After receiving the litigation threat, the superintendent asked the Bark to redact Bonnouvrier’s name in the post. The students concluded that they could not redact the post and took it down instead. The students restored the post after a meeting with the superintendent. Wired magazine covered the episode, shining a light on questions about whether and when school officials should require students to redact or take down already-published articles and posts. Here, as many have argued, the school district did not need to ask students to redact or take down the post, even temporarily. Written guidance would help administrators respond to the next incident.

Existing school board policy and regulations regarding student-run publications

Under board policy 5145.2 and California law (Education Code § 48907), students have a right to free speech, but that right is not absolute and does not include a right to publish libelous statements. Libel is a false, non-privileged statement that injures someone’s reputation. Civil Code § 45. Existing board policy prohibits students from posting libelous statements.

The district’s administrative regulations provide that a school may sponsor an official student-run publication, such as the Redwood Bark. The regulations seem to require a school employee to review articles or posts before the Bark (or other publication) publishes them. Regulation 5145.2 states that each student publication shall have an official publication advisor who is responsible for “supervising each publication, prior to its publication, to determine if it satisfies all the conditions of these guidelines.”1 Under board policy, school employees may not restrain publication unless they conclude that the publication would violate rules against libel, obscenity, incitement, or other standards.

I find no board policy or administrative regulation specifically addressing complaints or a threatened defamation lawsuit against the school district based on articles or posts that an official student-run publication has already published. This potential gap in the Tam District’s policy and regulation framework may have led to an ad-hoc emergency response when the reported threat from Bonnouvrier arrived.

Assessing the email: Did the district face liability risk?

This litigation-threat incident did not present an easy legal question for administrators. The statement about “providing models to Epstein from a woman named Gisele Attias Bonnouvrier” could mean different things, some innocent, some not. Let’s assume that some readers would interpret the Instagram post to mean that Bonnouvrier provided models to Epstein. The school district has no realistic way of knowing whether that statement is true. Under the circumstances, the best the school district can do is assess whether the Bark accurately characterized an email in the public record.

According to an email I downloaded from the Justice Department’s public repository of “Epstein files,” on October 8, 2013, Bonnouvrier sent an email to an unknown person, whose name and email address are redacted. Assuming the email is authentic, Bonnouvrier states various prices in Euros for introducing models, sponsoring events, being a “correspondent in Paris.” Toward the end of the email, Bonnouvrier states, “Regarding [redacted], my Austrian model, we can come and see you this evening if you are interested, and in that case let me know how can I get my fees.”

Bonnouvrier’s own email reflects that she pitched models to Epstein, meaning that she was willing to provide them.2 Because the gist of the Bark’s statement about “providing models” was not much different from “pitching models,” the risk that the district could be held liable for defamation seems low.3 Making that assessment requires some knowledge of defamation law, however, as well as review of the primary sources. Busy administrators cannot conduct defamation analysis on a short deadline. They need guidance.

New guidance for responding to litigation threats

In the absence of clear written policy, the superintendent responded to a complaint to protect against perceived danger to the district. To prepare for the next incident, however, the district should develop guidelines for responding to defamation threats and other take-down requests, which will protect both the district and students.

The board could direct the superintendent to develop a regulation, consistent with its free speech policy (Policy 5145.2), that guides the district’s response to defamation threats. The new regulation would balance the school district’s potential liability for defamation, students’ speech rights, and the core purpose of a student-run newspaper, which is to educate and train students in journalism. Students do not have the right to publish defamatory statements. Inevitably, district administrators, together with counsel, if necessary, must decide whether a published statement is defamatory.

Thus, after receiving a complaint that a publication is defamatory, the district should consider the issue carefully. Absent a threat of imminent harm, the district should not rush. Deleting or taking down a defamatory statement that already has been published does not make liability for the initial publication go away. There is no emergency because the publication has already happened and any initial liability has already been incurred.

