Note: People can feel free to say in the comments that I’m not sufficiently negative or pessimistic, but I’m done responding to such things. I write carefully and know what I’m writing and why I’m writing it.
One of the greatest reasons for concern is that some very smart, very knowledgeable people seem to be implying that Trump's conduct should not be of particularly great concern merely because Trump is at least acting in a sphere in which our Constitution vested power in the federal government. For me, this very serious problem was highlighted by Professor Vladeck in the first sentence following his caption emphasizing that D.C. is a "federal enclave" in which "the federal government has plenary power." In plain English, plenary power means absolute power, which is very dangerous and clearly unconstitutional.
Professor Vladeck is obviously brilliant and extremely knowledgeable. Even so, it definitely is time to cease asserting that "the federal government has plenary power over" anything. It's not true that the federal government has plenary power anywhere regarding anything. As I addressed my long comment below (about the Necessary and Proper Clause) our Constitution clearly emphasizes a crucial limitation. All exercises of power by our public servants in federal government are limited to those that are "necessary and proper" to give effect to our Constitution.
The Tenth Amendment does (and was written to) succinctly summarize our entire Constitution and especially to re-emphasize, first, that the People delegated only limited powers to federal government, and last, that the People are sovereign:
The People "delegated to the United States by the Constitution" only limited "powers;" the People "prohibited by [our Constitution certain] "powers" to "the States;" the People "reserved to the States" certain "powers;" finally, the People "reserved" to "the people" all residual "powers."
The first clause of the Tenth Amendment re-emphasizes the language of the first sentence of Articles I, II, and III (the People "vested" in each branch only limited powers). In Article I, the People emphasized a crucial limitation on all exercises of federal power: each exercise must "be necessary and proper for carrying into Execution" the "Powers vested by this Constitution" in Congress or "in the Government of the United States, or in any Department or Officer thereof."
Instead of asserting the "plenary power" of federal government regarding anything, a far more appropriate and accurate expression regarding the powers of public servants at issue in federalism is simply "jurisdiction." See, e.g., Federalist No. 81 (Alexander Hamilton) (“jurisdiction” refers to the power to “pronounce[ ] the law”). Jurisdiction “is composed of JUS and DICTIO, juris dictio or a speaking and pronouncing of the law.” Id., n. 3.
Perhaps the most important statement in The Federalist Papers directly contrasting the sovereignty of the people with the jurisdiction of state and federal governments was in Federalist No. 46 (Madison):
"The adversaries of the Constitution seem to have lost sight of the people altogether in their reasonings on this subject; and to have viewed these different establishments [federal and state governments], not only as mutual rivals and enemies, but as uncontrolled by any common superior in their efforts to usurp the authorities of each other. These gentlemen must here be reminded of their error. They must be told that the ultimate authority, wherever the derivative may be found, resides in the people alone, and that it will not depend merely on the comparative ambition or address of the different governments, whether either, or which of them, will be able to enlarge its sphere of jurisdiction at the expense of the other. Truth, no less than decency, requires that the event in every case should be supposed to depend on the sentiments and sanction of their common constituents."
In Federalist No. 37, Madison emphasized that the Constitutional "convention" was "delineating the boundary between the federal and State jurisdictions." Madison promptly emphasized the same in Federalist No. 39: "the proposed government cannot be deemed a NATIONAL one" in every respect because "its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty [jurisdiction] over all other objects," as a result, "controversies relating to the boundary between the two jurisdictions" may arise. In Federalist No. 40, Madison again emphasized "the general powers [of the federal government] are limited," and "the States, in all unenumerated cases, are left in the enjoyment of their sovereign and independent jurisdiction."
In Federalist No. 14, Madison emphasized "the general [federal] government is not to be charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects, which concern all the members of the republic, but which are not to be attained by the separate provisions of any. The subordinate [state] governments, which can extend their care to all those other subjects which can be separately provided for, will retain their due authority and activity." See also Federalist No. 17 (Hamilton) ("The administration of private justice between the citizens of the same State, the supervision of agriculture and of other concerns of a similar nature, all those things, in short, which are proper to be provided for by local legislation, can never be desirable cares of a general [federal] jurisdiction."). See also Federalist No. 80 (Hamilton) ("A distinction may perhaps be imagined between cases arising upon treaties and the laws of nations and those which may stand merely on the footing of the municipal law. The former kind may be supposed proper for the federal jurisdiction, the latter for that of the States."). See also Federalist No. 9 (Hamilton) ("exclusively appropriated to the local jurisdictions" should be "the appointment of their own officers").
In Federalist No. 27, Hamilton emphasized, "It merits particular attention in this place, that the laws of the Confederacy, as to the ENUMERATED and LEGITIMATE objects of its jurisdiction, will become the SUPREME LAW of the land; to the observance of which all officers, legislative, executive, and judicial, in each State, will be bound by the sanctity of an oath." In Federalist No. 41, Madison emphasized "two important questions arise: 1. Whether any part of the powers transferred to the general [federal] government be unnecessary or improper? 2. Whether the entire mass of them be dangerous to the portion of jurisdiction left in the several States?" See also Federalist No. 81 (Hamilton) (Articles I, II and III "enable the national government to institute or AUTHORIZE, in each State or district of the United States, a tribunal competent to the determination of matters of national jurisdiction within its limits").
Chief Justice Marshall (writing for SCOTUS) also emphasized that the federal government had absolute jurisdiction, not absolute power. “The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself.” Schooner Exchange v. McFaddon, 11 U.S. 116 (7 Cranch 116) (1812). SCOTUS has repeated that language and principle repeatedly, including as recently as Opati v. Republic of Sudan, 590 U.S. 418 (2020). A dissenting opinion by Justices Sotomayor, Kagan and Jackson in Trump v. CASA, Inc., 145 S. Ct. 2540 (2025) do so, as well.
Respectfully, it seems to me to be clearly not true that Trump was authorized (by Congress) to do what he did. As you highlighted, Congress cabined the president by requiring that his actions be “for federal purposes” and, even more restrictive, requiring “that special conditions of an emergency nature exist.“ So far, I think no one has even begun to assert a rational argument for how Trump's actions were legal under either prong.
