In Oral arguments on Nov, 5, 2025, the issue was the power of the Trump administration to set tariffs on many products, from many countries for an unsopeofied amunt of time. Congress has delegated some tariff powers to the Executive branch over the decades. But, Pres. Trump claims a statute, known as the International Emergency Economic Powers Act, provides the Executive branch with an unlimited sort of tariff authority. This is remarkable, since the IEEP Act does not actually mention the word “tariff.”

It is not a core issue to the case, but it is important. The United States Solicitor General John Sauer had to know this would come up: who ultimately pays the tariffs? Do American consumers ultimately pay the tariff or does some combination of foreign countries, businesses, etc. pay the tariff? It is not a core issue, but who pays the tariff is important to the case. If U.S. citizens pay the tariff, then the tariff is a tax. In Oral arguments on Nov. 5, a few of the Justices referred to the tariffs as a tax. That is important, because Congress can delegate such a power only if it does so very clearly.

Are the Tariffs a Tax?

Asking a lengthy question, Justice Roberts referred to the tariffs as a tax. Solicitor Sauer disagreed. It was just a passing comment, but Justice Roberts stopped mid-sentence. Justice Roberts then switched to the tax issue. He noted that the vehicle of these tariffs is an imposition of taxes on Americans – which is a core power of Congress (and therefore, not easily delegable to the Executive branch). Sauer replied that it has not been “empirically” shown that Americans are bearing these tariffs. Fine. Justice Roberts asks who does pay for the tariffs?

Solicitor Sauer then obfuscated, He said it would depend on the contract between the country and the importer. Sometimes the importer would pay the tariff, sometimes the foreign producer would pay. It could be a wholly owned American subsidiary of a foreign corporation. It would be allocated.

Justice Roberts then points out that it has been suggested that the tariffs are decreasing the budget deficit – which suggests it is a revenue source. Sauer then responds that yes, there are collateral effects of tariffs. Justice Roberts did not respond at that point. Most judges would not. They just want to hear how the litigant handles the question.

In that moment, Solicitor Sauer lost his credibility. Simply to appease his ultimate client, Pres. Trump, he refused to acknowledge on the record that tariffs act as a tax. They are tax in every way but name. The American consumer will pay a large portion of the tariffs. And, Solicitor Sauer, even though experienced, committed a grievous sin in appellate advocacy: do not BS the Judge. We learned in law school to never avoid a question and never, ever avoid an obvious fact.

It was an embarrassing moment for Solicitor Sauer. Before the highest court in the land, he implicitly acknowledged that his accepted a case with a known, insurmountable weakness. He might well have worn a sign on his chest: “My case is a loser.” He way yet win on other grounds. But, when a lawyer obfuscates in court, he implicitly admits he does not believe in his case. That its why lawyers reject cases. Even Solicitors of the U.S. have the right to reject a case.

See audio recording in Learning Resources v. Trump, No. 24-1287 here.

This really is the season of hunting free speech advocates. I just penned a post on Universities throttling a professor’s free speech rights, and here comes Gov. Abbott with more of the same. The Governor of the Great State of Texas shared a post about a University of Texas professor who had been fired from an administrative role due to his ideology. See my prior post here. The governor shared the post and announced the state would target professors who push “leftist ideologies.”

The governor, an experienced lawyer, did not define “push” or “leftist ideology.” But, it is safe to say that the First Amendment free speech clause applies to state and local governments – which includes the University of Texas. See The Hill report here for more information.

In a recent survey, only 12 out of 65 Federal Judges agreed that the U.S. Supreme Court makes appropriate use of the emergency docket. The emergency docket refers to the process by which a litigant can bypass the courts of appeals and go straight to the U.S. Supreme Court. There have been far more emergency appeals since Pres. Trump assumed power. The emergency docket is sometimes referred to as the “shadow docket.” Prior to Trump, the Supreme Court rarely granted any orders requested on an emergency basis. But, now it has become very common to grant those emergency appeals.

In the survey, Federal Judges described the Supreme Court’s emergency orders as “mystical,” “overly blunt,” and “incredibly demoralizing.” The latter comment likely refers to the very extensive, detailed order issued at the trial court level, only to be overruled by a one page order from the Supreme Court. What is the point of conducting lengthy research if the Supreme Court will overrule you with one or two paragraphs?

The Judges responded to the survey anonymously. The survey found:

  • Twelve out of 65 judges agreed with this statement: “The Supreme Court has made appropriate use of the emergency docket since President Trump returned to office.” Forty-seven disagreed, and six were neutral.
  • Asked what effect the emergency docket had on the public’s perception of the judiciary since Trump returned took office, 42 judges “said caused harm,” ten judges “said no effect,” and two “said an improvement.”

