The Emperor Got Struck Back

Over the past few days, federal courts around the country delivered a series of tough blows to Trump’s fascist agenda.

Photo courtesy of New York Magazine

Trump’s losses in the federal courts continue to pile up, and this week saw a number of critical rulings go against him. Judges from D.C. to Texas to California rejected the Trump regime’s illegal overreach on tariffs, deportations, military law enforcement and even his invocation of the Alien Enemies Act.

Let’s do a legal lightning round to summarize these rulings, any one of which frankly is important enough to warrant its own standalone analysis. Today I’ll cover

1. A major ruling from the Federal Circuit invalidating most of Trump’s “Liberation Day” tariffs;

2. A long weekend emergency ruling stopping planeloads of unaccompanied children from being deported to Guatemala;

3. Trump’s big loss after a bench trial in California over his unlawful use of federal troops in that state; and

4. The Fifth Circuit smackdown of Trump’s invocation of the “Alien Enemies Act” to justify summary deportation of alleged gang members.

Make no mistake: These are big losses that carry major implications for Trump’s plans to isolate the U.S., impose a police state, and conduct mass detentions and deportations.

And if you’re now thinking to yourself, “What does it matter? The Supreme Court will just reverse these” or “Great, but Trump will just disobey the orders,” I want to hit pause and do a reality check. As I’ll explain toward the end of this piece, these arguments, while common and understandable, simply don’t match the facts on the ground.

Before we get to why, let’s do the legal lightning round!

Bye bye tariffs?

On Friday, at the start of the long holiday weekend, the Federal Circuit, sitting en banc with a panel of 11 judges, threw out Trump’s “Liberation Day” tariffs in a 7-4 ruling. The majority, which included appointees from both Republican and Democratic administrations, found that the tariffs were an improper use of presidential authority under the International Emergency Economic Powers Act (IEEPA).

“The statute bestows significant authority on the President to undertake a number of actions in response to a declared national emergency, but none of these actions explicitly include the power to impose tariffs, duties, or the like, or the power to tax,” the court wrote.

Then it added, rather drily, “It seems unlikely that Congress intended, in enacting IEEPA, to depart from its past practice and grant the President unlimited authority to impose tariffs.”

Because they were issued without any legal authority, Trump’s tariffs need to be rolled back—and the billions paid under them by importers likely refunded. But before we all celebrate, the court also stayed its ruling while Trump appeals. This makes sense because manufacturers and markets need stability, and it would be chaotic to strike the tariffs down and for the government to begin to issue refunds only to see SCOTUS possibly restore the tariffs a few months later.

It isn’t clear how some of the conservatives on the Supreme Court will rule on this matter. In the past, Chief Justice Roberts has been a proponent of not allowing the White House, at least under Joe Biden, to claim broad powers such as student loan forgiveness where it presents a “major question” upon which Congress needs to speak very clearly. Tariffs that shake global trade to its core should count up there among such major questions, but rank hypocrisy is also not uncommon with this Court majority. We will have to wait and see.

Not so fast this time

On Sunday, a major drama on the tarmac unfolded as Judge Sparkle Sooknanan of the district court of D.C., who was roused at around 3 a.m. Sunday morning to deal with the emergency, issued a TRO against the government. She forbade it from sending scores of unaccompanied children, already loaded onto planes, to Guatemala.

This echoed the government’s earlier mad scramble to send alleged Venezuelan gang members to the CECOT prison in El Salvador without adequate due process. Then, officials within the Justice Department had defied Judge Boasberg’s direct order to turn planes back around, which began a lengthy inquiry into criminal contempt that is still unresolved.

Judge Sooknanan was very displeased by what she saw and chastised the regime for attempting to deport the children in the dead of night over a holiday weekend. She ordered the government to halt its deportation efforts, and this time the government wasn’t up to playing more games with the courts. One plane that had already taken off turned back around, and the judge demanded near hour-by-hour status reports on compliance with her order.

No, federal troops can’t act like police

Another blow to the regime’s plans and operations landed Tuesday when Judge Charles Breyer of the Northern District of California issued a ruling following a high stakes, three-day bench trial. At issue was Trump’s use of federal troops in California, which he and Defense Secretary Pete Hegseth had deployed in that state in response to protests against abusive ICE practices and detentions.

Judge Breyer found that the government had violated the Posse Comitatus Act, which generally forbids the military from performing local law enforcement functions except in rare circumstances, which had not been met here.

“The evidence at trial established that Defendants systematically used armed soldiers (whose identity was often obscured by protective armor) and military vehicles to set up protective perimeters and traffic blockades, engage in crowd control, and otherwise demonstrate a military presence in and around Los Angeles,” Judge Breyer wrote. “In short, Defendants violated the Posse Comitatus Act."

Trump will appeal. But the factual record in this case, established by the district court, matters a great deal. And under these facts, which appellate courts must accept as the record on review, Judge Breyer’s decision that the federal government overstepped into illegal local police action is well-supported. Indeed, this is a pretty terrible set of facts for the White House to run up the appellate ladder.