Trump's own rambling, hysterical justification (and the truth about crime in D.C.) highlight the illegality and unconstitutionality of Trump's conduct. What happens next, as Trump is exercises the powers he usurped (in violation of our Constitution), will provide further evidence of the illegality and unconstitutionality of Trump's conduct.
It also seems to me there is good cause of grave concern. Viewed in isolation, whatever anyone saw walking around on the streets of D.C. yesterday might not seem so bad. But Trump's invocation of necessity (emergency) yesterday did not occur in isolation. It is essential to bear in mind, at the very least, Trump's related misconduct in the very short time he has been president.
In mid-March, Trump essentially proclaimed a state of war with Venezuela without a declaration of war by Congress. More recently, Trump and Hegseth actually bombed another nation (Iran) without a declaration of war by Congress. There, I think they did not even pretend any emergency existed. Trump and Hegseth bombed another country merely because Trump has wanted to bomb Iran since his first term as president. More recently, Trump actually publicized his decision to threaten Russia with his placement of nuclear submarines.
Domestically, Trump also exercised powers reserved for necessity, including in California and elsewhere in connection with his March 14 Proclamation of a state of war with Venezuela. In that instance (as in this instance) Trump invoked mere law enforcement (crime) to purport to justify his conduct. In March, Trump clearly violated our Constitution by skipping tons of due process so that he could hustle people off to a foreign prison based on his mere conclusory contention that they (somehow) were mere "members" of a criminal gang.
All the foregoing follows Trump's most obvious and irrefutable violations of our Constitution in 2021. He tried to use unhinged fringe groups to seize power (and attack the Capitol and Capitol police) and threaten his own Vice President and the Speaker of the House with (at least) violence on January 6, 2021. Trump clearly was trying to prevent the count of votes by electors that our Constitution required to occur by the Vice President and the Speaker in the Capitol on Jan. 6 to determine who would be president and vice president about 2 weeks later.
I think that anyone who isn't very alarmed by Trump's egregious conduct--including his serial violations of limitations in our Constitution and even threatening and even attacking foreign nations--isn't viewing what Trump is doing from the proper perspective.
Yes, Trump regularly violates the law and Constitution. I've been pretty clear on that here. As for the rest of this, it's a mini-post summarizing the administration thus far, so, OK.
Trump and his supporters aren't fighting crime in D.C.; they're committing crimes in D.C.
It's crucial to see Trump's actions in D.C. (and LA) for their greater significance. Mere days ago, Trump actually dared to declare his true purpose. The truth is that Trump and the people supporting him and using him are trying to think of ways to abuse federal officials for purely political purposes--at the very same time as they proved they know such conduct is criminal (they're thinking about how to prosecute Jack Smith for purportedly doing the same).
On August 5, Trump announced that he is egregiously abusing his office (and other public servants) to think about how to use the FBI to hunt down people that Trump essentially considers his personal political opponents (Texas legislators). The reason Trump wants those legislators hunted down and sent back to Texas is purely political (to help more Republicans from Texas get elected to Congress in 2026).
Texas legislators left Texas so that they could not be compelled to participate in an obviously and egregiously illegal (unconstitutional and criminal) partisan gerrymandering scheme that obviously was designed to help Trump continue to wield great influence over Congress. I cannot help but be curious whether any Texas legislators are in D.C. right now.
Trump floats circumventing Congress to maintain control of DC police
Btw, another reader rightly reminded me that we are on the same side, so, I get it. I can’t divine your motives, but it’s not fair to consider them anything but honest. I also think you’re trying to build courage in your readership—should have said. I just think it’s better to be totally up front about awful reality. But no need to repeat it!
If Trump is such a glorious leader, why is everything an emergency? An invasion? He’s not only intent on destroying democracy … but also language. And morality. (This is matter not to be discussed before the shadow docket.)
This is right out of the dictators playbook. It’s clear he intends to finish the coup he started in 2020. He said before the election he will rule as a dictator if elected and that is what he is doing.
He is trying to get martial law without declaring it. He's just sending troops and stuff into different cities and districts to take over and when he gets all the big blue cities he's going to say "I'm King".
He seizes control of D.C.’s police, flood the streets with troops and Congress stays SILENT.
Authoritarianism doesn’t arrive with tanks, it arrives with cowardice. If this happened abroad, the U.S. would call it a coup!
Fascism intimidates with scale mobilizing thousands of troops into a small, peaceful area is a way to make people feel small and powerless. He seeks precedents for future illegal use of military to suppress protests against his tyrannical rule.
Shirt I wear regularly: "We the People will NOT comply with tyranny" This one 👇
Total authoritarian move. And surely a trial run to federalize other cities' law enforcement as well, as part of martial law implementation prior to the not-held 2026 elections. This is all bad, and is the beginning of the end.
Perhaps being helpful was never the intention. Perhaps setting a precedent was the point of the silly muscle flexing. Establishing a new normal. Making any city's governance a legal time-share?
Perhaps you're correct that this is one part substance, five parts authoritarian performance theater. But these types of Trumpian feelers are all-too-familiar and it would not surprise me to see him expand the theater of battle to New York and other blue cities. One may ask "On what pretext?" Well, where was the pretext in DC? Fake numbers?
I suspect he will find whatever pretexts he needs to carry his dictator's playbook to the states, provoke an angry, violent response, and then crack down hard. See https://whowhatwhy.org/politics/us-politics/the-dictators-doom-loop-revisited-trump-wont-go-gentle/. The point, at this stage, is to instill general fear and submission while provoking just enough angry resistance to give an excuse for still more brutal oppression.
Something you seem to be doing quite fine all on your own.
I, on the other hand, focused on what actually happened — and why it could happen here in D.C., a point you are either completely discounting or missed.
I’d forgotten about the Dems’ cave on the DC crime bill. They’re always more afraid of some whipped up momentary bad press than of the actual consequences of what they’re doing.
Trump (now and previously) invoked necessity, so this seems like a good time to recall what the Constitution says is the rule of law governing such issues. Trump's conduct (or threatened conduct) fails every relevant test in our Constitution. Part of the proof includes Trump's lies about the nature of the necessity. Part of the proof will be created by how he purports to remedy the necessity.
