In Federalist No. 47, Madison elaborated on why powers were divided as they were in our Constitution. It was to protect the People from tyranny of purported public servants such as Trump and those who support his (and other presidents') unconstitutional usurpations of power:
"The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many" (no matter how they are given or usurp such power) "may justly be pronounced the very definition of tyranny." "[T]he preservation of liberty requires that the three great departments of power should be separate and distinct. The oracle who is always consulted and cited on this subject is the celebrated Montesquieu."
"Montesquieu" was famous for emphasizing the following. "There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates," or, "if the power of judging be not separated from the legislative and executive powers." "When the legislative and executive powers are united in the same person or body," says he, "there can be no liberty, because apprehensions may arise lest THE SAME monarch or senate should ENACT tyrannical laws to EXECUTE them in a tyrannical manner. " "Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for THE JUDGE would then be THE LEGISLATOR.
Were it joined to the executive power, THE JUDGE might behave with all the violence of AN OPPRESSOR."
As they are in this case, Trump and his supporters often merely presume or pretend that the principles of and text in our Constitution are irrelevant. Our Constitution was put into writing and made the paramount law of the land precisely to govern (and protect the People from) such false public servants.
Carl Schmitt is alive and well and busy creating the Dual State at the Department run by Todd Blanche (it can no longer be called the Department of Justice). Thanks for highlighting this outrageous argument.
I am sure that Alito and Thomas, who live in a sort of constitutional Buzarro-world, will find a way to argue that "take care that the laws be faithfully executed" means "take care that the laws not be executed."
Trump's pretense that "citizen suits are really the government’s cases in disguise" mistake or misrepresent what our Constitution accomplished. One of the primary points of the Tenth Amendment was to emphasize that all operations of the federal government merely represent the People, collectively. Of course, "by the Constitution," the People established that LIMITED "powers" were "delegated to the United States," but that limited delegation of powers cannot overpower the fact that many "powers" also were "reserved [ ] to the people."
The duty of the federal government is to represent the People, collectively, but that is no reason to presume or pretend that people who are capable of adequately representing themselves or each other in court CANNOT exercise such powers because of the mere delegation of similar powers to the executive branch. Trump's position (his usurpation of tyrannical powers) flies in the face of the plain text and plain meaning of our Constitution and common sense.
Trump's pretense that people cannot represent themselves or each other in court in this case also flies in the face of the plain text and plain meaning of our Constitution and common sense in another vital respect.
I like to quote Justice Scalia sometimes, in part, because he often spoke the truth, and in part, because other people like to rely on Justice Scalia to pretend to justify egregiously unconstitutional executive powers. Regarding the rule of law, and separation of powers, Justice Scalia put it pretty well in 1988 in his (famous) dissenting opinion in Morrison v. Olson (echoing James Madison in 1788).
"That is what this suit is about. Power. The allocation of power [ ] in such fashion as to preserve the equilibrium [that the People by] the Constitution sought to establish—so that 'a gradual concentration of [ ] powers' [Federalist No. 51 (J. Madison)] can effectively be resisted."
"It is the proud boast of our democracy that we have 'a government of laws and not of men.' " That comes from the Massachusetts Constitution of 1780 regarding the separation of powers between legislative, executive and judicial departments. "The Framers of the Federal Constitution similarly viewed the principle of separation of powers as the absolutely central guarantee of a just Government. In No. 47 of The Federalist, Madison wrote that “[n]o political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty.” Justice Scalia emphasized, "Without a secure structure of separated powers, our Bill of Rights would be worthless."
Justice Scalia also highlighted that in Federalist No. 51 Madison emphasized the following crucial and dispositive truth about our Constitution and how the People chose to vest less power in the Executive and Judicial branches than in the Legislative branch: “it is not [even] possible to give to each department an equal power[. Moreover, i]n republican government, the legislative authority necessarily predominates.”