Careful investigation is necessary because the district has some risks in either direction. In the case of a defamation threat, the publication has already occurred, but damages may increase if no correction or retraction is published within a reasonable period of time. Conversely, if the district requires a student-run outlet to take down an article whose publication the law protects, the district could face a lawsuit from the student or the student’s parent, as in Smith v. Novato Unified School District, 150 Cal. App. 4th 1439 (2007). How much investigation each situation requires will be dependent on the statements at issue, and as a general matter, administrators need not request deletion or retraction as a first step.

In some situations, school officials may want to act immediately, as when a publication potentially defames other students at the same school, which may constitute ongoing bullying or risk inciting violence. Because determining whether a statement is true or privileged may be difficult or impossible, school officials should focus in the first instance whether a harmful statement is likely to cause additional harm if not deleted.

This case involving “Marin mentions in the Epstein files” lies at the other end of the spectrum. Bonnouvrier’s email already appeared in a public repository of documents; the Bark mostly just drew attention to it; leaving the post in place during an investigation would not seem to cause any additional harm. Therefore, if administrators had the benefit of further guidance, they likely would have left the “Marin towns” post in place while they considered the defamation complaint.

Our current board could and should be better. We need to support and fund policies to lift up underperforming and high-performing students alike. We need to support our programs for student belonging. The board needs to prepare students for AI. And it needs to communicate better with the public, so that the public has confidence to support the schools, which we will need to pass the right parcel tax.

I understand that teachers in the classroom and parents at home are doing the hard work of teaching our students every day. The board sets district-level policies and oversees the administration. Here are three policy priorities.

I will focus on academic excellence. That means helping to attract and retain the best teachers. It also means expecting administrators to deliver improvement based on fair, equitable, and high standards. I want our schools to train scientists, artists, professionals of all kinds. As a board member, I will be thinking about how our policy can help create the right environment for students to succeed.

I will focus on AI. Many of us use AI in some way. I do. Our kids are using it too. The greatest risk for our students right now is that AI will become a core part of their problem-solving process at vulnerable age, impairing their ability to produce quality work without it. Students should learn about AI and how to use AI, but we cannot allow students to surrender the hardest part of learning to machines. This is a matter of both equity and academic excellence: students who rely on AI will fall behind, while those who learn without it, and then learn to use it, will excel.

I will focus on communication. I want the board to work better for the people it serves, which means improving communication and trust. At times, the incumbent board has not explained itself clearly or treated the public with respect. As a board member, I will listen and provide clear, respectful explanations of board actions, even when we disagree.

My professional experiences have prepared me for this position. I have served as a lawyer for governments, universities, and Fortune 100 companies. I have long advocated for our public institutions, partnering with leading democracy organizations to protect voting rights, limit money in politics, and check presidential overreach. I fight for more representative government, and will bring that experience to the school board, for a better board, so that all students can succeed.

Except in felony criminal cases, California does not provide court reporters. As a result, in most cases, only those litigants who could afford to pay for a private court reporter could obtain one. And if a court makes a decision after a hearing and no record of that hearing exists, winning an appeal is often impossible. No transcript, no appeal.

In the absence of court reporters, an electronic recording of trial proceedings could serve to preserve the record for later transcription or listening. Electronic recordings are inexpensive and reliable. But a California statute prohibits courts from making electronic recordings of most courtroom proceedings (Government Code section 69957). Well, actually, as it turns out, the statute does not bar electronic recording. The California Supreme Court held today that “if a court reporter is unavailable, courts must imply an exception to the statute under the in forma pauperis doctrine and use electronic recording instead.” (Opinion, at page 33.)

I have previously predicted that the California Supreme Court would rule that the statute prohibiting electronic recording of proceedings is unconstitutional, at least in part, as applied to some proceedings involving low-income litigants. I suggested in a prior iteration of this article that statute improperly limits the judiciary’s constitutional powers, deprives low-income litigants of due process, and treats low-income litigants unequally under the law. The legislature has declined to defend it. The statute was indefensible. The legislature could have solved the access-to-justice crisis that it created by repealing the prohibition on electronic recordings. Instead, the legislature opted to let the Court solve the problem. This put the Court in a difficult position, unnecessarily, while leaving thousands of Californians without access to appellate review.