The language of the D.C. Home Rule Act states real standards that Congress used to limit the power of the president. He must be acting for legitimate "federal purposes" (authorized by our Constitution), and even then, the president may act only "in an emergency." We can judge for ourselves that no such emergency exists and Trump is not acting for any federal purpose.
The proper analysis of this issue is not new. This was one of the most passionately discussed topics when the Constitution was being discussed for ratification. Trump's lies (now and previously) about purported necessity to take extreme actions call to mind a very important part of the history of the Constitution (including specifically the Bill of Rights) emphasized by Leonard Levy in his book "Origins of the Bill of Rights:" The potential "necessary and proper" justification for federal action "was the most formidable in the array of national powers, therefore the most controversial, and the one most responsible, later, for the demand for a bill of rights to ensure that the [federal government] did not violate the rights of the people or of the states."
As always, the admonitions and warnings by James Madison (writing for the Virginia Assembly) in the Report of 1800 (regarding violations of our Constitution by Congress, the president and the judiciary) are vital. The Report of 1800 responded to the assertions of necessity underlying the Alien and Sedition Acts of 1798. So Madison emphasized that "a frequent recurrence to fundamental principles is solemnly enjoined by most of the state constitutions, and particularly by our own [Constitution], as a necessary safeguard against the danger of degeneracy to which republics are liable." "The authority of constitutions over governments, and of the sovereignty of the people over constitutions, are truths which are at all times necessary to be kept in mind; and at no time perhaps more necessary than at the present."
Obviously, Article VI emphasizes that “the supreme Law of the Land” consists first and foremost of “this Constitution” and then federal “Laws” that have been “made in Pursuance” of our Constitution and “Treaties.” Article VI (and public servants’ oaths of office) further emphasized that all legislators “and all executive and judicial Officers, both of the United States and of [all] States” are “bound” to “support this Constitution” in all ways possible in all official conduct.
In Article I, the People emphasized that “All” (and ONLY those) “legislative Powers herein granted” (by the People) “shall be vested” in “Congress.” The People vested in our elected (chosen) representatives in Congress the power to “make all” (and ONLY) “Laws” that are “necessary and proper for carrying into Execution” absolutely “all” the “Powers vested by this Constitution” in Congress or in any part of “the Government of the United States, or in any Department or Officer thereof” (including, obviously, the president, all executive branch officers, and all judges).
In the Report of 1800, Madison emphasized the meaning and significance of the Necessary and Proper Clause:
"The plain import of this clause is, that Congress shall have all the incidental or instrumental powers, necessary and proper for carrying into execution all the express powers; whether they be vested in the government of the United States, more collectively, or in the several departments, or officers thereof. It is not a grant of new powers to Congress, but merely a declaration, for the removal of all uncertainty, that the means of carrying into execution, those otherwise granted, are included in the grant.
Whenever, therefore a question arises concerning the constitutionality of a particular [federal] power; the first question is, whether the power be expressed in the constitution. If it be, the question is decided. If it be not expressed; the next enquiry must be, whether it is properly an incident to an express power, and necessary to its execution. If it be, it may be exercised by Congress. If it be not; Congress cannot exercise it."
In Article II the People “vested in a President” the “executive Power.” Then, the People declared the limits of all such executive power. We vested in the president primarily the power to merely “take Care that the Laws be faithfully executed.” But because exigencies and emergencies will expose gaps in legislation created by Congress (and because treaties must be negotiated by the executive branch and the president is the commander-in-chief of our Armed Forces), we vested in the president the power to take all other actions (to the extent that necessary and proper) to “preserve, protect and defend” our “Constitution” to “the best” of the president’s “Ability."
Especially whenever (as here) the president purports to act not merely to “take Care that the Laws be faithfully executed” but to exercise discretion in fulfilling his duty to “preserve, protect and defend” our “Constitution” to “the best” of the president’s “Ability," the president's powers necessarily are governed by the limitations, above, governing Congress. All such actions must be “necessary and proper for carrying into Execution” the “Powers" actually "vested by this Constitution.”
I'm confident that efforts to undermine the understanding that our Constitution granted only limited powers to federal officials is founded on an obvious and fatal flaw.
It's well worth bearing in mind that even brilliant justices and brilliant law professors have written things that are obviously false or egregiously inadequate because (explicitly or implicitly) such writings are founded on the obviously false premise that a federal or state government is "sovereign."
A far more appropriate and accurate word describing the powers of public servants at issue in federalism is simply "jurisdiction." See, e.g., Federalist No. 81 (Alexander Hamilton) (“jurisdiction” refers to the power to “pronounce[ ] the law”). Jurisdiction “is composed of JUS and DICTIO, juris dictio or a speaking and pronouncing of the law.” Id., n. 3.
James Wilson is one of the primary sources who must be consulted for a true understanding of the meaning of the word "sovereignty." His relevant experience was deep and wide. He served in the Second Continental Congress. He signed both the Declaration of Independence and the Constitution. At the Constitutional Convention in Philadelphia, he was the foremost leader in linking the two documents with the Constitution's Preamble, including by starting it with the words "We the People."
Wilson was perhaps the first and one of the foremost (ever) professors of constitutional law (repeatedly addressing, specifically, the concept of sovereignty). After all that, he became one of the first SCOTUS justices appointed by Washington. On SCOTUS, Wilson provided perhaps his best explanation of how to see sovereignty in and under the Constitution in Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793).
"Who, or what, is a sovereignty? What is his or its sovereignty? On this subject, the errors and the mazes are endless and inexplicable." The truth is that "a State [must] be considered as subordinate to the PEOPLE."
It is "true" (in the U.S.) that "States and Governments were made for man." It also is "true" (in the U.S.) that the people's "creatures and servants [governments and officials] have first deceived, next vilised [vilified], and, at last oppressed their master and maker."
In striking contrast with the Articles of Confederation (which expressly stated the sovereignty of states), Wilson emphasized how to read and see our Constitution for its guiding and controlling principle:
"To the Constitution of the United States the term SOVEREIGN, is totally unknown. There is but one place where it could have been used with propriety. . . . [Only] those, who ordained and established that Constitution [ ] might have announced themselves 'SOVEREIGN' people of the United States."