In Article I of our Constitution, the People expressly emphasized that the People vested in Congress the power "To make all Laws" that turn out to be "necessary and proper for carrying into Execution" absolutely "all" the "Powers vested by this Constitution in" Congress or "the Government of the United States, or in any Department or Officer thereof" (including judicial officers). Of course, Congress can make laws that expressly emphasize the right of people to speak for themselves and for each other (exercise the freedom of speech) in court, even in cases in which the executive branch also has the power to speak for the People.
Raise your heads above the weeds and see the field: this is the NAACP vs Musk, and is about whether SCOTUS will raise its racist flag even higher, now that it has stopped pretending that neither the text nor the meaning of the US Constitution is white supremacy. Next week we reach America's 250th birthday. Last week the National Parks announced that signed copies of the Emancipation Proclamation and the 13th amendment will be on display for a year at a new $50 million Lincoln Memorial exhibit, and a judge ordered NP historical markers restored that Trump had ordered "removed" like the Nazis had ordered books about freedom burnt. The Trump Kennedy Memorial once sounded like an impossible lie to tell, but then came the Roberts's court. Will it bow out, or will it double down?
It is important to see that this case is very much about the rights and freedoms secured by the First Amendment. The conduct that Trump is attacking consists of essential and extremely fundamental exercises of "the freedom of speech" and "the press" and "the right of the people peaceably to assemble" regarding what matters people have the power to litigated for themselves and each other in court. Trump is arguing that we must sit silently and allow our representatives in government do all (or any) talking on in court regarding certain subjects.
Trump's position flies in the face of the plain text of the First Amendment and common sense about how people have historically exercised such rights. As James Madison emphasized in his Report of 1800 (pertaining to First Amendment rights and freedoms) and as SCOTUS emphasized in 1964 in New York Times Co. v. Sullivan: "the right of freely examining public characters and measures, and of free communication among the people thereon" always has "been justly deemed the only effectual guardian of every other right." Obviously, doing so in litigation and defending our rights and interests in court is an essential exercise of "the freedom of speech" and "the press" and "the right of the people peaceably to assemble."
By our Constitution and state constitutions, people delegated to federal or state authorities the power and the duty to speak for people to represent the collective interests of the people of a nation or a state. But nothing about such limited delegations of power allowed any executive at any level of government to usurp exclusive power to speak for all people in all cases, even when governing legislation expressly authorized people to speak for themselves and for each other in court in particular cases. Such legislation is an express written acknowledgment of a power that was reserved to the people.
I don't agree that the T.M. decision is one "only law professors could love." Rooker-Feldman may seem like a subject belonging to some dark corner of federal jurisdiction, but as a practical matter it comes up all the time. People who sue in federal courts and lose often sue in U.S. district court, looking to have some beleaguered federal judge revisit the dispute. I mean, it happens constantly. But the Saudi Basic decision (clarifying, or attempting to clarify, Rooker-Feldman) says "state court losers" don't get to do that, and T.M. elaborates on when a state court loser has in fact lost. T.M. answered that question incorrectly, in my view, but at least it gave an answer. That will aid federal trial judges who, again, face this problem all the time.
In related legal news: On May 29th, the OMB released its manifesto detailing how the Trump Administration has the absolute right to unilaterally defund or deny funding for any federal grant if it conflicts with any policy of the Trump Administration. This would further transfer the power of the Purse from Congress to the President. The Unitary Executive gone wild.
Coming up this week on June 25th, Minnesota state and county attorneys are set to file a Motion for Summary Judgment for gaining access to the federal government's records regarding the evidence for the fatal shootings of Renee Good, Alex Pretti, and the non-fatal shooting of Julio Sosa-Celis. Simultaneously, the DOJ and DHS are due to file a Motion to Dismiss.
June 5th, Hennepin County Attorney Mary Moriarty:
“The federal government’s written responses to our demands for evidence in the killings of Renee Good and Alex Pretti, as well as the non-fatal shooting of Julio Sosa-Celis, indicates that they will continue withholding evidence related to the conduct of their agents in those incidents.
