The board voted for the phone ban and NuKase purchase together in a single motion, which carried by a vote of 3-2. If the board had voted on the ban as a stand-alone, it would have passed by a vote of 4-1. Board member Emily Uhlhorn would have voted for the ban but opposed the purchase of NuKase, and thus voted no. Board member Ida Green opposed the ban. The remaining three board members, Jennifer Holden, Cynthia Roenisch, and Kevin Saavedra, voted in favor of the phone ban and NuKase package.

What the school district got right.

The four board members who supported the ban recognized that the school day is not just a collection of independent classes, but a cohesive experience. They accepted the superintendent’s argument that using phones between classes and during lunch is harmful to students. At a fundamental level, the policy reasserts educational and moral responsibility for the entire (bell-to-bell) school day. This was logical: if a student scrambles their brain with hyperactive short-form content in between classes and throughout lunch, he or she will be less able to retain and process information during class. Every exposure to short-form content rewires the brain to expect even more high-octane, short-form content, which in turn makes sustained focus more difficult. The board understood this, as demonstrated by their comments.

The board majority also properly rejected the objections that students, parents, and board member Ida Green raised.

One objection was that students need their phones for safety reasons. The suggestion was that students might leave campus for lunch, get hurt, and find themselves unable to dial 911 or a parent. But this concern is misplaced because students are almost never more than a few seconds from adults during the school day, including when they are off campus during lunch. The idea that nobody would help an injured person or respond to a car accident is just wrong—and is the kind of mistrustful hyper-individualism that over-dependency on phones tends to encourage. And as board member Jennifer Holden pointed out, a teenager with a phone in a car is more likely to get hurt than a teenager in a car without a phone. A phone-free policy could help prevent accidents and will not hinder public response to accidents.

Some people objected that students need to have phones so that they can communicate with their parents during the school day. It is true that being able to communicate with children during the day can be convenient, but it is also unnecessary. Again, in an emergency, an adult is standing nearby. The benefit of eliminating distraction and harmful exposure to short-form video and other bursts of scrolling content and video games outweighs the loss of convenient communication.

At the suggestion of a teacher, more than 50 students wrote letters to the board before the meeting. Perhaps the most prevalent student objection, the board said, was that the phone is their private property and they can do whatever they want with it and nobody can tell them otherwise. Some parents also take the position that a student’s phone usage should not be the subject of public policy, but rather should be a family affair. If parents don’t want their kids to use phones, they argue, then fine, the parent can make that rule, but why should everyone else suffer? This is a serious objection, but I think there is an equally serious answer: student phone use is so all-encompassing and interdependent that very few families, if any, can extricate themselves on their own.

No parent wants their child to be left out because he or she is the only one who can’t bring his or her phone to school or use it. Because it is not realistic or fair to ask teenagers to opt out of a social circle on their own (while friends exchange messages all day without them), this is a collective action problem that requires a community response. The libertarian view that everybody should go it alone fails profoundly on this issue, just as it doesn’t work with other issues that require or benefit from collective action, from mandatory vaccines to seatbelts to environmental regulation.

We’re going to have to do this together, but the outcome will be worth it. Imagine students talking to each other during passing time and lunch instead of hunching over short-form reels and video games by themselves. Imagine students paying better attention during class, and retaining information better. Imagine students deciding that maybe they should choose to use their phone less, including after the school day ends.

What the school district might be missing.

The school district postponed development of the details of the implementation until after the vote authorizing the purchase of NuKase. But although the logistical details were light, the superintendent argued that NuKase would minimize teacher involvement in enforcing the phone ban. As I have argued and as board member Emily Uhlhorn articulated at the board meeting, however, circumventing the NuKase policy would be trivially easy. A student could put his phone in a backpack and then tell the teacher than he didn’t bring one that day. Would the teacher then search the student’s bag? No, of course not. Alternatively, a student could put an old burner phone in the NuKase case. Either way, anyone who wants to avoid the NuKase can do so, such that the real policy is, de facto, a policy requiring students to keep their (real) phones off and out of sight. Teacher enforcement will be required; NuKase alone is not enforcement.

My point is that any device policy is only as good as teacher and parent commitment to the policy. To bring teachers and parents on board, the school district will need a sustained campaign of advocacy and information. Again, this is a cultural and collective-action issue. If too many teachers or parents are hostile or indifferent to policy, it will fail. A top-down commitment at the administrative level + NuKase does not equal success. In fact, in my view, NuKase barely alters the equation. I would say that administrative leadership + teacher commitment + parent commitment = success.

This is not to say that NuKase accomplishes nothing. It does two things. For one, it is a visible symbol of the school’s commitment and marks the beginning of a new era in a way that “backpack-only” rule would not. For another, although easy to circumvent, there are certainly rule followers who will not break rules even when they could get away with it. For the rule followers, the NuKase offers a reasonably convenient way to stay off the phone all day—by voluntarily putting the student’s working, real phone in the case. This is good, but administrators should not expect NuKase to play any role in enforcement. Teachers will be doing the enforcing, and for that, they and we will need clear rules and teacher support.

Conclusion: This is a milestone to celebrate and build upon.

The significant logistical and cultural challenges that lie ahead should not detract from the board’s big accomplishment. The majority took a big step toward limiting exposure to harmful content-delivery systems. And it implicitly reshaped what school is meant to be.

My answers: Yes to the phone ban, no to the Yondr pouches.

The school district should prohibit students from using their phones on campus during the entire school day, including during passing times and lunch. In fact, unless a parent gives informed consent, the school district should prohibit students from bringing phones on campus altogether. If a parent does give consent, then the student should keep his or her phone in a backpack or bag with the power turned off while on campus. The school district should not buy Yondr pouches. The Yondr pouch is just another bag and requires just as much enforcement effort as ordinary backpacks.

The school district’s current policy and this year’s meeting to discuss the policy

The current policy prohibits phone use during class, but expressly authorizes phone use during “non-instructional time,” i.e., during passing time between classes and during lunch. As a result, phones displace social interaction. The phones distract students during class too, even when they’re not holding them—students look forward to texting and watching videos and checking all their app notifications in between classes. Their cravings for their phones would subside if they were not looking forward to using them during passing time and lunch.

On March 24, the Tamalpais Union High School District held a meeting to discuss these issues. It was a long and thoughtful discussion. I was there in person for about half of it, then watched the rest on the video recording online.

(my photo of Superintendent Goode speaking at the March 24 board meeting)

All five board members and virtually all speakers strongly favored a phone ban, meaning that students would not have access to their phones during the entire school day. Beneath the surface, there was much less consensus. The board members and public attendees did not agree on when or how to implement or enforce a phone ban, probably because they do not share the same underlying assumptions about harm, student motivation, or the efficacy of the Yondr pouch system.

For example, if we have discovered or reached a consensus that phones are extremely harmful, like heroin, then we should not wait another second to act. In that case, we should treat phones like illegal contraband starting today. Phones would be illegal; bringing them on campus would result in suspension or expulsion. But nobody thinks that. At the meeting, many commenters looked down at the phone in their hand as they recited their notes about why phones are harmful. This would be like shooting up at an AA meeting, if phones were drugs, which they aren’t.

All the same, I am absolutely persuaded that phones are harmful in their own unique way and that students are not mature enough to consent to the harm. I read the Anxious Generation and follow . Everyone at the meeting seemed to agree that something must be done. The hard remaining question, which the school district did not convincingly answer, is which policy response is appropriate. The proposal on the table apparently is to spend $175,000 over two years on Yondr pouches.

(This is a screen shot from the recorded presentation that appears around the 2:11 mark.)

The school district should not buy Yondr pouches

The proponents of Yondr pouches, including superintendent Goode, argued that a policy that requires students to leave phones in their backpacks all day will not work because the phones are too addictive. Many students, he reasoned, are incapable of resisting the urge to look at their phone unless it is locked away. This reasoning places Yondr pouches squarely in the category of enforcement device, like an ankle bracelet for parolees. If it’s an enforcement device, then the next question is whether it will work—or instead whether kids will easily jail-break the device. If the Yondr scheme is meant as enforcement and it is trivially easy to defeat, then it is pointless.

The simplest way to circumvent the enforcement program is to put an old phone or maybe a decoy in the pouch at the locking station and keep the real one in the backpack. (Don’t worry, nobody with a serious phone addiction could possibly read this far and get these hot tips.) One administrator of a large school district in Oregon estimated that about half of students were putting a burner phone in the Yondr pouch. Or students can just skip the locking station altogether and enter campus another way. The only way for the school to counteract that gambit would be to force students to pass through a particular entrance and then make the student prove to a staff member that the phone he or she is locking in the Yondr pouch is his or her actual phone—the one with a working phone number and everything. That is logistically impossible. The best the school could do would be random spot checks, which would be invasive and time-consuming. The kids also say that you can open the Yondr pouch with strong magnets, which, again, renders the pouches useless.

In short, the Yondr pouch solution assumes the existence of students who are too addicted or motivated to resist the phone when it is inside a backpack, but not so addicted or motivated that they will try to overcome the Yondr system. I think that category of students is very small. Think about a population distribution with “motivation to access phone” as the variable on the x-axis and the number of students with that level of motivation on the y‑axis. I made an awesome chart to illustrate:

Awesome chart

I am guessing that a large group of students, represented by the green peak above, has a moderate desire to use their phone and another group of students, represented by the red peak, has a strong, addiction-level desire to use their phones during the school day. The chart shows that as motivation to access the phone gets stronger, the policy eventually fails to deter or restrain the student and he or she accesses the phone during the school day.

In this illustration, a backpack policy works for 70% of students—they follow the rule and do not access their phone during the school day. The Yondr policy works for 75% of students. The suggestion here is that the Yondr pouches make only a tiny difference because the same students who will break the backpack rule will also break the Yondr pouch rule, although the Yondr pouch may deter an additional 5% of the student population from using their phone while on campus.

To be clear, I am making up these numbers for the purposes of thinking through the problem. We could also create a chart for a world in which the Yondr pouch is transformational as compared with a backpack policy. Here it is:

Totally unrealistic chart

In this chart, the backpack policy failed for almost everyone—only 10% of students did not access their phones under a policy that requires students to keep their phones in backpacks. But the Yondr policy worked for 90% of students, an eighty percent jump! This kind of chart just doesn’t make sense though. If the backpack-only policy doesn’t work for almost everyone (90% of students), that means that those students are not rule followers or are just too addicted to control their own behavior. It would be weird, then, to find that this very same group fell in line and followed the rule or gave up when confronted with the Yondr pouch. (This chart might make sense if the Yondr pouch required extraordinary motivation to defeat, but it doesn’t; defeating it seems quite easy.)

At any rate, these charts are intended to make a point: to decide whether the Yondr pouches are useful, the school district will have to make some factual determinations or assumptions about their marginal benefit, as compared with other phone-ban policies. And I am not seeing any marginal benefit to Yondr pouches, as compared with a policy that requires students to keep their phones in their backpacks.

Yondr proponents also underestimate the burdens of the Yondr system

Some administrators argue that the reason to prefer Yondr pouches, as compared with backpacks, is that Yondr pouches relieve teachers of the burden of enforcing the rules. But that would only be true if the Yondr pouches are substantially more effective than a backpack-only policy, i.e., if we lived in the world depicted by the totally unrealistic chart. In that world, almost everyone breaks the keep-it-in-the-backpack rule, requiring constant vigilance and enforcement by teachers, but almost everyone follows the Yondr pouch rule, requiring relatively little teacher enforcement. Journalists report that, just like a backpack policy, a Yondr policy is only as good as the district’s willingness to enforce, and no better.

In reality, I think the Yondr pouch program would require considerably more staff time because somebody has to supervise all those locking and unlocking stations and manage the hardware. Our oldest son attends Tam High and our youngest will start next year. Tam High is a beautiful, open-to-the-outdoors, California campus with many entry points. This is fantastic, but for a Yondr system to work, the school would have to funnel kids into main entry points and guard against “unlawful entry” where it does not maintain Yondr locking stations. That would require tremendous resources. There is no way to “guard” all the entrances at Tam High. That means students could walk right into class without locking their phone—the Yondr system is no better than a backpack policy. Yondr is literally just another bag. Whether it holds a real phone depends entirely on the school district’s enforcement commitment.

A backpack policy doesn’t require all the locking supervision. And I assume that about the same percentage of kids will be circumventing the rule under both policies, so teachers would be doing almost exactly the same amount of enforcement under a backpack or Yondr policy. Yondr seems to be creating additional work, not reducing it. This explains why the Folsom school district tried Yondr pouches but found they were “more trouble than they were worth.” An opinion piece reports that the Los Angeles rollout of Yondr pouches was a total failure because the pouches are ineffective. The New York Times covered this failure and others.