The latter comment refers to the implicit understanding of every Judge: that civility in the courtroom often depends on a thin veneer of respect for the court. If you lose that respect, then every trial, every hearing may result in a shouting match or worse.

Over 400 Judges

The New York Times conducted the survey. It sent the survey questionnaires to over 400 U.S. Judges. Among the Judges who responded, 28 were nominated by Republican presidents and 37 were nominated by a Democratic president.

The Times acknowledged that as a sample size, 65 is not a large number. But, the paper noted that for so many to be critical of the Supreme Court is unusual. I agree. Indeed, my opinion, it is surprising that as many replied as they did. Judges, regardless of the party, tend to be very conservative and cautious in discussing these sorts of issues – anonymously or not. See ABA Bar Journal report here for more information.

It’s amazing how many average persons believe they enjoy free speech protection in all sorts of private sector environments. No, we do not enjoy free speech protection in our private sector jobs. The First Amendment applies to state and local governments. That has been the law since forever. One professor at Texas State University, Tom Alter, expressed views akin to socialism on a private online connection. He called for the formation of a worker’s party to “overthrow” the U.S. government. Prof. Alter’s area of study is the working class and protest movements.

Prof. Alter issued his call as part of an online conference of Socialist Horizon. Unknown to Prof. Alter, his remarks were secretly recorded by Karlyn Borysenko. Ms. Borysenko describes herself as an “anti-communist cult leader” who exposes left-wing activists. She posted a video of Prof. Alter’s remarks on Twitter, now known as X. Within a couple days of posting the video, Alter was fired by Texas State. Prof. Alter then filed a lawsuit.

No Due Process

It was odd that the professor was tied with no notice or opportunity to challenge his firing. Tenured professors enjoy such protections. Yet, he was fired v=ia email from the school provost.

State district court in Hays County found in favor of the professor. I doubt it was a difficult decision. Judge Alicia Key issued a temporary restraining order reinstating the professor. Yes, the Fist Amendment applies to state and local governments. Texas State is a state governmental entity. This was surely an easy decision for Judge Key. See the San Antonio Express News report here for more information.

We may disagree with Prof. Alter’s views, but he has every right to express them. As some famous person said, free speech means nothing when the speech is popular. The First Amendment matters most when the speech is not popular. For more information about the free speech protections we all enjoy, visit the Foundation for Individual Rights and Expression website here.

Epilogue

Prof. Alter was reinstated. Texas State brought him back to work, held a hearing and then promptly fired him on Oct. 13. The letter terminating him specifically mentioned Prof. Alter’s remarks at the Socialist conference. The letter claims Prof. Alter spoke as a representative of Texas State University, not in his personal capacity. See University Star report here. Violation of internal rules might avoid the free speech implications. But, the employer will have difficult burden in what could become additional litigation.

When you are a lawyer, you hear that phrase “selective prosecution” now and then. Someone’s brother-in-law or cousin is being picked on by the local County District Attorney. But, sometimes, we see actual selective prosecution in real life. One day, Pres. Trump publicly directs AG Pam Bondi to prosecute James Coney. Days later, the U.S. Attorney for the Eastern District of Virginia does in fact indict James Comey. Mr. Comey, former head of the FBI, has been on Pres. Trump’s enemies list for years.

This is the same James Coney who was once managing attorney for that same Eastern District of Virginia office. Ty Cobb. a former Assistant U.S. Attorney himself and a long-time Washington D.C. criminal defense lawyer, said the “vindictiveness and selectivity of the indictment are palpable.”

James Comey was also a former U.S. Attorney for the Southern District of New York, a prestigious post. And, he served as second-in-command of the Deptartnment of Justice during the George W. Bush presidency. If convicted on the perjury charges, he would face up to five years in prison. But, given the public nature of the President’s “selection” of Coney to be prosecuted, he has better than even chances of avoiding any punishment. See ABA Bar Journal report here. As often occurs, Pres. Trump’s own actions undermine his efforts. The best evidence for selective prosecution will be Trump’s very public, errant message to Pam Bondi.

