No, The Courts Won’t Save Us
The Supreme Court and Eleventh Circuit issued decisions adversarial to Trump last night. Don’t get used to the sensation.
Some bookkeeping from Andrew at the top: This could be the last you hear from me for a bit, as my wife and I are on new-baby watch. (I’m a little surprised even to be here today—we thought the event was at hand yesterday!) So I’ll either see you all in a few weeks—or I’ll be grumpily back in the saddle on Monday if the kid keeps dragging his feet. Either way, Happy Friday.
A Tiny Rebuke From the Courts
by William Kristol
From the summer of 2022 to the summer of 2024, courts were center stage in our national drama. Roe v. Wade overturned! Trump legal cases from D.C. to Florida, and New York to Georgia! Can section 3 of the Fourteenth Amendment actually keep insurrectionists off the ballot? Nope! Do presidents have broad immunity from legal challenges? Yup!
Then the presidential campaign happened, and the judges and courts were elbowed aside. But now they’re back.
Yesterday, in a 5–4 decision, the Supreme Court refused to intervene to stop Trump’s sentencing in the New York hush money case. So this morning, barring the unexpected, Justice Juan Merchan will sentence Donald Trump, convicted by a jury of 34 felony counts earlier this year, to a sentence of . . . “unconditional discharge.”
Last night, the Eleventh Circuit Court of Appeals declined to block the Justice Department from releasing special counsel Jack Smith’s report on the January 6th investigation. There’s a bit more legal maneuvering left over the next few days, but it seems likely we’ll see Jack Smith’s report early next week. Of course, that’s all we’ll see–there will be no actual prosecutions for January 6th or taking classified documents to Mar-a-Lago and refusing to return them.
We also learned this week that Justice Sam Alito and President-elect Trump had a nice chat Tuesday. Alito explained that he took a call from Trump at the request of a former law clerk, William Levi, “regarding his qualifications to serve in a government position,” as Alito put it.
It’s a bit odd because Levi’s qualifications don’t seem to be in question. He’d clerked for Alito, worked on the Hill, had served as chief of staff at the Department of Justice in Trump’s first term, and is now a partner at Sidley, whose website informs us that “Will was named a ‘Future Star’ in the District of Columbia by Benchmark Litigation (2025), and he is ranked among an elite group of lawyers as a 2023 ‘D.C. Rising Star’ by The National Law Journal.”
So Trump probably didn’t need Alito to tell him that Levi is “qualified” to serve in a senior position in the next Trump administration. The problem was rather that there were doubts about Levi because in the first term he’d worked for the not-loyal-enough Bill Barr, whose transgression was not helping Trump overturn an election. The point of the call was, implicitly if not explicitly, to reassure Trump not of Levi’s legal qualifications but of his fealty to Trump. By speaking to Trump on Levi’s behalf Alito was in effect assuring Trump that Levi would be as loyal to Trump as Alito has been.
Speaking of Alito, I might note that the strong sense in conservative legal circles is that he will step down this summer to give Trump his fourth Supreme Court appointment. In a novel, the nominee would obviously be Aileen Cannon. But that couldn't happen in real life, right?
Right.
The current state of play is this: First, Trump has won the fights he had to win to evade accountability for his lawless actions as president and after leaving the presidency. Second, Trump will now have a chance to further nominate a lot more judges in the mold of Judge Cannon and Justice Alito, and the Republican Senate will confirm them. Third, in his next term Donald Trump will have immunity for official acts very broadly understood–and, because of his willingness to use the pardon power, many of his appointees will have something like de facto immunity from legal accountability.
It was nice to see yesterday’s minor victories for the rule of law. There will be some future victories—mostly minor ones—as well. But we ought to face this fact: We cannot and should not count on the courts to save us.
The Laken Riley Dilemma
by Andrew Egger
Democratic senators are in a tight spot when it comes to illegal immigration. They’ve absorbed the electoral lesson that Republicans are eating their lunch on the issue and are looking for ways to tack toward the center to recalibrate. But with Republicans now in control in both houses of Congress, their ability to choose their own battlefields on the issue is greatly diminished. Senate Republicans will join their House brethren in setting the agenda for what bills get a vote; Democrats who want to show their tough-on-illegal-immigration bonafides will have to nibble around the edges of the ones they hate least.