I want to be clear: if the choice is between the current policy (phone use explicitly authorized on campus during all non-instructional time) and a phone ban implemented via Yondr pouch, then I would choose the latter and would congratulate the board on that progress. This is because the first part—the total ban—is the most important part. I just happen to think that, although reasonable minds can differ, an even better solution is to implement a phone ban where students simply keep their phones in their backpack or bag, powered off, while on campus. And then I would go further.

Another approach: a default ban with a parental override option based on informed consent to carry in a backpack or bag

Here is another idea. It is in some ways more radical than the options on the table and in other ways more flexible. The proposed approach is simple: phones are completely banned from campus by default. Students leave them at home. This is the norm, the expectation, the baseline. Under the baseline policy, it is true, students would not have a phone at lunchtime. Students who leave campus for lunch could do so without phones, as generations of students did before them. If an emergency arises, students would have access to a phone because, in our community, students are never more than a few steps from an adult with a phone. Under our current cultural settings, most kids and parents would not want this. So they could opt out.

Parents who wish to override the default ban could do so, but only after submitting an informed consent form. An online form would present the relevant research clearly and honestly: that smartphones are highly addictive by design, that they impair the ability to focus and sustain attention, that they disrupt learning, and that heavy adolescent phone use is associated with increased anxiety, depression, and impaired social development. After reviewing this information, parents who still wished to allow their child to bring a phone to campus could submit the consent form and their child would be permitted to do so. The parent could override the ban for any reason or no reason; no explanation required.

Students with permission could carry their phone in a backpack or bag, so long as the power is turned off and the student does not access the phone during the school day. This is the phone-ban described above; the difference I’m proposing here is that informed parental consent should be required even for this level of concealed carry.

The goal of this informed-consent approach is medium and long-term cultural change. A culture of immersive phone use did not spring up overnight; it took years for us to acclimatize to our current levels of phone usage. Similarly, we probably cannot expect to banish phones from campus overnight. In the first year of such an informed-consent program, I bet that something close to 100 percent of returning students would persuade their parents to give consent, so that they could bring their phones on campus. But what about students who are coming up after them?

In successive years, as awareness of the harm caused by phones continues to grow, the percentage of parents who allow their children to bring their phone to school may well decline. The ultimate goal for many of us is a phone-free education and childhood, full stop, not highly-regulated and closely-monitored phone possession. The phone didn’t crowd out childhood in a single season – and we can begin clearing space one school year at a time.

Photo of white fidget spinner above by Sebastian Voortman. Photo of spinning and blurred fidget spinner accompanying article by David Bartus.

The publication of a land acknowledgment by a local government entity in a deep blue county may surprise no one, but we should talk about it. It is harmful and does not serve the Coast Miwok. The school district should take it down. If it must make a statement, then a far better alternative is available.

Some may argue that now is not the time for addressing local land acknowledgments and that the critical energy expended here should be redirected towards more pressing issues. A lawless and corrupt president has now committed the United States to a war of unimaginable cost. The Republican Party and its voters enabled and abetted and caused this crisis. Why pause for even a moment to criticize the blue school district when a red political party is running riot?

Here’s why: the careless anti-Americanism of this land acknowledgment and others has persuaded too many people that Democrats are fundamentally not on their side. I realize this rationale opens up a very challenging debate about why people looked at a convicted felon with immoral character and chose him and his enablers. I won’t try to solve that puzzle, but I will argue that the school’s existing land acknowledgment contributes to an us-versus-them mentality and places Democrats in the “them” camp. When Republicans argued in 2024 that Democrats are for “them,” that message had resonance that went far beyond mere pronouns.

I would not argue that the school district should take down or change its land acknowledgment merely to appease Republican voters. The problem with the land acknowledgment is that it is wrong. The school district should take it down, or at least change it, as a matter of civic leadership and educational standards. No further justification is needed.

I. Learning about the school district’s land acknowledgment

Let’s start with the Tam Union High School District’s land acknowledgment.

Here it is:

Over the last year, I asked people in the community about the school district’s public statement.

Public records request

The school district published this land acknowledgment on its website in May 2024. About one year later, I submitted a public records request to the district, asking for all records relating to the land acknowledgment. The school district responded that it had no records and did not know when the land acknowledgment was posted to the website.

QR Code

After receiving no information from the school, I followed the QR Code “to support the Coast Miwok projects” on the land acknowledgment page, which led to a gofundme page for “Coast Miwok of Southern Marin Project” (the link is now broken). Links on the gofundme page led to the Coast Miwok of Southern Marin Project, which listed contact information for Lucina Vidauri, Olompali Elder. I asked Ms. Vidauri whether she had authored the land acknowledgment and she replied that she had not. She suggested that perhaps the Coast Miwok Tribal Council of Marin was involved. Later, when I asked the Tribal Council if one of its members authored or advised on the land acknowledgment, its representative replied that no one currently serving on the Tribal Council had been involved or consulted on the land acknowledgment.

Lead by Learning

The first line of the acknowledgement and the footer both reference a group called Lead by Learning, which is part of Mills College. A Lead by Learning representative informed me that the land acknowledgment currently posted on the school district’s website is a photo/screenshot of a slide from a retreat that Lead by Learning and the school district hosted in 2022. Lead by Learning stated that it did not produce the land acknowledgment; rather, the district did. It recommended that I reach out to Assistant Superintendent Kelly Lara and a teacher who led the land acknowledgment at the retreat to learn more.

At last, I apparently had found the administrator who apparently directed the school district to post the land acknowledgment on its website. I asked Ms. Lara if she could speak with me about the acknowledgment. She replied and asked what questions I had, but then declined to respond to my questions.

School district board members

As a last stop, I emailed the five elected school district board members to ask for their comments on the land acknowledgment and a prior version of this post. Four of the five did not respond. One of them, Kevin Saavedra, asked whether I had any Native American ancestry and, when I replied that I did not think so, he told me that this topic “should not be appropriated by someone like you with no Native American ancestry.” When I asked him why it was appropriate for the school district to comment on this issue but not appropriate for me to do so, he replied:

Land acknowledgments are hollow gestures, performative. They accomplish nothing substantive while doing actual harm to the objective of educating people about the history of native peoples and their experience in this country starting with colonization.

When I asked Mr. Saavedra if he was open to taking down the existing land acknowledgement on the school district website, he did not answer. That said, he was the only person who shared any substantive views with me, so while he was adversarial and critical, I appreciated his willingness to communicate.

To summarize, I did not find anyone who would defend the land acknowledgment or admit authorship. The school district said it had no records. School officials declined to answer questions. The person to whom the land acknowledgment linked via QR Code (Lucina Vidauri) was not involved. Neither was the Tribal Council. The school board mostly declined to comment, except for one board member who strongly denounced all land acknowledgments, albeit for reasons that are different from mine.

II. Reasons to take down the land acknowledgment

The school district should take down its land acknowledgment for many reasons. It is badly written and extremely vague and therefore hard to understand. And what it does manage to convey is harmful: it asserts that the existing political order is fundamentally illegitimate because it rests on stolen land. It is openly hostile to the United States.

Going right to the key political claim, the acknowledgment’s text begins: “Tamalpais Union High School District and Lead by Learning acknowledge that we are on unceded stolen ancestral land of Coast Miwok people.” And the next line states, “TUHSD stands on what are the stolen lands of the Coast Miwok people who have inhabited and been the stewards of the Marin and Sonoma areas for more than 13,000 years.”

When the land acknowledgment speaks of “stolen lands” and the “stewards of the Marin and Sonoma areas,” it is not talking about a discrete property crime, but instead the loss of self-governance by an ethnic group. At its core, the land acknowledgment claims that an ethnic group has a right to govern that persists into the present day, which is why the lands remain “unceded” and “stolen.” It is not any individual’s right to live in Marin County that has been lost or any specific lot, but instead one ethnic group’s governance or control over an entire two-county region. The descendants of the Coast Miwok live and work in Marin and Sonoma today, and in that sense, they enjoy the land today just as others do. What has disappeared – what has been “stolen” – is the Coast Miwok’s historic sovereignty.

Put another way, the land acknowledgment is not about who owns or lives on certain parcels of land in the sense of a dispute between property owners or claimants under one government. Rather, it references a dispute between rival nations or political factions about which government is legitimate. Claims that a government stands on stolen land are ultimately claims about who has the right to assert sovereignty. Surprisingly, the public school district has declared itself to be illegitimate—a foreign occupier of stolen lands—on the ground that its public property lies within Marin County.

Does the school district really believe that it has no lawful right to exist or act on behalf of the government in Marin County, i.e., that is a foreign occupier of unceded stolen territory? Probably not! This explains why board member Saavedra describes all land acknowledgments, which must include his own district’s public statement, as “hollow” and “performative.” The wanton insincerity of the district’s proclamation is a reason to take it down. And if it is sincere, that is even worse, because the district would be calling its own right to exist into question. The district either stole the land or it didn’t.

People who proclaim that a government stands on “stolen land” fail to confront their own rhetoric. If school district stole the land as a matter of property law, then the rightful owner should go to court and get it back. But that’s not what they mean. The “stolen land” proponents, if they are sincere, are telling us that the government is not legitimate and forever tarnished. They are advancing the view that a person’s legitimacy and worth in the community flows from the number of years that his or her ancestors lived on specific lands, not from our values or ideas or our shared commitments or law. That blood-and-soil ethos is anti-American. America aspires to be a place where every citizen is equal, regardless of race or heritage, and ethnic ancestry neither diminishes nor enhances one’s rights or claims.

III. A better way to acknowledge historical wrongs

While the school district should take down the land acknowledgment, if it must make a public statement about the Coast Miwok, then it should replace the existing version. The school district can acknowledge historical wrongs without asserting that the school stands on stolen land, which, again, is effectively the same thing as declaring that the school should not be there at all. Here is another way (but not the only way) to tell the story:

The Coast Miwok have lived in what is now Marin County for thousands of years. They lost their land and way of life in the 1700s, when Spanish missionaries arrived forced them to live in mission compounds in San Francisco and San Rafael. Although the Coast Miwok survived, missionization caused them to suffer wrongful servitude, widespread disease, and severe cultural disruption. Although this historic wrong cannot be undone, the District recognizes that acquiring land in Marin County may help the Coast Miwok to preserve and promote their culture and heritage. The District encourages residents to contribute financially to the Coast Miwok’s efforts to reclaim their ancestral lands.

For those who want more detailed history, I put it in this endnote.1

The proposed statement is better than the existing land acknowledgment because it eliminates the description of the school district as the foreign occupier of unceded stolen lands, and replaces it with a statement that seeks to acknowledge and honor the Coast Miwok within the existing political order. It also replaces the unexplained and opaque reference to “cultural genocide” with a more detailed description of missionization. In this way, the proposed statement delivers what the existing land acknowledgment demands but fails to do: it shares Coast Miwok’s history.

The proposed statement eliminates the reference to “piracy tactics of the English,” which is unexplained and inaccurate. No evidence shows that English piracy caused “cultural genocide.” The reference to the English presumably refers to Sir Francis Drake’s landing at Tomales Bay in 1579, where he encountered the Coast Miwok. The contemporaneous and detailed written account of that encounter reflects that it was peaceful. The website hosted by the Coast Miwok Tribal Council of Marin tells a “somewhat different story” but affirms that the Coast Miwok survived and commemorated their understanding of the encounter with ceremonies and songs. Therefore, the English written account and the Tribal Council’s website both contradict the land acknowledgment’s assertion that English piracy obliterated the Coast Miwok’s culture.

Finally, the proposed statement replaces the land acknowledgment’s call to share history and recognize indigenous backgrounds with a call to contribute money for the Coast Miwok’s land acquisition projects. The political goal of every land acknowledgment, I would think, should be to enable the descendants of native peoples to gather on land where their ancestors lived, and should propose a concrete step for achieving that goal. The existing land acknowledgment fails in this regard; it calls for history-sharing and gratitude. If people need land, then they need money to buy land, not a statement that the school district stands on stolen land.

IV. The only thing we have to fear …

I’ve offered some opinions here. I think they are right, but even more than that, I think that we should be able to discuss this subject. This is an article about a public school district’s statement. Voters in our community elect board members to run the school district, and these board members are ultimately responsible for the school district’s public statements. This year, in the 2026 midterm elections, voters will elect two members of the five-member board. Do we want a school district that proclaims itself to be the illegitimate occupier of stolen land, or would we rather not make that statement? Voters can weigh in on this issue.

