Since her first day in office, Attorney General Pam Bondi has made clear her view is that the Justice Department is but a tool for President Donald Trump to use as he wishes to advance his aims.

The lawyers of DOJ are “his lawyers,” she announced in a memo the day she took office more than a year ago.

The addition of Trump’s image on banners over the formal entrances to the Justice Department in February, visible from Pennsylvania Avenue, were a visual manifestation of that.

In the time in between then, hundreds of lawyers and staff have left the department. A DOJ job — a lifetime goal for countless lawyers until the past year — has become a job where embarrassing errors, at best, are regularly making it into court filings and where a constant question is whether a judge is going to threaten you with contempt for the role you are playing in this administration.

Last week, it became clear just how quickly — and dramatically — Trump’s say-so can upend plans at DOJ.

After The Wall Street Journal broke the news that DOJ would be withdrawing its defense of Trump’s law firm executive orders and DOJ did so that evening, The New York Times reported the next morning that a reversal was expected and DOJ did so that afternoon. This week, The Wall Street Journal reported that Trump hadn’t been told of the decision — although White House Counsel’s Office had been.

“‘I never signed off on that,’ the president said in the Oval Office, expressing displeasure with Justice Department leadership, the people said,” per the Journal.

Ironically, that was the sort of case in which one would have expected the president to weigh in — especially given the procedural posture of the case. This isn’t a law. It’s an executive order and, as such, Trump is, quite literally, the client. The decision not to proceed with the appeals of final judgments against the orders would mean that Trump would be unable to proceed with his executive orders.

In a normal administration, either the president would have been consulted — or the president would have trusted that DOJ, in consultation with counsel’s office, made the right decision.

We are not, however, in a normal administration.

Having angered Trump, DOJ and Bondi’s full supplication were on display on Thursday morning, when the Justice Department put out a news release.

“President Trump’s Justice Department,“ the DOJ news release stated, is suing California on behalf of the National Highway Traffic Safety Administration over California’s electric vehicle mandate.

“President Trump’s Justice Department.”

It is, from what I can gather, the only time a Justice Department news release has used such a headline in the Obama, Trump, or Biden administrations.

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The only other Justice Department news release that I can find in which the Justice Department is described as belonging to the current president was a release from April 2025 providing the prepared remarks from Deputy Attorney General Todd Blanche — Trump’s former criminal lawyer — at the start of the remedies phase of the Google search antitrust trial.

At that time, noting the long-running litigation, Blanche was to say that “President Trump’s Justice Department will finish the job.”

At one of the corners of the Justice Department, looking out on Pennsylvania Avenue, a quotation from Plato sits atop Trump’s visage.

“Justice in the life and conduct of the state is possible only as first it resides in the hearts and souls of the citizens.”

That includes — and should serve as a reminder to — Trump, Bondi, and Blanche.

In Minnesota, a new fight is brewing over whether the Trump administration is violating the Posse Comitatus Act — the federal law that strictly limits the use of members of the military to carry out domestic law enforcement.

While recent litigation has focused on troop deployments to American cities, the newest challenge is to the Justice Department’s use of U.S. military lawyers in the U.S. Attorney’s Office in Minnesota to carry out ordinary domestic law prosecution totally unrelated to the military.

On Tuesday, the challenge — raised by a defendant in a criminal case — received support from former military lawyers, who argue that the move violates the Posse Comitatus Act and Army regulations.

“By detailing JAG officers to backfill vacancies left by civilian prosecutors to manage the regular criminal docket, the federal government is not solving a staffing shortage; it is circumventing institutional checks on the abuse of state power,“ lawyers from the Protect Democracy Project and the law firm of Dorsey & Whitney argue in an amicus curiae brief filed submitted Tuesday in U.S.A. v. Paul E. Johnson on behalf of the former military lawyers.

They went on to warn: “By assigning a JAG to prosecute a civilian offense completely devoid of a military nexus, the government has crossed a perilous line — a clear line drawn by Congress and memorialized in the Army’s own regulations.”

As such, the former military lawyers joined Johnson in arguing that the JAG lawyer prosecuting his case should be removed from it.

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The Defense Department noted the Minnesota effort on January 16: “In Minnesota, the department is working with law enforcement and Justice Department partners by assigning military judge advocates to assist the U.S. attorney’s office with its mission there.“ The move that prompted quick skepticism from multiple corners.

In mid-February, it was one of those military lawyers assigned to the office who was the first individual in the Trump administration found in civil contempt for the government failing to comply with orders in the case of Rigoberto Soto Jimenez, a man who had been improperly detained, be returned from Texas to Minnesota with all of his property. Although he was returned to Minnesota, his identification documents were not returned to him.

As Fox9 reported at the time, Special Assistant United States Attorney Matthew “Isihara, who is a JAG attorney with the Department of War (Defense) on special assignment to assist with all the federal habeas filings, said he has been assigned nearly 130 cases in just the last month.”

U.S. District Judge Laura Provinzino found Ishihara in civil contempt on February 18 in Soto Jimenez’s case, although the daily fine that she imposed beginning two days later was never assessed because the government came into compliance with her earlier orders by returning Soto Jimenez’s ID documents to him.

Two days before Isihara was found to be in civil contempt, however, the validity of the appearance of a different JAG lawyer, Michael Hakes-Rodriguez, in a criminal case in Minnesota was challenged by the defendant, Paul E. Johnson.

A week earlier, Hakes-Rodriguez, a 2024 law school graduate who became a JAG lawyer in 2025, filed the information against Johnson — a direct charge from a prosecutor, rather than a grand jury indictment. The case began when a criminal complaint was filed against him by a Homeland Security agent in late January.

The charge relates to allegations, detailed in the complaint, about a January 22 interaction between Johnson and immigration agents.

In Johnson’s February 18 motion to remove Hakes-Rodriguez from the case, he argued, “Mr. Hakes-Rodriguez is engaged in a direct, active use of military personnel against a civilian as the sole prosecutor advancing this case against Mr. Johnson. The Constitution does not authorize this, and the Posse Comitatus Act forbids it.”

In opposing the request1, Hakes-Rodriguez argued that the Posse Comitatus Act “expressly exclude[s] any statutory grants of authority and, as more fully set forth below, various statues authorize the appointment of military SAUSAs.“

The opposition, primarily, looked at a law addressing the use of military officers in other roles and another law that allows the attorney general to appoint special attorneys to explain how, read in conjunction, this was such a “statutory grant of authority” that allows the use of JAG lawyers in this way despite the Posse Comitatus Act’s general prohibition.

First, Hakes-Rodriguez noted:

Under 10 U.S.C. § 973(b)(2)(B), “an officer of the armed forces may hold or exercise the function of a civil office in the Government of the United States that is not described in subparagraph (A) when assigned or detailed to that office or to perform those functions.”

It should also be noted — given that this is an argument about striking Hakes-Rodriguez as counsel from the case — that this is not the precise language of the law.

Here it is:

No, it’s not substantially different, but it does seem like accurately quoting federal law in filings in court is not too much to ask.

In any event, Hakes-Rodriguez argued that Section 973(b)(2)(B)’s grant of authority, when combined with the law that allows for the appointment of special assistant United States attorneys — and a related law that details the authority of those attorneys — “confirm that the Attorney General may accept the detailed military personnel to serve as SAUSAs.“

As to the Posse Comitatus Act, Hakes-Rodriguez argued that under the relevant precedent from the U.S. Court of Appeals for the Eighth Circuit:

Mr. Hakes-Rodriguez’s detail as a SAUSA does not violate the PCA because (1) he is assigned to the DOJ on a full-time basis, (2) to perform a well-defined prosecutorial function in an entirely civilian capacity as a regularly and properly appointed SAUSA, (3) is being supervised in the work related to his detail entirely by civilian supervisors within the District of Minnesota United States Attorney’s Office. In this limited capacity, Mr. Hakes-Rodriguez’s participation in this case does not subject any citizen to the exercise of military power in any regulatory, proscriptive, or compulsory manner.

As such, “the United States“ asked the court to deny Johnson’s request.

On Tuesday, the former military lawyers argued that DOJ is wrong — on policy and legal fronts. The former military lawyers — “eleven former U.S. military judge advocate officers (JAGs) who served as military attorneys in the Army, Navy, Air Force, Marine Corps, and Coast Guard” — asked to submit the brief and argued that DOJ’s actions are illegal and that DOJ’s filing ignored the larger purpose of both the Posse Comitatus Act and the military law DOJ relied upon.

Quoting the U.S. Supreme Court, the lawyers argued that the broader law — Section 973(b) — is aimed at “prohibit[ing] an active-duty military officer from holding or exercising the functions of certain civil offices to ‘ensure civilian preeminence in government.’”

The section DOJ quoted, they explained came about because of a practice of “active-duty JAGs serving as SAUSAs and prosecuting petty offenses committed by civilians on military installations.“ In 1983, Ted Olson — who was then the head of the Office of Legal Counsel in DOJ — argued that, as the lawyers wrote on Tuesday, “[A]bsent a specific statutory exception, this practice violated the general prohibition set forth in 10 U.S.C. § 973(b).“

That quickly led to the adoption of Section 973(b)(2)(B) — the provision at issue here — the same year.

The congressional reports relating to the provision make clear its intended limitations, as the amicus brief explained:

The accompanying House Conference Report stated that the amendment permitted JAG Corps personnel to continue assisting DOJ attorneys “with cases related to military installations and other military matters.” …

[T]he Senate Report stressed that “this provision does not sanction or endorse any use of military attorneys beyond that permitted under that interpretation.” Id. (emphasis added).

In short, the former military lawyers explained, “Congress never authorized JAG officers to be general criminal prosecutors in civilian courtrooms. Read together, the relevant statutory provisions do not authorize a JAG officer to prosecute a civilian for an offense lacking a nexus to the military.“

In addition to broadly disagreeing with the government’s application of the Posse Comitatus Act to this challenge — arguing, in part, that Hakes-Rodriguez is exercising regulatory, proscriptive, and compulsory power here — the former military lawyers highlighted why this use of members of the military in this particular way is contrary of the law:

Divorced from a military purpose, a JAG officer’s assignment as a prosecutor of a civilian falls squarely within the prohibited scope of the Posse Comitatus Act and manifests the danger that Congress sought to avoid: the unlawful substitution of civilian law enforcement personnel with military personnel, threatening to render the civilian community subordinate to military commands.

Beyond that, the former military lawyers highlight a unique danger of allowing military lawyers to prosecute non-military cases:

Finally, the former military lawyers highlighted an additional concern outside of the Posse Comitatus Act, explaining how the assignment of JAG lawyers in this way violated Army regulations. The regulations, they argued, “explicitly limit such appointments to cases in which ‘the Army has an interest.’ Absent any such interest here, the appointment is ultra vires“ — or, unlawful.

“Removal of government counsel from this case is not just appropriate, but necessary,“ the former military lawyers’ brief concludes.

The federal courts are never truly Monday-through-Friday operations, although the Trump administration has tested the all-hours reality of being a federal judge.

The latest need for weekend action came as U.S. District Judge Royce Lamberth ruled on Saturday that the Trump administration effort to install Kari Lake as the “acting CEO“ of the U.S. Agency for Global Media (USAGM), the parent organization of the Voice of America, was unconstitutional and violated federal law.

Because of that, Lamberth, a Reagan anppointee, ordered that, among other acts, Lake’s effort to put in place a Reduction in Force (RIF) across the agency is void.

The ruling came two days before a Monday deadline for a renewed Deferred Resignation Program that employees were given on February 26 — along with a tacit threat related to Lake’s continued plan to implement the RIF.

Specifically, per the plaintiffs’ court filing in the case, the February 26 notice informed employees that the agency “RIF noticed in August 2025 is currently suspended due to court order, and the Agency still intends to carry out a significant RIF as soon as [it is] able” to do so.

To that, the plaintiffs noted, “Defendants’ threat to carry out a significant RIF in order to induce current employees to resign is concerning ….” They asked for a ruling on the validity of Lake’s appointment before the March 9 deadline because “a decision from this Court could significantly influence employee decisionmaking by providing valuable information before the deadline to respond.“

After considering Lake’s argument in defense of her appointment, Lamberth (yes, same judge) was blunt in his Saturday ruling: “The Court declines Lake’s invitation to do such violence to the statutory and constitutional scheme.”

What is the violence Lamberth is saying that Lake is inviting?

The constitutional and statutory schemes — of the Appointments Clause and the Federal Vacancies Reform Act, respectively — lay out how the executive branch is staffed by placing requirements on how people are able to be put in different roles, depending on the amount of authority they exercise and who they are answerable to.

The plaintiffs argued in a supplemental complaint that the effort to make Lake acting CEO of the USAGM violated both.

Whether the Trump administration could do so in the way they did was not a particularly difficult one to answer, Lamberth found.

Quoting from the Federalist papers, Lamberth noted early on, “[A]s Alexander Hamilton explained, the Senate’s advice-and-consent role serves as a check on the unilateral installment of ‘candidates who ha[ve] no other merit than that . . . of being, in some way or other, personally allied to [the President], or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure.’“

Yeah, it was not going to go well for Lake here.