Instead of striking down the statute as unconstitutional, the Court interpreted the law to contain an exception for persons who cannot afford private court reporters. It reasoned that the legislature surely wants everyone to have equal access to justice and would not enact a statute that deprives low-income litigants of judicial review. Thus, even though the statute seems to say that courts shall not use electronic recording equipment to make an official record of proceedings in most cases, that broad rule contains an exception for everyone who cannot afford a private court reporter. The exception might well include “most” individual litigants and trial courts “should be flexible in assessing a litigant’s ability to pay.” (Opinion, at pages 2 & 29 n.3.)

Although I would have preferred a constitutional ruling instead of a statutory interpretation, the Court’s decision gets to the same place and is good for California. There was no good reason to maintain the state-created monopoly on the transcription of trial court proceedings. The legislature’s committee reports have said that a court reporter is the “gold standard” in producing accurate transcripts. But insisting on the gold standard in all cases is like offering first class seats or nothing, which is no way to run an airline, or a court system. Even if electronic recording is coach class, it will still get you there, and for a lot less money.

There is little risk that the legislature will attempt to amend the statute to reinstate its ban on electronic recording. For one thing, the legislature’s original choice in enacting the statute had become even less defensible over time, as technology improves. For another, the California Supreme Court left little doubt that if had not interpreted the statute to allow electronic recording, then it would have struck it down as unconstitutional anyway. (See Opinion, at pages 31-32 & n.4.) Although the Supreme Court has done much of the work, the legislature should take the final step of repealing the statute once and for all. For now, the Court’s decision is the right step toward better and more equal access to appellate courts.

Other writers have observed that Callais has triggered another round of unrestrained partisan gerrymandering and will reduce the number of majority-black congressional districts. That was literally the point. To phrase the point in legal terms, Callais held that Louisiana violated the Constitution when the State drew a congressional district map to include an additional majority-black district.

The Callais update

The Court acknowledged it was changing the law, except that instead of using the word “change,” it used the word “update.” Justice Alito’s opinion for the majority states that the Court would not abandon the so-called “Gingles framework,” which is shorthand for the Court’s interpretation of the Voting Rights Act set forth in a 1986 case called Gingles. The opinion declares that it “need only update the frame­work so it aligns with the statutory text and reflects im­portant developments since we decided Gingles 40 years ago.” The word “update” here is a euphemism for “overrule and discard.”

The majority justices leaned heavily on the “update” concept, as if they were downloading new anti-virus software but leaving the core functionality intact, because they did not want to admit that they were overruling Gingles and other precedents that interpret the Voting Rights Act. The reason for refusing to acknowledge the overruling of Gingles is that Supreme Court precedents are meant to be strongest, and least susceptible to overruling, when they interpret statutes (such as the Voting Rights Act). The “update” euphemism also avoided headlines that would have persisted for years if the Supreme Court had struck down the Voting Rights Act as unconstitutional. There was no need to overrule precedent or strike down legislation when a simple update would do the trick.

What did Callais “update,” exactly? The “update” was to redefine what it means for members of a minority group to have “less opportunity than other members of the electorate to participate in the political process.” Before Callais, the basic question was whether black citizens had less opportunity than white citizens to elect representatives. This occurred when white citizens voted as a bloc, thereby precluding a politically and geographically cohesive minority population from electing representatives. After Callais, the question is whether black voters will have less opportunity to elect candidates than other voters who share their voting preferences. The italicized language is the update—the comparator is no longer white citizens, but instead citizens who share the same political preferences as the plaintiff minority group. This changes the law entirely.

The Callais update would matter less if partisan gerrymandering were unlawful under federal law. That is not the case. The Supreme Court will not hear partisan gerrymandering claims, which is the same thing as green-lighting partisan gerrymandering. Its 2019 decision in Rucho at least had the decency to observe that gerrymandering is “incompatible with democratic principles,” even as the Court refused to do anything about it. But Callais transforms partisan gerrymandering from anti-democratic practice into a full justification for drawing districts that disenfranchise minority voters.