I also have to mention a certain fear that attaches to issues like this one. The fear is that vocal proponents of land acknowledgments will misconstrue everything that I’ve written here and attack me from the left. I have written article after article about the horrors of the Trump administration. Where I live, those are all fine and welcome and low risk. But when I turn to Democratic or left-leaning politics and policy (Republicans do not publish land acknowledgment like the one discussed here), that’s when people start to express concerns. They will say, “I agree with everything you say, but are you sure you want talk about this kind of thing in public?”

I understand that concern. If I express a viewpoint that is arguably “Republican-coded,” then people may fly off the handle and assume that I must secretly harbor other Republican views. Polarization runs deep, the most polarized are the most vocal, and straying outside the party line may be a sin. I want to push back against the polarized mindset, which elevates putting people in categories over listening to arguments. Here, if you want, listen to the land acknowledgment and the arguments, and without assuming anything about identity or motivations, just ask:

Should we take it down?

The Department of Defense retaliates against Anthropic

Here’s my understanding. In July 2025, Anthropic (the maker of Claude) and the Department of Defense entered into a $200 million contract. Anthropic and DoD had a dispute about whether the military’s proposed use of AI would violate Anthropic’s principles. According to Anthropic, DoD asked it to remove programmatic safeguards that would preclude DoD from using the company’s products for mass surveillance of U.S. citizens or fully-autonomous weapons systems.

Secretary of Defense Pete Hegseth absurdly threatened that the government would (1) compel Anthropic to allow use of its products by the military and/or (2) declare Anthropic to be national security risk and bar use of its products by the military. As many have observed, these threats are self-contradictory and reflect the government’s bad faith. Anthropic’s product is either essential to national security or a threat to national security, but not both, and if the government doesn’t know which, then it doesn’t know anything and should not be making threats.

To its credit, Anthropic refused to remove programmatic safeguards, as DoD had demanded. In retaliation, the Trump administration ordered federal agencies to stop working with Anthropic and declared Anthropic to be a “supply chain risk to national security,” which, the administration says, means that other companies can’t work with Anthropic either. If the administration’s statement were taken at face value, this would be a huge admission of error—as it turns out, the military has been working with a national security threat this whole time! But nobody takes the statement at face value; rather, the Trump administration is engaged in unlawful retaliation, again.

OpenAI takes advantage of DoD retaliation

In the wake of this blowup, OpenAI swooped in and made a deal with DoD to provide its AI systems for “any lawful purpose.” This is where things get very murky, very fast. When the Trump administration promises to use a system for “any lawful purpose,” that promise is meaningless. The President has already said that law imposes no restraints on him in international affairs. OpenAI reportedly will install guardrails, but this is where the details matter most. The content and operational effect of those guardrails is everything. For its part, OpenAI claims that its agreement with DoD has “more guardrails” than previously deployments, including Anthropic’s. If that is true, then what the hell is going on? Why would DoD fire Anthropic for insisting on guardrails, then hire OpenAI and agree to even more guardrails?

A former researcher at OpenAI, , thoughtfully points out that these claims are nearly impossible to evaluate at a technical or objective level. The DoD’s autonomous weapons policy is dense, subject to interpretation, and classified in its implementation. OpenAI’s policy is also subject to interpretation and also highly confidential in its implementation. And the inner workings of AI itself are often times inscrutable, even for AI experts, which most of us are not.

Assessing the available information

Although the information I have is incomplete, I don’t think we need to know how exactly how complex legal contracts interact with far more complex technical systems to conclude that the Trump administration and OpenAI are, probably, up to no good. To be clear, I am not arguing that we should not try to learn how the contracts or systems work or that these legal and technical points are irrelevant. Far from it. Instead, I am arguing that we should use the information we have to predict the answer to our pressing questions. Specifically, the fact that OpenAI stepped into the breach after DoD threatened and then retaliated against a rival company strongly suggests that OpenAI will be “flexible” in the future, purported guardrails or no.

There is another important reason to doubt the sincerity of OpenAI’s commitment to guardrails. As others have observed, the reason why OpenAI was able to win the military contract immediately after DoD pushed out Anthropic may have been that OpenAI’s CEO, Greg Brockman, gave $25 million to Trump. Or excuse me, gave $25 million to Trump’s SuperPAC. The fix was always in; OpenAI paid to play and Anthropic did not. This enabled DoD to play a game of head-I-win-tails-you-lose: it could issue an ultimatum to Anthropic and be indifferent about the result. If Anthropic capitulated and agreed to whatever DoD wanted, DoD wins a hostage AI company. If Anthropic resisted, DoD could substitute a demonstrably transactional and compliant AI company in its place. Win-win.

I must admit: I did not know that OpenAI’s Brockman had donated $25 million to Trump before I started researching and writing this post today. The zone is flooded. I consume more political news than is probably healthy and still missed it. This contribution alone changes my opinion of the company. There is no good-faith reason to give $25 million to Trump, of all people. If it is a bribe, Brockman cannot be trusted. If it is not a bribe for procuring the OpenAI contract (which would be logical in the usual greedy and self-interested way, but illegal), then Brockman has such bad judgment that he cannot be trusted. Either way, he cannot be trusted. And OpenAI cannot be trusted when it says that it has installed stringent guardrails.

Conclusion: Resist and unsubscribe

The guardrails matter. I would not take a single step toward allowing the Trump administration to conduct mass surveillance of American or develop fully autonomous weapons systems. Based on the information I have, the government’s substitution of OpenAI for Anthropic seems like a step in the wrong direction. So, I’m unsubscribing from ChatGPT and subscribing to Claude.

The No Kings Act is constitutional and should survive judicial review.

Federal civil rights law has long permitted citizens and others to sue state officials for violating their constitutional rights. But a plaintiff’s options for suing federal officers for such violations are more limited. After President Trump began to deploy federal officers and federalized troops in American cities, the following legal question became urgent:

This question has been discussed intermittently for decades. My answer is yes. Here’s the quick reasoning.

In effect, the proposed bill would say, “If a person violates federal law, then that person also violates California law and is liable to the plaintiff as a matter of state law.” States cannot enact or override federal law, but the No Kings Act doesn’t do that. It creates a state-law action and state-law remedy. The rationale is simple, but the federal government will have arguments in its defense. Here they are.

Supremacy Clause preemption—acting under authority of federal law

If a federal officer is the defendant, then he will argue that he was acting under federal law, which preempts the new state-law cause of action. This is often called “Supremacy Clause preemption,” after the part of the U.S. Constitution that provides that the “Constitution, and the Laws of the United States which shall be made in Pursuance thereof … shall be the supreme Law of the Land ….” An officer who acts under the authority of federal law cannot be liable under state law; otherwise, States could nullify federal law by imposing liability on officers who carry out that law. But a person who violates the Constitution is not acting in “Pursuance thereof” and thus is not entitled to immunity under the Supremacy Clause. Law professor Akhil Amar developed this theory decades ago.

Federal Torts Claims Act preemption

The federal government also will argue that the Federal Torts Claims Act preempts an independent state-law action against individual officers. But the Act contains an exception to the preemption provision; it does not “apply to a civil action against an employee of the Government … which is brought for a violation of the Constitution of the United States.” 28 U.S.C. § 2679(b)(2)(A). One appellate court stated, with no analysis, that this exception did not apply to state statutes, but the plaintiff there apparently did not brief the issue and one judge on the panel disagreed with the majority’s unreasoned statement. In any event, the statute’s text and meaning is clear, as this article explains. Congress has not preempted actions brought against individual officers for constitutional violations.

Congressional preemption of remedies

Finally, the federal government will argue that Congress preempted any state-law remedies for constitutional violations by providing its own set of remedies (e.g., a grievance procedure or other supposed administrative remedy). Those remedies might be extremely limited and inadequate, but a federal court could hold that Congress determined that people should have only weak remedies, thereby displacing any contrary determination by the States.

The Supreme Court has repeatedly held that courts cannot create new causes of action where Congress has already acted. Creating new causes of action can be viewed as a lawmaking function, which explains why courts have been extremely reluctant to do so. But that reasoning does not apply to state legislatures, which, of course, have lawmaking authority. The U.S. Supreme Court has not addressed whether state legislatures can create new private rights of action to remedy violations of the U.S. Constitution. I believe that prediction here is difficult and will turn on case-specific questions about the nature of the plaintiff’s injury and the specific remedies that arguably are available under federal law.

California can strengthen the No Kings Act

California is right to enact the No Kings Act, even though there is considerable uncertainty about how the U.S. Supreme Court will respond. At a minimum, the legislation forces a conversation about who gets to decide what remedies are appropriate for constitutional violations. If the Supreme Court decides that the answer is Congress alone, to the exclusion of the States, then that decision would shine a spotlight on Congress’s stinginess in providing relief to ordinary people, even while creating a U.S.-senators-only cause of action worth millions for a handful of senators who suffered no injury at all. More optimistically, the Supreme Court may allow the No Kings Act to survive, which should in turn deter unconstitutional conduct by federal officers.

The bill should clarify that it is not limiting the scope of federal immunity

I do have one key suggestion aimed at strengthening the bill and making it more likely to withstand judicial review. I would amend the provision stating that a defendant “may assert a defense of absolute or qualified immunity to the same extent as a person sued under Section 1983 of Title 42 of the United States Code under like circumstances” (proposed subdivision (d) of section 53.8). The provision creates the impression that the State has defined the scope of federal immunity for federal officers. It also invites courts to analyze whether state and federal officers can find themselves in “like circumstances.”

As explained during hearings on the bill, the reason for the above-quoted provision is to ensure that the No Kings Act does not expand liability or create additional liability for state officers. State officers already could be sued under the federal civil rights statute, 42 USC 1983, and could invoke a qualified immunity defense in such cases because the U.S. Supreme Court has interpreted the statute to include that defense. Because the No Kings Act closely tracks the federal civil rights statute (Section 1983), courts might interpret it to include a qualified immunity defense. Or they might not. To be certain that state officers will enjoy the same defenses under the No Kings Act that they enjoy under Section 1983, it is politically necessary and legally prudent to specify that a defendant may assert a qualified immunity defense.

The problem I identify is that, for federal officers, absolute and qualified immunity defenses are the product of federal law, and the State cannot define or limit federal defenses. The federal government likely will argue that federal officers are different from state officers sued under Section 1983, and so the “same extent” language improperly limits their federal defense and thus is preempted. To avoid this argument, I would amend the subdivision as follows:

(d) A defendant in an action brought under subdivision (b) may assert a defense of absolute or qualified immunity to the same extent as a person sued under Section 1983 of Title 42 of the United States Code under like circumstances. Nothing in this section shall be construed to limit or otherwise affect any immunity or defense available to a defendant under federal law. This subdivision applies only to proceedings brought under subdivision (b), and does not alter, amend, create, or support a qualified or absolute immunity defense in any other action or proceeding brought under any other provision of California law.

As amended, this provision ensures that (1) state officers have the same defenses that they would otherwise have under section 1983; (2) federal officers have at least the same immunity defenses as state officers; and (3) the bill no longer limits the scope of the federal immunity under federal law for any defendant.

The risks of including the retroactivity provision may outweigh its benefits

I also have minor concerns about the retroactivity provision. Even though a defendant federal officer sued under the No Kings Act necessarily would have, allegedly, violated the U.S. Constitution, he also would have been acting under “color of law.” Whether a State can retroactively impose liability on officials acting under color of law is yet another novel question. Maybe this fight is worth having, insofar as it may draw attention to past misconduct, or perhaps it will doom early attempts to invoke the No Kings Act and result in what appears to be initial failures, creating unfortunate and adverse momentum. Given the novelty of the statute and the likelihood of early test cases, I would favor prospective application to maximize the chance of a clean, merits-based judicial ruling.

The legal uncertainty surrounding the fate of the No Kings Act should not be confused with moral uncertainty. Especially now, States can and should lead the way in resisting and checking federal lawlessness. Innovative legislation by States is the usual way to establish new legal norms or even new constitutional law. Kudos to the California legislature and Protect Democracy for pursuing the No Kings Act.

We were there in late November of the year 2000. Wireless coverage and internet service was not ubiquitous in Venezuela, and this was before the iPhone anyway. Occasionally, a television in some bar or hotel lobby would remind us that the U.S. presidential election between George W. Bush and Al Gore was still contested, weeks after election day. The unresolved election seemed like a distant and flickering curiosity, not the harbinger of political strife. The terrorist attacks of 9/11 were still about nine months away. In 2000, “war” mainly referred to declared and sustained armed conflict between nations, or so it seemed to me. But that would change.