In our Constitution, "[t]he PEOPLE of the United States" are the first personages introduced," precisely to introduce the sovereign.
James Madison is another outstanding source who must be consulted. The Report of 1800 (by James Madison writing for the Virginia Assembly) emphasized that our Constitution limits the powers of all public servants in every area. It did so to protect the liberty of the people with a revolutionary new concept: the people are sovereign and all public officials are public servants. Americans have representatives, not rulers.
The Report of 1800 emphasized the need to read our Constitution "with a reverence for our constitution, in the true character in which it issued from the sovereign authority of the people." "The authority of constitutions over governments, and of the sovereignty of the people over constitutions, are truths which are at all times necessary to be kept in mind; and at no time perhaps more necessary than at the present."
"In the United States," the "people, not the government, possess the absolute sovereignty. The legislature, no less than the executive" (and no less the judiciary) "is under limitations of power. Encroachments are regarded as possible from the one, as well as from the other. Hence in the United States, the great and essential rights of the people are secured against legislative, as well as against executive" and judicial "ambition . They are secured, not [merely] by laws paramount to prerogative; but by constitutions paramount to laws."
No debate could have any (legitimate) weight when it isn't founded on the plain text and plain meaning of our Constitution. The Tenth Amendment was written and ratified precisely to preclude specious logic regarding this issue.
The Tenth Amendment does (and was written to) succinctly summarize our entire Constitution and especially to re-emphasize that the People delegated only limited powers to federal government:
The People "delegated to the United States by the Constitution" only limited "powers;" the People "prohibited by [our Constitution certain] "powers" to "the States;" the People "reserved to the States" certain "powers;" finally, the People "reserved" to "the people" all residual "powers."
The first clause of the Tenth Amendment re-emphasizes the language of the first sentence of Articles I, II, and III (the People "vested" in each branch only limited powers). In Article I, the People emphasized a crucial limitation on all exercises of federal power: each exercise must "be necessary and proper for carrying into Execution" the "Powers vested by this Constitution" in Congress or "in the Government of the United States, or in any Department or Officer thereof."
I lived in WDC for 30+ years, the bulk of that time in the District. The denial, by many, of statehood is a constant source of cruelty. An emergency d-o-e-s exist: the one imposed on District residents by a 100% lawless, cruel, and evil office-holding cabal. THAT is what must be recognized and defeated, whatever it takes. Lashing out at one another does not get us there.
April in DC I was mugged by the lovely weather, throttled by wonderful Phillips Collection and robbed of my preconceived notions by National Museum of American Indian
“Under the law, moreover, Trump can only do so for 48 hours unless he informs Congress. Then, he can do so for 30 days. He said he was informing Congress, so expect this to last longer than two days. To go further than 30 days, however, Congress would need to act.“
He just declared a fake emergency, so: so much for that law being followed. He made this shit up. So, yup, Republican Congress will act if he wants it to. If he even bothers.
Yes, I described the law. Are you saying I am wrong about what the law is? And can you show me where I said or even suggested that I think the law’s existence means Trump is going to follow it. You’re really wasting my time here.
“Again, it’s bad. But, there is a lot of show here and little substance — especially in light of the fact that the entire premise of this attack is based on Trump’s old-man-yelling-at-cloud, “tough on crime” lies about D.C.“
Nothing to see here! Don’t worry! The refurbished park looks nice! Everything looks the same!
And people have responded accordingly.
Surely between blind panic and bright-siding denial lies, you know, other options. Which take time, money, education and effort. So prepare for the reasonably expected worst; hope for the best.
I asked you ages ago what the plan was if and when normal politics, law failed. You got pissed then, too. It’s frightening to consider general strikes and other forms of real resistance—but not as frightening as letting these monsters literally destroy the country and spew carbon till all our kids’ futures are simply gone.
But that’s exactly what we are going to continue to do, apparently.
I breathed a little easier after reading your post this afternoon, Chris. Isn't it just like trump to make up a crisis, and then, overreact ?!😫 Thanks for checking in, please keep us posted, and will reStack ASAP 💯👍
Gee, funny how Chris deleted my comment, huh? Awfully telling, but, hey, DC is fine! The birdies are singing and life goes on. Because everyone knows that in 1930s Germany, all life stopped. No one ate out, enjoyed parks, went to the movies. So unless you see Star Wars stormtroopers on the street, stand down!
I've usually tended to agree with your comments because I do think we've been in an emergency for a long time, but here it really seems like you're lashing out. Different people can have different ways of being motivated to do what they need to do to cope. I don't read Chris as saying everything is ok; I read him as saying panic isn't helpful and here is an analysis of the details of what's going on. (Not just in this post but in all his posts.) If you find that problematic it's probably time to stop reading, because I don't see what's gained by just flat out attacking Chris in his comments section. 🤷
The only way to “cope” is to face reality, not constantly bright-side the nearly non-resistance into even more quiescence. The reality is that these fascists don’t give a damn about any rules, laws, or institutions. How are we going to fight that?
We all know how. We just won’t do it. So we wait for some authority to tell us we don’t have to.
Doug, I really don't understand why you and Chris are at odds. I guess I'm dense! Aren't we all here on more or less the same side? Anti fascist, pro statehood for DC etc? Is it a disagreement on tactics or facts?
Note: People can feel free to say in the comments that I’m not sufficiently negative or pessimistic, but I’m done responding to such things. I write carefully and know what I’m writing and why I’m writing it.
One of the greatest reasons for concern is that some very smart, very knowledgeable people seem to be implying that Trump's conduct should not be of particularly great concern merely because Trump is at least acting in a sphere in which our Constitution vested power in the federal government. For me, this very serious problem was highlighted by Professor Vladeck in the first sentence following his caption emphasizing that D.C. is a "federal enclave" in which "the federal government has plenary power." In plain English, plenary power means absolute power, which is very dangerous and clearly unconstitutional.
Professor Vladeck is obviously brilliant and extremely knowledgeable. Even so, it definitely is time to cease asserting that "the federal government has plenary power over" anything. It's not true that the federal government has plenary power anywhere regarding anything. As I addressed my long comment below (about the Necessary and Proper Clause) our Constitution clearly emphasizes a crucial limitation. All exercises of power by our public servants in federal government are limited to those that are "necessary and proper" to give effect to our Constitution.