Pres. Trump stated his intention to activate Oregon National Guardsmen to protect “war ravaged Portland.” The state then sued. Early Saturday, Oct. 4, U.S. District Judge Immergut issued an order finding that there is no ongoing violence or crisis that would justify a call-up in accordance with 10 U.S.C. §12406. Sec. 12406 specifically allows a President to call up National Guard soldiers in the event of invasion, rebellion or the President is unable to execute the laws of the United States. The court then found explicitly that no such conditions exist. Whatever violence was occurring at the ICE facility in Portland had peaked in June, 2025, months before Pres. Trump called for the Guard. The court’s opinion includes over 11 pages of deep detail regarding the protests in Portland.

The Judge described in great detail the protests that did occur – mostly involving minimal violence. Judge Immergut noted that the issue is not whether the condtions matched the President’s description, but whether his claims were “colorable.” She meant the issue was whether his claims were kind of, sort of close to reality. The Judge found they did not come close to reality. She explained that the President is entitled to a “great deal of deference.” “But ‘a great level of deference’ is not equivalent to ignoring the facts on the ground.” In this sentence, the Judge is saying “do not blow smoke at me.”

DOJ did not help its case by pointing to violence occurring elsewhere. Too, the president’s own statements were simply far beyond what was actually then occurring. The Judge did not say it, but what she meant was the President’s own words suggest his duplicity.

Duplicitous Claims

When both the lawyer and the client are essentially found to be exagerrating, you know your case is lost. The order is clear. The Judge made a specific, detailed finding that there was simply no violence to meet the requirements of Sec. 12406. See Judge Immergut’s decision here. This is a stark example of the dangers of over-the-top claims in any legal brief.

So, later that same day, Secy. of Defense Hegseth’s stated his intention to send the California National Guard and the Texas Guard to Portland. Not surprisingly, that plan got under the Judge’s skin. One party to the lawsuit was ignoring some 11 pages in the order and instead focusing only on the part that said they cannot call up Oregon Guardsmen. Judge Immergut then did something This author has never seen or heard of: she ordered a hearing for 10:00 p.m. Sunday, Oct. 5. At that hearing, she hammered the DOJ attorney, Eric Hamilton, asking why the United States believed they could send Guardsmen from other states to Portland.

Any attorney would, should be embarrassed at having to admit in court a deliberate attempt to circumvent a judge’s order. Hamilton simply argued that he believed the order only applied to Oregon Guardsmen. Even making that argument, he shows himself to lack reading comprehension or is simply dishonest. This attorney is constantly amazed at Trump’s ability to find lawyers so willing to roll the dice with their law licenses. See Politico news report here for more information.

Mr. Hamilton asked the Judge to put her decision on hold, while the administration appeals. Perhaps, ten months ago, the Judge would have said yes, expecting the Dept. of Justice to act responsibly. But, the Judge said no. When you lose your credibility in court, you really do lose your credibility in court.

Former Department of Justice officials are “stunned” at what they are seeing today. Pres. Trump openly urged AG Pam Bondi to indict two of his political opponents. The US Attorney for the Eastern District of Virginia resigned under pressure to cook up some basis for indicting James Coney. Other Federal prosecutors in Maryland, Georgia and western Virginia – who are also dealing with politically sensitive investigations – may soon face similar political pressure.

Erik Seibert, the former US Attorney for the eastern District of Virginia was pressed by the President to indict James Coney and Letitia James, the New York Attorney General. Mr. Seibert, however, was forced to resign after he declined to issue such indictments. Former US Attorney Carol Lam pointed out that in prior administrations, these sort of events would have prompted Congressional investigations and Inspector General filings. Added Ms. Lam, “We’ve never seen anything even approaching this level of interference with the day-to-day job of prosecutors.”

Pres. Trump’s open message to AG Bondi to prosecute soon Comey and others was “shocking” to anyone who has ever worked at the Dept. of Justice, said former US Attorney Barbara McQuade.

Federal prosecutors in Maryland are probing alleged mortgage fraud by Sen. Adam Schiff and alleged violations of classified information by John Bolton. Overseeing the cases is career prosecutor Kelly O. Hayes. Pres. Trump appointed Hayes interim US Attorney in Maryland. Hayes has met in recent weeks with Ed Martin, a political appointee at DOJ and fervent Trump loyalist. See ABA Bar Journal report here for more information.

The Charlie Kirk supporters are getting amped up about firing anyone who disparages the late activist. Secy. of Defense Pete Hegseth has said explicitly that he and DOD will “track” DOD staffers and military members who say negative things about Charlie Kirk. Ok, but is that lawful? In a country with free speech, can your employer fire you for political statements?