Under the FVRA, there are three possibilities for how a person could take on an “acting” role for a position that normally requires presidential nomination and Senate confirmation:

Here, Lamberth noted, 2 and 3 are easily out:

Then, as to Lake’s argument that she should be able to serve under 1, this s what Lamberth concluded:

In discussing the problem with this argument later, Lamberth laid out the case plainly:

“[W]hile subsections (a)(2) and (a)(3) narrowly constrain who ‘the President (and only the President)’ may direct to take an acting role,” Lake’s reading of subsection (a)(1) would allow the President “to, in effect, appoint almost anyone, whether or not the person is previously Senate-confirmed to another role, and whether or not the person has any recent experience in the agency,” merely by installing them as a non-Senate-confirmed first assistant.

It was this argument that Lamberth said would do “violence” to the law.

He wasn’t done, though.

As to Lake’s fallback argument that she could still exercise the extensive delegation she was given by the last proper acting CEO, Lamberth wrote, “This argument falters out of the gate.”

Specifically, he found that the law relied upon by the government doesn’t allow the delegation the government is claiming and, in any event, another provision in the FVRA bars it.

Here’s where things got very interesting.

This is what DOJ argued in its filing on March 4, submitted by D.C. U.S. Attorney Jeanine Pirro and Assistant U.S. Attorney Samantha-Josephine Baker:

To that, Lamberth wrote, “The problem for Lake is that the provision she cites says not one word about delegation by the CEO.“

What does it say?

Here’s the original law — the provision DOJ cited “specifically” in its brief:

It remains the law today and, as Lamberth wrote, “the Act provides that ‘[t]he Secretary,’ meaning the Secretary of State“ could carry out such delegations.

Then, in a sentence that might be doing both too much and not enough, Lamberth concluded:

Yes, “the gap.”

Baker, the AUSA who signed the brief, joined DOJ in December 2025 after having worked as a lawyer in Florida government — the Florida Attorney General’s Office and then Florida Department of Corrections — for more than a decade.

As to the delegation argument, Lamberth ultimately found “that these expansive delegations were an unlawful effort to transform Lake into the CEO of U.S. Agency for Global Media in all but name, and therefore violated § 3347(b) of the Vacancies Act.”

Finally, and as noted in Lamberth’s opinion and made more clear by what he required in his order, it is unknown to the court who the acting CEO of USAGM is at this moment.

Just another weekend of being a judge in the Trump era.

Closing my tabs

For those who don’t know what this is, it’s my effort to give a little thank you to paid subscribers. “Closing my tabs” is, literally, me looking through the stories and cases open — the tabs open — on my computer and sharing with you all some of those I was unable to cover during the week but that I nonetheless want to let you know that I have on my radar. Oftentimes, they are issues that will eventually find their way back into the newsletter as a case discussed moves forward or something new happens that provides me with a reason to cover the story more in depth.

This Sunday, these are the tabs I am closing:

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Update, 1:10 p.m. March 10:

Additional coverage can be found at Alabama Reflector and Tread.

Update, 4:30 p.m. March 10: Law Dork has been provided a copy of the commutation.

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Original report:

An execution is set for Thursday that has already rightfully gotten a lot of attention — even in this era of the U.S. Supreme Court virtually never interceding to stop executions from taking place.

Alabama is scheduled to kill Charles “Sonny” Burton for a murder that everyone agrees he did not commit. As the Alabama Reflector’s Ralph Chapoco explained, “He did not pull the trigger that killed Doug Battle during a 1991 robbery at a Talladega AutoZone, and was not in the store when Battle was shot.“

The legal concept that allows such a situation is known as “felony murder,” and it essentially means that, if someone is killed during the commission of a felony, you can be charged with murder. And, due to accomplice liability, everyone involved in a crime can face punishment for the consequences of the killing.1 In a state with the death penalty, like Alabama, a man like Burton can end up on death row.

You’re not wrong to think that sounds wrong. There have been efforts to eliminate or, at least, restrict the bluntest effects of the felony-murder rule. The Supreme Court has limited its use in capital cases, but only slightly.

For Sonny Burton, the rule applied to him in the 1991 robbery where Battle was killed.

And, on Thursday, Alabama is scheduled to kill Burton.

, who has covered many of Alabama’s executions — and botched executions — in recent years, published an in-depth interview with Burton’s family more than a month ago.

Tread by Lee Hedgepeth

Charles "Sonny" Burton killed no one. Alabama plans to suffocate him anyway.

Sonny Burton can no longer walk…

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a month ago · 23 likes · 5 comments · Lee Hedgepeth

Burton, who is 75 years old, already requires a wheelchair to get around. As Hedgepeth reported:

The Department of Corrections has provided him a helmet to limit his risk of falling: a protective measure ahead of the state’s planned attempt to put him to death.

In January, the Alabama Supreme Court paved the way for the Alabama Gov. Kay Ivey to set Burton’s execution date.

Burton’s body is already failing him. Soon, barring court action or clemency, Alabama will execute him anyway.

Hedgepeth told me that he has more reporting coming and is scheduled to be a witness should the execution proceed, so be sure to follow him and subscribe to .

The scheduled execution has already been covered in the opinion pages of The New York Times and at Slate.

At this point, although Burton has a petition and stay or execution request pending at the U.S. Supreme Court, the likely power rests with Republican Alabama Gov. Kay Ivey.

As Elizabeth Vartkessian wrote in the Times:

In a state with some of the most overcrowded and deadly prisons in the country, Mr. Burton’s case provides an opportunity for a different kind of justice to prevail. In choosing mercy for Mr. Burton, Governor Ivey would not just be extending grace to a man who deserves it; she would be challenging a culture of indifference that has allowed Alabama’s prison system to grow too comfortable with its own inhumanity.

Examining the circumstances of this case — like with most death sentences — is to face the reality that we do not properly use capital punishment.

For example, take this fact, as Sophia Laurenzi detailed at Slate:

In 2014, the state agreed to resentence [Derrick] DeBruce, the actual shooter, to life without parole. If Burton is executed on March 12, he will be the only person that Alabama executes for Battle’s murder, since the actual triggerman was granted leniency.

Burton’s life should not be up in the air this weekend, for many reasons.

And yet, it almost certainly will come down to whether Kay Ivey grants clemency to Burton. It would only be second time she would do so, but it should happen. Ivey has overseen substantial problems with the death penalty during her time as governor — stopping executions back in 2022 for a review of the state’s process after multiple instances of the state botching executions or being unable to carry out scheduled executions at all. She has seen the failures of this system.

Everyone should be opposed to this scheduled execution. Death penalty opponents and skeptics, to be sure, but, honestly, death penalty proponents should not want such a clearly, fundamentally unfair and unnecessarily cruel execution to proceed.

I believe that we have proven we cannot be trusted with a criminal legal system that allows capital punishment. The result will not be fair or just.

But, for those who think — who insist — we can fairly carry out capital punishment, among them being Ivey, allowing Burton’s execution to happen would be unambiguous proof that you are wrong.

On Wednesday, lawyers for Law Dork objected to a magistrate judge’s decision denying Law Dork’s request to intervene in litigation in Minnesota over the treatment of refugees. Law Dork is seeking to intervene to make the case and filings in it more accessible to the public.

The filing was made in a significant case in Minnesota over the Trump administration’s effort to arrest and detain refugees who have not adjusted to lawful permanent resident status after being in the country for more than a year — policies against which classwide relief has been granted in the case.

Ironically, despite the high-profile nature of the case, the only way you would have been able to read the filing from Law Dork’s lawyers is if you happened to be in Minnesota and were able to get to the courthouse, while it’s open, and if you knew where to go to find the terminals where you can search out the relevant filings.

Law Dork, with support from its lawyers at Public Justice, had asked for three things back in February: opening the docket in the case to allow remote access to all of the filings, adding a public-access line for future hearings, and not allowing for the sealing of documents in the case without proper justification.

U.S. District Judge John Tunheim took care of the third request on his own, reversing his sealing order two days after Law Dork’s original motion was filed. “The Court will remove the requirement that such documents be filed under seal,” he wrote in an order filed on the docket.

Importantly, this is why we learned about the Department of Homeland Security’s two memos attempting to reverse longtime government policy not allowing the detention of refugees who have done nothing wrong and simply have not obtained LPR status.

But, as to Law Dork’s other requests, Magistrate Judge Douglas Micko denied Law Dork’s intervention request on February 18, stating that “each of Law Dork’s requests has been satisfied.“ The problem is, that’s wrong, and Law Dork has now asked U.S. District Judge John Tunheim to fix that.

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Under Federal Rule of Civil Procedure 5.2, the default rule in deportation cases and cases over “immigration benefits or detention“ is that the only the docket itself and the judge’s orders and opinions are available remotely.

But, that is only the default rule. Under the terms of the rule itself, judges can “order[] otherwise“ — and they often do, particularly in cases of public interest.

In denying Law Dork’s request, Micko simply noted that “the public may already access filings in this case through the public terminals available at each federal courthouse in the district.“

In Wednesday’s objection to Micko’s order, however, Law Dork’s lawyers stated:

Though the interest in this case is national, because of this restriction, public access is limited to those few who can afford to visit the local courthouse. For that reason, the Court should reject the Magistrate Judge’s Order and grant Law Dork’s Motions to Intervene and To Request Greater Public Access.

The objection also reiterates the request for “greater public access“ with a public-access line for hearings: “The Court should take advantage of the technological means at its disposal to promote the public’s ability to track this case.”

You can read the rest, but I do want to highlight one last point that I think is particularly important.

This is a case in which classwide relief has been granted. Any refugee subject to the Trump administration attempted policy reversal is covered by Tunheim’s order.

It is essential that the government’s filings in such a case are easily accessible (as well as the filings from the plaintiffs’ lawyers). There are many reasons, but, importantly, such filings should be available in case the government isn’t following the order and a refugee needs help in the middle of the night, and a lawyer who is contacted and previously uninvolved in the case needs to get caught up on the case and arguments quickly.

Beyond that, though, once classwide relief is ordered, the public has an even greater interest in the case than it already has in public access to the courts. As Law Dork’s lawyers stated in asking for the remote access:

Thanks, again, to Law Dork’s lawyers from Public Justice and, in Minnesota, Apollo Law LLC, for supporting this effort.

U.S. District Judge Royce Lamberth made clear on Wednesday morning that he had no problem holding Trump administration officials in contempt if needed.

“Once I issue an order, it’s my intent to enforce it,“ Lamberth, a Reagan appointee, told Jared Littman, the Justice Department lawyer who has been defending the Federal Bureau of Prisons (BOP) against allegations that it has violated a February 19 order from Lamberth by continuing to retaliate against witnesses in a case challenging the Trump administration’s treatment of transgender people in prison.

The purpose of the “show cause hearing” was to address Lamberth’s order for the BOP defendants to “show cause” why they shouldn’t face civil contempt due to allegations from Grace Pinson and her former roommate, Elmer Armando Moreno, that they have faced retaliation since Lamberth issued the February 19 protective order. DOJ filed its response on March 3, as ordered.

“I go all the way,” Lamberth told Littman, noting that he is the only sitting federal judge that he knows of who has held a cabinet member in contempt — something he did with multiple cabinet members over the course of a long-running case addressing Native American claims against the federal government. “Some courts fudge along the way. I don’t fudge.“

Ultimately, however, Lamberth was removed from the tribal funds case by the U.S. Court of Appeals for the D.C. Circuit 20 years ago this summer. The appeals court there held that “‘an objective observer is left with the overall impression’ … that the district court’s professed hostility to [the] Interior [Department] has become ‘so extreme as to display clear inability to render fair judgment.’”

Perhaps with that history in mind, Lamberth made clear on Wednesday that he would be proceeding cautiously in deciding whether and how to address the Trump administration’s actions in the case.

“Our goal here is simple,” Corene Kendrick with the ACLU, representing the plaintiffs, told Lamberth. “We want people to be safe.“

The hearing also came the day after the Justice Department also filed a motion for Lamberth to reconsider — and vacate — his protective order, something Lamberth had already told Littman he would view skeptically at last week’s hearing. (A corrected version of the motion for reconsideration — the first had an error in its table of contents — was filed on the docket Wednesday morning.)

Ultimately, Lamberth did not rule on the show cause order from the bench on Wednesday, taking the matter under advisement. Additionally, while keeping prior protections in place for now, Lamberth ordered the parties to confer and present a joint plan for modifying the protective order or, if that doesn’t work, for the plaintiffs to respond to the motion for reconsideration within 14 days.

After the hearing ended — and after not having raised it when they were in front of Lamberth — DOJ filed an “emergency” motion Wednesday afternoon asking the court to put on hold its Thursday deadline for BOP to provide notice of the protective order to all wardens of BOP facilities housing trans inmates.

The motion gave no reason why the issue was not raised in court. It also noted that the plaintiffs oppose the motion.

Lamberth did not rule on Wednesday, instead giving the plaintiffs until noon Thursday to provide their reasons for opposing to the motion, if they wish to do so.

[Update, March 5, 1:25 p.m.: The plaintiffs opposed the request to delay the deadline to inform the wardens of the protective order early Thursday, and Judge Lamberth denied DOJ’s request before noon. As such, the notice is still required to be issued to the wardens Thursday.]