The Callais majority seemed most concerned with ensuring that a partisan gerrymandering claim is never adjudicated, declaring that “a state legislature may use partisan advantage as a factor in redistricting” and “litigants cannot circumvent that rule by dressing their political-gerrymandering claims in racial garb.” (Opinion 28) When race and political party preference are highly correlated, this means that a state legislature is free to dilute minority voting power, absent strong evidence that the only reason for drawing the map was to discriminate based on race.

The Supreme Court thus has left state legislatures free to draw any map they want, including explicitly partisan maps drawn to dilute the voting power of the opposing political party and maps drawn for purposes of incumbency protection. And state legislatures are free to eliminate every majority-black district in America, so long as they state that the reason for doing so is to harm Democrats.

Winning is everything

Callais is disturbing for many reasons. It overrules prior precedents while claiming to be installing mere updates. It opts to interpret the Voting Rights Act in light of “vast social change,” even though in most other cases the Court insists on an originalist interpretation of statutes. Callais shows that originalism is no genuine restraint on judicial activism. Callais uses the apparatus of “strict scrutiny” to dismantle a law designed to protect the political process from prejudices affecting discrete minorities and black citizens in particular. It protects the majority’s right to be free from law, which inverts Supreme Court precedent and turns law into a vehicle for extinguishing any consideration of race.

What could motivate the Court to change the law so dramatically, in ways that plainly undercut its other stated commitments to precedent and originalism? I think this case is part of a deeper shift. Specifically, the source of political legitimacy has migrated over the years. It was fair competition. Now the highest source of political legitimacy is just winning itself, and legal efforts to maintain fair competition in the political arena such as court-ordered maps, are inherently suspect.

I think the fundamental principle underlying the majority’s decisions, and the great unifying theory of modern Trump-aligned politics, is that those who win competitions deserve to win, and those who lose deserve to lose. Wealth proves industriousness and acumen. Political success proves righteousness. Strength is virtue and success is strength. Those who use law to interfere with the natural outcomes of markets and free-for-all politics undermine both strength and virtue—and are enemies of the republic.

This outlook derives from an American tradition of libertarianism. But today’s rulers have adopted a philosophy that goes much further than free-market ideology ever did. They suppose that everyone is free to twist the law to their advantage, and those who fail to do so, well again, they deserve to lose. In short, they have turned to a form of social Darwinism in which the law is secondary to competition in a state of nature. The result is a judicial opinion that openly declares that incumbency protection and partisan advantage are legitimate state interests, while litigation efforts to limit partisan gerrymandering or equalize opportunity are invalid and impermissible.

The problem with elevating winner-takes-all contests over law is that winners in contests of force are not necessarily the most virtuous. People might prefer to live in a system in which decisionmaking is not controlled by the most resourceful, but instead by those who are the most wise or kind or just the most representative. In other words, at least in the liberal enlightenment tradition, people can deliberately choose a government based on law that restrains power. That this premise is now felt by the Court as an infringement upon the individual rights of the most powerful shows that it is gravitating away from the shared assumptions of democracy itself.

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 standalone, 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 parent 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.

I will argue here that the land acknowledgment is statement about political legitimacy and not a history lesson. Teaching about this subject is inherently difficult. But I think the school will better serve its students if it suspends judgment and demands reasoning and argument, not allegiance to the school’s own conclusions.

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:

Before I wrote about this particular land acknowledgment, I wanted to learn more about it. Here’s what I found.

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 an assistant superintendent and a teacher who led the land acknowledgment at the retreat to learn more.

I asked an administrator if she could speak with me about the land acknowledgment. She replied and asked what questions I had, but then did not respond to my questions. This was the end of the road.

II. Why the land acknowledgment is a statement about political legitimacy.

Going right to the key 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.” These are claims about the present status of Tam District itself.

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 the loss of self-governance by tribal groups. At its core, the land acknowledgment claims that tribal groups had 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 tribal groups’ 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—here, the public school district—stands on stolen land are ultimately claims about who has the right to assert sovereignty.

Some may argue that the historical facts are uncontested. But even uncontested facts do not produce uniform interpretations about what those facts mean. The meaning of historical facts depends on political philosophy. If there are reasonable competing claims, then schools ordinarily should present them and let students analyze those claims. Teaching more than one perspective should lead to better thinking and student outcomes.