Private sector employers can indeed fire a person for making comments outside of work. The First Amendment of the U.S. Constitution only applies to state and local governments. The National Labor Relations Act allows workers to discuss the “terms and conditions” of their jobs. But, otherwise, a private sector employer can fire an employee for any silly reason. That would be true in any state with at-will employments. Some 40 states have at-will employment. Texas is an at-will state.

Dept. of Defense

It is very unusual for the Department of Defense to indicate it will “track” DOD employees who say negative things about Charlie Kirk. Mr. Kirk was not in the military chain-of-command. In a statement on twitter/X, spokesman Sean Parnell stated: “It is unacceptable for military personnel and Department of War (Defense) civilians to celebrate or mock the assassination of a fellow American.” But, there is no apparent reason – other than stark politics – why the military should care what is said about a murdered activist. It is terrible that Mr. Kirk was killed. But, he had no supervisory responsibility in DOD.

Disparaging persons in the chain-of-command would lead to concerns about good order and discipline. But, Mr. Kirk had no such role. And, of course, the First Amendment does apply to Executive branch departments. It is ironic that folks are trying to silence the free speech of persons who themselves are discussing a free speech activist.

The First Amendment does applies to actions taken by state and local governments. So long as a school teacher or a state employees is talking within their personal capacity about Mr. Kirk or any other political issue, they enjoy free speech protection. See San Antonio Express News report here for more information. For more information on free speech rights for government employees, see the ACLU website here.

I have practiced law for some 30 years and never heard the term “shadow docket.” But, it has now become a very large deal in 2025. Erwin Chemerinsky, Dean of Berkeley Law School, wrote a piece in the ABA Bar Journal explaining this revolution in Supreme Court practice. The shadow docket has become paramount. The shadow docket refers to the practice of litigants at the district court level bypassing the court of appeals to file an emergency request with the U.S. Supreme Court. Such motions used to occur only in regard to state executions. If someone was set to be executed in a few weeks and he believed he had good grounds for appeal, it made sense to apply to the Supreme Court for emergency consideration. Otherwise, submitting an appeal through the Federal courts of appeal courts would require a couple of years.

Generally, the Supreme Court rules on these emergency motions with little or no explanation. The idea is to hold an expedited process. But, how can such brief rulings serve as precedent? Until this year, they never did serve as precedent. How can one or two lines hold precedential value?

Mr. Chemerinsky tells us they cannot. Yet, a recent decision from the Supreme Court insisted that those terse rulings on emergency motions do indeed serve as precedent.

Explosion in Emergency Motions

But, the current administration has taken those emergency motions to never before seen limits. In 2024, there were 44 matters on the emergency docket. In 2025, the court has seen 113 emergency motions. These motions are not the subject of extensive briefing. There are no amicus briefs. They see no review at the court of appeals level. They completely bypass the courts of appeal.

An important appeal concerned the President’s power to fire members of the boards of quasi-independent boards. Precedent since 1935 held that the President lacked that authority. Yet, in ruling on an emergency motion in May, the Supreme Court stayed the lower court’s decision preventing the firing of those board members. The court said:

“The stay also reflects our judgment that the government faces greater risk of harm from an order allowing a removed officer to continue exercising the executive power than a wrongfully removed officer faces from being unable to perform her statutory duty.”

Trump v. Wilcox, No. 24-966) May 22, 2025). See that decision here. It was a whole one and one-half pages regarding a very weighty issue. This ruling effectively overruled the holding in Humphrey’s Executor v. United States, 295 U.S. 602 (1935). A 90 year old decision is overruled with little or no real discussion.

Then in a separate case, again regarding an emergency motion, the Supreme Court fussed at the lower court for not following its “precedent” in Trump v. Wilcox. So, the Supreme Court accords greater weight to a 1.5 page long decision over a 90 year old decision. This is likely the first time ever that a Supreme Court has treated a ruling on the emergency docket as actual precedent, says Dean Chemerinsky. This is simply and judging. Judging is a craft like any other. This is not quality judging. See ABA Bar Journal report here for more information.

As a young National Guard officer, my colleagues and I discussed the Posse Comitatus Act often. We always knew that as Guardsmen. we would be called up for national disasters. But, we all knew there were limits to out authority. We knew we could not perform law enforcement functions except in specific circumstances, such as a rebellion. Yet, the Trump administration wants to disregard some of those limits. In a very critical decision, Judge Charles Breyer finds that the Trump administration openly and directly disregarded the limits of the Posse Comitatus Act. Judge Breyer even states flatly that Pres. Trump is trying to create a national police force with himself as its chief of police. Opinion, p. 2. It is very rare that Federal judges draw such stark conclusions. But, there is evidence for the Judge’s conclusion.