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At the hearing

First, I want to acknowledge that Littman continually misgendered Pinson — something that went unaddressed throughout the hearing. If nothing else, it suggested something other than the seriousness with which Littman claimed the Trump administration was taking Lamberth’s concerns.

As to the substance, Littman argued both that Lamberth’s February 19 order was not sufficiently clear to form the basis for a civil contempt finding and that, in any event, the plaintiffs had not proven by “clear and convincing evidence“ that officials at FCI Butner in North Carolina, where Pinson is serving a prison sentence, had violated it.

Littman claimed that the warden at Butner had reviewed video relating to the claims raised by Pinson that disprove her allegations, saying that “infects the entire story” Pinson is telling.

At that point, Lamberth — who had already noted that there are “contrary sworn affidavits” submitted by Pinson and Moreno — interjected, “I haven’t seen the video.”

Essentially, Littman argued that there were legitimate penological reasons for some of the actions claimed as retaliation — such as alleged rule infractions — and that other claims were “completely fabricated.” (Both Pinson and Moreno are currently in the prison’s Segregated Mental Health Unit (SMHU), which is akin to solitary confinement.)

When Kendrick took to the podium, she argued that not only is the Trump administration in violation of the protective order, but that the March 3 response to the order to show cause violated the show cause order.

Noting the requirement of Lamberth’s show cause order …

… Kendrick highlighted the DOJ response included only “hearsay denials” through a declaration submitted by FCI Butner’s warden, Scott Garland. No declarations were submitted for the other seven named officials. Additionally, Kendrick noted that the declaration related to Pinson’s medical care was not submitted by the medical provider addressed in Pinson’s declaration but, instead, is from an administrator. They “chose” to do that, Kendrick told Lamberth, and under relevant precedent the court can take choice that into consideration.

Additionally, to the inadequacy of Garland’s declaration, Kendrick noted that Garland was on leave through February 22 — half of the days at issue between when the protective order was issued and when the plaintiffs filed their emergency motion alleging the retaliation.

As to the potential remedy, Kendrick said they believe Pinson should be released to a halfway house program or, at least, be allowed back into the general population of the prison, and Moreno should be allowed back into the general population. To prevent further violations, Kendrick said that, looking forward, Lamberth should assess a $50,000 fine for any future proven — or not challenged — violations.

When discussion of the motion for reconsideration of the protective order came up, Lamberth reiterated his skepticism as to any wholesale vacating of the order, telling Littman, “Good luck on that.“

Littman added that the protective order amounted, effectively, to an improper “obey the law” order — to which Kendrick responded that “unfortunately” similar orders are “routinely” issued in prison litigation.

At the end of Littman’s initial presentation, Lamberth addressed a portion of Pinson’s submission that Littman had not mentioned: Pinson’s claim that a prison official told her, “I don’t give a fuck what that judge says, I do what I want.“

Acknowledging the awkwardness of rebuking a prison official for doing so when President Donald Trump “denigrates” federal judges and Attorney General Pam Bondi and Deputy Attorney General Todd Blanche claim that judges’ decisions against the Trump administration are simply politicized opposition, Lamberth said, “It’s still something that’s very troubling to me.“

Prison officials can’t ignore court orders, he said, and it’s “troublesome to the courts” when such claims are raised.

Beyond the hearing

That was a lot. And yet, it was two other encounters — before and after the hearing — that crystallized for me, as to the underlying anti-trans moment and the underlying lawlessness of this administration, why we were in court on Wednesday.

As the lawyers awaited Lamberth in the minutes before 11:00 a.m., an older man entered the courtroom, sat down, and soon began speaking — to no one or everyone, it was not quite clear.

He said that this was the only thing he agrees with President Donald Trump on.

Although it wasn’t initially clear that he knew the topic of the case being discussed on Wednesday, he then added that he has “dysphoria” — saying that he wished to be a “demigod,” and not a “demagogue” like Trump.

Just casual anti-trans banter from the gallery.

He was not told to be quiet, but, instead, was merely told that Lamberth would be taking the bench shortly.

At the conclusion of the hearing, in contrast, the issue was someone not wanting to speak.

A man with the government has been at the last two hearings relating to the contempt claim. Both times, he sat in the section of the courtroom open only to parties and counsel. Although not at counsel’s table, Littman and Jean Lin, the other Justice Department lawyer present at both hearings, have repeatedly consulted with him during both hearings.

After today’s hearing — and after not being able to figure out for myself who he was after the last hearing — I asked him who he was.

I had my press pass visibly displayed and identified myself as a reporter. He said he didn’t want to do that.

I suggested that he must be a government official or employee, sitting where he was, and, if so, I asked incredulously if he really was not going to tell a reporter at a hearing who he was.

He said no.

Then, the people leaving — myself included — got to the elevator. Littman, Lin, mystery man, and two other people sitting with mystery man on the government side of the courtroom during the hearing on Wednesday were getting into the elevator.

Some of them were already in the elevator. When I stepped in, mystery man said he would wait for the next elevator. Everyone else then got out of the elevator.

Left in the elevator alone, I looked at these five adults — all of whom I believe have to be government employees, hence, paid by the public and allegedly working for the public — and was some combination of bemused and appalled.

“You are all ridiculous,” I simply said.

The door closed.

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In Mirabelli v. Bonta, the conservative justices allowed a district-court injunction to go back into effect during litigation that blocks California schools from preventing parents from being told about their children’s gender presentation, name, or pronouns. The challenged policy requires a student’s consent for a teacher to do so.

A district court had granted class-wide injunctive relief to parents and teachers who objected on free exercise of religion claims and on due process claims — ultimately creating four subclasses. The U.S. Court of Appeals for the Ninth Circuit issued a stay of the injunction while it is considering the state’s appeal.

On Monday, in a relatively extensive per curiam — unsigned — order, the court’s conservatives “vacate[d] the stay with respect to the parents.“

Although the reasoning is not discussed, the application is denied as to the teachers.

Justices Clarence Thomas and Sam Alito wrote nothing, but noted they “would grant the application in full“ — so, as to the parents and the teachers.

While Justice Elena Kagan wrote a dissent joined by Justice Ketanji Brown Jackson — noting several procedural irregularities in the court’s consideration of the request, in addition to substantive disagreements with the majority’s order — Justice Sonia Sotomayor simply noted that she “would deny the application in full.”1

The Mirabelli shadow docket order is alarming and offensive, showing that the court majority’s far-right extremism — particularly in addressing transgender kids’ lives — will seek to move the law further right so long as it has the votes to do so. As I wrote on July 1, 2025, “SCOTUS’s parental rights messages: Protect anti-LGBTQ views, ignore LGBTQ people.” Monday’s order signified how much more extreme the majority is willing to go when the harm will be borne by trans and gender-nonconforming students.

In opposing the request, California Attorney General Rob Bonta and his office’s lawyers noted the very real harm that could be at issue if the injunction were allowed to go back into effect: “The district court’s injunction would allow no exceptions, even for extreme cases where students or teachers reasonably fear that the student will suffer physical or mental abuse.”

As to the free exercise claim, the decision represents a quick and abrupt expansion of this past term’s Supreme Court decision in Mahmoud v. Taylor, which I had already called a “dangerous piece of work” at the time.

“California’s policies will likely not survive the strict scrutiny that Mahmoud demands,“ the Monday order declared. The anonymous order sniped at the Ninth Circuit for having relied upon a “not-precedential” decision from the U.S. Court of Appeals for the Sixth Circuit and having “brushed aside“ Mahmoud “as ‘a narrow decision focused on uniquely coercive “curricular requirements.”’”

Even more alarmingly, Justice Amy Coney Barrett, in a concurring opinion joined by both Chief Justice John Roberts and Brett Kavanaugh, echoed that, writing that “[t]he Ninth Circuit (following the Sixth Circuit) significantly misunderstood Mahmoud … and general course correction will allow the case to progress efficiently.“

In other words, the Mahmoud opinion was the low-water water mark for the ways this court plans to use religious freedom to wash away any protections and policies that might be opposed by religious parents.

As to the due process claim, that portion of the order is hypocritical and offensive on multiple grounds.

In her dissent, Kagan addressed why at length.

“Even in recognizing that parental right, the Court cannot quite bring itself to name the legal doctrine—it is, again, substantive due process—that provides the right’s only basis,“ Kagan wound up. “Anyone remotely familiar with recent debates in constitutional law will understand why: Substantive due process has not been of late in the good graces of this Court—and especially of the Members of today’s majority.“

Noting that the Due Process Clause itself only protects “liberty,” she goes in:

Members of the majority often have expressed skepticism—sometimes outright hostility—to understanding the “capacious” term “liberty” to enshrine specific rights. Dobbs v. Jackson Women’s Health Organization, 597 U. S. 215, 239 (2022).

After raising the court’s decision overturning Roe v. Wade, Kagan quoted Justices Clarence Thomas, Neil Gorsuch, and Brett Kavanaugh attacking substantive due process in the past.

“There are many such statements to choose from in this Court’s recent substantive due process caselaw,” she wrote. Returning to Dobbs, she continued, “Especially given the Court’s last venture into the field, today’s decision cannot but induce a strong sense of whiplash.“

It is shocking.

Then, in a footnote, Kagan provides one last lowlight — addressing the discordance between Monday’s order and the June 2025 decision in U.S. v. Skrmetti, upholding Tennessee’s ban on gender-affirming medical care for minors:

It was the concern I had raised in that July 1, 2025, article.

The point was made aggressively clear in Barrett’s alarming concurrence, in which she wrote this about the anti-trans parents:

Under California’s policy, parents will be excluded—perhaps for years—from participating in consequential decisions about their child’s mental health and wellbeing. Thus, the parents are likely to suffer irreparable harm if California enforces its policy while this litigation winds its way through the courts.

In her concurring opinion upholding the Tennessee ban, in contrast, Barrett wrote about why classifications based on transgender status shouldn’t receive heightened protection under the Equal Protection Clause — why anti-trans laws shouldn’t be looked at more skeptically:

[H]olding that transgender people constitute a suspect class would require courts to oversee all manner of policy choices normally committed to legislative discretion.

It is a tough road ahead.

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In Malliotakis v. Williams, the conservative justices blocked a New York state court ruling that found “unlawful vote dilution” of Black and Latino voters in a congressional district — NY-11 — and would have required changes to that district.

The Supreme Court stayed that order in a one-paragraph order of its own on requests that included Rep. Nicole Malliotakis, the Republican representative of NY-11.

Justice Sam Alito wrote a concurring opinion for himself laying out his view that the state court-order was “unadorned racial discrimination” — a move that UCLA Law professor Rick Hasen called “bad news not just for Section 2 of the [Voting Rights Act] at issue in [Louisiana v.] Callais but for more voting protections in the states.“

The Callais case — raising the question of whether the “intentional creation” of a “majority-minority congressional district” is unconstitutional — was reargued on October 15, and the court is yet to issue a decision.

This shadow docket application raises different issues than the Texas and California shadow docket requests, which were part of federal court challenges to mid-decade redistricting. This, on the other hand, was a New York state court ruling about the 2024 congressional map, so the intervention of the court raises its own, unique issues.

Justice Sonia Sotomayor detailed those concerns in her dissent, joined by Justices Elena Kagan and Ketanji Brown Jackson. Beginning, “The Court’s 101-word unexplained order can be summarized in just 7: ‘Rules for thee, but not for me,’“ the dissent did not hold back:

If, as Hasen wrote, “Alito is the conservatives’ leading voice attacking voting rights,” and this concurrence represents the majority’s view, this is a sign that Section 2 of the Voting Rights Act is almost certain to be gutted as to vote-dilution claims when Callais does come down.

A note, though: As with one particularly notable shadow docket order last year, a solo concurrence from a justice — if that’s the only opinion from the majority — can have outsized impact on the discussion of the shadow docket order.

Unlike the shadow docket order that led to discussion of Kavanaugh stops, however, the implications of Monday’s ruling outside of this order — and centrality of Alito’s concurrence to the court majority’s thinking — is likely to be reinforced by or pushed aside by the forthcoming Callais decision in short order.

Update, 1:25 p.m. March 3: In a move that melds the unprofessionalism of the Justice Department under Attorney General Pam Bondi with the rule-by-shifting-Truth-social-decrees attitude of President Donald Trump, the two DOJ lawyers on the law firm executive order cases filed a motion on Tuesday to withdraw their Monday motion to dismiss the law firm order case appeals.

Yes, now DOJ wants to continue the appeals.

The motion provided no reasoning for the reversal, with Associate Attorney General Stanley Woodward and Deputy Associate Attorney General Abhishek Kambli simply stating that “it is the prerogative of Defendant-Appellants to pursue this appeal.“

Per the motion, the lawyers for the law firms “oppose the government’s unexplained request to withdraw yesterday’s voluntary dismissal, to which all parties had agreed.“

They also noted that, regardless, this should not provide DOJ with yet another excuse for delay in the case, specifically referencing DOJ’s forthcoming Friday deadline for filing its combined brief in the appeals.

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[Note: This initial report was updated after the Justice Department filed its motion to dismiss the law firm executive order case appeals, with the final update at 9:30 p.m.]