The Tenth Amendment does (and was written to) succinctly summarize our entire Constitution and especially to re-emphasize, first, that the People delegated only limited powers to federal government, and last, that the People are sovereign:
The People "delegated to the United States by the Constitution" only limited "powers;" the People "prohibited by [our Constitution certain] "powers" to "the States;" the People "reserved to the States" certain "powers;" finally, the People "reserved" to "the people" all residual "powers."
The first clause of the Tenth Amendment re-emphasizes the language of the first sentence of Articles I, II, and III (the People "vested" in each branch only limited powers). In Article I, the People emphasized a crucial limitation on all exercises of federal power: each exercise must "be necessary and proper for carrying into Execution" the "Powers vested by this Constitution" in Congress or "in the Government of the United States, or in any Department or Officer thereof."
Instead of asserting the "plenary power" of federal government regarding anything, a far more appropriate and accurate expression regarding the powers of public servants at issue in federalism is simply "jurisdiction." See, e.g., Federalist No. 81 (Alexander Hamilton) (“jurisdiction” refers to the power to “pronounce[ ] the law”). Jurisdiction “is composed of JUS and DICTIO, juris dictio or a speaking and pronouncing of the law.” Id., n. 3.
Perhaps the most important statement in The Federalist Papers directly contrasting the sovereignty of the people with the jurisdiction of state and federal governments was in Federalist No. 46 (Madison):
"The adversaries of the Constitution seem to have lost sight of the people altogether in their reasonings on this subject; and to have viewed these different establishments [federal and state governments], not only as mutual rivals and enemies, but as uncontrolled by any common superior in their efforts to usurp the authorities of each other. These gentlemen must here be reminded of their error. They must be told that the ultimate authority, wherever the derivative may be found, resides in the people alone, and that it will not depend merely on the comparative ambition or address of the different governments, whether either, or which of them, will be able to enlarge its sphere of jurisdiction at the expense of the other. Truth, no less than decency, requires that the event in every case should be supposed to depend on the sentiments and sanction of their common constituents."
In Federalist No. 37, Madison emphasized that the Constitutional "convention" was "delineating the boundary between the federal and State jurisdictions." Madison promptly emphasized the same in Federalist No. 39: "the proposed government cannot be deemed a NATIONAL one" in every respect because "its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty [jurisdiction] over all other objects," as a result, "controversies relating to the boundary between the two jurisdictions" may arise. In Federalist No. 40, Madison again emphasized "the general powers [of the federal government] are limited," and "the States, in all unenumerated cases, are left in the enjoyment of their sovereign and independent jurisdiction."
In Federalist No. 14, Madison emphasized "the general [federal] government is not to be charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects, which concern all the members of the republic, but which are not to be attained by the separate provisions of any. The subordinate [state] governments, which can extend their care to all those other subjects which can be separately provided for, will retain their due authority and activity." See also Federalist No. 17 (Hamilton) ("The administration of private justice between the citizens of the same State, the supervision of agriculture and of other concerns of a similar nature, all those things, in short, which are proper to be provided for by local legislation, can never be desirable cares of a general [federal] jurisdiction."). See also Federalist No. 80 (Hamilton) ("A distinction may perhaps be imagined between cases arising upon treaties and the laws of nations and those which may stand merely on the footing of the municipal law. The former kind may be supposed proper for the federal jurisdiction, the latter for that of the States."). See also Federalist No. 9 (Hamilton) ("exclusively appropriated to the local jurisdictions" should be "the appointment of their own officers").
In Federalist No. 27, Hamilton emphasized, "It merits particular attention in this place, that the laws of the Confederacy, as to the ENUMERATED and LEGITIMATE objects of its jurisdiction, will become the SUPREME LAW of the land; to the observance of which all officers, legislative, executive, and judicial, in each State, will be bound by the sanctity of an oath." In Federalist No. 41, Madison emphasized "two important questions arise: 1. Whether any part of the powers transferred to the general [federal] government be unnecessary or improper? 2. Whether the entire mass of them be dangerous to the portion of jurisdiction left in the several States?" See also Federalist No. 81 (Hamilton) (Articles I, II and III "enable the national government to institute or AUTHORIZE, in each State or district of the United States, a tribunal competent to the determination of matters of national jurisdiction within its limits").
Chief Justice Marshall (writing for SCOTUS) also emphasized that the federal government had absolute jurisdiction, not absolute power. “The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself.” Schooner Exchange v. McFaddon, 11 U.S. 116 (7 Cranch 116) (1812). SCOTUS has repeated that language and principle repeatedly, including as recently as Opati v. Republic of Sudan, 590 U.S. 418 (2020). A dissenting opinion by Justices Sotomayor, Kagan and Jackson in Trump v. CASA, Inc., 145 S. Ct. 2540 (2025) do so, as well.
Respectfully, it seems to me to be clearly not true that Trump was authorized (by Congress) to do what he did. As you highlighted, Congress cabined the president by requiring that his actions be “for federal purposes” and, even more restrictive, requiring “that special conditions of an emergency nature exist.“ So far, I think no one has even begun to assert a rational argument for how Trump's actions were legal under either prong.
Trump's own rambling, hysterical justification (and the truth about crime in D.C.) highlight the illegality and unconstitutionality of Trump's conduct. What happens next, as Trump is exercises the powers he usurped (in violation of our Constitution), will provide further evidence of the illegality and unconstitutionality of Trump's conduct.
It also seems to me there is good cause of grave concern. Viewed in isolation, whatever anyone saw walking around on the streets of D.C. yesterday might not seem so bad. But Trump's invocation of necessity (emergency) yesterday did not occur in isolation. It is essential to bear in mind, at the very least, Trump's related misconduct in the very short time he has been president.
In mid-March, Trump essentially proclaimed a state of war with Venezuela without a declaration of war by Congress. More recently, Trump and Hegseth actually bombed another nation (Iran) without a declaration of war by Congress. There, I think they did not even pretend any emergency existed. Trump and Hegseth bombed another country merely because Trump has wanted to bomb Iran since his first term as president. More recently, Trump actually publicized his decision to threaten Russia with his placement of nuclear submarines.