After finding that the plaintiffs have standing for this suit, the court gets to the meat of the matter. It finds that the Dept of Defense, from the highest levels, approved using the Guard in ways that directly contradicted the provisions of the act.

No Law Enforcement Means no Law Enforcement

The act provides that except as provided “expressly” in the Constitution or an act of Congress, no part of the U.S. military may be used to enforce laws. 10 U.S.C. §1385. The court finds that the Constitution gave the bulk of the power over the military to Congress. Congress passes the laws. The President is then required to enforce them. During Reconstruction, U.S. soldiers were in fact used to enforce voting rights legislation in the South. In response to that use, Congress passed the Posse Comitatus Act (Latin for “can accompany”) in 1878. Congress did not particularly object to that usage during Reconstruction, but it realized that it should be limited.

The court first dispenses with DOJ’s very unique contention based on 10 U.S.C. §12406(3) – that the President can do with federalized Guard troops whatever he cannot do with regular military forces. Op., at 26. The court notes that even the Department of Defense’s own publication on the Posse Comitatus Act does not make such a claim. No other entity has made such a claim, says the Judge. Indeed, the reasoning for such a claim does not withstand scrutiny.

Faithfully Execute the Laws

The Defendants claim the “take care” clause of the Constitution – that the President take care to faithfully execute the laws of the United States – supports its argument. But, adds the Judge, that is non-sensical. If the President is to take care to enforce the laws faithfully, he must then honor the proscriptions of the Posse Comitatus Act.

But, the most difficult evidence for the Defendants is the training it provided to the newly activated Guardsmen/women. The commanders of the what became Task Force 51 provided two weeks of training to the Guard forces and the Marines. Part of that training included explaining the limits of the Posse Comitatus Act. The brochure produced by DOD itself, probably a long-standing brochure, specifically listed these tasks as forbidden by the Posse Comitatus Act:

  • Security patrols
  • Traffic control
  • Crowd control
  • Riot control

This was an actual training slide used in that two week training. Yet, verbally, those soldiers and Marines were told they could in fact conduct those tasks. This instruction “came all the way from the top of Department of Defense.” DOJ objected to this testimony, because it violated attorney-client privilege. That means it is surely based on legal advice by sone attorney somewhere. But, the Judge noted rightly that using that testimony at trial waived the privilege. (That suggests to that DOJ tried to use this testimony in an “offensive” way – not to defend itself, but to score some point). Op., p. 7-8.

And, in fact, the Guard did conduct those very missions in various incidents. The Judge did not focus on one or two arrests or detentions made by the Guard. He apparently saw those few arrests as de minimis. But, he noted the systemic reliance on using the Guard in those four ways in violation of the act.

MacArthur Park

Once incident in particular caused the Judge concern. Department of Homeland Security planned to conduct a show of force type operation in MacArthur Park. Initially, DHS wanted to have the Guardsmen in the midst of the park – a use specifically approved by Secy. Hegseth. The military Commander, Maj-Gen. Sherman objected to placing them in the middle of the park while ICE agents swept the park. Chief Bovino of DHS then accused Maj-Gen. Sherman of lacking loyalty to his country. The Judge noted this incident in a footnote, finding that it helped show the state of mind of the Defendants.The Judge saw this entire show of force as a political theater, and as an abuse off the Posse Comitatus Act. Op. p. 12.

The court noted that the Guard could indeed be used to protect federal buildings and property. But, that sort of task was not law enforcement. Protecting federal property is not implicated by the Posse Comitatus Act, at all. It is entirely the province of the courts to determine what the law is. That has been the state of law in the United States since the Marbury v. Madison decision in 1803. There is a well-developed body of law interpreting the Posse Comitatus Act. No case supports the Defendants’ broad interpretation.

(It is probably safe to say that when any judge finds it necessary to invoke the ancient precedent of Marbury v. Madison, that the Defendant has lodged some specious arguments).

As Pres. Andrew Jackson himself said during the Nullification Controversy:

“[U]ntil some act of force is committed or there is some assemblage of an armed force … to resist the execution of the laws of the United States, the Executive of the United States has no legal [and] constitutional power to order the militia into the field to suppress it.” 

The Judge then enjoined the use of the Guard to perform those four above mentioned tasks. And, us regular people are left to wonder how any serious lawyer could envision otherwise. See the court decision here in Newsom v. Trump, No. 25-CV-04870 (N.D. Calif. Sept. 2, 2025).