The Trump administration is ending its defense of President Donald Trump’s 2025 executive orders attacking individual law firms in four cases pending at the U.S. Court of Appeals for the D.C. Circuit. The Justice Department filed a motion to dismiss all four appeals on Monday night.

The Wall Street Journal had first reported the plans on Monday afternoon.

The Trump administration had lost in all four cases — challenges to executive orders targeting Perkins Coie, Jenner & Block, WilmerHale, and Susman Godfrey — at the district court level. Although it appealed the losses, the Justice Department took none of the steps to move the case forward quickly — like seeking stays pending appeal — that it has taken in countless other challenges. More than that, and as covered at Law Dork, DOJ has actually delayed the merits appeals for as long as possible.

The Monday night filing at the D.C. Circuit came just four days before DOJ’s combined opening brief in all four appeals was due at the D.C. Circuit.

It is a shocking development that would appear to suggest that the Justice Department convinced the White House that they were likely to lose the cases on appeal and that the district court losses would be better than a precedent-setting decision from the D.C. Circuit.

It is a stark reminder of the firms, beginning with Paul Weiss, who capitulated to Trump and the Trump administration’s threats. Skadden Arps followed, with others — as tracked by Demand Justice here — following those two BigLaw firms. Their agreements were appalling to start, indefensible once the wins started piling up from those who did challenge Trump, and outright embarrassing if the Trump administration drops these appeals as the WSJ has reported is expected.

There is a caveat, though. This reported move also comes in the context of an extensive, though administrative and confusing, effort to push another case — Mark Zaid’s challenge to the Trump administration’s revocation of his security clearance — ahead of the law firm cases, despite the preliminary injunction in Zaid’s case (also in his favor) having come months after the appeals of the final judgments in the law firm cases.

Although DOJ didn’t give a reason for the action, it appeared most likely that lawyers had decided Zaid’s individualized revocation case presented a better chance of success for them than the challenges to the law firm orders, which contained firm-wide security clearance actions along with other firm-wide restrictions on contracts and government access.

On February 6, the D.C. Circuit rejected DOJ’s effort to move the appeal of Zaid’s case ahead of law firm cases — setting all five appeals for argument before the same panel of judges on the same day.

As such, if DOJ proceeds with the appeal in Zaid’s case, it is possible that DOJ decided it was better to give up the law firm case appeals and accept those losses with the hope that the government can eventually secure a win in Zaid’s case.

If DOJ drops the Zaid appeal as well, which would appear less likely and had not happened as of 9:30 p.m. Monday, that would be a sign that DOJ determined a D.C. Circuit ruling would likely go against the Trump administration in all of these cases and that the potential for such a precedent was too stark of a danger to proceed.

In a statement issued on Monday afternoon, Zaid’s lawyer, Abbe Lowell, said, “By abandoning the D.C. Circuit appeals, the Department of Justice is effectively acknowledging that President Trump’s executive orders targeting entire law firms were illegal. Like those orders, Trump’s attempt to punish attorney Mark Zaid, alongside other senior political officials as a group, merely because he represents whistleblowers who have exposed other wrongdoing by the President will fare no better. A federal judge has already concluded as much, and we are confident a court of appeals will do the same. No President is permitted to broadly target or punish groups without appropriate due process, even under the guise of national security.“

Regardless of whether DOJ abandons the Zaid appeal as well, as to the challenges to the law firm executive orders, a win is a win, and DOJ giving up these appeals is a big win for those who defended the rule of law — both the law firms who challenged Trump’s efforts and the law firms and lawyers who stood up to represent them — and for the rule of law itself.

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Thomas’s Second Amendment muddle, continued

Nearly four years after Justice Clarence Thomas laid out a restrictive “historical tradition” test for judging the constitutionality of gun restrictions under the Second Amendment, the continued difficulties of applying that test to the nation as it exists today was front and center in arguments over a federal law that bans the possession of firearms for anyone who is an “unlawful user of … any controlled substance.“

The two hours of oral arguments on Monday operated on three levels — and followed the 2022 decision in New York State Rifle and Pistol Association v. Bruen, the 2024 decision by Chief Justice John Roberts in United States v. Rahimi scaling back the extremism of the Bruen decision in a decision upholding the federal ban on firearm possession by a person with a domestic violence order out against them, and the arguments from earlier this term in Wolford v. Lopez over Hawaii’s law barring guns on private property open to the public unless the owner gives permission.

On Monday, then, the justices were primarily considering a dispute over the federal government’s effort to charge Ali Danial Hemani under 18 U.S.C. 922(g)(3) as such an “unlawful user” of marijuana based on a record of his use of marijuana a few times a week.

Underlying that, though, was a bigger dispute about how a challenges to gun regulations should be considered under Bruen, in light of Rahimi.

And, finally, there was the continued large-scale dispute over whether Bruen is right.

At the end of the two hours of arguments, it appeared likely that a majority of the court will hold that the federal government’s effort to charge Hemani in this way is unconstitutional. As with Rahimi, however, it is likely that whatever judgment the majority agrees upon could split into pieces when it comes to providing reasoning — to understanding why varying justices believe the prosecution doesn’t work.

Additionally, a second portion of the law, banning firearm possession by a person “addicted to any controlled substance” would not be affected, as Erin Murphy, Hemani’s lawyer, noted they are not challenging the ability of the government to have that restriction — although, even there, she noted some definitional disputes they could raise if such a challenge were before the court.

In short, Thomas, himself acting to propel Justice Antonin Scalia’s 2008 decision in District of Columbia v. Heller even further to the right, has made a muddle of Second Amendment case law — and clarity is unlikely to come from Hemani’s case.

Digging into the mud

As to Bruen itself, both Justices Sonia Sotomayor and Elena Kagan made clear in Rahimi that they continue to believe Bruen’s test — requiring a showing that a challenged regulation “is consistent with the Nation’s historical tradition of firearm regulation” — is wrong.

On Monday, Justice Ketanji Brown Jackson challenged Principal Deputy Solicitor General Sarah Harris repeatedly about the workability — and, ultimately, correctness — of Bruen.

“I guess maybe I just don’t understand how the tests work anymore,” Jackson told Harris, driving into a discussion of how Bruen, or Bruen as limited by Rahimi, differ from the way gun regulations were reviewed earlier.

“I guess the benefit of the pre-Bruen kind of means-end scrutiny is that you got to the bottom of whether what Congress was actually doing here was legitimate and whether the means that they had chosen, the disarmament of this person, was … sufficiently tailored to that aim. And what’s worrying me is that the current Bruen test modified by Rahimi or whatnot is not allowing us to assess that, and that’s really the problem in this situation.”

Then, more pointedly and noting Harris’s arguments against the constitutionality of the law in the Hawaii gun law case, Jackson said, “I guess I’m concerned that Bruen and Rahimi are going to be allowing for arbitrary identifications of analogues and producing inconsistent results.”

To that end, when it comes to how to apply Bruen-as-modified-by-Rahimi, Justice Neil Gorsuch picked up on a line of questioning from Sotomayor, looked at the Justice Department’s claimed historical tradition — “habitual drunkard statutes” — and asked Harris about how courts do that work.

“[O]ne can ask whether the habitual drunkard statutes are sufficiently — how and why— sufficiently analogous,” he noted, echoing Sotomayor’s questions. “One could also ask, though, more basically whether this defendant would qualify as a habitual user.”

Addressing Harris, Barrett noted, “I think this is what Rahimi says, that legislatures can regulate to keep guns out of the hands of dangerous people …”

As to the statute at issue, however, she continued, “… but when I look at this statute and when I look at what the qualifications are for being listed on one of these schedules, they’re all about public safety, you know, they’re about reducing addiction.”

The statute itself, of course, is the bottom line here, and it is — on top of the muddled Second Amendment law — itself a bit jumbled, taking language and determinations under the Controlled Substances Act to create federal crimes under another act.

First, the government’s interpretation of “user” is “habitual user,” which led to significant questions about both the overlap of the two categories — “unlawful user of” and “addicted to” — of people covered by the law and what “habitual” meant.

As Sotomayor put it, the historic use of “habitual” in the “habitual drunkard” laws, “centered around not merely taking the drug but the potential effect it had on you because you couldn’t control it and would continue to use it.“

Additionally, while the Justice Department’s initial argument was that all scheduled drugs could justify a prosecution under this law, Harris explained that its “backup” position was that, perhaps, only Schedule 1 and 2 drugs should justify prosecution because their classification justifies a presumption of dangerousness.

A key problem for the Justice Department throughout the morning appeared to be the fact that all three Trump appointees raised questions about fairness.

Gorsuch asked about why DOJ was bringing this case — involving marijuana — in light of that backup position.

Barrett noted how certain drugs are legal when used as prescribed but not when used unprescribed, and asked how could that show the dangerousness under Rahimi.

Justice Brett Kavanaugh noted that most of the state laws focus restricting addicts from possessing firearms, not users, and though Harris pushed back on that a little, Kavanaugh was still pressing the point when Murphy was up to argue against the law being used against her client as an unlawful user, not an addict.

Only Justice Alito, in his role as a former prosecutor, appeared to aggressively defend the Justice Department’s position on Monday, although Chief Justice John Roberts did pose a few questions about judicial deference to Congress — which Jackson retorted isn’t allowed under Bruen — and Kagan asked a lot of questions about Ayahuasca. While Kagan let us all know, “I don’t know a lot about this drug,” she used it throughout arguments to probe at what and how the parties believed the government could go about barring possession of firearms in a Bruen-Rahimi world.

A decision — or several opinions and a judgment — is expected by late June (or early July).

Law Dork in the media

I joined Leah Litman on this week’s episode of Strict Scrutiny to talk about the U.S. Supreme Court, lower courts, public access to courts, independent media, and more.

It was, as always, a delight to spend time with Leah.

Check it out!

In a key challenge to the Trump administration’s new policy to round up, arrest, and detain thousands of refugees, a federal judge in Minnesota on Friday blocked the effort in the state during litigation, declaring the effort “turns the refugees’ American Dream into a dystopian nightmare.“

In noting that the purpose of the refugee program was to provide “a new beginning in safety,“ U.S. District Judge John Tunheim wrote the officials in the Trump administration instead “seek to transform a system built on promised opportunities and freedom into one of uncertainty and indefinite confinement.“

The longtime government policy has been that refugees — vetted and legally admitted individuals — who are yet to adjust to lawful permanent resident status cannot be detained on that basis alone.

With Operation PARRIS (Post-Admission Refugee Reverification and Integrity Strengthening), the Trump administration wants to change that.

In a pair of memos issued in December 2025 and February 2026 — which Law Dork has covered extensively — the Department of Homeland Security has purported to change that policy by rescinding and re-rescinding the 2010 U.S. Immigration and Customs Enforcement policy that most recently enunciated that policy for applying the relevant provision — 8 U.S.C. 1159 — of the Refugee Act of 1980.

“The Government’s startling theory—that the statute silently grants DHS the power to seize a refugee the moment the clock strikes midnight on the 366th day after admission—is wrong,“ Tunheim wrote. “This theory finds no support in the text, the history, or the purpose of § 1159(a)(1) and marks a sharp break from more than four decades of agency practice.”

Tunheim, a Clinton appointee, granted a classwide preliminary injunction on Friday on five grounds, finding that the plaintiff refugees are likely to succeed on their statutory claims about the Refugee Act provision, as well as procedural due process, substantive due process, Fourth Amendment, and Administrative Procedure Act claims.

Tunheim previously had blocked the arrests and detentions with a temporary restraining order.

“The Government’s actions in this case beg the question: Why?“ Tunheim wrote. “The Government suggests that they are looking for terrorists, but there is not a shred of evidence in the record that the Named Plaintiffs or the putative Class they seek to represent pose serious national security risks.“

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Tunheim’s conclusions

As to the Refugee Act provision itself, Tunheim concluded for seven reasons “that the phrase ‘return or be returned to custody’” in the Refugee Act provision “does not permit the arrest and detention of unadjusted refugees that have not been charged with any ground of removability.”

As to procedural due process, Tunheim noted that “the limited record before the Court demonstrates the probability and magnitude of the risk of erroneous deprivation,“ citing, for example, plaintiffs’ evidence of a refugee who was “arrested on January 11, 2026, without a warrant, transported to a detention center in Minnesota, then flown in shackles to Texas, where he was questioned about his refugee status.”

In finding that the plaintiffs are likely to succeed in their substantive due process claim — the liberty interest protected by the Fifth Amendment against the federal government — Tunheim noted the record before the court and concluded that “Defendants’ sweeping and severe deprivations of liberty are not narrowly tailored to the interests they assert.”

As to the Fourth Amendment, Tunheim wrote that “the Court concludes that the plain text of § 1159 creates no offense which unadjusted refugees have committed such that their arrest could be reasonable under the Fourth Amendment.”

Further still, he noted:

[E]ven if the Court were to construe § 1159 to permit arrest and detention of some kind, the record before the Court provides no evidence that Defendants’ warrantless arrests of refugees in furtherance of Operation PARRIS have been based upon individualized probable cause inquiries.