Domestically, Trump also exercised powers reserved for necessity, including in California and elsewhere in connection with his March 14 Proclamation of a state of war with Venezuela. In that instance (as in this instance) Trump invoked mere law enforcement (crime) to purport to justify his conduct. In March, Trump clearly violated our Constitution by skipping tons of due process so that he could hustle people off to a foreign prison based on his mere conclusory contention that they (somehow) were mere "members" of a criminal gang.
All the foregoing follows Trump's most obvious and irrefutable violations of our Constitution in 2021. He tried to use unhinged fringe groups to seize power (and attack the Capitol and Capitol police) and threaten his own Vice President and the Speaker of the House with (at least) violence on January 6, 2021. Trump clearly was trying to prevent the count of votes by electors that our Constitution required to occur by the Vice President and the Speaker in the Capitol on Jan. 6 to determine who would be president and vice president about 2 weeks later.
I think that anyone who isn't very alarmed by Trump's egregious conduct--including his serial violations of limitations in our Constitution and even threatening and even attacking foreign nations--isn't viewing what Trump is doing from the proper perspective.
Yes, Trump regularly violates the law and Constitution. I've been pretty clear on that here. As for the rest of this, it's a mini-post summarizing the administration thus far, so, OK.
Trump and his supporters aren't fighting crime in D.C.; they're committing crimes in D.C.
It's crucial to see Trump's actions in D.C. (and LA) for their greater significance. Mere days ago, Trump actually dared to declare his true purpose. The truth is that Trump and the people supporting him and using him are trying to think of ways to abuse federal officials for purely political purposes--at the very same time as they proved they know such conduct is criminal (they're thinking about how to prosecute Jack Smith for purportedly doing the same).
On August 5, Trump announced that he is egregiously abusing his office (and other public servants) to think about how to use the FBI to hunt down people that Trump essentially considers his personal political opponents (Texas legislators). The reason Trump wants those legislators hunted down and sent back to Texas is purely political (to help more Republicans from Texas get elected to Congress in 2026).
Texas legislators left Texas so that they could not be compelled to participate in an obviously and egregiously illegal (unconstitutional and criminal) partisan gerrymandering scheme that obviously was designed to help Trump continue to wield great influence over Congress. I cannot help but be curious whether any Texas legislators are in D.C. right now.
https://www.politico.com/news/2025/08/13/trump-dc-police-congress-00507359
Trump floats circumventing Congress to maintain control of DC police
Btw, another reader rightly reminded me that we are on the same side, so, I get it. I can’t divine your motives, but it’s not fair to consider them anything but honest. I also think you’re trying to build courage in your readership—should have said. I just think it’s better to be totally up front about awful reality. But no need to repeat it!
Thanks for what you do!
https://en.m.wikipedia.org/wiki/June_Democratic_Struggle
This—but longer and stronger—is how you stop Trump.
If Trump is such a glorious leader, why is everything an emergency? An invasion? He’s not only intent on destroying democracy … but also language. And morality. (This is matter not to be discussed before the shadow docket.)
This is right out of the dictators playbook. It’s clear he intends to finish the coup he started in 2020. He said before the election he will rule as a dictator if elected and that is what he is doing.
He is trying to get martial law without declaring it. He's just sending troops and stuff into different cities and districts to take over and when he gets all the big blue cities he's going to say "I'm King".
He seizes control of D.C.’s police, flood the streets with troops and Congress stays SILENT.
Authoritarianism doesn’t arrive with tanks, it arrives with cowardice. If this happened abroad, the U.S. would call it a coup!
Fascism intimidates with scale mobilizing thousands of troops into a small, peaceful area is a way to make people feel small and powerless. He seeks precedents for future illegal use of military to suppress protests against his tyrannical rule.
Shirt I wear regularly: "We the People will NOT comply with tyranny" This one 👇
https://libtees.dashery.com/products/78688428-we-the-people-will-not-comply-with-tyranny-t-shirt
Thank you for your perspective as both a legal analyst and a resident. Very much appreciate your voice in these times.
Total authoritarian move. And surely a trial run to federalize other cities' law enforcement as well, as part of martial law implementation prior to the not-held 2026 elections. This is all bad, and is the beginning of the end.
This is definitely not helpful.
It’s an entirely plausible possibility.
Perhaps being helpful was never the intention. Perhaps setting a precedent was the point of the silly muscle flexing. Establishing a new normal. Making any city's governance a legal time-share?
Perhaps you're correct that this is one part substance, five parts authoritarian performance theater. But these types of Trumpian feelers are all-too-familiar and it would not surprise me to see him expand the theater of battle to New York and other blue cities. One may ask "On what pretext?" Well, where was the pretext in DC? Fake numbers?
I suspect he will find whatever pretexts he needs to carry his dictator's playbook to the states, provoke an angry, violent response, and then crack down hard. See https://whowhatwhy.org/politics/us-politics/the-dictators-doom-loop-revisited-trump-wont-go-gentle/. The point, at this stage, is to instill general fear and submission while provoking just enough angry resistance to give an excuse for still more brutal oppression.
Something you seem to be doing quite fine all on your own.
I, on the other hand, focused on what actually happened — and why it could happen here in D.C., a point you are either completely discounting or missed.
He’s going to do whatever he wants until stopped.
It makes it harder to push back on bad faith actions and arguments when you don’t have objectively reliable “violent crime” statistics.
The Hill, DC government is faking crime data, systematically under-reporting violence, https://thehill.com/opinion/criminal-justice/5366656-ward-6-city-council-exploration-crime-data/
DC police commander suspended, accused of changing crime statistics, https://www.nbcwashington.com/news/local/dc-police-commander-suspended-crime-statistics/3959566/
I’d forgotten about the Dems’ cave on the DC crime bill. They’re always more afraid of some whipped up momentary bad press than of the actual consequences of what they’re doing.
Trump (now and previously) invoked necessity, so this seems like a good time to recall what the Constitution says is the rule of law governing such issues. Trump's conduct (or threatened conduct) fails every relevant test in our Constitution. Part of the proof includes Trump's lies about the nature of the necessity. Part of the proof will be created by how he purports to remedy the necessity.