It was obstruction in January and it is obstruction in June."
Will the Justice Department assert its right to deny permission to file civil and criminal charges because they haven't determined that the federal officers' actions fell outside of their rights to qualified immunity? If the DOJ doesn't investigate a shooting, are states and individuals barred from filing criminal charges or civil lawsuits?
It's not legally possible to "transfer" any part of "the power of the Purse from Congress to the President" in any manner that is contrary to our Constitution. Such an assertion highlights an important issue that was being discussed and addressed emphatically by those who wrote or ratified our Constitution. Purporting to reassign any power in violation of our Constitution is not a "transfer of power." It is a usurpation of power by whoever purports to transfer or acquiesce in such transfer. See, e.g., https://reason.com/volokh/2019/03/07/james-madison-on-abuse-and-usurpation/.
Chief Justice Marshall (writing for SCOTUS) in Marbury v. Madison in 1803 emphasized the plain meaning of the language from our Constitution Article VI about "the supreme Law of the Land" and the oaths (duty) of public servants "to support [our] Constitution."
"The government of the United States has been emphatically termed a government of laws, and not of men."
"Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by [our Constitution]."
"[T]he constitution is to be considered, in court, as a paramount law. . . . The constitution is [necessarily the] superior, paramount law, unchangeable by ordinary means. . . . Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void."
The same principles and logic, above, establishing that any law that is “repugnant to the constitution is void” (even if it was made either with the President’s approval or with the approval of two-thirds of each house) necessarily confirms that any decision or opinion by any quantity or quality of judges that is “repugnant to the constitution is void.” No purported “precedent” or purported “doctrine” made by any quantity or quality of judges (much less any mere judge’s mere opinion) can lawfully contradict, override or overrule our Constitution. Any presumption or pretense to the contrary is not the rule of law. It is rule by outlaws. It is rule by outlaws who are enemies of the Constitution, violating their own oaths to support and defend our Constitution against all enemies, foreign and domestic.
Over the weekend, the Saturday morning Lectures in American History segment on C-SPAN discussed the first federal appellate court involving prizes. It didn't go into much detail, spending much of the time discussing a specific case. So, I appreciate the further discussion.
As you note, Article II states that the President shall “take Care that the Laws be faithfully executed.” How is it that the Executive can refuse to enforce a law because it doesn't like that law (i.e, that the law doesn't conform to the Executive's policy preferences)? What rights does a citizen have to sue the Executive branch when it refuses to enforce the law? As Jack Jordan notes below, the citizens are sovereign, not the Executive branch.
Thank you so much for bringing this to our attention! I knew about the suit that NAACP is filing, but I did not know this response from DOJ, which is even for them, a huge step too far.
Thank you, Mr. Vladek, for these excellent analyses of the latest shenanigans by the regime. Their overbearing stance in the xAI case is frightening, and I believe it means exactly what you think it means. Important things happen between the headlines. They are trying very diligently to destroy our democracy to make a dictatorship. Even the vp thinks no court can constrain the president. WTH.
There's an extra bit of irony in the xAI case. This case and Citizens to Preserve Overton Park v. Volpe (1971) were both filed by citizens of Memphis. Overton Park, where a citizen group sued to block a highway that would run through a city park, despite a law allowing such a path only when no feasible alternative was available, is considered an important precedent in establishing the right of citizen groups to sue to compel government agencies to enforce existing law.
I wonder if any argument can be made that the natsec linkage is disclaimed by xAI itself, as they are selling the Colossus compute to Anthropic per their S-1 (creating a win-win as both companies IPO, a discounted compute rate for Anthropic and some positive revenue for xAI as part of SpaceX)
The most fundamental problem is highlighted by the executive branch's argument that "the claim in an FCA case belongs to the sovereign; Polansky simply held that the sovereign can reclaim a claim that belonged to it in the first place." That argument is based on fundamental, profound and egregious misrepresentations about who and what is "sovereign" according to our Constitution and why and how powers were divided and allocated in our Constitution.
