Trigger warning: Although I have taken to posting my criticisms of Trump 2.0 elsewhere (and then offering links to those interested), this post is all criticism of Trump 2.0.
Are careful legal arguments irrelevant?
This past Friday afternoon, President Trump openly attacked the Supreme Court majority for failing to side with him in Learning Resources and praised the three dissenting conservatives by name for doing exactly that. … Vice President JD Vance also accused the SCOTUS majority of “lawlessness.”
It should be obvious to everyone, but just in case it isn’t: This is a purely nihilistic way to treat a branch of the federal government that justifies its decision in lengthy, reasoned opinions. It presumes that good-faith arguments and competing forms of legal interpretation are irrelevant in the work of the courts—and that justices picked by a given president are expected to serve as loyal supporters of anything that president (or another of the same party) might do in office, regardless of what the Constitution and/or the statutory record might say. There are six conservatives on the high court; therefore Trump should have won Learning Resources by a vote of 6-3. It’s that simple, and anything that diverges from a thoughtless display of partisan fealty is supposed to stand as transparent evidence of corruption.
In a world where most voters view the judiciary this way, there really is no place for a judicial branch at all ….
Damon Linker, Seven Observations About the Supreme Court’s Tariff Decision.
Linker’s first observation (what the court holds) is inaccurate, but I thought this excerpt from his fifth observation was pretty sharp, and as a “courts man” I wanted to pass it along.
Are we the baddies?
On a note not unrelated to the prior item:
[W]ith fleeting exceptions, every one before Trump 2.0 accepted two core principles: There is space between the president’s every wish and what the law permits. And, relatedly, executive branch lawyers should not merely rubber stamp presidential initiatives.
The system has always been imperfect because the law is often unclear and government lawyers face pressure to approve presidential action. But the basic arrangement has been that government lawyers interpret law with some independence from the president, and that some policies are blocked or modified when lawyers identify clear legal problems. Presidents embraced this arrangement because legal compliance demands it and because systemic inattention to law leads to bad policy or undesirable political or legal risk.
Until Trump 2.0, that is. The Trump administration since January 2025 has rejected this system root and branch.
First, it has sought to ensure that the senior ranks of lawyers are filled with loyalists. I don’t mean loyalists in the sense in which past administrations typically hired people supportive of the president’s program and in line with the president’s outlook and politics. I mean lawyers who are willing to do whatever the president (or a senior proxy) asks, including in legal decision making, despite what law and professional norms say.
Second, the administration has issued formal directives to eliminate lawyers’ independence judgment. The most important one says:
No employee of the executive branch acting in their official capacity may advance an interpretation of the law as the position of the United States that contravenes the President or the Attorney General’s opinion on a matter of law, including but not limited to the issuance of regulations, guidance, and positions advanced in litigation, unless authorized to do so by the President or in writing by the Attorney General.
Since the president is indifferent or hostile to law, and since the attorney general is a sieve for the president, this directive makes the president’s policy whims—which he thinks by definition are lawful (“I . . . have the right to do anything I want to do”)—the governing rule.
Third, the administration has fired, threatened, or sidelined lawyers in the government who express disagreement with the party line established in the White House (or who were connected to past legal actions against Trump). Every lawyer not directly subject to this regime gets the message.
Jack Goldsmith
How does this cash out in Pete Hegseth’s “Department of War”?
| Topic | Summary |
|---|---|
| Military Legal Culture | Traditionally strong post-Vietnam; lawyers integral to lawful military conduct. |
| Hegseth’s Approach | Seeks to reduce lawyers’ independence; prioritizes loyalty; hostile to existing legal culture. |
| Trump 2.0 Legal Model | Presidential interpretations override traditional legal checks; lawyers must follow party line. |
| Boat Strikes | Legally questionable strikes justified by dubious administration definitions of “armed conflict.” |
| Congress | Largely inactive in oversight; failed to challenge changes weakening DOD’s legal integrity. |
| Outlook | Possible future exposure of legal violations; need for Congressional accountability. |
This is a scandal, but if it lies, as I think it does, at the intersection of Absolute Presidential Immunity and the Unitary Executive, I don’t readily see a legal remedy. Trump is immune because SCOTUS says so. His minions are immune because Unitary Executive.
So suck it up, America, and get used to us being the baddies.
Kinsley gaffes
Chief Justice John Roberts does Thomas the courtesy of a very thoughtful response to his dissent in the recent tariffs case, a response that contains what I think we might consider a “Kinsley gaffe,” i.e., stating a truth that is more than one meant to say. The chief justice writes:
Suppose for argument’s sake that Congress can delegate its tariff powers to the President as completely as Justice Thomas suggests. Even then, the question remains whether Congress has given the President the tariff authority he claims in this case—or whether the President is seeking to exploit questionable statutory language to aggrandize his own power.
Chief Justice Roberts is a very careful writer, and his words here, while couched in the form of a question, are plainer than I am accustomed to reading from him or from any other member of the court: “the President is seeking to exploit questionable statutory language to aggrandize his own power.” One need not be an esoteric Straussian to assume that the word whether should be omitted to access the sentence’s true meaning.
Of course “the President is seeking to exploit questionable statutory language to aggrandize his own power.” He also seeks to exploit imaginary statutory language to aggrandize his own power, and seeks to exploit phony emergencies to aggrandize his own power, to exploit imaginary Venezuelan fentanyl to aggrandize his own power, to exploit imaginary Haitian cat-eaters in Ohio to aggrandize his own power, to exploit an absolutely ignorant misunderstanding of trade deficits to aggrandize his own power, etc. The president of these United States is not an aspiring autocrat but an actual autocrat acting outside of the constitutional powers of his office in matters ranging from imposing illegal taxes on Americans to carrying out massacres of civilians in the Caribbean. Speaking with his trademark stroke victim’s diction, Trump insisted:
I am allowed to cut off any and all trade or business with that same country. In other words, I can destroy the trade. I can destroy the country! I’m even allowed to impose a foreign country-destroying embargo. I can embargo. I can do anything I want, but I can’t charge $1. Because that’s not what it says, and that’s the way it even reads. I can do anything I wanted to do to them but can’t charge any money. So I’m allowed to destroy the country, but it can’t be a little fee.
U.S. humanitarian aid
A year after the Trump administration began the dismantlement of USAID, it is initiating a new round of significant cuts to foreign assistance. This time, programs that survived the initial purge precisely because they were judged to be lifesaving are slated for cancellation.
… Each of them is classified as lifesaving according to the Trump administration’s standards.
The administration had already canceled the entire aid packages of two nations, Afghanistan and Yemen, where the State Department said terrorists were diverting resources. The new email, sent on February 12 to officials in the State Department’s Bureau of African Affairs, makes no such claims about the seven countries now losing all U.S. humanitarian aid: Burkina Faso, Cameroon, Malawi, Mali, Niger, Somalia, and Zimbabwe. Instead, according to the email, these projects are being canceled because “there is no strong nexus between the humanitarian response and U.S. national interests.”
Hana Kiros, The Trump Administration Is Ending Aid That It Says Saves Lives
Like I said, get used to us being the baddies.
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Tipsy Teetotaler ن 