Finally, as to the APA, Tunheim found that “neither the December Rescission Memo nor the February Re-Rescission Memo addresses—or even reflects—the Policy that has actually been implemented in Minnesota“ and, beyond that, the policy “exceeds Defendants’ authority under 8 U.S.C. § 1159 and infringes on Plaintiffs’ constitutional rights under the Fourth and Fifth Amendments.“

Tunheim similarly found remaining factors for granting a preliminary injunction — irreparable harm and public interest — favored the plaintiffs.

“The Court does not have to look far to see the grave and immediate threat of irreparable harm facing Plaintiffs,” Tunheim wrote. “Refugees who have already been detained and released, as well as those who fall within the putative Class but have not yet been arrested, face a concrete and ongoing risk of arrest or re-arrest absent preliminary relief. This fear is neither exaggerated nor speculative; it is a logical and entirely legitimate response to what has occurred.“

In conclusion, Tunheim took a step back:

“Until the legality of this dramatic shift is addressed at trial, the Court will not allow those who relied on this Nation’s promise of safety to be met instead with handcuffs,” Tunheim stated.

As such, Tunheim granted the classwide relief barring the arrest and detention of “[a]ll individuals with refugee status who are residing in the state of Minnesota, who have not yet adjusted to lawful permanent resident status, and have not been charged with any ground for removal under the Immigration and Nationality Act.“

In his ruling, Tunheim denied the request for a second class-based preliminary injunction that would have ordered the release of all detained pursuant to the new policy — but only did so because no one is detained under the policy and all who had been have been released.

A federal judge has ordered the warden of a federal prison in North Carolina to explain by Tuesday why he shouldn’t be held in civil contempt over claims that a transgender woman is facing harsh retaliation for her involvement in a lawsuit against the Trump administration.

The order from U.S District Judge Royce Lamberth came after a hearing in which the Reagan appointee dressed down the Justice Department lawyer representing the Trump administration for his lackluster response to ongoing questions about retaliation against witnesses in ongoing federal litigation challenging the Trump administration’s treatment of transgender people in prison.

“You don’t know anything. There’s nothing to ask you,“ Lamberth — who has been on the bench for more than 38 years — told the Justice Department’s Jared Littman, questioning whether Littman even cares about the claims against the government.

“It’s not that I don’t care,“ Littman responded meekly, telling the judge that he is working with the Federal Bureau of Prisons to carry out the court’s orders.

Lawyers for the plaintiffs had alleged on Wednesday that one of their clients, Grace Pinson, has faced retaliation in the days since Lamberth issued an order specifically barring any further retaliation against plaintiffs or witnesses in the case.

Lamberth quickly responded, on Thursday morning calling the parties together for an in-person hearing at 2:30 p.m. Thursday on the sixth floor of the E. Barrett Prettyman Courthouse.

After brief opening statements from Michael Perloff from the ACLU of DC for the plaintiffs and Littman, it didn’t take long for Lamberth, who has blocked significant parts of the Trump administration’s efforts to restrict trans inmates’ rights over the court of the past year, to get to the heart of the matter.

Noting that Littman “didn’t have the facts” regarding the alleged retaliation at the hearing on February 19, which had led Lamberth to issue the protective order barring any further retaliation, Lamberth told Littman, “You still don’t know the facts.”

When Littman repeated a claim he provided in his opening statement — that there is an internal investigation ongoing into the retaliation claims — that set off Lamberth.

“I’m not going to depend on an internal affairs report,“ he shot back, repeating that he wants to know the facts and reminding Littman — as he had noted at the hearing on February 19 — that if the allegations from the plaintiffs’ lawyers are true, the action represents “blatant disregard of this court.”

When Littman said he didn’t know the name of the warden at FCI Butner, where Pinson is in custody, that appeared to be a further turning point. Lamberth went on to muse whether the warden has “turned a blind eye“ to the retaliation against Pinson, which has been detailed in declarations provided in status reports in the case dating back into 2025.

In an abrupt moment before he took a recess, Littman told Lamberth that DOJ is planning to seek reconsideration of Lamberth’s February 19 protective order. Lamberth shot a sharp look to Littman, almost rhetorically asking whether Littman actually thought that — in light of the most recent filing and Thursday’s hearing — “I’m going to reconsider“ that order.

In his reply, Perloff added to the initial show cause request, moving on the spot for a temporary restraining order to protect Pinson and Elmer Armando Moreno, Pinson’s former roommate who also submitted a declaration in Wednesday’s filing, under the Eighth Amendment. Perloff asked for Pinson to be moved to a halfway house, as he said was earlier planned, and for Moreno to be returned to the prison’s general population. Alternatively, Perloff sought a “detailed plan“ be produced for how Pinson and Moreno would be protected.

After a recess, at the conclusion of the hearing, Lamberth granted the motion to show cause, ordering the Warden Scott Garland, along with all of the prison’s employees named in the plaintiffs’ filing, to respond to the claims by Tuesday and explain why they should not face civil contempt, with a hearing set for 11:00 a.m. Wednesday.

Lamberth also partially granted the TRO request, ordering that the “detailed plan” be submitted by Tuesday as well.

In the days before that plan can be presented and approved, Perloff asked to ensure ready communication with Pinson. As to that, Lamberth told the parties to reach an agreement on how to do so by Friday morning or to present proposals and said he would rule by noon Friday on that.

It was a remarkable hearing, highlighting just how far the Trump administration — and, specifically, the Justice Department — has fallen in the eyes of the courts.

Not only was a show cause order issued less than 24 hours after a motion was filed, but a TRO requested in the final minutes of arguments was partially granted.

No, these are not — in and of themselves — solutions. But they are steps, and Littman, and the two other Justice Department attorneys who made appearances, Jean Lin and Alex Yun, are on notice.

And, as another step halfway across the country on Thursday showed, first steps can lead to further steps.

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Judge Schiltz’s latest step

Just shy of a month ago, U.S. District Judge Patrick Schiltz in Minnesota published a list of “96 court orders that ICE has violated in 74 cases“ in conjunction with an order in one of the countless habeas corpus cases Minnesota judges have been fielding in the wake of Operation Metro Surge.

The order from Schiltz, a George W. Bush appointee who has written repeatedly about ethics and the law, made a splash and was followed soon thereafter by the hearing before another federal judge in Minnesota in which a government lawyer acknowledged that “the system sucks.“

U.S. Attorney Daniel Rosen, a Trump appointee in Minnesota who had no prosecutorial experience before taking office in October 2025, did not like Schiltz’s order.

In a supplemental order issued Thursday, Schiltz — who will have been on the bench for 20 years this April — announced, “Unfortunately, the government’s response to the Court’s order was not to do a better job complying with court orders, but instead to attack the Court.” Via a February 9 email, Schiltz wrote on Thursday, Rosen “accused the Court of wildly overstating the extent of ICE’s noncompliance with orders.“

How did Rosen draw this conclusion? He surely reviewed the 96 orders in the 74 cases, right?

No. Instead, as Schiltz wrote on Thursday, “Rosen said that he had asked a lawyer in his office to review ‘a statistically strong sample of the 75 cases’ listed in the appendix to the Court’s January 28 order. That ‘statistically strong sample’ consisted of the first 12 cases on the list.“

Rosen then put in his email to Schiltz the following:

On Thursday, Schiltz responded — publicly.

“Because Rosen made serious allegations against the undersigned and the other judges of this District, the undersigned asked each judge to revisit the cases that he or she had submitted for inclusion in the appendix,“ which was then further reviewed by Schiltz’s clerks, the judge wrote, leading to a new Appendix A. Acknowledging the the original list did include “some mistakes,” Schiltz wrote that it “cut both ways.”

“[T]he bottom line is that ICE violated 97 orders in 66 of the cases referred to in the January 28 order,“ Schiltz explained, instead of 96 orders in 74 cases, as initially stated. “Obviously, the January 28 order was not ‘beyond the pale of accuracy,’ as claimed by Rosen.“

Schiltz was not done. Noting that Rosen also told him in the email that “efforts we have already been undertaking for weeks have led to considerable improvement—efforts which have apparently gone unrecognized by some on the bench, even though the numbers prove them out,“ Schiltz responded.

“This, too, appears to be untrue,” the judge wrote, providing Appendix B. “Appendix B documents 113 additional orders that ICE has violated in 77 additional cases—again, above and beyond the 97 orders that ICE violated in the 66 cases identified in Appendix A,“ Schiltz explained.

Summing up this supplemental order, Schiltz wrote:

Looking forward, Schiltz made it clear that he is not done:

It is a statement that would have been almost impossible to imagine even a few years ago. Except, perhaps, for Schiltz, who wrote before the start of the new millennium about the problems facing lawyers and the legal profession. “The legal profession will be no happier or healthier until more lawyers bring better perspective to their lives,“ he wrote in the Minnesota Law Review in 1999.

As an academic, he wrote then of teaching character to law students, “We can do it well, or we can do it poorly. We should choose to do it well.”

Schiltz may not have realized how strongly he would be called upon to live out those words later in his life, but he does appear to be ready for the task.

An alarming emergency motion filed on Wednesday night alleged “flagrant violations” by the Trump administration of a federal court order that it not retaliate against witnesses who are providing information to the court in a lawsuit challenging the Trump administration’s anti-trans prison policies.

The Wednesday night filing details claims by a transgender woman in a prison in North Carolina of “a demeaning visual cavity search,” guards throwing her legal papers in “a cell covered in feces,” and extended retaliatory detention in recent days.

The filing asks U.S. District Judge Royce Lamberth to order the Trump administration to explain why it should not be held in civil contempt for the actions.

“I think that it is important for the Court to know what is happening here,“ Grace Pinson, who has submitted several declarations in the case, stated in a declaration filed on Wednesday along with the lawyer’s motion.

The filing in federal court in D.C. came less than a week after Lamberth, a Reagan appointee, issued an order on February 19 barring any further retaliation against inmates for their participation in the case.

Three days later, however, Pinson alleged that a lieutenant at the facility where she is housed referred to as Lt. Teague told her, “I don’t give a fuck what that judge says, I do what I want.”

The filing and declarations allege that the officials’ actions echo that claim.

The request is now before Lamberth, who has blocked many of the anti-trans prison policies advanced by the Trump administration from going into effect with a classwide preliminary injunction that has been in effect since mid-2025.

[Update, 11:45 a.m.: Judge Royce Lamberth has set a hearing on this motion — alleging violations of his Feb. 19 court order — for 2:30 p.m. Thursday.]

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In the declaration from Pinson, who is currently in Federal Bureau of Prisons custody at FCI Butner Medium I in North Carolina, she alleged that officials presented her with the new policy for treatment of transgender people in federal prisons:

She then went on to detail the invasive visual cavity search that she says she was subjected to on February 22 by male guards.

Then, she recounted the lawless statement that she claims Teague made to her:

“If you want to make it home alive, you need to stop sending stuff to that fucking judge, or you’re not going to make it,” she says Teague told her.

Her former roommate, Elmer Armando Moreno, also submitted a declaration, highlighting the retaliation that he has seen Pinson face, as well as stating, “Because of what I have witnessed BOP staff do to Grace, I fear for my own safety.“

In the motion for an order to show case, the plaintiffs’ lawyers argued, “But Lt. Teague and his colleagues cannot simply do what they want. Like anyone else, they are bound by the law. Civil contempt vindicates this principle.“

The lawyers are asking for Lamberth to:

issue an Order to Show Cause, requiring that Defendants expeditiously answer the charges in Ms. Pinson’s declaration and take immediate action to protect her, Mr. Moreno, and everyone else who has or will come forward as part of this litigation. This response is necessary not only to protect class members and witnesses, but also to affirm the Court’s own authority, and to make clear to Defendants and their agents and employees that adherence to Court orders is mandatory, not optional.

The lawyers urged Lamberth that “[n]othing more is needed to initiate emergency proceedings” given the information provided to the court on Wednesday night.

Law Dork will have more on this developing story as circumstances warrant.

The U.S. Supreme Court on Wednesday unanimously rejected a private prison company’s effort to grant it an expansive new authority whenever it is doing work for the government.

GEO Group was asking the justices to establish that “derivative sovereign immunity” protects government contractors — necessary here so that GEO Group could immediately appeal a ruling that it lacked that so-called “immunity” in a case challenging the company’s treatment of people in a facility in Colorado that it used for immigration detention via contracts with U.S. Immigration and Customs Enforcement.

On Wednesday, the justices dealt GEO Group a loss — not only rejecting the company’s appeal but, more centrally, rejecting the company’s “derivative sovereign immunity” argument altogether.

It is a technical, but important, decision — especially as the Trump administration spends billions of dollars on immigration enforcement, with large sums going to contractors like GEO Group.

In Justice Elena Kagan’s opinion for the Supreme Court, she explained that the protection for federal contractors at issue — derived from a 1940 Supreme Court decision — is a defense, not an immunity.

The distinction matters here because, as Kagan explained, a Supreme Court case from a few years later, in 1949, laid out the rule for when a party can appeal a ruling in a case before the end of that case. And, Kagan detailed, a decision rejecting immunity can be appealed immediately, but not a decision rejecting a defense.

Ultimately, the decision will allow lawsuits to proceed more quickly when federal contractors are alleged to have acted unlawfully or outside of their authority.