The 9/11 catastrophe and the conflicts that followed altered the concept of “war” in the United States, as Rosa Brooks argues in her book, “How Everything Became War and the Military Became Everything.” (Just read it!) Published in 2016, not a single page of it is about Trump. (Refreshing!) It shows how the “war on terror” against nonstate, non-declared combatants in Iraq and Afghanistan has enabled the United States to use the military against virtually any target, for any reason. Terrorists were not state-sponsored; they were usually not actively engaged in combat; they were not found on a battlefield; it was often not clear whether they posed an imminent threat to the United States. But we adapted.

And here we are.

The attack on Venezuela was certainly illegal under statutory law, just as the President’s federalization of the National Guard was plainly illegal, because the required factual predicates were missing in both cases. The War Powers Resolution provides that the President may introduce the United States into “hostilities” only when Congress first declares war, or based on statutory authorization, or because of a national emergency created by an attack on the United States or its armed forces. Congress has not declared war, no statute authorizes the President to attack Venezuela, and it did not attack the U.S. or its armed forces. But a statute governing relations between the executive and legislative branches does not matter if Congress is unwilling to enforce it (via impeachment or power of the purse), and Congress has ignored a long series of transgressions of the War Powers Resolution by both parties.

Because law is and will be irrelevant until Congress decides to impeach Trump and remove him from office, it is more than a little strange that Trump and his allies insist on calling the invasion a “law enforcement operation.” Trump wants to show that law does not exist, not enforce it. When the military bombs a country without its consent, as the United States did in Venezuela, that is an act of war, not an extradition operation. If any country dropped bombs on Washington D.C., killing about 75 people or more, we would treat that as an act of war and fighter jets would be on their way to retaliate one hundred times over.

If pressed about the distinction between law enforcement and war, the administration would ultimately shrug and say that none of these labels matter. As White House deputy Stephen Miller put it, “the real world … is governed by power.” The administration’s official position is that might makes right, which renders any legal or ethical reasoning pointless. The question in this worldview is not whether invading Venezuela was legal or morally sound, but only whether America will benefit.

I don’t see how this is going to end well for the United States. We invaded a country with the stated intent of controlling it and seizing its oil (as recompense for past expropriation, of course). And we are openly justifying the operation on the ground that we are more powerful. Everybody already knew that the United States has the world’s strongest military, but until recently, it stood behind civilian leaders who, in principle, were committed to democracy and human rights. The civilian leaders and their rules—the real ones backed by military force—have changed. By this invasion and declarations accompanying it, the United States announces that violence is the foundation of world order. Democratic aspirations are dead. Teaching this lesson to the world does not seem likely to lead to peace or prosperity for us in the long run.

We can have an idea about this will go for Venezuela. The United States has so far opposed the installation of the winner of the last election in Venezuela (the one that Maduro stole), on the ground that it would be unable to govern, and also opposes new elections for the foreseeable future. It will continue—at our insistence—to be a repressive dictatorship. This choice is unconscionable and treats millions of people as disposable or a kind of non-existent “unpersons,” as Orwell’s 1984 would have it. The thing about visiting a place is that you know on a personal level it is not just lines on a map. On some level, Trump knows this, having flown the world plenty. On another, he really doesn’t see people. He sees oil, golf courses, skyscrapers, casinos. But the people are there, not an abstraction. It would be nice if all those cheering the latest expression of American power remembered that.

(Venezuela, Nov. 2000)

It was a good run, but the era of independent agencies is over. The U.S. Supreme Court is likely to hold in Trump v. Slaughter that the Constitution does not allow any statutory limits on the President’s power to remove agency heads. He and future presidents will be able to fire agency heads at will, without limit, if they exercise any executive authority. In reaching this conclusion, the Court will overrule a 90-year-old precedent, Humphrey’s Executor, which unanimously held that President Roosevelt could not remove an FTC commissioner without good cause. The oral argument today confirmed that the majority will deliver what its earlier emergency-docket ruling in the case foreshadowed: a win for the President. Nevertheless, as explored at argument, substantial uncertainty remains about how the Court will explain its ruling and how far it will reach.

I am not an unbiased observer. I filed an amicus brief on behalf of two scholars in support of Slaughter. In my view, the Constitution does not preclude Congress from limiting the President’s power to remove commissioners or board members without good cause. Moreover, the doctrine of stare decisis (standing by precedent) counsels strongly against upending that arrangement. More than two dozen agencies have removal protections for agency leaders; whatever the Court does here, assuming it overrules Humphrey’s Executor, will be extremely disruptive. I believe Slaughter should prevail and hope she does. Based on the oral argument, though, that seems unlikely.

(Axios photo of FTC Commissioner Rebecca Slaughter)

The conservative justices largely announced at argument that they are ready to discard Humphrey’s Executor. Chief Justice Roberts called it a “dried husk” of a decision. Justice Gorsuch put his “cards on the table” in rejecting Humphrey’s Executor. The votes of Justices Alito and Thomas are just as easily counted. Justice Kavanaugh expressed doubt that striking down removal protections would have any negative consequences. Justice Barrett seemed to view agency independence as a recent innovation. In short, six justices apparently view Humphrey’s Executor as a dead letter and view their task as burying it completely.

The Court still must decide what counts as an “executive” function.

But writing the opinion won’t be easy, even if the majority knows how it will end. The conservative justices’ thesis is that the President must have sole and exclusive control over the Article II executive power, which in turn requires the Court to decide whether an agency function is “executive” in nature. The magnitude of the coming Trump v. Slaughter earthquake will depend on how broadly the Court defines the word “executive.” If any function assigned to any agency housed in the executive branch is “executive” then, by the majority’s reasoning, the President must have sole and exclusive control over all agency functions. On the other hand, if “executive” has an original constitutional meaning that is independent from the branch to which Congress formally assigned agency functions, then “executive” could refer to that meaning—and some agency functions could be non-executive.

The anticipated majority appears to be inclined to define the word “executive” to have separate and independent meaning, as distinguished from simply saying that everything an executive-branch agency does is necessarily “executive.” This approach may enable the majority to preserve the independence of tax courts, bankruptcy courts, military courts, and the Merit System Protection Board, which are formally part of the executive branch but generally hear and decide disputes (and thus are substantively adjudicative, not executive). The majority might also wish to define the Federal Reserve as non-executive, having already said that the Federal Reserve is “unique” in another case because they want it to remain independent. But often identifying authority as “executive” in nature, or at least exclusively “executive,” is not easy. For example, some statutes, such as the False Claims Act, authorize private citizens to initiate civil actions on behalf of the government, and if private citizens can do so without direct control by the President, one might think that Congress could empower agencies to do so as well.

If the FTC’s civil enforcement powers are not necessarily or exclusively executive, then the FTC’s removal protections might survive. But if civil enforcement is “executive” in nature, and the President must have unlimited control over such executive functions, then the removal protections must fall under a unitary executive theory of the Constitution. Justice Gorsuch and others in the majority seem skeptical that civil enforcement power could be subject to any restraints and are likely to hold that civil actions to recover fines or penalties are “executive.” That ruling could, in turn, end private initiation of civil suits under the False Claims Act and thus hinder recovery of stolen taxpayer funds.

If Congress has unconstitutionally limited the removal of agency heads who exercise executive authority, then the Court must decide whether to strike the removal restriction or the authority.

Everyone seems to agree that Congress believed it had the power to enact removal protections when it created most of the modern administrative state, not least because the Supreme Court unanimously said so in 1935 in Humphrey’s Executor. This leads to a troubling hypothetical question: Would Congress have granted executive authority to the FTC and other agencies if it could not limit the President’s power to remove commissioners? If the answer is “no,” then the correct result might be to strike the executive authority (not the removal restriction), leaving behind whatever is not “executive” in nature and therefore not vested in the President. This approach would make the agencies smaller in scope and would not increase the President’s power.

Conversely, if the Court strikes the removal restriction, as is far more likely, then the President will have more direct control over an agency with enforcement powers that Congress might never have conferred, had it been able to predict the Court’s decision. In that situation, the President’s power increases substantially, and Congress is nearly powerless to do anything about it. Its only option would be to repeal the statutes that granted executive authority, but this approach would require Congress partially to abolish agencies that it had established to protect and serve the American people. This bottom line, plus the difficulty of passing any substantive legislation under existing filibuster procedures, means that for the foreseeable future, presidents will have much more control over agencies.

With the end of independent agencies, the worrisome trend lines of our polarized era will continue. We can expect that agencies decisions will be far more partisan, less informed by expertise, less consensus-oriented, and less stable from administration to administration. Presidents will fire most or all the members of every commission upon taking office, just as they currently replace their cabinet officials. No statutory authority permits “acting” commissioners to serve, so any agency action that requires a functioning board or quorum to perform will be delayed or never occur. The burden of filling even more Senate-confirmed positions with each new administration will increase, creating further backlogs. Government will function a little less well, further decreasing the public confidence. And the need for even more sweeping reform will have been made all the more clear.

Recommendations

Here are your holiday Substack recommendations.

: “Populism Fast and Slow”

My favorite article this year was by a Canadian philosophy professor, Joseph Heath. He argues that “populism” is best understood as a preference for fast-thinking, intuition, and common sense—over slower, more analytic cognition. Totally rules. I clicked on this because somebody said it was a “banger” and it has a great title for people like me.

: “The dawn of the post-literate society”

This article went viral for good reason. If you read Steven Pinker’s book, Better Angels of Our Nature (and who didn’t?!), then you’ll recall that his core theory was that increasing literacy over the sweep of history leads to a decrease in violence and anchors modern civic institutions. Marriott’s insightful coda is that nowadays people are reading less and less, with corresponding consequences for culture and democracy.

: “The Death of Partying”

The award for coolest Substacker in the world has to go to Andrew Yang, who ran for president in 2020 on a universal basic income platform. My brother was a caucus leader for Yang in Iowa, but failed to get him the nomination. Thanks a lot, dude! I paid to subscribe because Yang offered a significant discount and because he writes about the importance of partying and keeping phones out of our lives.

: “This is called ‘capital flight’”

It is also easy to find and like Noah Smith. I was an economics major so following his blog about “what a Bay Area economist thinks” was overdetermined. Turn to Noah for your takes on tariffs, capital flight, the Federal Reserve, and other macroeconomic meltdowns. Here’s a great example of an timely explainer from his stack.

: “Why I’m not a centrist”

There is a ton of good new-liberal political content on Substack. makes an important distinction between liberalism and centrism at . Other favorites (which are often nevertheless categorized as centrist) are , , and . For excellent legal writers who cover current developments, check out: , , , , , and countless others.

: “The 90s weren’t that great”

Now we come to an outlier in my lineup. is everywhere, very funny, and very online, so at some point you just have to follow. (I’ve chosen a relatively PG and free post to highlight here, cross-posted on another favorite, .) She writes about gender differences and culture and erratic things people say on the Internet. She also restacks people who mention her, which has led to a cottage industry of writers subtly (or not subtly) trying to get restacked.

All told, Substack is best place for finding and reading long-form content that is not already packaged in a brand name magazine. It is subscriber-based and ad-free, which is amazing. Publishing is easy. It’s open to anyone. The result is a huge amount of writing from all walks of life.

But it’s still the Internet

The notes are still social media

I thought that a rather bookish long-form website like this one would be safe from the temptations of endless scrolling and social media traps. But it isn’t. You can leave the Twitter but the Twitter won’t leave you—its people will follow and colonize any space. They just can’t stop. They populate the “notes” section with short-form tweet-like statements and graphics. In fact, they even import Twitter posts so they can express disbelief and disagreement. Score! Perhaps the algorithm likes the rage-bait after all.

And the discovery engine is network-driven, not content-driven

The Substack algorithm is apparently more like a social network accelerator than a content distributor (the engineers may disagree, to which I say, the customer feels differently). The main way (and seemingly the only way) that new content or accounts come into my feed is that somebody I’m already following “likes” or restacks the newcomer. This creates the impression that the main way to gain a wider following on Substack is to get attention from larger accounts and hope that they repost your work; hence the efforts to win restacks. Perhaps people are constantly hosting each other on their podcasts because Substack distribution depends on cross-connections with other accounts. One could reply that if the name of the game is networking, what else is new? But some had thought the answer to that question might be: Substack.