As many SCOTUS justices have acknowledged, the federal government is not sovereign. As the first words (and much more) of the Constitution established , "We the People of the United States" are sovereign. All federal officials are only public servants whose duty is to represent our interests.
The primary principle of our Constitution (the real meaning of the word "revolution") was overturning old-world attitudes about power (including the power of royals, nobles and clerics over the people). Our Constitution converted "the people" from mere "subjects" (of other people's power) into the true sovereign. So the People, ourselves, are the first power and everyone in any government is a representative of the people, a public servant. The People, collectively, are sovereign, as Justice James Wilson and Chief Justice John Jay emphasized in 1793 in Chisholm v. Georgia (https://www.oyez.org/cases/1789-1850/2us419) and as many SCOTUS justices have emphasized, e.g., in Alden v. Maine in 1999 (https://www.oyez.org/cases/1998/98-436) and in Citizens United in 2010 (https://www.oyez.org/cases/2008/08-205).
Irrefutably and clearly, “the Constitution begins with the principle that sovereignty rests with the people” inasmuch as “the people” did “ordain and establish the Constitution.” Alden v. Maine, 527 U.S. 706, 759 (1999). This was “an assertion that sovereignty belongs” to “the whole of the people.” Gundy v. United States, 588 U.S. 128, 152 (2019) (Gorsuch, Thomas JJ., Roberts, C.J., dissenting).
“In our system of government, ultimate sovereignty rests with the people, and the people have the right to control their own destiny.” Obergefell v. Hodges, 576 U.S. 644, 741 (2015) (Alito, Scalia, Thomas, JJ., dissenting). “[T]he critical postulate” of our Constitution is “that sovereignty is vested in the people.” United States Term Limits v. Thornton, 514 U.S. 779, 794 (1995). “[T]he animating principle of our Constitution” was “that the people” are sovereign and the “source of all the powers of government.” Arizona State Legis. v. Arizona Independent Redistricting Comm’n, 576 U.S. 787, 813 (2015).
In 2019, Justice Gorsuch, joined by Chief Justice Roberts and Justice Thomas in Gundy v. United States published a dissenting opinion to emphasize the following about the separation of powers and how it was designed to serve and support the liberty and the sovereignty of the people, not to protect the mere turf of any of our public servants:
"Our founding document begins by declaring that 'We the People . . . ordain and establish this Constitution.' At the time, that was a radical claim, an assertion that sovereignty belongs not to a person or institution or class but to the whole of the people. From that premise, the Constitution proceeded to vest the authority to exercise different aspects of the people’s sovereign power in distinct entities. In Article I, the Constitution entrusted all of the federal government’s legislative power to Congress. In Article II, it assigned the executive power to the President. And in Article III, it gave independent judges the task of applying the laws to cases and controversies."
The people who wrote or ratified our Constitution knew and believed that "enforcing the separation of powers isn’t about protecting institutional prerogatives or governmental turf. It’s about respecting the people’s sovereign choice to vest [certain] power in Congress alone. And it’s about safeguarding a structure designed to protect [the people's] liberties, minority rights, fair notice, and the rule of law." Clearly, "the framers afforded [judges] independence from the political branches in large part to encourage exactly [the] 'fortitude . . . to do [our] duty as faithful guardians of the Constitution.' ”
In Federalist No. 47, Madison elaborated on why powers were divided as they were in our Constitution. It was to protect the People from tyranny of purported public servants such as Trump and those who support his (and other presidents') unconstitutional usurpations of power:
"The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many" (no matter how they are given or usurp such power) "may justly be pronounced the very definition of tyranny." "[T]he preservation of liberty requires that the three great departments of power should be separate and distinct. The oracle who is always consulted and cited on this subject is the celebrated Montesquieu."