III. The difficulty of teaching about political legitimacy.

The role of schools is to demand fair, evidence-based analysis. Unfortunately, the land acknowledgment demands allegiance instead. This may have been easier on some level than living with uncertainty or asking students to consider whether a government that acquired its sovereignty over territory through conquest is legitimate. That question, in turn, requires students to ponder the foundational basis for government legitimacy, and already we are deep into philosophy with no simple way out.

Some may argue that the descendants of the first people who inhabited Marin County have the strongest claim to the land and sovereignty over it. They may claim that a people’s continuous occupation of a particular territory supports an ongoing claim to that territory even after conquest. Others may argue that legitimacy turns on whether the people can participate in self-government by electing leaders. They would say that democracy and shared ideals are the foundation of legitimacy, not continuous occupation. I think both strands of thoughts are prominent in most disputes between nations all over the world. One group claims ownership through long occupation; the other claims the will of the people. Both have significant arguments to make.

Should a school or teacher recite historical facts and then draw firm conclusions about present-day political legitimacy based on those facts? If they do, they mistake certainty about evidence for certainty about analysis. These are not the same thing. But everyone wants the answer: what is right? Schools probably should resist drawing that conclusion for students, and insist instead on reasoning. This will require suspending judgment and letting inquiry play out, even when or especially when we as parents, educators, and civic-minded citizens are eager to supply the answer.

At bottom, an approach that allows students to weigh the evidence and arguments demonstrates faith and commitment that rational inquiry will lead, eventually, toward better answers. A good teacher can guide the discussion by probing logical reasoning and evidence without demanding conclusions. Whatever the District says about the land upon which it stands, it owes students that same discipline.

* * *

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

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, Protect Democracy, and Prosecutors Alliance Action 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.

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.

Legal AF's Substack

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

For more access to expert legal analysis, official court documents and breaking news coverage only available here at the intersection of law and politics, please consider becoming a paid subscriber.Legal AF's Substack is a reader-supported publication. To receive new posts and support our work, consider becoming a free or paid subscriber…

Listen now

10 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.

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.

Settlements are enforceable contracts in which each side gets something. But a law firm gets nothing in an unenforceable deal with Trump to make illegal threats go away. A firm that makes a deal in the face of patently unconstitutional threats, while receiving nothing in return, is simply choosing to bow down rather than fight. Choosing “settlement” in the face of an obviously unconstitutional and authoritarian executive order is a devastating capitulation.1

As others have explained, Trump is targeting law firms one by one to send a highly visible signal to other institutions so that he can assess whether they will stay quiet and capitulate.2 If they do, then he can keep picking off law firms, one by one, diminishing their capacity for collective response. If many law firms give in or stay silent, he would eventually create and normalize conditions under which major law firms cannot represent clients who sue him or oppose him. And if the best and largest law firms are unable or unwilling to challenge unlawful orders, who will?

Every law firm of consequence will be forced to decide whether it stands with Perkins Coie, Jenner, and WilmerHale. Every law firm that stands up will make it easier for others to do so. Every law firm that stands down will make it harder. It might seem like empowering an autocrat, just a little, is an acceptable outcome if the firm staves off a threat to its bottom line. But making a “deal” with Trump does not offer any genuine protection and compromising principle for the sake of money is unjustifiable.

Some argue that appeasing Trump is justifiable. I was disappointed to read an article by my former ethics professor, Stephen Gillers, opining that critics should not fault Paul Weiss for making a “deal” so it could “survive.”3 The gist of his article is that the vague terms of the deal don’t require Paul Weiss to do anything it wasn’t going to do anyway. He also contends that firms should prioritize their own survival over considerations such as defending democracy and the rule of law. As he put it, “Democracy and the rule of law will have to find their savior in the same political process that led to our present dilemma.” To my mind, both of his propositions are profoundly misguided.