Actually, you can’t just say it’s an invasion

In perhaps the most surprising good ruling of the last few days, late Tuesday night the Fifth Circuit, often considered the most conservative in the nation, invalidated Trump’s invocation of the Alien Enemies Act.

Why is this a big deal? You may recall that, to justify his summary rendition of suspected Venezuelan gang members to CECOT in El Salvador, Trump had declared an “invasion” of the U.S. by Tren de Aragua. That was eye-roll inducing, and he did it by way of special proclamation, paving the way for him to abuse the rights of those who got swept up in this category. Many of them, it turns out, weren’t even gang members at all, but instead were grabbed, detained, and put on a plane simply because of their tattoos.

The case involves a curious balancing act. Normally, White House policies around who is a foreign enemy, who is invading the country, and what the national response must be are granted wide deference by the courts. This is so that the judicial brance does not unduly infringe upon the executive branch’s assigned function. But here, the Fifth Circuit found that, while “factual assertions by the President are to be accepted … freestanding labels to unstated actions are not relevant findings.”

In other words, you can’t just call it an invasion and leave it at that. You need to back it up, at least a little, and make at least some kind of an effort to support such a consequential claim.

This ruling has echoes of the Federal Circuit’s earlier invalidation of Trump’s tariffs, where he had claimed a “national emergency” over the trade deficit and fentanyl trafficking over the Canadian border, but the tariffs had not been directed to addressing these circumstances, nor were the claims of “emergency” supported by the facts.

This case, too, is bound to be appealed, and the Supreme Court may wind up giving far greater deference than the Fifth Circuit panel did. But for now, within the Fifth Circuit, Trump can’t use bogus claims of being “invaded” by gang members to justify summary deportations of migrants.

But these rulings don’t matter! SCOTUS will overrule! Trump will defy!

There’s an understandable tendency to hear about a big court victory for the good guys but then cynically dismiss it, claiming either that the Supreme Court will overturn it, or that the Trump White House will simply ignore the courts’ orders.

I want to encourage readers to not fall into this trap. True, the Supreme Court has intervened in a few cases to lift a few injunctions imposed by lower courts, and that admittedly has been awful to see. But it hasn’t ruled substantively on much of anything yet.

And that has allowed court victories by the good guys to produce some real progress.

For example, the Blue State Attorneys General group has been successful at using lawsuits to claw back huge sums impounded by the White House. This has occurred even while the red states, which failed to challenge the illegal withholdings, were left starved of funds.

In his newsletter today, Robert Hubbell pointed to a chart with data from KFF Health News illustrating how successful lawsuits have spared the blue states from a great deal of the blow to public health infrastructure funding:

This helps show that the Supreme Court hasn’t been able to stop every lawsuit from succeeding. Indeed, many if not most have achieved their goals.

It’s also common to believe that the government is simply refusing to comply with any court order. This misconception perhaps arose because so much attention was on a pair of lawsuits involving deportations, where the Justice Department and Homeland Security pretty much gave the finger to the courts.

But those are the only instances I’m aware of where court orders have been defied outright. And there are now major consequences for those involved with the plan to show open contempt. Judge Boasberg is now weighing bar disciplinary referrals for the lawyers involved.

In other cases, it is also true that the government has dragged its feet, delayed, deflected, misdirected and sought immediate appellate review of preliminary injunctions. But that is not the same as open defiance. And the courts have gotten much better at holding the government’s feet to the fire, as we just saw with Judge Sooknanan’s order followed by a demand for a series of status updates, all to keep the government on the straight and narrow.

The Department of Justice wants the American public to assume that none of the orders granted by federal judges are being heeded. They want us to believe that they, and not the judiciary, are in control. But this is simply not the case. As we saw this weekend, the Justice Department doesn’t have the appetite for another round of contempt proceedings, and it is even turning planes around when ordered to do so.

Zooming out a bit, we can understand why. The Justice Department is in disarray and demoralized, it has in some instances squandered the crucial “presumption of regularity” that is normally afforded to government functions, and the Trump regime is now losing the lion’s share of the most consequential lower court cases.

Sure, the Supreme Court may eventually weigh in with a set of terrible decisions. But that won’t stop, and hasn’t stopped, resourceful civil rights lawyers from finding new and novel ways to attack the White House’s policies and orders. For example, when SCOTUS found that litigants could not obtain nationwide injunctions against White House directives, plaintiffs adjusted quickly, moving for class certification so that the nationwide part got built into the definition of the class.

And who knows? Maybe even this SCOTUS majority will draw the line somewhere—perhaps by protecting the bright line independence of the Federal Reserve or by telling Trump he can’t order federal troops anywhere he wants for whatever mission he wants.

Until then, every win in the lower courts chips away at the MAGA fascist golem, and maybe with enough blows, we can take the entire monstrosity down.