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Matt's avatar

They don't teach you in law school what to do when the Rule of Law is under attack. My fellow lawyers, we better figure it out quick.

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Sioux Fleming's avatar

Forgive me if you’ve spoken about this elsewhere but I’m curious about how much weight the statement from the ABA yesterday has on any of this. I realize they aren’t the courts, but it did seem to me it could be a warning to lawyers who might support the Trump administration in defying court orders.

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Heather's avatar

I feel bad for so many DOJ lawyers right now. I think they're trying to do their jobs and zealously represent with very little to work with. I've also daydreamed about Yale revoking JD Vance's JD because he clearly wasn't paying attention in Constitutional law. Or he took the abbreviation "Con Law" too literally.

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Sam.'s avatar

These are bad people who are very happy to be doing bad things. You do not need to feel bad that bad people are having a hard time doing bad things.

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MissNumbersNinja's avatar

I've been wondering about this too! Does the ABA and state bar associations have any leverage here with the DOJ lawyers.

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Shelley Powers's avatar

So far, they aren't crossing that line. I think this is why they're so angry, is because the DOJ is keeping them from crossing that line.

It really helped when ABA came out with their "follow the rule of law" admonition to all lawyers everywhere.

But I'm following 50 cases now, and it is getting exhausting just to wade through the new filings that pour in every day. Heartening,t hough, to see the judges stand up for the rule of law.

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Krista Allen's avatar

Anyone else find it ironic that Vance's second hypothetical--a judge telling an AG how to conduct their prosecutions--was precisely what Aileen Cannon did with respect to AG Garland?

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Jos1463's avatar

Of course it doesn’t count when a judge is ruling in favor of Dear Leader. Over on Earth 2, they swim in cognitive dissonance.

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James Geluso's avatar

…and the first hypothetical happened when a judge ordered the Navy to keep a whole ship in port while its captain litigated whether he had to get a Covid vaccine. The right was fine with that.

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mike bayer's avatar

I appreciate this post and its specificity in laying out each step of these court orders and what it means each time we're told Trump etc. are "not following" the order.

However my question involves your statement "DOJ did not argue that the government did not need to follow the courts’ orders; they were arguing that they were working to comply, given their understanding of the order. ", and later "what happens if and when a court says no to Trump or Musk and they say the court’s order is illegitimate."

This seems to set up two scenarios: 1. DOJ respects the court, is working to comply with orders, and the apparent delays are simply them taking legally allowable steps to further clarify and/or challenge these orders or 2. DOJ / Trump / Musk declare the court's order is illegitimate and will not be followed.

Neither of these scenarios seem to be what is playing out. May I suggest a third scenario, 3. DOJ / Trump / Musk are *stalling compliance indefinitely, or at least long enough such that the goals of their lawless activities is met, where subsequent compliance will no longer matter* - since their goal seems very much to be to "starve" agencies such as USAID of funding until all the employees leave permanently and all the work of the agency is fully destroyed. Once that's done, sure, Musk will turn the spigot back on, nice USAID you had there, too bad it's a burned out shell now.

TLDR they're not calling the orders illegitimate, they're just stalling until the damage they're doing is permanent. How do we stop *that*?

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Chris Geidner's avatar

I think that is addressed. That’s why we got the second TRO against the OMB memo, even post-recession, and why both judges — in DC and RI — followed up with further action. In this posture, these can move quickly.

Also: All of the USAID workers put on administrative leave are back now, for now, per last night’s “notice of correction, btw.

So, I get your premise, and there is certainly harm being done, but I don’t *quite* buy your premise because actions are being stopped and reversed even.

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SPW's avatar

I can only hope that it’s beginning to dawn on these judges that if they fail to hold the line, they may as well hang up their robes and join the ranks of the insignificant.

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MissNumbersNinja's avatar

Yeah, if they don't, it seems like the judiciary would become "advisory". The Roman Emperor's kept the Roman Senate around as a show piece until the fall of the western empire in 476 A.D.

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Doug Tarnopol's avatar

So, just grasp at straws, hope it’ll all work out ok, and provide no hope for what to do if and when it doesn’t work out ok?

I dunno: I was a Boy Scout. Be prepared.

Name one example of a society that went authoritarian but was stopped by the existing courts.

The only thing that might stop it is tens of millions of fired-up, dedicated, noncompliant citizens. Fast—right now.