There were no dissents, although Justice Clarence Thomas did not join all of Kagan’s opinion and Justice Sam Alito agreed for a slightly different reason.

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What is this all about?

That’s both a good question — and why this case matters — so let’s look more closely.

The general rule that you can only bring an appeal at the end of a case is the final-judgment rule, and the exception laid out in the 1949 case — the times when a party can bring an appeal before the end of the case, known as an interlocutory appeal — is known as the collateral-order doctrine. One of the conditions to bringing an interlocutory appeal under that case, Cohen v. Beneficial Industrial Loan Corp., is that the decision would be “effectively unreviewable on appeal from a final judgment.“

To that, Kagan got into the difference between a defense and an immunity:

That difference is key to seeing why an immunity is “effectively unreviewable” at the end of a case. As Kagan put it, “Because an immunity applies irrespective of the merits, the protection it offers is not a simple finding of non-liability. Rather, the immunity ensures that the defendant need not ‘answer for his conduct’ in court at all—that he avoids, in addition to liability, all the usual ‘burdens of litigation,’ including a trial.“

Applying that here and deciding whether a defense or immunity was at issue, then, essentially resolved the current case.

Kagan explained that in the 1940 case, Yearsley v. W. A. Ross Constr. Co., the court held that “a federal contractor cannot be held liable for conduct that the Government has lawfully ‘authorized and directed’ the contractor to perform.”

GEO Group argued that Yearsley established an immunity — “derivative sovereign immunity” — for those contractors and that, as such, under the 1949 case, a court’s decision rejecting Yearsley protection should be immediately appealable.

Notably, not only did the former detainees suing GEO Group disagree with that — but so did the Trump administration, which stated bluntly in its brief that “‘derivative sovereign immunity’ is something of an oxymoron“ because it is describing a defense.

Kagan — and the court — agreed:

Yearsley provides protection to a contractor when it has received a lawful authorization and acted according to its terms—meaning, when the contractor has acted within legal bounds. So in invoking Yearsley, the contractor is making the argument of a merits defense—that it is not liable because it has complied with the law.

On the other hand, she went on:

Yearsley’s protection runs out when the contractor may have violated the law—when the contractor either acted under an illegal authorization or exceeded the scope of a legal one. By drawing the line there, Yearsley ensures that it will never shield unlawful conduct, in the way that all immunities do.

This, more or less, was it.

“Once Yearsley is understood in that way—as a merits defense—the question before us almost answers itself: No, a district court’s denial of Yearsley protection is not immediately appealable“ under the provision at issue, Kagan wrote for the court.

Thomas agreed that Yearsley “and similar decisions establish a defense from liability and not an immunity from suit.“

Even Alito, who reached the conclusion on slightly different grounds, was not buying GEO Group’s argument about “derivative sovereign immunity.” He wrote:

With that, the case was sent back down to the lower courts. Unanimously.

Why does this matter?

This matters because GEO Group doesn’t want to be held accountable for its actions despite getting billions of dollars from government contracts.

This case — over allegations of forced labor in an immigration detention facility it operated in Colorado — was initially filed on October 22, 2014.

Here’s how the complaint began:

In the nearly eight years since, GEO Group has fought the lawsuit at all three levels of federal courts — returning to the appeals court twice in addition to this trip to the Supreme Court. First, it unsuccessfully fought class certification. Then, it tried to appeal the Yearsley ruling.

In short, the interlocutory appeal that GEO Group was seeking here would have given them a chance to take this extensive delay any time a court found that they actually could face liability in connection with their government contract work.

The effort to protect contractors from accountability was perhaps most clearly seen in the fact that one of their key amicus supporters was the Chamber of Commerce.

You have to wade through it at times, but the lawyers for the Chamber argued that “this case implicates the availability and degree of litigation protection afforded by derivative sovereign immunity, a critical doctrine on which contractors rely when they agree to share their expertise with the government and provide services on the public’s behalf.“

Or, as they put it more simply in one corporate-speak section heading:

This, again, was an argument that couldn’t even win over the Trump administration.

Since the lawsuit was filed, GEO Group’s profits have increased significantly. They reported total revenues of $2.63 billion for 2025 over their $1.52 billion total revenues in 2013 — with further increases expected in light of the Trump administration’s immigration enforcement activities and the $75 billion in ICE funding provided for in the One Big Beautiful Bill Act.

As President Donald Trump said at Tuesday night’s State of the Union, “Corporations are doing just fine.“

Accountability is fine, too.

Law Dork in the media

I joined Minnesota Public Radio on Wednesday night to talk about President Donald Trump’s State of the Union address, such as it was; this past week’s Supreme Court tariffs decision; and more.

Check it out!

A new lawsuit in Maine seeks to stop the Trump administration from retaliating against people who are recording or otherwise observing immigration enforcement activities — specifically challenging immigration agents’ surveillance threats, often, ironically, caught on video.

“The federal government is pursuing a conscious course of action to silence and sideline Mainers and other Americans who choose to observe, record, and share information about the conduct of federal agents who have been deployed to their streets,“ the lawsuit, filed in federal court on Monday, alleges.

In the class-action complaint, backed by Protect Democracy with support from Drummond Woodsum and Dunn Isaacson Rhee LLP law firms, two “lifelong residents of Maine” allege that the claimed tracking violates their First Amendment rights of free speech, assembly, and association, as well as their First Amendment protection against retaliation for exercising those rights.

“Absent injunctive relief, Plaintiffs must either abandon their constitutional rights or accept being cataloged and branded as ‘domestic terrorists,’” the lawsuit claims. “That is a choice the Constitution does not require Plaintiffs, or anyone, to make.“

As to Elinor Hilton, one of the named plaintiffs, the lawsuit details how agents responded to her filming immigration enforcement activity in a parking lot of a Home Depot in South Portland, Maine.

Addressing their interactions, the lawsuit put it bluntly, “[T]he message of intimidation was express and clear: Plaintiff Hilton’s lawfully protected First Amendment activity, and that of her fellow observer, would result in them having their personal data captured and being placed on a ‘domestic terrorist watchlist.’“

The lawsuit was assigned to U.S. District Judge John Woodcock Jr., a George W. Bush appointee who took senior status in 2017.

Initially, Hilton and Colleen Fagan, the other named plaintiff, are seeking a temporary restraining order to block government data collection or dissemination, threats, and retaliation against them.

In putting forward their retaliation claims, lawyers argued, essentially, that the Trump administration is all but admitting that this is retaliatory:

As to their speech claims, the lawyers argued, “Defendants’ selective targeting of Plaintiffs constitutes content- and viewpoint-based discrimination” — findings, that, if reached by the trial court would subject the government actions to strict scrutiny and render them “presumptively unconstitutional.”

Here, they argued:

Defendants’ policy of collecting and maintaining records about Plaintiffs and other observers (challenged in Count II) is, at minimum, content-discriminatory. Defendants are “singl[ing] out specific subject matter for differential treatment,” id. at 169—i.e., collecting and keeping records on Plaintiffs’ protected activity because it concerns the observation and documentation of immigration enforcement operations. And Defendants’ other actions, including labeling Plaintiffs “domestic terrorists” and threatening further harassment, constitute paradigmatic viewpoint discrimination: they are directed solely at observers perceived to be opposed to their actions, not those perceived as supporting the Administration.

Although the TRO request is only addressing actions regarding them, the request noted that “Plaintiffs later intend to seek relief on a classwide basis.“

Supreme Court takes up climate case

The U.S. Supreme Court announced on Monday morning that it will be hearing an important case next term over whether federal law precludes state-law claims over greenhouse-gas injuries.

While taking up the case out of Colorado, however, the justices also added a question over whether the Supreme Court even has jurisdiction to hear the case.

Counsel of record for the oil companies: Kannon Shanmugam, a Paul Weiss partner who has argued 39 cases before the Supreme Court and is a key Supreme Court lawyer on the right.

Closing my tabs

For those who don’t know what this is, it’s my effort to give a little thank you to paid subscribers. “Closing my tabs” is, literally, me looking through the stories and cases open — the tabs open — on my computer and sharing with you all some of those I was unable to cover during the week but that I nonetheless want to let you know that I have on my radar. Oftentimes, they are issues that will eventually find their way back into the newsletter as a case discussed moves forward or something new happens that provides me with a reason to cover the story more in depth.

This Monday, these are the tabs I am closing:

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The U.S. Supreme Court on Friday struck a blow to one of President Donald Trump’s key economic policies, holding on a 6-3 vote that Trump’s the challenged set of Trump’s mass-tariffs are not authorized by the International Emergency Economic Powers Act (IEEPA).

“When Congress grants the power to impose tariffs, it does so clearly and with careful constraints. It did neither here,” Chief Justice John Roberts wrote the court.

“Based on two words separated by 16 others in Section 1702(a)(1)(B) of IEEPA—’regulate’ and ‘importation’—the President asserts the independent power to impose tariffs on imports from any country, of any product, at any rate, for any amount of time. Those words cannot bear such weight,” Roberts wrote.

It is a remarkable document showing that Roberts — and a majority of the court — do, in fact, know how to do law. They do understand our constitutional structure and presidential limits — at least when the economic system is at issue.

“Our task today is to decide only whether the power to ‘regulate . . . importation,’ as granted to the President in IEEPA, embraces the power to impose tariffs,” Roberts wrote. “It does not.”

The result was not a surprise following the November oral arguments in the case.

In a section of his opinion that was only written for himself and Justices Neil Gorsuch and Amy Coney Barrett, Roberts raised the recent pedigree of the “‘major questions’ cases” as providing support for the ruling.

Invoking “the core congressional power of the purse“ — a change from a few months back — Roberts wrote that “if Congress were to relinquish that weapon to another branch, a ‘reasonable interpreter’ would expect it to do so ‘clearly.’ … When Congress has delegated its tariff powers, it has done so in explicit terms, and subject to strict limits.” Noting the economic impact of these tariffs, moreover, Roberts wrote, “These stakes dwarf those of other major questions cases.”

In sum, Roberts wrote for the trio, [T]he President must ‘point to clear congressional authorization’ to justify his extraordinary assertion of the power to impose tariffs. … He cannot.”

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There were 170 pages of opinions — although most of those pages came from Gorsuch’s opinion concurring with Roberts’s opinion for the court and Justice Brett Kavanaugh’s dissent written for himself and Justices Clarence Thomas and Sam Alito.

Roberts explained what the court was not deciding — both as to other uses of IEEPA and as to other tariff authorities.

Gorsuch and Barrett both wrote concurring opinions, primarily disputing what the “major questions doctrine” is and how it is to be used.

Gorsuch, essentially thinks virtually everyone else is wrong, hypocritical, or both. He, virtually alone, is pure. He explained:

This went on for 46 pages.

Barrett responded in 4 pages, noting in key part:

To the extent that JUSTICE GORSUCH attacks the view that “common sense” alone can explain all our major questions decisions, ante, at 18–22, he takes down a straw man. I have never espoused that view. Rather, as I explained in my concurrence in Biden v. Nebraska, 600 U. S. 477, 507 (2023), the major questions doctrine “situates text in context” and is therefore best understood as an ordinary application of textualism.

Justice Elena Kagan wrote an opinion concurring in part and concurring in the court’s judgment, joined by Justices Sonia Sotomayor and Ketanji Brown Jackson — who also wrote her own partial concurrence.

Kagan argued, in essence, that this is a normal statutory interpretation case and the “so-called major-questions doctrine” — as she put it — need not be a part of this case at all:

As she later detailed, “[S]traight-up statutory construction resolves this case for me; I need no major-questions thumb on the interpretive scales.“

For her part, Jackson used Friday’s decision as another opportunity to push legislative history back onto the Supreme Court stage.

Jackson described the major questions doctrine as “a framing that asks, in essence, whether Congress ‘would likely have intended’ to delegate the authority to tariff to the President through IEEPA.” To that, Jackson wrote:

While probing Congress’s intent is the right inquiry, my colleagues speculate needlessly. In my view, the Court can, and should, consult a statute’s legislative history to determine what Congress actually intended the statute to do.

This is, she explained, key to her understanding of the judicial role.

“When Congress tells us why it has included certain language in a statute, the limited role of the courts in our democratic system of government—as interpreters, not lawmakers—demands that we give effect to the will of the people,” Jackson concluded.

In Kavanaugh’s dissent for himself, Thomas, and Alito, he addressed the broad authority claimed by stating that “IEEPA merely allows the President to impose tariffs somewhat more efficiently to deal with foreign threats during national emergencies.”

As to the major questions doctrine, in a key portion of his dissent, Kavanaugh claims a foreign affairs exception applies to the already questionable “doctrine.” He wrote:

Along with Kavanuagh’s 63-page dissent for the trio, Thomas also, unsurprisingly, wrote a solo dissent.

As he often does, Thomas explained that he has a different view of the Constitution. On Friday, it was a nondelegation doctrine exception that would allow certain wholesale delegations.

But, on Friday, Thomas was alone on that front.

More than a year after the Trump administration was first sued over its anti-transgender prison policies, the Justice Department showed up in court Thursday morning with a new policy that would bar needed surgeries for trans people in federal prisons, require “tapering plans” for those receiving hormone therapy, and end “social” accommodations like gender-appropriate clothing.