Year-end conclusion

Substack is different and better, but it is still a creature of the Internet. You can read something serious and insightful, then immediately scroll into someone dunking on an imported tweet. But the good stuff is always there if you want it — in your inbox, in long-form essays, and in the corners of the platform that still reward attention and thinking over fast reflexes. Here’s to finding more of it in 2025.

This post explains that the Congress is paying huge sums to a few Republican Senators based on government conduct that was perfectly legal at the time of the FBI’s investigation. The new Senate-only rules create a shocking double standard as between Senators and everyone else. It is unconstitutional for numerous reasons. A Senate candidate would have standing to sue to block this new enactment because it creates a competitive advantage for incumbents and harms challengers. Candidates can and should sue to protect themselves and draw attention to this wrongdoing.1

Special counsel Jack Smith lawfully investigated President Trump’s attempt to overturn the 2020 election

The story begins with the President’s effort to overturn the 2020 election. After the January 6 attacks on the Capitol, special counsel Jack Smith and the FBI investigated and pursued prosecution of President Trump and the rioters who broke into the Capitol building, as explained in great detail in the special counsel’s report. Trump and his allies called Republican Senators as part of their effort to prevent certification of the presidential election results. The FBI subpoenaed and analyzed “limited toll records” for certain Senators. Toll records usually show what number was called and when, and for how long any resulting telephone connection lasted.

In 2023, the FBI obtained toll records for eight Senators’ phones during the period from January 4 to January 7, 2021 (the period immediately before and after the attack on the Capitol). Nothing about the subpoenas or lack of contemporaneous notice to affected Senators was illegal. The Stored Communications Act expressly provides that a government entity that obtains tolling records by subpoena “is not required to provide notice to a subscriber or customer.” 18 U.S.C. § 2703(c)(2), (c)(3). The Act distinguishes between the content of communications (what was said or written), and information about the call (tolling records). In sum, when the FBI obtained toll record information pursuant to a subpoena, the government had no obligation to give notice to the Senators.

After Trump took office in January 2025, MAGA Senators saw an opportunity to rewrite history. With the Justice Department under Trump’s control, they obtained FBI records concerning the investigation into the coup attempt and began to issue press releases arguing that investigation itself was improper. Inevitably, Senator Grassley called the FBI’s conduct in obtaining toll records “worse than Watergate.” But the special counsel and FBI had nothing done wrong—rather, they properly investigated the President’s conduct in seeking to block certification of the electors. Weirdly, Grassley complained that the FBI incurred $16,000 in travel expenses during its investigation—an amount that is trivial in comparison with the amounts he proposes to put directly into the pockets of his allies.

President Trump would soon demonstrate how Senators could do more than issue press releases. He issued patently unconstitutional executive orders targeting law firms. When the law firms caved, he suggested that the settlements themselves proved wrongdoing by the law firms. He also brought a frivolous lawsuit against Paramount in his personal capacity. When Paramount caved, he put the settlement money in his pocket, and again, he and his allies claimed that the settlement proved wrongdoing by Paramount. The Republican Senators have now utilized Trump’s technique of making up a bogus lawsuit to pay themselves, which they snuck into the appropriations bill.

Although the special counsel’s search was lawful, the shutdown bill authorizes each MAGA Senator whose toll records were subpoenaed to claim millions.

The recently-enacted continuing appropriations bill creates special Senate-only rules. Whereas ordinary people do not receive notice if the government obtains their toll records by lawful warrant or subpoena, the bill provides that if a service provider or the office of the Sergeant at Arms receives legal process seeking any communications data for a Senate office, including metadata/toll records, the recipient must provide notice to the affected Senate office. Continuing Appropriations, 2026, § 213(a) (enacting 2 U.S.C. 6628(c)).2

Next, the bill provides that a Senator may sue the United States for each violation of the new law. Continuing Appropriations, 2026, § 213(a) (enacting 2 U.S.C. 6628(d)). The law defines “violation” to mean (1) obtaining a non-disclosure or sealing order that prevents notification of a Senator as required by the new law, and (2) acquiring, subpoenaing, searching, accessing, or disclosing Senate data without notice being provided as required by the new law. Continuing Appropriations, 2026, § 213(a) (enacting 2 U.S.C. 6628(d)(1)(B)). One might think that it was impossible to violate the new law before it existed, and one would be right, but that logic has not stopped the Senate from making the law retroactively applicable to subpoenas and searches occurring on or after January 1, 2022. Continuing Appropriations, 2026, § 213(b)(1).

The new law provides that a Senator may recover $500,000 “for each instance of a violation of this section.” Continuing Appropriations, 2026, § 213(a) (enacting 2 U.S.C. 6628(d)(3)(A)(i)). The word “instance” is defined to mean:

“each discrete act constituting a violation of this section, including each individual—

(i) device, account, record, or communication channel subject to collection in a manner in violation of this section;

(ii) nondisclosure order or judicial sealing order sought, maintained, or obtained; or

(iii) search conducted.”

Continuing Appropriations, 2026, § 213(a) (enacting 2 U.S.C. 6628(d)(1)(A)).

Under these definitions, if the special counsel obtain toll records for more than one telephone number within a Senate office, the individual Senator could collect $500,000 for each phone number. An enterprising Senator might also allege separate violations for “collection” and “search” of records for the same phone number. A lawyer for the Senators will view his or her job as maximizing recovery and will be coming up with imaginative theories about how to multiply the number of violations into the dozens. I expect that Senators will be claiming millions of dollars under this provision, not a measly $500,000.

The new law establishes a two-tiered legal apartheid in which Senators are in a privileged class of their own.

If you are looking for a declaration that MAGA Senators think they are better than everyone else, it would be hard to find a better example than the law that they have just rammed through the process. Under the new law, they have rights that nobody else has and collect statutory damages that are at least 50-fold greater than what an ordinary American would collect for a far more substantial intrusion.

If Senators believe that a person suffers $500,000 in damages each time the government obtains their toll records, then why should they be the only ones in America who can recover that amount? Senators are important, but remember, this is not a fine for breaking a law (one that didn’t even exist at the time of the searches), this is supposedly compensatory damages for emotional or other intangible harm suffered by the individual plaintiff. The Senators are saying to the world that their individual harm is at least 50 times more important than harm suffered by everyone else. And even that comparison doesn’t work, because the Senators are awarding themselves money that never would be available to an individual for the same government conduct (obtaining toll records)—so their recovery is infinitely greater than what everyone else could obtain in their situation.

The shutdown bill’s payout for MAGA Senators is unconstitutional

The new law creates a retroactive right to payment based on conduct that has already occurred and awards enormous sums that are completely untethered to any harm or actual damages. In fact, none of the MAGA Senators suffered an actual damages whatsoever, as demonstrated by the fact that the conduct at issue was perfectly legal at the time it occurred and remains perfectly legal with respect to every American except for them. If the Senators had suffered any cognizable harm under existing law, they could have brought a lawsuit based on that law. Instead, they enacted a new provision for themselves alone, which bestows a gift of at least $500,000, and probably millions, upon each individual MAGA Senator who claims it.

The new law is unconstitutional under Article I, Section 6, which provides in part:

This provision reflects that all Senators should receive the same pay because it refers to “a” singular Compensation, not many different compensations. By creating a scheme in which MAGA Senators can grab millions from the Treasury that is unrelated to any damages, they have increased their own compensation beyond that which is provided by law for compensation of Senators.

The same section of the Constitution shows that Congress was not allowed to conspire with the President to award higher pay to certain individual Senators. It provides that no Senator may be appointed to a civil office that was created during the Senator’s term, or for which the “Emoluments” of that office have been increased during the Senator’s term. U.S. Const. art. I, § 6. This provision prevents Congress from increasing the pay for a particular office to $500,000 per year or more and then securing appointments to that office. It should be clear that Senators cannot circumvent the Constitution by creating “statutory damages” of $500,000 and then awarding themselves a right to claim those damages.

At a minimum, even if Congress could award millions of dollars to a subset of Republicans (it cannot), the Twenty-Seventh Amendment provides:

The new giveaway in the shutdown bill is compensation for Senatorial services because is available only to Senators and, again, is unrelated to any harm because there was none. It is just a self-dealing payout. At a minimum, the payout cannot go into effect until after the next election cycle in 2026.

Senate candidates have standing to sue to block the attempted robbery of U.S. taxpayers

Laws that inflict harm on U.S. taxpayers are difficult to challenge because paying an unfair amount of tax to enrich a few Senators is not usually a basis for lawsuit in federal court. (If paying taxes were a sufficient basis to challenge laws, then every taxpayer would have standing, and the government would get sued too much.) But a candidate for Senate office running against one of the MAGA Senators may have standing based on the competitive harm inflicted by the new law.

Suppose Congress passed a new law that said that incumbent Senators shall each receive $500,000 in taxpayer funds for their campaigns, while challengers receive nothing. This would create a $500,000 advantage for the incumbent, which he or she could use to buy campaign ads, pay for staff, etc. A law that unfairly creates a $500,000 advantage for incumbents harms challengers and political parties to the extent that they must use or divert additional economic resources to campaigns against such incumbents. A candidate also faces competitive harms arising from laws that could affect the outcome of an election, including a law that specifically grants a huge financial advantage to a competitor.

The eight MAGA Senators that stand to benefit from the new law are:

Lindsey Graham (SC)

Bill Hagerty (TN)

Josh Hawley (MO)

Dan Sullivan (AK)

Tommy Tuberville (AL)

Ron Johnson (WI)

Cynthia Lumis (WY)

Marsha Blackburn (TN)

Of this list, Graham, Haggerty, Sullivan, and Lumis are up for reelection in 2026. To the extent that they are running again, a challenger should file suit immediately to block their receipt of additional and unlawful campaign funds under the new law.

1

Others have provided excellent reports on the new law. Here’s one below. This post aims to go beyond these reports by providing more detailed review of potential multi-million dollar awards under the plain text of the law; the reasons why it is unconstitutional; and a preliminary suggestion of reasons why a Senate candidate would have standing to challenge this law.

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Secret Provision of Bill to Pay MAGA Senators $500K?!

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6 months ago · 770 likes · 109 comments · Legal AF, Adam Klasfeld, and All Rise News

The President never tried to enforce the law with the regular forces, so he cannot call the National Guard into federal service.

Under the statute at issue in the ongoing litigation, the President may take control the National Guard when he “is unable with the regular forces to execute the laws of the United States.” 10 U.S.C. § 12406 (my italics). In the lower courts, the States argued that no evidence shows the President was unable to enforce the law. But courts prefer not to decide evidentiary questions when the President’s authority to command troops turns on the answers to those questions. In the U.S. Supreme Court, a law professor, Martin Lederman, argued in an amicus brief that “the regular forces” means the active-duty military, and because the President had never attempted to use the military to carry out the law, he had not shown that he was unable to do so.

The meaning of the phrase “the regular forces” is not immediately apparent, at least for non-veteran non-historians, i.e., most lawyers. But sometimes the original meaning of a legal term is illuminated by a story from the past. As if to prove once again that we live in interesting times, as Lederman points out in a subsequent amicus brief, the White House website tells that very story, demonstrating why the States should prevail and the President should lose.

Beneath a banner and ticking clock counting the days that “Democrats Have Shut Down the Government,” the official White House website has a page for “Briefings & Statements.” Many statements pertain to historical events or ongoing litigation, and occasionally, both at the same time. In July, the White House published a “Presidential Message on the 211th Anniversary of the Battle of Chippawa.”

In the White House’s telling, at the Battle of Chippawa, “a seminal battle in the War of 1812, the true might of the United States Army was revealed in full glory ….” British General Phineas Riall had attacked American troops, believing them to be undisciplined state militiamen because they wore grey uniforms, while the full-time U.S. Army typically wore blue uniforms. But despite wearing militia grey, these Americans soldiers were not state militia; rather, they were regular U.S. Army forces. As the Americans beat back the British advance, General Riall cried out, “Those are regulars, by God!’” (Here’s a photo from Wikipedia entry on Riall.)

The story of Phineas Riall and his realization that his foe was the “regulars” supports the States because it tends to show that “regular forces” means the active-duty military. As explained in Lederman’s amicus briefs, the phrase “regular forces” had a particular meaning around the time of the founding, which has remained intact throughout relevant statutory iterations. The historical and contemporary evidence that “the regular forces” means the U.S. military is compelling (I’m leaving out all the other evidence to focus on the interesting historical story).