The vagueness of the Paul Weiss-Trump arrangement is a reason why it hands coercive control over firm affairs to Trump, not a reason that Paul Weiss and its lawyers can shrug it off. Maybe it’s just a PR piece for both sides. But that seems unlikely. The sword of the executive order still hangs over head and Trump can always ask for something more under the vague terms of their arrangement. As many have noted, they don’t really agree on what the terms are anyway.4

Even worse is the idea that firms should wait for the next election before thinking about democracy again. This assertion blithely disregards how autocrats consolidate power to make elections unnecessary or unwinnable. Professor Gillers writes:

There is a suggestion in the current debate that Paul Weiss was obligated to be brave for the rest of us, that it was required to fight Trump on behalf of the rule of law, and that its settlement was somehow a betrayal of some principle governing the conduct of private law firms. That is not so.

This is wrong. Notice that Gillers is not arguing that Trump’s executive order targeting Paul Weiss was legal or proper; that would be absurd. He is simply offering a high-flown version of “run away and live to fight another day.” But it is far too soon for running away. Right now, all of us are obligated to be brave.

It would be one thing if Trump was rounding up lawyers and torturing or killing them. But he isn’t doing that, so opposing him doesn’t require as much bravery as, say, joining the army in Ukraine. Standing up for the rule of law ought to be the highest principle that governs a law firm. If law firms surrender to Trump, they will communicate to the broader world that might makes right and that, in the end, is the code they have chosen to live by. Their shameful submission will lead others to submit, too.

Perhaps Paul Weiss did not envision that Trump would humiliate the firm by changing the terms of whatever it was they thought they had done so soon after doing it. But really, what did they think was going to happen? The law firm’s arrangement with Trump is entirely one-sided. Trumps gets everything, Paul Weiss gets nothing. Trump can, at any time, call Paul Weiss and tell them not to take a case or instruct them to accept a pro bono representation. If they protest, he can reinstate the executive order on the ground that the firm has violated their agreement. They might as well start copying Stephen Miller on their conflict checks.

Paul Weiss also has apparently agreed to let Trump speak on its behalf or, in what may be a distinction without a difference, the firm is powerless to contradict him when he does. Trump says that Paul Weiss has “has acknowledged the wrongdoing of its former partner Mark Pomerantz.” I haven’t heard Paul Weiss say that, but I also can’t find any public statement from Paul Weiss contradicting the President’s statement. The firm is letting the public believe that the firm has acknowledged wrongdoing. That is an unconscionable choice because Pomerantz didn’t do anything wrong in working as a prosecutor in the Manhattan DA’s office, and even if he did, he wasn’t a Paul Weiss partner at the time. Trump should just say, “Paul Weiss totally agrees that anyone who prosecuted me is a criminal” and get it over with.

Fortunately, Perkins Coie, Jenner, and WilmerHale are fighting, leading, and standing up for the rule of law. In doing so, they are retaining their dignity, independence, and autonomy. So are Williams & Connolly, Cooley, and Clement & Murphy, who represent these firms in challenging Trump’s executive orders. They are telling the world that the rule of law and basic fairness are even more important than profit maximization. They knew this fight was essential and that they could never “settle” with someone who is offering nothing but a mafia-style protection racket.

This is a crisis. Now that it has fully arrived, law firm leaders should see clearly the entirely unwelcome choice that it forces upon them: a choice between fighting or submitting. And then they should choose to fight.

2

If you can keep it

Why collective action is the only way

The first play in the autocratic playbook is not to attack everyone at once…

Read more

a year ago · 172 likes · 31 comments · Ian Bassin

4

Trump says that Paul Weiss agreed that it “will not adopt, use, or pursue any DEI policies.” But the version of the agreement that Paul Weiss circulated to the firm contains no such commitment. Trump says that Paul Weiss will donate $40 million in services to support the “Administration’s initiatives.” Paul Weiss’s version of the statement does not say that it will support the “Administration’s initiatives” and instead lists initiatives that it will support. Given that the parties do not agree on material terms, no real “settlement” exists. Bob Bauer discusses these differences in his article about the Paul Weiss settlement:

Executive Functions

Paul Weiss's Deal With Donald Trump

Please click here to opt in to receive via email our Roundup of news and commentary, and click here to view our occasional short video series on executive power…

Read more

a year ago · Bob Bauer