"Montesquieu" was famous for emphasizing the following. "There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates," or, "if the power of judging be not separated from the legislative and executive powers." "When the legislative and executive powers are united in the same person or body," says he, "there can be no liberty, because apprehensions may arise lest THE SAME monarch or senate should ENACT tyrannical laws to EXECUTE them in a tyrannical manner. " "Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for THE JUDGE would then be THE LEGISLATOR.
Were it joined to the executive power, THE JUDGE might behave with all the violence of AN OPPRESSOR."
As they are in this case, Trump and his supporters often merely presume or pretend that the principles of and text in our Constitution are irrelevant. Our Constitution was put into writing and made the paramount law of the land precisely to govern (and protect the People from) such false public servants.
Carl Schmitt is alive and well and busy creating the Dual State at the Department run by Todd Blanche (it can no longer be called the Department of Justice). Thanks for highlighting this outrageous argument.
I am sure that Alito and Thomas, who live in a sort of constitutional Buzarro-world, will find a way to argue that "take care that the laws be faithfully executed" means "take care that the laws not be executed."
Isn't that data mining center in Memphis the one Elon Musk used to change the result of the 2024 election?
See: https://thiswillhold.substack.com/p/how-a-last-minute-change-to-election?utm_source=substack&utm_medium=email#media-405090c0-de08-471e-b965-93b6d6ab9d9e
Trump's pretense that "citizen suits are really the government’s cases in disguise" mistake or misrepresent what our Constitution accomplished. One of the primary points of the Tenth Amendment was to emphasize that all operations of the federal government merely represent the People, collectively. Of course, "by the Constitution," the People established that LIMITED "powers" were "delegated to the United States," but that limited delegation of powers cannot overpower the fact that many "powers" also were "reserved [ ] to the people."
The duty of the federal government is to represent the People, collectively, but that is no reason to presume or pretend that people who are capable of adequately representing themselves or each other in court CANNOT exercise such powers because of the mere delegation of similar powers to the executive branch. Trump's position (his usurpation of tyrannical powers) flies in the face of the plain text and plain meaning of our Constitution and common sense.
Trump's pretense that people cannot represent themselves or each other in court in this case also flies in the face of the plain text and plain meaning of our Constitution and common sense in another vital respect.
I like to quote Justice Scalia sometimes, in part, because he often spoke the truth, and in part, because other people like to rely on Justice Scalia to pretend to justify egregiously unconstitutional executive powers. Regarding the rule of law, and separation of powers, Justice Scalia put it pretty well in 1988 in his (famous) dissenting opinion in Morrison v. Olson (echoing James Madison in 1788).
"That is what this suit is about. Power. The allocation of power [ ] in such fashion as to preserve the equilibrium [that the People by] the Constitution sought to establish—so that 'a gradual concentration of [ ] powers' [Federalist No. 51 (J. Madison)] can effectively be resisted."
"It is the proud boast of our democracy that we have 'a government of laws and not of men.' " That comes from the Massachusetts Constitution of 1780 regarding the separation of powers between legislative, executive and judicial departments. "The Framers of the Federal Constitution similarly viewed the principle of separation of powers as the absolutely central guarantee of a just Government. In No. 47 of The Federalist, Madison wrote that “[n]o political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty.” Justice Scalia emphasized, "Without a secure structure of separated powers, our Bill of Rights would be worthless."
Justice Scalia also highlighted that in Federalist No. 51 Madison emphasized the following crucial and dispositive truth about our Constitution and how the People chose to vest less power in the Executive and Judicial branches than in the Legislative branch: “it is not [even] possible to give to each department an equal power[. Moreover, i]n republican government, the legislative authority necessarily predominates.”
In Article I of our Constitution, the People expressly emphasized that the People vested in Congress the power "To make all Laws" that turn out to be "necessary and proper for carrying into Execution" absolutely "all" the "Powers vested by this Constitution in" Congress or "the Government of the United States, or in any Department or Officer thereof" (including judicial officers). Of course, Congress can make laws that expressly emphasize the right of people to speak for themselves and for each other (exercise the freedom of speech) in court, even in cases in which the executive branch also has the power to speak for the People.