The language of the D.C. Home Rule Act states real standards that Congress used to limit the power of the president. He must be acting for legitimate "federal purposes" (authorized by our Constitution), and even then, the president may act only "in an emergency." We can judge for ourselves that no such emergency exists and Trump is not acting for any federal purpose.
The proper analysis of this issue is not new. This was one of the most passionately discussed topics when the Constitution was being discussed for ratification. Trump's lies (now and previously) about purported necessity to take extreme actions call to mind a very important part of the history of the Constitution (including specifically the Bill of Rights) emphasized by Leonard Levy in his book "Origins of the Bill of Rights:" The potential "necessary and proper" justification for federal action "was the most formidable in the array of national powers, therefore the most controversial, and the one most responsible, later, for the demand for a bill of rights to ensure that the [federal government] did not violate the rights of the people or of the states."
As always, the admonitions and warnings by James Madison (writing for the Virginia Assembly) in the Report of 1800 (regarding violations of our Constitution by Congress, the president and the judiciary) are vital. The Report of 1800 responded to the assertions of necessity underlying the Alien and Sedition Acts of 1798. So Madison emphasized that "a frequent recurrence to fundamental principles is solemnly enjoined by most of the state constitutions, and particularly by our own [Constitution], as a necessary safeguard against the danger of degeneracy to which republics are liable." "The authority of constitutions over governments, and of the sovereignty of the people over constitutions, are truths which are at all times necessary to be kept in mind; and at no time perhaps more necessary than at the present."
Obviously, Article VI emphasizes that “the supreme Law of the Land” consists first and foremost of “this Constitution” and then federal “Laws” that have been “made in Pursuance” of our Constitution and “Treaties.” Article VI (and public servants’ oaths of office) further emphasized that all legislators “and all executive and judicial Officers, both of the United States and of [all] States” are “bound” to “support this Constitution” in all ways possible in all official conduct.
In Article I, the People emphasized that “All” (and ONLY those) “legislative Powers herein granted” (by the People) “shall be vested” in “Congress.” The People vested in our elected (chosen) representatives in Congress the power to “make all” (and ONLY) “Laws” that are “necessary and proper for carrying into Execution” absolutely “all” the “Powers vested by this Constitution” in Congress or in any part of “the Government of the United States, or in any Department or Officer thereof” (including, obviously, the president, all executive branch officers, and all judges).
In the Report of 1800, Madison emphasized the meaning and significance of the Necessary and Proper Clause:
"The plain import of this clause is, that Congress shall have all the incidental or instrumental powers, necessary and proper for carrying into execution all the express powers; whether they be vested in the government of the United States, more collectively, or in the several departments, or officers thereof. It is not a grant of new powers to Congress, but merely a declaration, for the removal of all uncertainty, that the means of carrying into execution, those otherwise granted, are included in the grant.
Whenever, therefore a question arises concerning the constitutionality of a particular [federal] power; the first question is, whether the power be expressed in the constitution. If it be, the question is decided. If it be not expressed; the next enquiry must be, whether it is properly an incident to an express power, and necessary to its execution. If it be, it may be exercised by Congress. If it be not; Congress cannot exercise it."
In Article II the People “vested in a President” the “executive Power.” Then, the People declared the limits of all such executive power. We vested in the president primarily the power to merely “take Care that the Laws be faithfully executed.” But because exigencies and emergencies will expose gaps in legislation created by Congress (and because treaties must be negotiated by the executive branch and the president is the commander-in-chief of our Armed Forces), we vested in the president the power to take all other actions (to the extent that necessary and proper) to “preserve, protect and defend” our “Constitution” to “the best” of the president’s “Ability."
Especially whenever (as here) the president purports to act not merely to “take Care that the Laws be faithfully executed” but to exercise discretion in fulfilling his duty to “preserve, protect and defend” our “Constitution” to “the best” of the president’s “Ability," the president's powers necessarily are governed by the limitations, above, governing Congress. All such actions must be “necessary and proper for carrying into Execution” the “Powers" actually "vested by this Constitution.”
What he said.
Seriously, there seems to be emerging debate about the “limited powers” catechism. Balkinization has the story.
I'm confident that efforts to undermine the understanding that our Constitution granted only limited powers to federal officials is founded on an obvious and fatal flaw.
It's well worth bearing in mind that even brilliant justices and brilliant law professors have written things that are obviously false or egregiously inadequate because (explicitly or implicitly) such writings are founded on the obviously false premise that a federal or state government is "sovereign."
A far more appropriate and accurate word describing the powers of public servants at issue in federalism is simply "jurisdiction." See, e.g., Federalist No. 81 (Alexander Hamilton) (“jurisdiction” refers to the power to “pronounce[ ] the law”). Jurisdiction “is composed of JUS and DICTIO, juris dictio or a speaking and pronouncing of the law.” Id., n. 3.
James Wilson is one of the primary sources who must be consulted for a true understanding of the meaning of the word "sovereignty." His relevant experience was deep and wide. He served in the Second Continental Congress. He signed both the Declaration of Independence and the Constitution. At the Constitutional Convention in Philadelphia, he was the foremost leader in linking the two documents with the Constitution's Preamble, including by starting it with the words "We the People."
Wilson was perhaps the first and one of the foremost (ever) professors of constitutional law (repeatedly addressing, specifically, the concept of sovereignty). After all that, he became one of the first SCOTUS justices appointed by Washington. On SCOTUS, Wilson provided perhaps his best explanation of how to see sovereignty in and under the Constitution in Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793).
"Who, or what, is a sovereignty? What is his or its sovereignty? On this subject, the errors and the mazes are endless and inexplicable." The truth is that "a State [must] be considered as subordinate to the PEOPLE."
It is "true" (in the U.S.) that "States and Governments were made for man." It also is "true" (in the U.S.) that the people's "creatures and servants [governments and officials] have first deceived, next vilised [vilified], and, at last oppressed their master and maker."
In striking contrast with the Articles of Confederation (which expressly stated the sovereignty of states), Wilson emphasized how to read and see our Constitution for its guiding and controlling principle:
"To the Constitution of the United States the term SOVEREIGN, is totally unknown. There is but one place where it could have been used with propriety. . . . [Only] those, who ordained and established that Constitution [ ] might have announced themselves 'SOVEREIGN' people of the United States."