You’re basically saying, stand down and “hope”—and in an environment in which people are mostly checked out.

From another Substack where I posted this:

——

OK, what to do: 1. Join https://indivisible.org/.

2. Blow up your rep and senator’s phones. Nonstop. Tell all your friends to help. Demand nonstop quorum calls and blanket denial of unanimous consent. Party of No time. Act like McConnell did. Demand, don’t ask. Republicans fear their base; Democrats do not. Democrats dismiss and micturate on their base. Make them fear you. Script: “This happens or no money at all to the party. But all to challengers. We primary your ass.” Like that.

Alternate script, which I just used: “Will Senate Democrats, who rightly described this as fascism, put in a tenth of the effort fighting it as segregationist senators did for a century keeping Black people down?”

3. Call every union and demand to know why they are not calling for their membership to physically surround DoL—and all the other agencies.

4. Do not comment on this or any other site with anything other than actual actionable ideas for right now. Resist the urge to say “Gee, I find this state of affairs suboptimal” for the six millionth time. It’s hard, but do it.

——

And I’ll add: Arm. Up. Just in case. Loudly and publicly. Deterrence.

Or alternatively, clutch “hope,” and rely on the kindness of fascists. Pretty bad success rate, historically.

PS: https://www.ft.com/content/8e52b5ae-56b4-4571-ba09-103d5799ce9a

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Jaimie Hileman's avatar

As a transgender American, I'm not planning on surviving the year. It keeps me from experiencing the pain of hope. They will finish legally, medically, and socially eradicating us by May. We'll either have to emigrate, be incarcerated and killed, or kill ourselves. That's all they've left us. It's worse for the children.

What do you tell a nine year old when they ask you what the best way to take their own life is?

How does a person answer that?

How do we now live in a country where a nine year old is asking how to get poison to kill themselves?

I turned away, my whole body shaking, and I told them they wouldn't have to know about that, they wouldn't need to do that, but this child is obsessed, what are they going to do in a few years and puberty hits and they won't be able to take blockers? They're terrified they'll be forced to go through a cross gender puberty and then have to spend years and tens of thousands of dollars on unnecessary surgery after they're 18 that probably won't even be available in the United States any longer. They're looking at ten or fifteen years of their life as their genuine and authentic selves being taken from them, or more.

They would really rather die than suffer what all the rest of us did in order to become who we truly are.

A nine year old wants to die because they feel their own country hates them and their family and wants them dead.

I hope Republicans are PROUD, driving a nine year old to want to DIE.

This is not America.

I don't know what this is, some MAGA hellscape, but the America I knew and loved is DEAD.

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Doug Tarnopol's avatar

Make them pay. I am not nearly in the situation you are but I plan to continue to volunteer to hurl myself forward

Yes, they’re worthless Nazi scum. Don’t let them break you. Don’t despair. Get. Fucking. Angry.

Make them pay. Make the rest of us help you make them pay.

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Deana Smith's avatar

I’m so sorry! I’m fighting for you. Please hang in there.

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Jos1463's avatar

I’m so sorry you’re feeling so desperate and can’t give any hope to that nine year old child. A doctor in New York just told the Trump administration to fuck off with his unconstitutional anti-trans EO so please hang in there.

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Jaimie Hileman's avatar

Not so much that I *couldn't* give hope to a child in such extremis, as I am not a monster, but that I felt paralyzed in my outrage that this type of systemic, stochastic, and targeted terrorism is being used in MY COUNTRY against CHILDREN and 80-90% of Americans don't give a good god-damn.

The United States has always made war on women and children but seldom targeted them specifically, and it was almost always SOMEBODY ELSE'S CHILDREN, so that made it somehow morally ok.

Not so much, now.

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Sharon's avatar

Yes, it is hard to provide reassurance when you don't know what the future holds and it looks bleak. No child (or adult) should have to feel so hopeless for their future and unwanted by so many in their community. I think acknowledging how bad and wrong it is and knowing we are in this together and won't give up on each other is something we can do to get through the day. I hope you and this child have access to mental health services you can trust. It is one of the ways my daughter is coping.

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MissNumbersNinja's avatar

Regarding the timeline you mentioned - May. I just wanted to share a bit here and say, I have bottom surgery scheduled in April at a hospital in Washington D.C. I'll be there until late May recovering.