Raise your heads above the weeds and see the field: this is the NAACP vs Musk, and is about whether SCOTUS will raise its racist flag even higher, now that it has stopped pretending that neither the text nor the meaning of the US Constitution is white supremacy. Next week we reach America's 250th birthday. Last week the National Parks announced that signed copies of the Emancipation Proclamation and the 13th amendment will be on display for a year at a new $50 million Lincoln Memorial exhibit, and a judge ordered NP historical markers restored that Trump had ordered "removed" like the Nazis had ordered books about freedom burnt. The Trump Kennedy Memorial once sounded like an impossible lie to tell, but then came the Roberts's court. Will it bow out, or will it double down?
It is important to see that this case is very much about the rights and freedoms secured by the First Amendment. The conduct that Trump is attacking consists of essential and extremely fundamental exercises of "the freedom of speech" and "the press" and "the right of the people peaceably to assemble" regarding what matters people have the power to litigated for themselves and each other in court. Trump is arguing that we must sit silently and allow our representatives in government do all (or any) talking on in court regarding certain subjects.
Trump's position flies in the face of the plain text of the First Amendment and common sense about how people have historically exercised such rights. As James Madison emphasized in his Report of 1800 (pertaining to First Amendment rights and freedoms) and as SCOTUS emphasized in 1964 in New York Times Co. v. Sullivan: "the right of freely examining public characters and measures, and of free communication among the people thereon" always has "been justly deemed the only effectual guardian of every other right." Obviously, doing so in litigation and defending our rights and interests in court is an essential exercise of "the freedom of speech" and "the press" and "the right of the people peaceably to assemble."
By our Constitution and state constitutions, people delegated to federal or state authorities the power and the duty to speak for people to represent the collective interests of the people of a nation or a state. But nothing about such limited delegations of power allowed any executive at any level of government to usurp exclusive power to speak for all people in all cases, even when governing legislation expressly authorized people to speak for themselves and for each other in court in particular cases. Such legislation is an express written acknowledgment of a power that was reserved to the people.
Surely the Southern District of New York is the D.N.Y.'s descendant or successor rather than its ancestor?
I don't agree that the T.M. decision is one "only law professors could love." Rooker-Feldman may seem like a subject belonging to some dark corner of federal jurisdiction, but as a practical matter it comes up all the time. People who sue in federal courts and lose often sue in U.S. district court, looking to have some beleaguered federal judge revisit the dispute. I mean, it happens constantly. But the Saudi Basic decision (clarifying, or attempting to clarify, Rooker-Feldman) says "state court losers" don't get to do that, and T.M. elaborates on when a state court loser has in fact lost. T.M. answered that question incorrectly, in my view, but at least it gave an answer. That will aid federal trial judges who, again, face this problem all the time.
In related legal news: On May 29th, the OMB released its manifesto detailing how the Trump Administration has the absolute right to unilaterally defund or deny funding for any federal grant if it conflicts with any policy of the Trump Administration. This would further transfer the power of the Purse from Congress to the President. The Unitary Executive gone wild.
Coming up this week on June 25th, Minnesota state and county attorneys are set to file a Motion for Summary Judgment for gaining access to the federal government's records regarding the evidence for the fatal shootings of Renee Good, Alex Pretti, and the non-fatal shooting of Julio Sosa-Celis. Simultaneously, the DOJ and DHS are due to file a Motion to Dismiss.
June 5th, Hennepin County Attorney Mary Moriarty:
“The federal government’s written responses to our demands for evidence in the killings of Renee Good and Alex Pretti, as well as the non-fatal shooting of Julio Sosa-Celis, indicates that they will continue withholding evidence related to the conduct of their agents in those incidents.
It was obstruction in January and it is obstruction in June."