The new “program statement“ from the Federal Bureau of Prisons would cause “serious harms,” Leslie Cooper, the deputy director of the ACLU LGBT & HIV Project and one of the lawyers in a challenge to the policy, told Law Dork. “It’s a really dangerous policy.”

The actions, which followed a prison-related directive in President Donald Trump’s January 20, 2025 executive order defining “sex,” have faced multiple challenges, all of which are now before U.S. District Judge Royce Lamberth, a Reagan appointee in D.C. Lamberth has blocked many of the anti-trans policies from going into effect with a classwide preliminary injunction that has now been in effect, a DOJ lawyer acknowledged, for more than 200 days.

The new policy could upend that — or at least be an effort to do so.

“Obviously we’re going to continue to fight and ensure that our preliminary injunction will continue to protect members of the class,” Cooper told Law Dork, noting that the last-minute production of the policy meant it was still being reviewed by the lawyers.

Beyond that, at Thursday’s hearing, plaintiffs also raised concerns about retaliation that some trans inmates have said they faced, including after being involved in and filing declarations in the case.

When Lamberth asked Jared Littman, the DOJ attorney defending BOP, about those allegations, Littman claimed there was no evidence of retaliation.

"How do you say there's no evidence?" Lamberth shot back, noting the “sworn affidavit” claiming retaliation that went unrebutted by DOJ.

"That is contempt of this court if that happened," Lamberth said, asking why there was no investigation of the claims before today.

Before close of business on Thursday, Lamberth issued the protective order sought by the plaintiffs — barring any further retaliation, requiring DOJ to provide written notice of the order to BOP wardens and class members within 14 days, and requiring DOJ to “file a written declaration detailing how this order was conveyed to staff and incarcerated people at all BOP facilities at which class members are incarcerated” within 30 days.

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What is the new policy?

From the beginning, the stated “purpose” of the new policy is not to protect trans people or provide them with appropriate treatment, focusing solely on “recovery” from “gender dysphoria,” the medical diagnosis that regularly precedes gender-affirming treatment and medical care.

The definitions make clear the antipathy toward trans people, defining gender identity as follows:

Further mentions of gender identity are put in scare quotes — despite it being a defined term.

As to the substance of the order, it sets forth the basis of the policy as the Trump order, but then also claims that BOP is “adopt[ing] this policy independently of [the] Executive Order.”

Specially, it would not allow any surgery.

As to hormone therapy, it would not allow new hormone therapy.

It would require a “tapering plan“ for all others.

Even as to those who have had gender-affirming surgery and have been receiving hormone therapy for an “extended period,” the new policy would require “tapering plans“ to “be reevaluated regularly with respect to cessation of hormones.”

Finally, the new policy “will not provide social accommodations,“ including gender-appropriate clothing; will “no longer provide” such accommodations; and “remove or confiscate“ such accommodations “when practicable.“

On Thursday afternoon, Lamberth ordered that the administrative record for this new policy be filed in the case within 21 days.

Two senior officials in the Department of Homeland Security on Wednesday issued a new, significantly more detailed memorandum seeking to justify rounding up and detaining certain refugees in America — six days after the Justice Department filed a one-paragraph DHS memo from December in court to justify the actions.

Joseph Edlow, the director of U.S. Citizenship and Immigration Services, and Todd Lyons, the “senior official performing the duties of the director” of U.S. Immigration and Customs Enforcement, issued the joint memo on Wednesday, the day before a key hearing in a case challenging the Trump administration’s treatment of refugees in Minnesota. DOJ filed the memo in the case later Wednesday.

The memo — from two of the three DHS leaders who testified before a House committee at a contentious hearing last week — addresses the treatment of refugees who have been in the U.S. for more than a year but have not yet obtained lawful permanent resident (LPR) status. Under prior interpretation of the relevant provision of the Refugee Act of 1980, most recently detailed in a 2010 DHS memo, detention is not appropriate on that basis alone.

As Law Dork reported last week, DHS purported to have rescinded the 2010 memo on December 18. On January 9, DHS announced a new program that includes “reverification” of refugees who entered the country after President Biden took office. That program included targeted detention of law-abiding refugees in Minnesota who do not yet have LPR status, which led to a class-action lawsuit, which led U.S. District Judge John Tunheim to issue a classwide temporary restraining order barring the detention of such refugees through February 25.

Then, as DOJ began opposing the requests, Tunheim ordered DOJ to turn over relevant documents. Due to the fact that this is a case relating to immigration detention, a federal default rule means filings in the case are not remotely available to journalists or the public at large but can only be obtained at the federal courthouse where the case is filed. The default rule can be changed — and remote access can be made available if “the court orders otherwise.“ Law Dork filed a motion to intervene in the case this past week and asked the court to do so.

On Wednesday, U.S. Magistrate Judge Douglas Micko denied Law Dork’s motion to intervene, asserting that “each of Law Dork’s requests has been satisfied.“

Relevant to Wednesday’s news, Micko wrote:

Law Dork seeks to intervene in this case to obtain public access to the docket in this case. It states that it is a news agency, and granting unrestricted electronic access to court records will protect the public’s right of access to court proceedings. But the public may already access filings in this case through the public terminals available at each federal courthouse in the district.

First of all, Law Dork’s request noted specifically that I am “located in Washington, DC and rel[y] on remote access to case dockets and proceedings.“ More importantly, Micko apparently believes that in-person, time-limited access at a courthouse to filings in a case addressing statewide and national refugee policies in which classwide relief has been granted is sufficient to “satisf[y]” the need for access to such an important case.

I strongly believe that is wrong, and many courts to have faced this question agree — a point also noted in Law Dork’s request.

As if to prove the point of Law Dork’s request, Micko’s order came hours after DOJ filed the new memo. Under Micko’s ruling, journalists and the public at large do not have remote access to the memo on the case’s docket — despite it being filed about 24 hours before the summary judgment hearing.

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Law Dork, however, obtained and is publishing the memo.

In the “New Policy” section of the memo, Edlow and Lyons declare that refugees who do not obtain LPR status — obtain a green card — after a year either need to return to DHS or DHS will arrest and detain them for “inspection and examination for admission as an LPR.”

Then, the new policy states, “DHS may maintain custody for the duration of the inspection and examination process.“

That’s not all. The Edlow-Lyons memo goes further, stating that detention for this purpose “is not indefinite, but also is not limited to merely 48 hours.”

There was no authority for this detention at all for this purpose before DHS claimed to have found such authority this year. Now, DHS is claiming authority for detaining refugees for some “reasonable” amount of time between 48 hours and “indefinite.”

Under the 2010 memo’s discussion, decisions about “whether to release” refugees permitted to be arrested under the earlier standard “or to commence removal proceedings” had to be made within 48 hours.

The new memo is extremely vague about whether a refugee having applied to adjust their status is even sufficient to avoid detention.

This is a significant issue when, as Law Dork reported last week, under a different memo, DHS began holding all LPR applications as of November 21, 2025.

In addition to claiming that this new review and detention is necessary under the “statutory framework” of the 1980 law — something identified out of thin air and contrary to all prior policy — the Edlow-Lyons memo now claims that a “[r]eturn to custody for inspection is critical to ensuring full and thorough vetting.”

As the memo details:

Edlow and Lyons claim that “[a] USCIS review of recently admitted refugees from just the Western Hemisphere illustrates some of the failures“ under “the prior policies, which prioritized speed and volume of refugee admissions over depth and quality of refugee adjudications.”

Edlow and Lyons claim, vaguely, that of “31,000 refugees admitted to the United States from Ecuador, El Salvador, Guatemala, Honduras, and Venezuela from 2021 to 2024,“ the review determined that “[o]ver 42% had been insufficiently vetted to determine whether or not they presented a public safety concern.“

No explanation was provided detailing what that means or how that was defined. The same review information cited in the memo was previously cited in a declaration submitted earlier in the case by a USCIS official. That, too, included no further information about the review.

About 24 hours after submitting this new memo, the case brought by one refugee who was detained, another who was detained and eventually released out of state, and others who fear detention will have a key hearing.

Credentialed media, including Law Dork, will have remote access to Thursday’s preliminary injunction hearing in the case.

The public, however, will not have remote access.

“The Court, by policy, does not offer remote hearing access to the public; members of the public are welcome to attend in-person proceedings,“ Micko wrote Wednesday in denying Law Dork’s request for intervention and a public-access line for hearings in the case.

On Tuesday, the U.S. Supreme Court announced it is taking action to deal with the problems that arise from justices’ ownership of individual stocks, an issue that just this term led to the recusal of Justice Sam Alito days before oral arguments in a case and months after the justices voted on whether to hear the case at all.

What did the court do to address this ethical question?

Did the justices agree to divest from individual stock ownership — which would be the cleanest, most ethical, and easiest step, especially given that Chief Justice John Roberts and Justice Sam Alito are the only two justices who currently own individual stocks?

Of course not.

The Chief Justice of the United States will literally change the rules of the Supreme Court of the United States instead of divesting in individual stocks.

Really.

The primary revision to the rules is, at long last, a change to the way the court is going to identify conflicts of interest … by requiring parties to include stock ticker symbols in their briefs submitted to the court starting next month.

It is that embarrassing.

The Supreme Court issued an order announcing the adoption of the revisions to its rules on Tuesday morning.

In fairness, then, it is not just Roberts — or even Roberts and Alito — who did this. At least a majority of the court agreed to this change. Because it is the rules of the court, I’d go so far as to guess that it likely was unanimous.

So, what is this change?

Four of the other five changes integrate this new “stock ticker symbol” requirement into different aspects of Supreme Court filings. The final rule change makes clear that electronic filing is sufficient to establish that a document is “timely filed.”1

The Supreme Court’s Public Information Office explained what this is aimed at in a news release:

The Supreme Court of the United States spent time and money to create new software to run conflicts checks, and part of that includes checks relating to individual stocks owned by justices.

Because two justices own stocks — Roberts refuses to divest and Alito is apparently eagerly day-trading — the Supreme Court had to spend time and money in the development of this new system to integrate stock ownership conflict checks.

And now, starting in March, every party going to the Supreme Court is going to need to go along with this CNBC-style ticker-tape rule because of their intransigence.

Fix the Court’s Gabe Roth put it simply. “Public service requires certain sacrifices in the name of ethics, and going stock-free should be one of them for all branches of government,” he said in a statement. “If the justices wanted to institute a more effective change related to their ethics and their investments, they’d agree as a Court not to hold any stocks during their tenures, since all it does is cause unnecessary recusals. An investor-justice could own a blended fund, mutual fund or ETF and reap the same benefits with a far reduced conflict exposure. In fact, seven of the nine justices have made this very calculation.“

If the justices won’t do it themselves, Roth pointed to legislative efforts to ban individual stock ownership by federal judges.

As to the rules changes themselves, Roth also noted, “Public service also demands public input, and it’s a bit ridiculous that the Court can simply release new rules without a notice-and-comment period or opportunity for public views. It’s yet another example of the Court acting exceptionally in all the wrong ways.“

Indeed.

Public accountability and ethical questions are rarely addressed under Roberts’s leadership, as Law Dork has covered repeatedly in recent years.

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The Stonewall flag lawsuit

On Tuesday, a lawsuit was filed challenging the Trump administration’s recent decision to remove the Pride flag from the Stonewall National Monument in New York City.

Nonprofit groups, represented by the Washington Litigation Group and Lambda Legal, are seeking an order that the government “immediately restore the official NPS Pride flag to the Stonewall National Monument.“

The lawsuit over the treatment of the first national monument recognizing the LGBTQ movement is relatively straightforward. After the area surrounding the Stonewall Inn, including Christopher Park, was designated as a monument in 2016, this happened:

Then, with President Donald Trump in office, this happened earlier this month:

The lawsuit alleges that the action violates the Administrative Procedure Act for several similar reasons to those raised in the lawsuit challenging the Trump administration’s actions to remove material from Independence National Historical Park in Philadelphia.

It’s not often that Law Dork will get to highlight a National Park Service Foundation Document two days in a row, so let’s take advantage of it while we can. The lawsuit detailed parts of the Stonewall National Monument’s Foundation Document — issued during the first Trump administration — in explaining why the Pride flag’s removal is contrary to the purpose of the monument.

Specifically, it noted:

There are certainly more important anti-LGBTQ actions happening in the Trump administration, and I am covering them as well, but challenging these ridiculous efforts to erase history and symbols is important, too, in fighting some of the most extreme elements of this administration’s aims.

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Note to my friends at the Supreme Court. There is a scrivener’s error there in that change that someone should fix.

That “or” should be struck through in light of the addition of (4).

Update, at 7:15 p.m: OK, after someone pointed out the “or” before (2), I think that, in changing the format, it appears that this might intentional, although I still think it is surplusage. Several other times in the rules were there are semicolons and a list of numbers, only the final number is preceded by a conjunction. Out of an abundance caution here, however, despite adding in the numbers, it is possible they chose to keep the “or” to make absolutely clear a person only need do one of these to timely file a brief.

On Presidents’ Day 2026, a 77-year-old federal judge in Philadelphia issued a ruling that blocks the Trump administration’s efforts to take down or otherwise excise information from Independence National Historical Park relating to George Washington’s ownership of slaves.