I feel like I'm going into the Lion's Den; into an environment that seems very uncertain. My brain is telling me to flee but my feet aren't moving. I've worked so hard to get to this point, I just can't abandon that. I'm scared but unless the surgery is canceled I'm resolved to go and take my chances.

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Jaimie Hileman's avatar

Ironically you might be in a *better* position to get your surgery, recover, and travel, there in the belly of the beast better than elsewhere because DC seems far less susceptible to anticipatory obedience. Red states and red rural areas in blue states will be the first to attempt over compliance when we ourselves become criminalized but DC will likely wait until the end, judging by past efforts such as the 2015-2016 bathroom bans.

I wish you all the best, with all my heart.

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MissNumbersNinja's avatar

Thank you for the well wishes!

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Jaimie Hileman's avatar

Anytime, and good luck on this part and every part of your transition journey! The fact that you're sticking to it is inspiring to the whole community no matter where we all collectively are in our own journeys because your resilience and perseverance ARE resistance!

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MissNumbersNinja's avatar

Hearing that gives me even more resolve to stay the course, thank you!

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MissNumbersNinja's avatar

That's so sad. My heart goes out to you the child.

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MissNumbersNinja's avatar

I think you and Chris are both right here. If Trump and Musk stop complying with court orders, then, no, the courts aren't on their own going to be able to save us from authoritarianism.

The courts need help. The courts need we-the-people to stand up and say, no, this is not acceptable. If this comes to pass, my hope is that symbolism of defying court orders, especially a SCOTUS court order will galvanize people. Realistically, I expect things to me muddy and confusing to most people until/if they defy a SCOTUS court order, but if they do that, it seems like the should be a lot harder to obfuscate.

I think the indivisible groups you talked about will be key for mobilizing people in that moment to make their voices heard.

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Brian Money's avatar

A clear explanation of where we are and what may lie ahead. I have been calling my GOP Senators Rick Scott and Ashley Moody daily urging them to stand up to the Trump administration. I know they won't, but it makes me feel a bit better. I know I'm ready to make a lot more noise if Trump outright defies the courts.

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MissNumbersNinja's avatar

Thanks you! I've been a pain-in-the ass to my reps too. This is what we all need to be doing right now.

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Patrice La Belle, M.D.'s avatar

Congress has been very passive. It seems to be giving up its powers under the Constitution. One thing we can do is to remind our Senators and Representatives that they should stand firm, keep their constitutuonal role, and move to hold any officer who fails to follow the laws enacted by Congress to account. Trump, Musk, and Bessant, for instance, should be explaining their violations of law and the Constitution in Congress or be held in contempt or impeached.

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RalfW's avatar

I have come to the conclusion that most GOP senators think this new power status will endure. But we are in chaotic times, and they are taking great risks in operating from that assumption. For the moment, their ceding of power to Trump because he is delivering the policy goals they want, without them doing the work absolutely fails to considering what happens if we muddle through this period and a President Walz or President Booker runs the table the opposite way. They'll have lost significant power and the attempt to regain it likely fails.

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MissNumbersNinja's avatar

I agree they are being very shortsighted. And, they're afraid of their voters. These spending freezes cuts are going to affect GOP voters too. I hope enough of them make noise about it to influence congress.

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Ted's avatar

Very insightful piece, Chris. I'll admit, living in Ohio becomes exponentially more stressful with Trump in the WH. It's already a severely gerrymandered state run by people like the current VP, who was a feckless Senator who I was ashamed to see elected. I fear that if the administration decides that they don't need to follow the courts, the laws, or the Constitution, then things in this quite red state might devolve rapidly. As soon as Trump had the nomination for the last election, Facebook marketplace was full of Nazi memorabilia, bullet proof vests, and a myriad of weapons euphemistically named so as to dodge the moderators. It's like everyone around here is preparing for war.

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MissNumbersNinja's avatar

That's terrifying.

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b_e_calif's avatar

Pardon my pessimism, but it seems increasingly clear that the justice system is ill-equipped to counter an administration hellbent on destroying all trust in the country's international and domestic institutions. Tens, if not hundreds, of people around the world have undoubtedly died due to USAID services being cut. No international leaders in their right minds would trust the US to adhere to any kind of agreement to hold off on tariff threats. American researchers can't rely on consistent funding. Even if they get reinstated, agency employees will be terrified to keep working for an administration that so obviously despises them. The courts are moving at lighting speed, relatively, but they can't erase bring back trust and erase fear. Is there any other way for the legal profession to fight back?