In our Constitution, "[t]he PEOPLE of the United States" are the first personages introduced," precisely to introduce the sovereign.
James Madison is another outstanding source who must be consulted. The Report of 1800 (by James Madison writing for the Virginia Assembly) emphasized that our Constitution limits the powers of all public servants in every area. It did so to protect the liberty of the people with a revolutionary new concept: the people are sovereign and all public officials are public servants. Americans have representatives, not rulers.
The Report of 1800 emphasized the need to read our Constitution "with a reverence for our constitution, in the true character in which it issued from the sovereign authority of the people." "The authority of constitutions over governments, and of the sovereignty of the people over constitutions, are truths which are at all times necessary to be kept in mind; and at no time perhaps more necessary than at the present."
"In the United States," the "people, not the government, possess the absolute sovereignty. The legislature, no less than the executive" (and no less the judiciary) "is under limitations of power. Encroachments are regarded as possible from the one, as well as from the other. Hence in the United States, the great and essential rights of the people are secured against legislative, as well as against executive" and judicial "ambition . They are secured, not [merely] by laws paramount to prerogative; but by constitutions paramount to laws."
No debate could have any (legitimate) weight when it isn't founded on the plain text and plain meaning of our Constitution. The Tenth Amendment was written and ratified precisely to preclude specious logic regarding this issue.
The Tenth Amendment does (and was written to) succinctly summarize our entire Constitution and especially to re-emphasize that the People delegated only limited powers to federal government:
The People "delegated to the United States by the Constitution" only limited "powers;" the People "prohibited by [our Constitution certain] "powers" to "the States;" the People "reserved to the States" certain "powers;" finally, the People "reserved" to "the people" all residual "powers."
The first clause of the Tenth Amendment re-emphasizes the language of the first sentence of Articles I, II, and III (the People "vested" in each branch only limited powers). In Article I, the People emphasized a crucial limitation on all exercises of federal power: each exercise must "be necessary and proper for carrying into Execution" the "Powers vested by this Constitution" in Congress or "in the Government of the United States, or in any Department or Officer thereof."
Maybe you’re right. WAY above my pay grade.
I lived in WDC for 30+ years, the bulk of that time in the District. The denial, by many, of statehood is a constant source of cruelty. An emergency d-o-e-s exist: the one imposed on District residents by a 100% lawless, cruel, and evil office-holding cabal. THAT is what must be recognized and defeated, whatever it takes. Lashing out at one another does not get us there.
April in DC I was mugged by the lovely weather, throttled by wonderful Phillips Collection and robbed of my preconceived notions by National Museum of American Indian
https://www.nbcwashington.com/news/local/dc-police-commander-suspended-crime-statistics/3959566/
Speaking of lies (allegedly)
The Hill, DC government is faking crime data, systematically under-reporting violence, https://thehill.com/opinion/criminal-justice/5366656-ward-6-city-council-exploration-crime-data/
It’s so typical how you actually think Trump or Congress will let a little rule like that get in the way.
Not sure that’s what I wrote, at all, but your condescension is so appreciated.
“Under the law, moreover, Trump can only do so for 48 hours unless he informs Congress. Then, he can do so for 30 days. He said he was informing Congress, so expect this to last longer than two days. To go further than 30 days, however, Congress would need to act.“
He just declared a fake emergency, so: so much for that law being followed. He made this shit up. So, yup, Republican Congress will act if he wants it to. If he even bothers.
Yes, I described the law. Are you saying I am wrong about what the law is? And can you show me where I said or even suggested that I think the law’s existence means Trump is going to follow it. You’re really wasting my time here.
“Again, it’s bad. But, there is a lot of show here and little substance — especially in light of the fact that the entire premise of this attack is based on Trump’s old-man-yelling-at-cloud, “tough on crime” lies about D.C.“
Nothing to see here! Don’t worry! The refurbished park looks nice! Everything looks the same!
And people have responded accordingly.
Surely between blind panic and bright-siding denial lies, you know, other options. Which take time, money, education and effort. So prepare for the reasonably expected worst; hope for the best.
I asked you ages ago what the plan was if and when normal politics, law failed. You got pissed then, too. It’s frightening to consider general strikes and other forms of real resistance—but not as frightening as letting these monsters literally destroy the country and spew carbon till all our kids’ futures are simply gone.
But that’s exactly what we are going to continue to do, apparently.
Yes. It's time for statehood, in part to stop Democrats from going along with blocking home rule when some red meat fear tactic issue is involved.
I breathed a little easier after reading your post this afternoon, Chris. Isn't it just like trump to make up a crisis, and then, overreact ?!😫 Thanks for checking in, please keep us posted, and will reStack ASAP 💯👍
Gee, funny how Chris deleted my comment, huh? Awfully telling, but, hey, DC is fine! The birdies are singing and life goes on. Because everyone knows that in 1930s Germany, all life stopped. No one ate out, enjoyed parks, went to the movies. So unless you see Star Wars stormtroopers on the street, stand down!
I've usually tended to agree with your comments because I do think we've been in an emergency for a long time, but here it really seems like you're lashing out. Different people can have different ways of being motivated to do what they need to do to cope. I don't read Chris as saying everything is ok; I read him as saying panic isn't helpful and here is an analysis of the details of what's going on. (Not just in this post but in all his posts.) If you find that problematic it's probably time to stop reading, because I don't see what's gained by just flat out attacking Chris in his comments section. 🤷
The only way to “cope” is to face reality, not constantly bright-side the nearly non-resistance into even more quiescence. The reality is that these fascists don’t give a damn about any rules, laws, or institutions. How are we going to fight that?
We all know how. We just won’t do it. So we wait for some authority to tell us we don’t have to.
Doug, I really don't understand why you and Chris are at odds. I guess I'm dense! Aren't we all here on more or less the same side? Anti fascist, pro statehood for DC etc? Is it a disagreement on tactics or facts?
You’re right! Bigger picture. Thanks for the readjust! Chris, I’m good. I could also be wrong.
Thank you Chris. You're
right there and can see
and hear what's going
on.