In an opinion that repeatedly compared the Trump administration’s actions to George Orwell’s work, U.S. District Judge Cynthia Rufe focused Monday on a key point on this day devoted to the memory of America’s presidents: The truth matters.

It was a powerfully direct opinion:

The City of Philadelphia sued over the January removals, and Rufe, a George W. Bush appointee who has served on the federal bench since 2002, granted the city’s request for a preliminary injunction on Presidents’ Day.

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“[T]he government claims it alone has the power to erase, alter, remove and hide historical accounts on taxpayer and local government-funded monuments within its control,” wrote in her 40-page opinion.

After quoting from Orwell’s 1984 and its description of the Records Department — a place where books “were recalled and rewritten again and again, and were invariably reissued without any admission that any alteration had been made“ — Rufe wrote:

The government here likewise asserts truth is no longer self-evident, but rather the property of the elected chief magistrate and his appointees and delegees, at his whim to be scraped clean, hidden, or overwritten. And why? Solely because, as Defendants state, it has the power. …

An agency, whether the Department of the Interior, NPS, or any other agency, cannot arbitrarily decide what is true, based on its own whims or the whims of the new leadership, regardless of the evidence before it.

Because of that, Rufe continued, the city was likely to succeed in showing that the Trump administration’s actions were arbitrary and capricious in violation of the Administrative Procedure Act.

Rufe also concluded that the city was likely to succeed in its argument that the Trump administration’s actions were ultra vires — outside of their legal authority. Citing laws passed of the decades and and the long set of agreements between the city and the federal government relating to Independence National Historical Park, Rufe wrote of the Trump administration:

They have disregarded statutory authority, compelled by Congress, by taking unilateral action without seeking agreement from the City of Philadelphia. An agency, part of the Executive branch, is not entitled to act solely as it wishes. Rather, it is the Legislative branch which authorizes agency action, and the Executive branch must comply with that direction.

In siding with the city on this front, Rufe found that the Trump administration’s actions “impede the separation of powers instituted by the Constitution.”

Rufe ordered that the terms of her preliminary injunction — which included several specific elements aimed at avoiding evasion — “must be followed immediately, that is FORTHWITH.“

Rufe did not, however, just issue a ruling.

The federal judge, who was born in Philadelphia in the aftermath of World War II, also provided a clear and desperately needed history lesson for the Trump administration — and America — this Presidents’ Day.

Rufe then detailed, at length, the mass of agreements, funding, and actions taken — including by Congress — to set up the park and then bring the President’s House into the park’s coverage.

It was not subtle, because there was no ambiguity. As Rufe noted, “On December 15, 2010, the City and NPS jointly issued a press release announcing the opening of the ‘President’s House: Freedom and Slavery in the Making of a New Nation.’“

The mutual understanding continued into the first Trump administration, when the park’s “Foundation Document” was issued:

Detailing the relevant portions of the document, Rufe wrote:

Independence National Historical Park’s Foundation Document describes the President’s House as “where George Washington and John Adams and their households lived and worked during their terms as the first and second presidents of the United States . . . [and] is interpreted by the park, especially in the paradox of the Washingtons bringing their enslaved people to work and live there.” NPS specifically identifies this “Paradox of Freedom and Slavery” as crucially significant to Independence National Historical Park.

In describing the “fundamental” archeological resources of the park, NPS describes archeological investigations at the President’s House site “which revealed physical connections to the enslaved in President George Washington’s household.

She also noted that — relevant to the case — the document “identifies ‘Pioneering Partnerships and Collaboration’ as a ‘fundamental value’ of the park, noting ‘[t]he dynamic role of partnerships at the park is best illustrated by Independence National Historical Park’s close working relationship with the City of Philadelphia.”

Finally, she explained that even more recently the President’s House was “designated … as a National Underground Railroad Network to Freedom site pursuant to the National Underground Railroad Network to Freedom Act“ because “it was the location where Oney Judge escaped to freedom.“

Despite all of this, Trump issued an executive order in March 2025, “Restoring Truth and Sanity to American History,“ which the Trump administration argued justified the information’s removal.

Of that, Rufe wroe:

Instead, she wrote, “It is not disputed that President Washington owned slaves.“

Contrary to the Trump administration’s actions, “[t]he President’s House represents the City ‘fulfilling an obligation to tell the truth—the whole, complicated truth,” Rufe wrote, citing and quoting from an amici curaie brief submitted by two local groups, Avenging the Ancestors Coalition and the Black Journey walking tour. “As amici ATAC and the Black Journey contend, that abrupt elimination of ‘historically significant educational material’ is like ‘pulling pages out of a history book with a razor.’“

As Rufe put it this Presidents’ Day, “Each person who visits the President’s House and does not learn of the realities of founding-era slavery receives a false account of this country’s history.“

If you knew who they are, they would not be safe.

That is how Tom Homan, President Donald Trump’s border czar, defended masked immigration agents on Sunday.

It wasn’t the first time that has happened, but it was stated so bluntly, that I stopped the clip when I heard it the first time and went back to listen to it again.

Ed O’Keefe on CBS’s Face the Nation was asking Homan about the Democrats’ minimal demands for immigration enforcement changes in connection with funding the Department of Homeland Security. O’Keefe summarized the requests as follows:

They center around some specific policy changes Democrats demand in how immigration agents conduct operations. Among other things, they’d like to require immigration agents to show identification, wear body cameras, take off their masks, stop racial profiling, and seek judicial warrants to enter private property.

Homan, after disclaiming his involvement in negotiations, said:

[W]hen they say stop racial profiling, that's just not occurring. I mean, ICE will detain, briefly detain and question somebody – question somebody based on reasonable suspicion. It has nothing to do with racial profiling.

As far as the masks, look, you know, I don’t like the masks either, but because threats against ICE officers, you know, are up over 1500 percent, actual assaults, and threats are up over 8000 percent, these men and women have to protect themselves. As far as identifying themselves, they all have placards identifying themselves as ICE, ERO, HSI, DEA, FBI.So they all have placards on them.

So I will let the White House and members of Congress, you know, fight that out. But I think some of the asks are just — I think they’re unreasonable, because there is no racial profiling. There is identifying marks.

Virtually every word out of his mouth was a lie. And not new. Most of this line of argument is so old that Philip Bump was still at The Washington Post debunking it in an earlier iteration last summer. And the rest is just a watered-down, as-best-as-Homan-can-explain-it Kavanaugh stops excuse that has been proven to be false nearly daily since the justice wrote his words to justify the stops.

And yet, when O’Keefe tried to interrupt Homan’s filibuster to make a point, Homan summed up his arguments — and the Trump administration — with a bang:

[T]he masks right now are for officer safety reasons.

This was stated as an explanation, as a justification, as an argument for masks.

In reality, it is a deep admission of the fundamental moral failing at the base of the Trump administration’s lawless actions.

If you knew what the administration is doing, it would not be sustainable.

If a government’s actions in a democracy require masks — if the people being governed in that democracy cannot know who is acting — that is a problem with what the government is doing, not with the governed.

In fact, outside of the second Trump administration, I can really only think of two other instances where the government so fastidiously protects anonymity: The death chamber and the shadow docket.

The exceptions really do prove the rule.

The second Trump administration, in contrast, is constantly seeking to act in secrecy. The less we, the public know, the happier they are. The reasons are obvious: They know how unpopular their actions are. They know this is unsustainable. They know what they are doing is wrong.

Most importantly: They know that secrecy is essential to preventing accountability.

The Trump administration is currently on its fourth effort currently to stop members of Congress from visiting immigration detention facilities without advance notice, a topic I’ve been covering here at Law Dork.

The Trump administration is disappearing data. Earlier this month, Shifra Dayak and Anna Kramer at NOTUS reported, “Researchers estimate that well over 3,000 data sets have been removed from public access.“

Specific to immigration, the Trump administration has been issuing internal memos, altering the government’s interpretation of and enforcement of federal immigration laws (and the Constitution) repeatedly — unilateral changes that are sometimes not known to the public until months later.

Just Saturday night, Pranav Baskar and Hamed Aleaziz at The New York Times reported on yet another secret agreement the Trump administration has apparently reached with a foreign country to receive people the U.S. is wishing to deport. This time it is Cameroon, and the Times reports that nine people — not from Cameroon — were sent there in January after the government was blocked from sending the people to their own countries. This echoes when the Trump administration sent people to Ghana under similar circumstances five months ago, raising refoulement questions covered here at Law Dork at the time.

And, of course, there are the masks — the physical manifestation of the soullessness of the Trump administration.

If their faces are hidden, it is more difficult for the public to hold those public employees — people being paid with taxpayers’ money — accountable for their actions.

Although the claimed need for masks is unjustified on its own terms, the lack of justification becomes all the more clear when you step back and realize that is just part and parcel of what this administration is seeking to do on all fronts: Prevent accountability by hiding, erasing, or eliminating information.

Closing my tabs

For those who don’t know what this is, it’s my effort to give a little thank you to paid subscribers. “Closing my tabs” is, literally, me looking through the stories and cases open — the tabs open — on my computer and sharing with you all some of those I was unable to cover during the week but that I nonetheless want to let you know that I have on my radar. Oftentimes, they are issues that will eventually find their way back into the newsletter as a case discussed moves forward or something new happens that provides me with a reason to cover the story more in depth.

This Sunday, these are the tabs that I am closing:

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The Department of Homeland Security is currently targeting 5,600 refugees in Minnesota as a first step in an expansive plan aimed at reviewing — and presumably restricting — the legal status of refugees admitted between January 20, 2021 and February 20, 2025.

One of its key steps to doing so — reversing the government’s longtime position on whether a federal law allows the government to detain certain refugees — appears to based on nothing, at best, or a lie, at worst.

The information is coming out of litigation filed in the wake of the launch of Operation PARRIS (Post-Admission Refugee Reverification and Integrity Strengthening), an “investigation” announced by DHS on January 9 that is targeting certain refugees in Minnesota to start.

As Law Dork reported on Wednesday, the Trump administration had suggested in federal court in Minnesota recently that it had rescinded 2010 guidance that barred detaining refugees who had not yet obtained lawful permanent resident status — a green card — after a year of being in the U.S. The guidance itself — as U.S. District Judge John Tunheim, a Clinton appointee, has made clear — wasn’t even new, as it echoed earlier views of the provision in the Refugee Act of 1980 — 8 U.S.C. 1159.

Nonetheless, in a January 31 declaration, Tauria Rich, the deputy director of the St. Paul Field Office of ICE’s Enforcement and Removal Operations (ERO), stated that the 2010 guidance had been rescinded by Marcos Charles, ERO’s Acting Executive Associate Director.

Tunheim ordered the rescission memo to be turned over by February 12. Although initially ordered to be submitted under seal, Law Dork is seeking to intervene in the case and one of Law Dork’s requests was to lift the sealing. Before ruling on the intervention request, on Thursday, Tunheim nonetheless lifted the sealing order, ordering instead that “[s]uch documents shall be filed but not under seal.“

As such, the government filed the documents — not under seal — on Thursday night. Although still not remotely accessible because Tunheim has not yet ruled on Law Dork’s intervention and requests, they are public court documents, so Law Dork is publishing them.

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Here is the rescission memo:

To justify this rescission — which, again, is part of the government’s justification for rounding up and detaining thousands of law-abiding refugees in Minnesota alone — Charles wrote all of one paragraph.

In that paragraph, he cited only one source: A presidential proclamation from two days earlier.

Here’s the problem with that.

The word “refugee” only appears in the extensive proclamation twice — in a provision stating that the “proclamation shall not apply … to a refugee who has already been admitted to the United States.“

The only time the presidential proclamation cited to justify rounding up refugees mentions refugees is to say the proclamation will have no effect on refugees.

That’s not all.

DOJ also filed the November 21 memo from Joseph Edlow, the director of U.S. Citizenship and Immigration Services, laying out the extraordinarily broad and oppressive plans to target all refugees admitted between Day One of the Biden administration and the second month of the second Trump administration.

The American Immigration Lawyers Association posted a “practice alert” about this memo on January 9 in conjunction with the launch of Operation PARRIS, noting that the organization had “review[ed]” the memo but adding that “the guidance has not been published by USCIS.“

Law Dork is publishing it now.

USCIS issued a plan to hold all refugees’ applications for lawful permanent resident (LPR) status and review and “potential[ly] re-interview” every refugee admitted since January 20, 2021.

So, as of November 21, DHS held all LPR applications, then, on January 9, began rounding up and detaining all refugees who had not yet obtained LPR status.

Further, this is intended to get much larger.

The key paragraph — and footnotes — from Edlow’s memo makes clear that the effort is intended to go nationwide and “includes refugees who have already adjusted and are a Lawful Permanent Resident.“

Correct. Even having LPR status is not sufficient to escape USCIS’s “reinterview” plan.

Finally, DOJ filed a third memo lifting a hold on benefits adjudication for certain people who get through Operation PARRIS’s vetting process.

Of course, all of this is just the plan.

Tunheim already has blocked the detention effort and rejected DOJ’s request to dissolve the temporary restraining order currently in place.

That lawsuit and other litigation is challenging or will challenge many aspects of this plan.