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Donald J Frickel's avatar

Well done, Chris.

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David J. Sharp's avatar

The courts react to all these ridiculous executive orders with many TROs … but the public won’t react until *they* feel the pain. Problematic when MAGA could care less about anyone else that’s not white, Christian and male.

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Dana Shilling's avatar

However, white Christian males enjoy things like being employed, not having to pay for things where everybody in the supply chain has reacted to tariffs by increasing prices, having a chance of attracting women for casual sex if single, having a chance of having two kids instead of 17 if married, and not having their mothers-in-law dumped on the front lawn after the nursing home's private equity owners decide the nursing home isn't profitable enough.

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MissNumbersNinja's avatar

I agree and these spending freezes cuts are going to affect GOP voters too, including the male Christian voters. I hope enough of them make noise about it to influence congress.

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Feral Finster's avatar

1. The United States is in no wise a "democracy" nor is it a "democratic republic" or similar, but an oligarchy featuring legal unlimited political bribery for those who can afford pricey lawyers.

Trump and clan are simply saying the quiet parts out loud, and that is not an endorsement of them. The reason that there is less pushback to Trump 2.0 is because the United States is dropping any pretense to being anything other than an empire.

2. One of my consistent themes is that the West will increasingly resemble Brazil, albeit a Brazil with worse weather, less attractive females, shittier music, and a more hyperbelligerent foreign policy.

And such an arrangement suits the elites just fine, thank you very much.

Like Brazil, you will see increasing ghettoization, but the average frustrated Brazilian oligarch doesn't care whether a given favela is ruled by Commando Vermelho or Terciero Commando or someone else, since he never has to go there. Like Brazil, you will hear touching appeals to Muh Rule Of Law, but only when politically convenient. As a practical matter, there will be sets of laws for the poor, some administered by government forces and others by gangs or other informal forces, all brutal and none of whom answer to any authority when dealing with the poor. The oligarchs are unconstrained by any law other than their own.

Happy horseshit rhetoric aside, this has been the way things worked for most people throughout most of history. The West had a good run, but it is rapidly reverting to the mean. The Iron Law Of Oligarchy always wins in the end.

https://indi.ca/how-americas-broken-healthcare-and-education-work-great/

One of the things that they won't tell you is that, throughout history, the common people have often been the biggest supporters of autocrats, tyrants and absolutists, because these were the people who protected them against the oligarch class, the local baron or zamindar, the person who was much more involved in the oppression of the average frustrated peasant than some far away king. The petty nobles were the ones demanding limits to royal authority, Magna Cartas and talk of civil rights, mainly because they wanted to restrict the power of the King and to increase their own rights.It is worth pointing out that the plebs were Julius Caesar's biggest supporters, while the aristocrat and patricians mostly supported the old Republic.

"How is it that we hear the loudest yelps for liberty among the drivers of Negroes?" - Samuel Johnson

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Susan Linehan's avatar

Thanks for the summary. It helps clarify things. It would be even more helpful if you could post separately somewhere a list of the cases you are discussing--with plaintiff, issue, court and judge, and case number --that you could then link to: Number them, and then when you link say "see Case 1 on tally list. (the link being the words tally list.)

I like to follow the cases and as new orders come thick and fast it gets hard to remember "what was the RI judge dealing with, and has the MA case been appealed yet or what was it that Bate's order is about? At this point, just the list--keeping updating what's HAPPENING isn't the point; your posts do that.

Just Security has a list, but it is somewhat hard to follow and would still make us look for "The RI case" (or soon if not already, WHICH RI case).

I'm suggesting a one time list, only adding new lawsuits as they arrive, as a place we could take a peek at via your links. If we care, with the case # we could find at least some documents ourselves, at least in Federal Court. Or refer to it when the media just says "A federal judge in MA ruled"

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Meredith Boylan's avatar

"But, despite the horrible and very real things that have happened in the first three weeks of the second Trump administration, we are not there yet."

But aren't we there right now, with this action by a FEMA official?

"A senior official at the Federal Emergency Management Agency instructed subordinates to freeze funding for a wide array of grant programs Monday, just hours after a federal judge ordered the Trump administration — for the second time — to stop such pauses."

https://www.nbcnews.com/politics/donald-trump/fema-official-ignores-judge-order-freeze-grant-funding-rcna191674

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