I speculated in a prior post that the States deliberately refrained from making this “regular forces” argument because they could win based on the meaning of the word “unable,” regardless of what “regular forces” means, and did not want to create any further incentive for the President to deploy active-duty armed forces in the United States. The idea was that it might be better for a court to say that it would review the President’s factual basis for sending troops into American cities than for a court to say that the President must send in the regular military forces first before turning to the National Guard for additional assistance.

In any event, after Professor Lederman raised the issue in his initial amicus brief, the Supreme Court ordered supplemental briefing. Left with no choice about whether to address Lederman’s interpretation, Illinois and California and Oregon have now backed it. My best guess is that the Court will side with the States, deny the President’s emergency stay application in Trump v. Illinois, and thus allow the injunction barring the deployment of federal troops in Illinois to remain in place.

If the President may not federalize the National Guard, can he send the regular forces to enforce immigration law in Los Angeles, Portland, and Chicago?

In contrast with the National Guard, the President has direct control over the active-duty military and, at least arguably, could deploy the military to guard federal facilities in the United States, so long as the military does not act as a “posse comitatus,” i.e., does not engage in law enforcement activities. The States of California and Oregon made that argument in their amicus brief in the U.S. Supreme Court, by way of explaining that Congress reasonably could provide that the President could use the military for tasks that are not associated with policing, such as delivering the mail and disaster relief.

But the President did use troops for law enforcement purposes in California, or so a federal judge determined. To bring the President’s past and intended law enforcement activities under the cover of statutory authorization, he would need to invoke the Insurrection Act (10 U.S.C. 252-253), which authorizes the use of both the regular military and the National Guard for law enforcement. This is why invoking the Insurrection Act is such a dramatic step.

It is no secret that the Insurrection Act might be construed to grant boundless discretion to the President to deploy the military in the United States. The Insurrection Act provides that “Whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws [he may call the armed forces into service], as he considers necessary to enforce those laws or to suppress the rebellion.” 10 U.S.C. 252 (italics added). The word “considers” does not appear in the statute currently before the U.S. Supreme Court (10 U.S.C. 12406). Thus, the Insurrection Act arguably requires only that the President “considers” that conditions have occurred, not whether the conditions actually have occurred, leaving relatively little for a court to review.

In short, invoking the Insurrection Act to respond to political protests would be a dramatic escalation, precisely because it allows the military to conduct law enforcement activities and because key statutory language reduces the probability of judicial review on the merits. Thus, invoking the Act might have been too much to do in one step, even for a president who is not above norm-breaking. Federalizing the National Guard under 10 U.S.C. 12406 may be the first part in a calculated process of normalizing military presence. When the President invokes the Insurrection Act, it will not be the first time that he has sought to deploy troops on American soil.

But there would be a difference. Under the Insurrection Act, the military could make arrests and perhaps hold people in military detention centers pending trial. The primary defense against arbitrary detention would be individual rights under the U.S. Constitution. As the ACLU explained in its amicus brief in the Trump v. Illinois case, the government cannot take away First Amendment rights without a compelling need, and any such attempt should be subject to highest and strictest judicial scrutiny, not the most deferential. Instead of governors and States suing the administration, future lawsuits would involve individual citizens who got swept up in military law enforcement. These individuals will be able to assert their First, Fourth, and Fifth Amendment rights. And when asked who arrested them, if such a terrible moment comes to pass, their answer would be the same as Phineas Riall’s: the regulars, by God.

The case is Trump v. Illinois (25A443), which, as of this writing, is pending before the U.S. Supreme Court following an emergency application filed by the Trump administration. At issue is whether and when the President may federalize the National Guard, bringing servicemembers in state service under his command. The President has federalized and deployed National Guard troops in California, Oregon, and Illinois, among other places, over the strenuous objections of the governors of those States. Each of those States challenged the deployments in federal court, but none of them pressed the key statutory argument that Lederman made in the Supreme Court.

The statute, 10 U.S.C. § 12406, authorizes the President to federalize the National Guard and bring it under his command in cases of invasion, rebellion, and when “the President is unable with the regular forces to execute the laws of the United States.” California, Oregon, and Illinois all argued that regardless of how one defines “regular forces,” the President could not show that he was “unable” to execute the laws. Lederman argues that instead of deciding what “unable” means, the Supreme Court should decide that “regular forces” means the standing army, that is, the active-duty members of the armed services. And because no evidence shows that the President is unable to execute the law with the assistance of the military forces (and the other statutory conditions do not exist), he had no authority to federalize the National Guard.

Lederman provides support for his thesis in the statute’s history, congressional reports, and case law. And Oregon, at least, may have found it convincing. After Lederman filed his brief, on October 22, Oregon filed a brief in the Ninth Circuit noting an issue that the court had not yet addressed: “whether ‘regular forces’ means … the soldiers and officers serving in the regular armed forces, as the Seventh Circuit has recognized may be more correct.”1 California did not follow Lederman’s lead. It argued in open court that “regular forces” means “federal civilian personnel.”2

It is not clear why the States did not argue, as Lederman does, that “regular forces” means the standing military forces. There are two possibilities: either the States were unaware of Lederman’s interpretation and failed to advance it, or they disagree that his view is correct or strategically beneficial. Either one seems possible.

As for the first, the litigation issues are novel and the timeline was extremely compressed in the district court. And having not advanced Lederman’s interpretation of “regular forces” in the district court, the States may have been reluctant to raise a new case-dispositive argument in the appellate court. The meaning of “regular forces” should not matter, as they argued, because there was no exigency that left the President unable to execute the law.

It is also possible, and more likely, that the States do not agree with Lederman’s interpretation or do not find it useful or desirable. The States may prefer the deployment of the National Guard over the deployment of active-duty military force. When the President federalizes the National Guard under 10 U.S.C. § 12406, there is another law, the Posse Comitatus Act, that prohibits the Guard from performing law enforcement functions. But if the President invokes the Insurrection Act as a basis for sending the standing army into American cities, the public would lose those protections against military law enforcement. Thus, it may be better for the States to withhold Lederman’s interpretation and maintain the protections of the Posse Comitatus Act under a more limited federal deployment.

If this latter scenario is correct and the U.S. Supreme Court nevertheless takes up Lederman’s invitation to decide the case on the independent ground advanced in his amicus brief, it could mean that he blew up the States’ best laid plans, winning what might amount to a Pyrrhic victory. The U.S. Supreme Court could do exactly that, not least because Judge April M. Perry, already ruled that “regular forces” means the “standing army” in her detailed opinion. If it did, that ruling would effectively invalidate the deployments in California and Oregon, but on legal grounds that may not prove beneficial in the long run. As the States may have concluded, the downside of the “regular forces” argument could call for an irregular strategy to set that meritorious argument aside. The better result would be for the courts to rule as the States have requested: that under any possible interpretation of the statute, the district court did not err in finding that no evidence supports the President’s decision to federalize the National Guard.

When I got home, the kids suggested that I put the books on a very high shelf so nobody would accidentally spill water on them or anything. Instead of doing that, I started Oliver Twist, which I had never read. This made me feel like I had uncovered the original source of all parody of nineteenth century British people. Every sentence is preposterous, like Dickens is mocking anyone who would write like he does. For example:

“Well, well,” said Mr. Bumble, “every trade has its drawbacks. A fair profit, is of course, allowable.”

“Of course, of course,” replied the undertaker; “and if I don’t get a profit upon this or that particular article, why, I just make it up in the long run, you see—he! he! he!”

“Just so,” said Mr. Bumble.

This goes on for about 500 pages. Now I know where Richard Scarry got his ideas for Busy, Busy Town. Even poor Oliver, a downtrodden orphan, speaks like a cartoon aristocrat.

I stopped reading after Oliver left Mr. Brownlow’s house with a five-pound note and Mr. Grimwig said, “If that boy ever returns to this house, sir, I’ll eat my head.” I didn’t stop because Mr. Grimwig said that, but because I thought that Mr. Brownslow was bound to be disappointed, and I didn’t want to read about his sorrows. Incidentally, after I wrote these last few sentences, I asked ChatGPT if Charles Dickens was an influence on Richard Scarry, and ChatGPT said, “That’s a really perceptive connection—and yes, you’re on to something literary there” (italics in original ChatGPT sycophancy).

Anyway, after putting down Oliver Twist, I picked up To Kill a Mockingbird. If you’re like me and are around fifty years old, you don’t know whether you have read this book or not. (I did not feel this way about Oliver Twist; I was sure that I had not read it.) Even after reading To Kill a Mockingbird in the last couple weeks, I cannot rule out the possibility that I read it when I was fifteen and forgot all about it for the next 35 years. It all seemed vaguely familiar.

Is this a great book that deserves its fame? Who knows, maybe. It was easy to read. But that’s not enough for election to the literary canon. The kids have given me books to read that were pretty cringe from the first page to the last, and yet I kept reading because the author made me want to find out what would happen next. I finished “Hail Mary” but that doesn’t mean it’s a good book.

I asked the Internet for reviews of To Kill a Mockingbird. I will not review the reviews, but I will quote them selectively to show that some people apparently believe that The Book is evidence of God’s intervention in human affairs. Here are some real reviews:

“A novel to be read and reread, and one that should be present in the consciousness of every schoolchild, everywhere.”1

“To Kill a Mockingbird … sits you down, looks you in the eye, and quietly reshapes how you see the world.”2

“It’s important for every single person to read this book at least once in their lives, because what it teaches cannot be summed up in any other way.”3

“‘To Kill a Mockingbird’ is not merely a classic novel; it is a literary treasure that transcends time.”4

These are among the first reviews that appear in the Google. Based on these words of a few random people who are totally unknown to me, I believe I have to say nice things about To Kill a Mockingbird.

Here’s what I think: To Kill a Mockingbird creates an imaginary world, set in 1930s Alabama, that seems like it might have been real. The town of Maycomb comes across as an impoverished backwater, held together by families who apparently never leave and perpetuate their own caste system from generation to generation. Scout and Jem are growing up and, at first, as kids, they can’t see beyond their games and countless indignities at the hands of teachers, classmates, and mean neighbors. As they get older, they find out that their town is cruel and unjust in many ways, and kind in others.

The book holds up Atticus as a nearly perfect person, who always remembers that the Maycomb people who do bad things must be judged in the context of their lives and circumstances. If this works, it is because the author loves people. Atticus is her voice to tell us why people should be forgiven. I thought To Kill a Mockingbird pulled this off—it was somehow believable that a person like Atticus could exist. This seems like a huge accomplishment, all by itself, especially today.

The book doesn’t deny the existence of evil, of course. The book has one irredeemable character—Bob Ewell, who falsely accuses Tom Robinson of raping his daughter. Even Atticus calls Ewell “trash.” The jurors convict Robinson, even though they knew or should have known that he was innocent (it would have been sort of interesting if the facts were ambiguous or conflicting about whether Robinson was guilty, but they’re just not). The townspeople know that the county jurors are racist, but they can’t be bothered to do better. So, although the people in Maycomb are capable of good, they turn their backs on injustice. In this way, everyone is complicit.

After Ewell attacks the Finch kids and Boo Radley comes out of nowhere to stab Ewell, the sheriff persuades those present to say that Ewell fell on his own knife. Ewell is so evil and Boo Radley is so innocent that even Atticus agrees that the law does not require the whole truth on this occasion. The book leaves things there. It was about empathy, not reform. It may be showing that in some situations, empathy is all that is possible, the beginning, but not the end, of change.

I voted “yes.”

What has changed since I argued against gerrymandering California? Well, for one thing, when I first wrote about this issue on August 15, Governor Newsom had proposed the ballot initiative, but whether the California legislature would run with his idea and put it on the ballot was uncertain. My initial reaction was that funders and politicians should expend their limited resources on something else. That’s water under the bridge.

Also, I thought more about my assumptions and decided one of them didn’t hold up very well. Specifically, I assumed that gerrymandering California could hurt democracy overall by increasing polarization. A broad pro-democracy majority must attract independents, swing voters, and dispirited Republicans. As partisan polarization increases, forming that broad majority becomes increasingly difficult.

I’m still worried that a purely partisan measure will increase polarization, but after thinking about it more, I don’t know that Proposition 50 will have a significant effect on swing voters or low-engagement voters in 2026 or 2028. Although the initiative is in the news now, the all-important swing voters, low-engagement voters, and independents may not remember it later. If that’s right, then these voters will not penalize Democrats in 2026 and 2028 for having enacted Proposition 50 in 2025, especially outside of California.