The first item on the agenda: The Laken Riley Act, which was passed by the House earlier this week. The bill needs the support of at least nine Democrats to pass the Senate; by yesterday it had already picked up two Democratic cosponsors, Sens. John Fetterman (D-Pa.) and Ruben Gallego (D-Ariz.), and the support of several others, including Sens. Mark Kelly (D-Ariz.), Gary Peters (D-Mich.), and Jacky Rosen (D-Nev.) Also yesterday, with the blessing of Minority Leader Chuck Schumer (D-N.Y.), the majority of the Democratic caucus helped the bill surmount an early procedural hurdle, greenlighting it to come to the Senate floor for possible amendments.
At a glance, the bill seems like low-hanging fruit. Named for a Georgia student who was murdered last year by an illegal immigrant who had been charged with several previous crimes but released, the law’s central provision stipulates that illegal immigrants who are arrested for or charged with theft and other crimes be detained by the Department of Homeland Security.
“We’re going to detain and deport illegal aliens who commit burglary, theft, larceny, shoplifting, certain vicious and violent crimes,” House Speaker Mike Johnson said this week, “and I can’t believe anybody would be opposed to that.”
Some Democrats have expressed due-process concerns with this topline proposal. After all, the bill doesn’t just sweep in migrants convicted of crimes, or even those the state has seen fit to charge with crimes. Any migrant arrested on suspicion of a relevant crime would by law be required to be remanded to federal custody. Defenders of the bill note that these people have already committed a crime, since they’re here illegally.
But the thornier issue may be the unrelated immigration-enforcement provisions the bill also sweeps in. The act introduces sweeping new authorities for state attorneys general to sue the federal government if they believe various provisions of federal immigration law are not being enforced strictly enough in their states.
It’s this provision that has immigrant advocacy groups sounding the alarm. In a press release this week, Vanessa Cárdenas of America’s Voice warned that the bill would “overturn longstanding precedent by allowing state attorneys general to take the reins of federal immigration policy and throw our out-of-date immigration system into more chaos.” As the American Immigration Council’s Aaron Reichlin-Melnick noted this week, the possible downstream impacts are legion: AGs could sue to force the U.S. to stop issuing visas to China, to overturn any decision to release any arrested noncitizen, or to overturn any grant of humanitarian parole.
The bill, in other words, is a prime example of the sort of dilemma that Republicans are likely to torment Democrats with throughout this Congress: It dangles an opportunity Democrats want—an opportunity for a tough-on-immigration vote—and threatens further damage to their brand if they don’t play ball. Can you believe these radical Democrats don’t even want to let the cops detain illegal immigrant criminals? But it also quietly includes alarming structural changes that Democrats would never sign onto on their own, ratcheting up the pain of passing it.
What comes next still isn’t clear. Democrats will undoubtedly raise a stink about these issues during the debate over the bill that will begin today, with an eye toward defanging some of these provisions through amendments—or at least making it known they would have supported a bill without these poison pills.
But if Republicans stay united and spike those amendments? Then Democrats will have to choose. Kick off the new Congress with yet another news cycle about how out of touch they are on immigration? Or wave through a bill giving Republicans a big chunk of what they want on the issue before Donald Trump even takes office?
Quick Hits
DON’T BET AGAINST THE BLOB: A surprising development on the cabinet confirmations front this morning. Per Punchbowl News, Trump’s director of intelligence nominee Tulsi Gabbard is reversing herself on a controversial surveillance authority, FISA Section 702:
Gabbard’s past criticisms of Section 702 of the Foreign Intelligence Surveillance Act have emerged as a central issue in her confirmation process, leaving GOP senators—including some in leadership—increasingly skeptical about the former Democrat’s confirmation prospects.
In her first public comments since being nominated, Gabbard told us in an exclusive statement that she now supports Section 702, saying the program is “crucial” and “must be safeguarded to protect our nation while ensuring the civil liberties of Americans.” . . .