Will the Justice Department assert its right to deny permission to file civil and criminal charges because they haven't determined that the federal officers' actions fell outside of their rights to qualified immunity? If the DOJ doesn't investigate a shooting, are states and individuals barred from filing criminal charges or civil lawsuits?
https://www.science.org/doi/10.1126/science.aej3572
https://www.hennepinattorney.org/news/news/2026/May/federal-order
https://www.hennepinattorney.org/news/news/2026/June/fed-response
It's not legally possible to "transfer" any part of "the power of the Purse from Congress to the President" in any manner that is contrary to our Constitution. Such an assertion highlights an important issue that was being discussed and addressed emphatically by those who wrote or ratified our Constitution. Purporting to reassign any power in violation of our Constitution is not a "transfer of power." It is a usurpation of power by whoever purports to transfer or acquiesce in such transfer. See, e.g., https://reason.com/volokh/2019/03/07/james-madison-on-abuse-and-usurpation/.
For very good reason, the People in our Constitution required every public servant to support and defend our Constitution. See, e.g., the Oath Clause of Article II (https://constitution.congress.gov/constitution/article-2/#article-2-section-1-clause-8) and the Oath Clause of Article VI (https://constitution.congress.gov/constitution/article-6/#article-6-clause-3). Incidentally, all attorneys admitted to practice in any state or federal court are "judicial officers" who are subject to the Article VI Oath Clause.
Chief Justice Marshall (writing for SCOTUS) in Marbury v. Madison in 1803 emphasized the plain meaning of the language from our Constitution Article VI about "the supreme Law of the Land" and the oaths (duty) of public servants "to support [our] Constitution."
"The government of the United States has been emphatically termed a government of laws, and not of men."
"Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by [our Constitution]."
"[T]he constitution is to be considered, in court, as a paramount law. . . . The constitution is [necessarily the] superior, paramount law, unchangeable by ordinary means. . . . Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void."
The same principles and logic, above, establishing that any law that is “repugnant to the constitution is void” (even if it was made either with the President’s approval or with the approval of two-thirds of each house) necessarily confirms that any decision or opinion by any quantity or quality of judges that is “repugnant to the constitution is void.” No purported “precedent” or purported “doctrine” made by any quantity or quality of judges (much less any mere judge’s mere opinion) can lawfully contradict, override or overrule our Constitution. Any presumption or pretense to the contrary is not the rule of law. It is rule by outlaws. It is rule by outlaws who are enemies of the Constitution, violating their own oaths to support and defend our Constitution against all enemies, foreign and domestic.
Over the weekend, the Saturday morning Lectures in American History segment on C-SPAN discussed the first federal appellate court involving prizes. It didn't go into much detail, spending much of the time discussing a specific case. So, I appreciate the further discussion.
As you note, Article II states that the President shall “take Care that the Laws be faithfully executed.” How is it that the Executive can refuse to enforce a law because it doesn't like that law (i.e, that the law doesn't conform to the Executive's policy preferences)? What rights does a citizen have to sue the Executive branch when it refuses to enforce the law? As Jack Jordan notes below, the citizens are sovereign, not the Executive branch.
Asking for a friend.
Thank you so much for bringing this to our attention! I knew about the suit that NAACP is filing, but I did not know this response from DOJ, which is even for them, a huge step too far.
Thank you, Mr. Vladek, for these excellent analyses of the latest shenanigans by the regime. Their overbearing stance in the xAI case is frightening, and I believe it means exactly what you think it means. Important things happen between the headlines. They are trying very diligently to destroy our democracy to make a dictatorship. Even the vp thinks no court can constrain the president. WTH.
There's an extra bit of irony in the xAI case. This case and Citizens to Preserve Overton Park v. Volpe (1971) were both filed by citizens of Memphis. Overton Park, where a citizen group sued to block a highway that would run through a city park, despite a law allowing such a path only when no feasible alternative was available, is considered an important precedent in establishing the right of citizen groups to sue to compel government agencies to enforce existing law.