After assuming that Proposition 50 will help elect more Democrats to Congress without significantly increasing nationwide political polarization in 2026 and 2028, the hardest question remains: Do the ends justify the means here? Some may think this is an easy question (in either direction), but I think it is a close call.

The first point Prop. 50 proponents make is that Texas did it first, and that California gerrymandering is just a response to Texas gerrymandering. The California legislature wrote this point into the proposition itself (see above). But this retaliatory justification is not satisfying. Usually, the fact that somebody else did a bad thing is not an adequate reason to do the same bad thing. (This is the “two wrongs don’t make a right” point.) But there is a worthy rationale for voting “yes” on Prop. 50. The best reason to do a bad thing is that something even worse will happen in the future if we do not.

Back in my law school years (2003-2006), when the terrorist attacks of 9/11 were still fresh in mind, the ethical challenges of the day included whether to torture terrorism suspects, whether to designate individuals captured far away a traditional battlefield as “enemy combatants” and detain them in Guantanamo Bay, and whether to spy on U.S. citizens without a warrant. I took a class called “The War on Terror,” and we read books such as Michael Ignatieff’s, “The Lesser Evil: Political Ethics in an Age of Terror.” I pulled it off the shelf—the first line of chapter one reads, “What lesser evils may a society commit when it believes it faces the greater evil of its own destruction?”

Today, both Trump’s authoritarian faction and the pro-democracy faction who oppose him believe they are asking and answering Ignatieff’s question about lesser evils. This is why Trump describes Portland, Chicago, and Los Angeles as a war-ravaged hellscapes—he declares the existence of an existential-threat-level rebellion on American soil to justify sending in troops. Those who oppose Trump also see him as an existential threat—meaning that if he is not contained, he will end democracy and destroy our freedoms.

This is not to say that there is an equivalency between what Trump is doing and what those who oppose him are doing—there is none. The difference is that Trump and his enablers are lying, destroying institutions, prosecuting enemies, and deploying military force in American cities without any good reason, while his opponents are accurately pointing out that they are doing all this. The fact that Trump persuaded so many to follow him down a path of lies means that his followers stopped caring about the truth. They’ve thrown in their lot and tribal allegiance will determine the rest without any need to consider facts on a case-by-case basis. We will not do this.

When it comes to Proposition 50—gerrymandering California—there are some mitigating factors that make it less bad. First, it implicitly acknowledges its wrongfulness by calling for federal legislation to establish nonpartisan redistricting commissions nationwide. Second, Proposition 50 is a matter for the voters to decide. In this way, it is democratic with a small “d.” Third, it is limited in scope—it does not abolish California’s independent restricting commission, but instead directs the commission to resume its work in 2030.

On the other side of the ledger, Trump and his loyalists are doing things that are far worse than partisan vote dilution. He is sending people to concentration camps to be tortured, ordering assassinations, deploying troops in American cities, imposing unlawful tariffs, attempting to change the constitution by executive order, refusing to enforce the law, impounding funds, abolishing entire agencies, firing agency heads without cause, prosecuting his enemies, extorting law firms, shaking down media companies, accepting corrupt gifts from foreign powers, attacking allies, and empowering foreign dictators.

While it has long been clear that Trump has governed and will govern as an authoritarian, what makes Proposition 50 a close call for me is the difficulty in assessing the benefit—again remembering that the benefit must outweigh the moral cost of deliberate partisan gerrymandering. The benefit is probably an additional five House seats for Democrats. The likelihood that these five seats will make the difference between majority control and minority wilderness is hard to pinpoint, but I think it is safe to say that other factors are likely to swamp any Proposition 50-specific effect. For instance, if 2026 is a “blue wave” year because of Trump’s unpopularity in a midterm, California gerrymandering will be mostly irrelevant—Democrats would have picked up all those seats anyway.

But what about the scenario where Democrats win control of the house by just one or a few seats? Of course, that would be better for Democrats than the current House, which is 219(R)-213(D), with three vacancies (and one seat is vacant only because Speaker Johnson is delaying the swearing-in for Adelita Grijalva). But if Democrats flip only a few seats in 2026, we are still in dire straits. If that happened, it would mean that voters lived through this administration and barely moved, albeit by just enough to change control of the House. If a president could do all the things described above and barely move the needle with voters, I wonder whether Democratic control of the House would slow him down much.

Still, the benefits of controlling the House are significant. The power to subpoena, hold hearings, impeach, and pass legislation all depend on having a majority. Better to increase the Democrats’ chances of holding these powers so that they can do what they can to slow Trump’s authoritarian advance. Because the risk that Trump will continue to deploy troops and consolidate authoritarian control is so great, and because I no longer assume that gerrymandering California will have lasting adverse effects on swing voters, I think that benefit outweighs the cost. I voted yes.

Comey soon learned, of course, that torpedoing Clinton and pushing the election toward Donald Trump did not insulate him from Trump’s demands once Trump took office in January 2017 . Trump demanded personal loyalty; Comey refused. Trump fired Comey because Comey would not deny the existence of the FBI’s investigation into whether the Trump campaign solicited and obtained assistance from Russia. Trump misunderstood Comey to be a partisan hack, but Comey was not that. His sin was pride.

This is not about karma; Comey did not deserve to be the victim of selective and vindictive prosecution. My point here is that Comey is now setting the gold standard for responding to false charges from the Trump administration—he is challenging their lies with courage and defiance. He quickly released a video stating, “We will not live on our knees. … I’m not afraid … I’m innocent, so let’s have a trial.” This is the perfect response. If only law firms, colleges, newspapers, Paramount, Disney, and other Trump targets had Comey’s courage, we would be in a much better place. The right response to Trump’s attacks is to fight back.

Does Comey have courage now because he must atone for causing great harm? Or it is just poetic happenstance that a man whose obstinate insistence on speaking his mind was very bad on one day and very good on another? Probably both. At any rate, Comey should serve as the model. I would like to see every law firm leader, every university leader, and every CEO in America release a video just like Comey’s, saying that we will never yield to Trump’s lies, false charges, and provocations. If he can be that inspiration, then perhaps he can be forgiven too.

*****

If you don’t want spoilers about the Andor series or don’t need to read about comparisons between life and art right now, then you can stop here! But if you’ve seen the second season of Andor read on … I think the similarities between Comey and one of the characters in season two are interesting.

I would compare to Comey to Samm, the Ghorman resistance fighter whose reckless indifference to rules cost Cinta her life. Afterwards, Vel condemned Samm: “You’re taking her with you wherever you go for the rest of your useless life. …. You’ll make up for this forever.”2 I can skip the word “useless,” but the rest of Vel’s damnation fits. Comey must carry his role in bringing about the destruction of American politics wherever he goes, and he will be making up for it forever.

In the Andor series, Samm eventually did make a difference. During the massacre on Ghorman, he bravely crushed one of the battle droids that was about to kill Cassian Andor. Cassian then salvaged and rebuilt the droid, K-2SO, and the droid later saved Cassian and others, enabling them to warn the rebel alliance about the Death Star. Here’s hoping that Comey is like Samm: His reckless hubris led to catastrophe, but he atoned for his sins with a courageous act that eventually led to downfall of the regime.

When I say, “stand up for judges,” I mean that we should describe judges to others as nonpartisan public servants who are doing their best to decide cases under the law and the facts. For example: I believe that nearly all judges serving today, in federal and state court, are nonpartisan and independent. They value the goal of nonpartisan and independent judgment. They are not a blank slate with no views about how the world works, but they are trying to be open to logic, argument, and evidence. They want to use these tools to decide cases because that’s what justice requires and they assume that everyone will be better off if they do.

When the President and his administration denounce judges as deranged, radical, and dangerous, it hard to resist the urge to argue that all of these words apply better to him. But the goal is to persuade, not vent, and so I go back to advice I have given when teaching law firm classes on effective brief writing. When thinking about a target audience for advocacy, we should aim for the skeptical but persuadable person. Those who already agree, and those who never will, are not the target audience. In this context, the person we want to reach, directly or indirectly, is someone who thinks that maybe judges really are deciding cases on a partisan or political basis, but does not have a strong opinion one way or the other.

For highly-engaged followers of current events (aka the likely audience for this post), this target person may seem imaginary. But I suspect that most people have almost no idea what judges do, or at an even more basic level, why judges should not advance the objectives of one political party or leader. After all, they might say, if one political party has better values than the other, then society will be better served by implementing that party’s agenda. The problem with that idea is that partisan ideology is unrepresentative and implementing it would amount to minority rule. The compromises that produce law are more representative and more stable. That all may sound abstract, but the difference between rule of law and rule of leaders is stark.

When I was in law school, Justice Kennedy gave a lecture describing what it looks like when the erosion of judicial independence hits rock bottom and there’s nothing left but political power. He told a story about judges in Russia. When judges there needed to decide a case, he explained, a party boss might call them and tell them how to rule, which was “telephone justice.” In his telling, the Russian judges incredulously asked their American visitors, “You don’t have telephone justice in your country?”4 We do not. Telephone justice is the end stage of partisan control over the judiciary.

In the United States, judges do not work that way. There are thousands of judges all over the country, so a few are bound to be bad apples. But I think instances of corruption or deliberate privileging of partisan interests over law are so rare that it’s not really fair or reasonable to think about them when describing what judges here do. I have never met a judge who was dismissive of the high duty she or he had been given. Legal culture as I know it requires something like reverence for the office. Standing up for judges requires mentioning this type of experience, if you have it, to those who are open to it. This could be mean Facebook, or informal business interactions, or really any gathering where someone attacks judges as partisan and biased. It should not be excessively political to describe judges as nonpartisan.

Now here comes the hard part: what should we say about criticisms that do not come from the Trump administration, and are directed at conservative judges and justices? My answer is that, when trying to persuade people that judges generally are and should be nonpartisan, it is not helpful to argue that a conservative majority of the U.S. Supreme Court is doing Trump’s bidding as a matter of partisan favoritism. That argument tends to reinforce Trump’s basic theme that everything is politics and power and nothing is principle. It ain’t easy to regard umpteen shadow-docket rulings in the President’s favor as nonpartisan. But perhaps we can try, for the sake of persuading the people who would rather hear that judges across the political spectrum are equally capable of judicial independence. People in the “middle” seemingly do not want to hear that one side is more captured by partisan extremes than the other.

So here’s the ask: Instead of condemning judges as biased or irredeemably partisan, we should talk about why their rulings are wrong on the merits. Instead of calling someone naïve because they credit a judge’s oath of office, remember that we want every judge to take the same oath and mean it. If we affirmatively contribute to a culture in which it is widely assumed that judges’ words are hollow and partisan biases dominate, then we will inadvertently help to bring it about. That is, if too many lawyers argue that judges are partisans, the public will believe them, and elected officials will give up their search for nonpartisans. Let’s not do that.

When we can—and it won’t always be possible—let judges know that we understand that they are doing their best to decide cases without fear or favor, even when politicians are asking for favors and instilling fear. Let the public know that most of us working in this system believe that judges are pursuing the ideal of independent justice. And let all of them know that we will accept nothing less.

Let’s start with a key point of agreement. Gerrymandering is bad. It treats voters unequally. It breeds contempt and distrust of our political system. It is highly polarizing. It leads to a government and policy that does not match the preferences of the citizens. In short, it is fundamentally undemocratic. Those who want to seize durable and disproportionate political power by redrawing lines, by definition, do not care about voter preferences. They believe their governing vision is so important and so right that they must achieve it by any means necessary. Are we them?

Maybe so. Today, those who contend that gerrymandering is bad also propose to do it. As a response to a Texas gerrymander, the California legislature passed a ballot initiative to amend the California Constitution to authorize the use of gerrymandered congressional districts for elections in 2026, 2028, and 2030. Californians will vote on Proposition 50 in a special election on November 4, 2025.

My prior arguments and the responses

I previously argued that Californians should be reluctant to pursue gerrymandering as a matter of retaliation because gerrymandering is wrong; the Texas gerrymander may turn out to be a dummymander in Democrats’ favor; the California ballot initiative may fail and thus turn out to be a waste of resources that could have supported Democratic candidates; and ultimately, the logic of the greater evil justifying the lesser evil has no logical stopping point. I felt strongly about this issue based on years of participating in anti-gerrymandering litigation.1

Some who responded found this all to be naïve and mistaken. Their argument was that Democrats must do whatever it takes to win; they cannot unilaterally disarm; and if Democrats don’t fight with fire by matching gerrymandering with gerrymandering, then democracy will die and there will be no more elections.