In private meetings, senators are questioning Gabbard about legislation she introduced in 2020 that would repeal section 702.
However, Gabbard now appears to be walking that back, citing Fourth Amendment protections implemented since then to prevent the incidental collection of Americans’ data.
This is genuinely shocking. Section 702 has been a longtime flashpoint between national security hawks and civil libertarians, and Gabbard has always been firmly in the latter camp. Here she is denouncing the provision as an invasion of Americans’ privacy in an appearance with Tucker Carlson. Here she is on the floor of the House introducing a bill to permanently bar its use. It’s one of her main things!
Imagine RFK Jr. coming out today singing Pfizer’s praises, or Kash Patel lavishing plaudits on American heroes Bill Barr, James Clapper, and Merrick Garland—this would be like that.
Last year’s FISA reauthorization did include a number of tweaks to supposedly better safeguard Americans against warrantless surveillance, but many privacy advocates found those changes deeply underwhelming: “Making 56 ineffective tweaks to a fundamentally broken law is not reforming it,” the Electronic Privacy Information Center and the Brennan Center for Justice wrote at the time.
What could explain Gabbard’s 180? Well, just yesterday, Sen. James Lankford said she would need to embrace Section 702 if she wanted to be confirmed. Never bet against the national-security house, we guess.
BURNING BETTER: As the climate keeps warming and the Southwest keeps drying out, many experts agree that the path to a sustainable California is one that involves more fire, not less—that a century of fire suppression across a hot, dry ecosystem have resulted in perilous amounts of fuel buildup, and that authorities must adopt a fire-management mindset of routine managed burning to prevent future superfire catastrophes. So why hasn’t this happened—or why hasn’t it happened to the degree it needs to happen? This 2020 ProPublica story goes chapter and verse on the dizzying scale of the challenge and the various perverse incentives in the way:
Yes, there’s been talk across the U.S. Forest Service and California state agencies about doing more prescribed burns and managed burns. The point of that “good fire” would be to create a black-and-green checkerboard across the state. The black burned parcels would then provide a series of dampers and dead ends to keep the fire intensity lower when flames spark in hot, dry conditions, as they did this past week. But we’ve had far too little “good fire,” as the Cassandras call it. Too little purposeful, healthy fire. Too few acres intentionally burned or corralled by certified “burn bosses” (yes, that’s the official term in the California Resources Code) to keep communities safe in weeks like this . . .
Planning a prescribed burn is cumbersome. A wildfire is categorized as an emergency, meaning firefighters pull down hazard pay and can drive a bulldozer into a protected wilderness area where regulations typically prohibit mountain bikes. Planned burns are human-made events and as such need to follow all environmental compliance rules. That includes the Clean Air Act, which limits the emission of PM 2.5, or fine particulate matter, from human-caused events. In California, those rules are enforced by CARB, the state’s mighty air resources board, and its local affiliates . . . Maybe there’s too much smog that day from agricultural emissions in the Central Valley, or even too many locals complain that they don’t like smoke. Reforms after the epic 2017 and 2018 fire seasons led to some loosening of the CARB/prescribed fire rules, but we still have a long way to go.
Controlled-burn NIMBYs are just one small piece of the puzzle. Read the whole thing.
Cheap Shots
Talk of the courts, including that Highest one, not saving us from the forces of lawlessness and disruption is akin to looking at the issue with only one eye. The more important discussion to have is how they stand to be weaponized to pursue, prosecute, and persecute individuals and organizations deemed hostile to the new order and its agenda. It is bad enough that they will not help us. It is much worse that they will be poised to do harm, willingly, as a small minority of individuals with largely unaccountable power over the vast majority of everyone else.
Let's have this discussion, out loud, and with specifics. As this issue is shaping up, I venture to speculate that most of us no longer will be alive when the time finally comes that their influence finally has waned and been vanquished. There may be decades of darkness to come.
Andrew- -Your baby's late arrival is a sign of nascent intelligence. Hesitating to enter this world is more than understandable.
Seriously, all the best to you and your family.