Unpacking assumptions

Certainly, if one assumes (1) that Democrats cannot win the House without gerrymandering California for 2026 and (2) democracy will die unless Democrats win the House in 2026, then yes, you would be crazy to oppose Proposition 50. The question is whether the assumptions are sound. I tend to agree that Trump is consolidating as much authoritarian control as possible. The question I have is whether gerrymandering is really the best strategy for stopping him.

Partisan gerrymandering is, by definition, a purely partisan act, not in the public interest, unless one believes that purely partisan acts are in the public interest. Democrats and Republicans and highly-engaged voters might well believe what’s good for the party is good for America, but I suspect that independent and low-engagement voters find this idea repellent. The latter are more likely to think purely partisan acts are not good for America. If that is right, then the cost of partisan gerrymandering in California is turning off and discouraging otherwise sympathetic voters. This is yet another version of the question whether it is better to energize the base or appeal to the center.

Of course, Donald Trump is an extreme partisan who makes no effort to be moderate or reasonable on any issue, and yet was still elected. So, it is not the case that a political party or politician must be moderate or reasonable to win. On the other hand, Trump and Republicans scraped by in 2024 with an extremely narrow win for the Presidency and the House. And their approval levels are low. Democrats could fight extreme partisanship with extreme partisanship, but the result would ever-increasing polarization. I assume that continued and increasing polarization tends to sort the electorate into closely-divided halves and prevents the formation of broad majority. I also assume that we need a broad majority to stop Trump at this point. Under my assumptions, gerrymandering actively undermines, rather that helps, the effort to stop authoritarianism.

My assumptions could be wrong. But here’s something to recall: Trump wants the States to be hyperpolarized and gerrymandered. A hopelessly polarized Congress is ineffective and less powerful than a united Congress. It is not surprising, then, that Trump would instigate a fight that will polarize Congress even further. Nor is it surprising that Democrats would respond, but they are admittedly playing his game. Whether they can win at his game remains to be seen.

A dummymander is a gerrymander gone awry. Gerrymandering involves projecting the partisan vote percentages for each newly-drawn district, but these percentages can change in ways that cause the plan to backfire. As an example, suppose partisan officials draw ten districts. They expect to win nine of them by percentages of 51-49 and lose one district 10-90. That’s an aggressive gerrymander. If their projections do not hold, however, and every district swings by three percentages points towards the opposing party, they will lose all ten districts. That’s a dummymander.

Justice Sandra Day O’Connor thought that the possibility of swing elections and backfiring maps meant that gerrymanders were a “self-limiting enterprise.”1 She said that in 1986, however, before mapmakers had access to powerful computers, detailed data sets, and sophisticated models. And back then, politicians and voters were far less polarized and predictable. Gerrymandering is easier today. And yet gerrymanders can still fail.

President Trump has instructed Republicans in the Texas legislature to redraw congressional districts to deliver five additional seats in Congress to the Republican party. Texas’s congressional districts are already gerrymandered—Princeton’s redistricting report card gives them an “F” for partisan fairness.2 To deliver even more seats with the same vote share, the mapmakers will need to take some risks. This size of those risks depends on many things, but Republicans are apparently assuming that no blue wave will materialize, and more specifically:

• Partisan turnout will be predictable in 2026 based on past elections.

• Republicans will hold or increase their share of the Latino vote in Texas.

• Voter migration will not significantly affect district projections.

While Republican operatives will have plenty of data and modeling experts at their side and may well succeed, the wildcard here is Trump himself. His erratic behavior could depress Republican voter turnout and greatly amplify Democratic voter turnout. Trump is the one who claims that elections are rigged, which tends to discourage Republican voters, who take him at his word that the fix is in and voting is pointless. People who can distinguish Trump’s rhetoric from election subversion, on the other hand, are motivated to vote and may turn out in greater numbers.

Trump’s erratic and unlawful conduct may also turn the tide for Latino voters in south Texas, where he picked up more votes in 2024 than his Republican predecessors. Predicting how Latino voters will respond to increased ICE raids and militarization of immigration enforcement is uncertain. And really, the same thing goes for the rest of his policies. Tariffs may yet cause high inflation and unemployment. People may notice that he promoted and signed a bill to cut taxes for the rich and throw people off Medicaid. Maybe firing thousands of government employees will catch up to him.

Lastly, Texas has a lot of incoming residents who are moving away from the high cost of living in blue States. While these people are voting against urban megacenter costs, they won’t necessarily vote for Republican candidates. They might turn out and shift percentages, too.

The bottom line is that while gerrymandering science is making the lines and outcomes easier to manipulate, swings in turnout can still upend the map. Nobody can create those swings like the President. If anyone can turn a gerrymander into a dummymander, he can.

As a refresher, Citizens United held that spending money on political speech never has any corrosive or corrupting influence worth regulating, regardless of amount, except in cases of explicit “quid pro quo” exchanges of expenditures for political action such as a vote on legislation.3 This extremely narrow definition of “corruption” meant that unless the political spending at issue amounted to criminal bribery, the government could not regulate it. After Citizens United, federal and state statutes regulating political activity fell like dominoes because they regulated conduct that fell short of criminal bribery.

Legally and culturally, Citizens United ushered in a world in which unlimited spending to influence government was acceptable at first, then normal, then openly celebrated. The deal with Paramount is “corrupt” in the traditional sense that a business is giving a large sum of money to a government official (or entities under his control), for no apparent reason other than to win current or future favors. But the deal may not amount to provable criminal bribery, so the mega-rich participants on both sides signed off. Their reasonable assessment that they will never face any consequences for demanding and paying large amounts to settle frivolous claims stems in part from Citizens United’s ruling that anything less than an explicit quid pro quo is not corruption, as a matter of law. If the government could regulate the giving of enormous gifts to elected officeholders (or their libraries) under Supreme Court precedent, this deal probably never would have happened.

When Paramount pays $16 million in exchange for dismissal of Trump’s claims, it is giving nearly $16 million directly to Trump because the claims were worth almost nothing. If a politician sold me a $50 bottle of wine for $16 million, I would be giving a gift to the politician, not getting a bottle of wine worth $16 million. But the valuation plainly matters, which requires analysis of the claims.

Here’s the recap: Just a few days before the November 2024 election, Trump sued CBS Broadcasting for editing an interview with Kamala Harris and broadcasting the edited clips, including during its flagship news program, 60 Minutes.4 Paramount owns CBS.

According to the original pre-election complaint, editing the Harris interview was deceptive because it masked her inability to speak coherently.5 Specifically, the complaint alleges that the CBS interviewer, Bill Whitaker, asked a question and Harris responded with a lengthy word-salad, which the CBS editors later replaced with a shorter, clearer version of the same response.6

Here's the transcript of a clip of the unedited interview, according to the complaint:

Whitaker: But it seems that Prime Minister Netanyahu is not listening.

Harris: Well, Bill, the work that we have done has resulted in a number of movements in that region by Israel that were very much prompted by, or a result of many things, including our advocacy for what needs to happen in the region.

But after editing, the interview clip appeared as follows:

Whitaker: But it seems that Prime Minister Netanyahu is not listening.

Harris: We are not gonna stop pursuing what is necessary for the United States to be clear about where we stand on the need for this war to end.

As indicated, these answers are not identical, but they are expressions of the same basic message: the Biden Administration was talking with Israel about the war in Gaza. And contrary to theme of the complaint, both of Harris’s responses are equally vague. CBS did not deceive anyone about Harris’s viewpoints or her ability to speak when it substituted a shorter version of the full answer for the unabridged one, and it did not injure Trump in any way. For these and many other reasons, Trump’s chances of prevailing here were zero.

The complaint frames the allegations against CBS as election interference, presumably as prelude to arguing that the election was stolen if he had lost.7 He did not lose, but the case remained. In the meantime, Paramount had sought approval from the FCC for a merger with Skydance.8 Just ask yourself this: would Paramount have paid $16 million to settle this case if Trump were not President?

The frivolous claims against Paramount are unfortunately complex in ways that discourage public engagement and provide some measure of plausible deniability to the settlement participants. The complexity means that only trained professionals and people with time on their hands can navigate these schemes with high levels of certainty. Most people have to rely on the experts to assess whether the claims against Paramount are frivolous. This wouldn’t be necessary if the key facts could be explained in three seconds, as in “Trump agreed to trade regulatory approval for cash.” The situation here is not that.

The Citizens United majority did not like the complexity involved in regulating corruption that is anything other than straightforward criminal bribery. This was because the same people who are capable of untangling the complexity of a highly-legalistic shakedown are also capable of using that complexity against citizens in unfair ways. Just as a corrupt political scheme could avoid detection or punishment because it is too complex, an overzealous prosecutor or overly-partisan regulator could exploit complexity to impose unwarranted penalties. In both situations, it may be hard to tell whether mistakes were made, whether of omission or commission.

The Citizens United majority wanted to protect speech by shielding complicated political relationships from government regulation. The excruciating irony, fifteen years later, is that redefining corruption to mean only simple bribery enables the government to attack free speech. Trump’s lawsuits against media outlets, including Paramount, discourage speech by threatening speakers with financial and reputation harm—and massive overpayments to make those frivolous suits go away only further empowers him to attack other speakers. In short, in holding that the government could regulate only outright bribery, Citizens United affirmatively contributed to a climate of corruption that enables the government to stamp out free speech.

I suppose in theory this phenomenon could operate in the other direction, but probably never does. If my brain thought it was 80, then it might feel old but regard actual me as young. Then I would go around thinking, “Sure is nice to be able to walk and ride a bicycle!” (I think young me is making fun of old me again, but not entirely clear.) Anyway, I have not been 80 yet, so it is more natural to think about how someone I can remember, namely, 30-year-old me, would think about 50-year-old me.

Sometimes people say that so-and-so is an “old soul,” but I have never liked that phrase. Does anybody want to be an “old soul”? To judge by the way most people talk, I think not. Some people probably use the phrase as a compliment, with the idea that the person is “soulful” or deep or complex. But whenever I hear it, I feel like the person on the receiving end of the remark has just been told that their life energy burned out, like an expended star. Sorry, nothing left of you but your flickering old soul. You’re just an ol’ sol, when you should be a child of ten. It’s the kid who won’t get off the porch or the sleeping cat who gets told they are an “old soul.”

The opposite of being an “old soul” is being “young at heart.” I don’t know that anyone wants to be young at heart either, unless they are 80 years old, but I wouldn’t know what that’s like. If you are “young at heart,” then you are definitely old. But if you have to choose between “old soul” and “young at heart,” then I would definitely choose “young at heart” because that at least implies that you’re kind of fun in spite of it all. IRL, I can’t remember having been called either one of these things, so maybe my age and disposition are not so dramatically imbalanced after all. In other words, I have the illusion that my mind and soul are cruising along in unchanging youngness, but I can’t see them in any tangible way, and in reality they are aging at exactly the same rate as everything else!

Remember that scene in “A Beautiful Mind” when John Nash (Russell Crowe) realizes that he is hallucinating or schizophrenic or whatever? He realizes that people in his hallucinations never get older, which means that they can’t be real.1 Having kids is like that, except that instead of realizing that my hallucinated children never get any older, I realize that my hallucinated self is not eternally young. I know I am getting older because the kids show me what it means to think like a young person. It’s crazy! I am sure I acted like them when I was their age and I am sure that I do not act that way now. That means that I am at least 30, not 13 or 15. If I knew anyone who is 30, I would probably also be able to conclude that I am not 30 either, although sometimes the old-soul ones will trick you.

Photo credit: ABC7 San Francisco.2

To the morons who attacked police officers and smashed windows: San Francisco police officers have nothing to do with immigration enforcement. Their job is to protect the city, not to deport anyone. Nothing in the reporting shows that SF police officers attacked the protesters first. The reporting shows that protesters attacked the police. Did all the protesters attack police? Of course not, but plenty of them did. Not helpful.

It should be perfectly obvious than Donald Trump wants violence in the streets. He wants people to be so stupid that they attack local police officers, which is just immoral lawlessness. Way to go protesters. You helped Donald Trump. By mistakenly calling your local allies in law enforcement fascists, you enabled an actual fascist. Attacking local law enforcement in response to federal immigration policy is about as smart as trashing your local university because Israeli troops are in Gaza.

Next time, before pushing over a barricade or throwing a rock through a window, think about who is doing what. If you are confused about who makes immigration policy, I will tell you: not San Francisco police officers. Donald Trump is directing the violation of immigration law, but San Francisco officers do not report to him in any way, shape, or form. They don’t even report to Gavin Newsom. They report to the city. They are your neighbors. They will protect you if they can, but not if you attack them.