BAD LAW

Last Friday, Chief Justice John Roberts issued a one-sentence order staying the preliminary injunction issued by a DC federal District Court that would have stopped construction on Trump's ballroom.  

The injunction was issued on April 16, 2026 and upheld by the DC Circuit Court of Appeals on August 7. 

At that time, the appellate court stayed its own decision for fourteen days to allow the defendants to apply to the Supreme Court for an emergency stay.

They did and on Friday Roberts issued his one sentence order.

The order states that the injunction was stayed "pending further order" of Roberts himself "or of the Court."

Though much is unclear in the Chief Justice's opaque one liner, two things are not.  The first is that Roberts acted alone. The second is that a "further order" is not foreclosed.  Either by him or the entire Court. 

This probably means a majority did not agree with him. It also probably means he was giving them time to come around or act on their own. It does not mean Roberts himself necessarily favors a stay or believes the injunction should ultimately be vacated and Trump's ballroom construction permitted to go forward. It also does not mean he is against a continuing stay and Trump's construction.

It does mean he is patient.

The DC Court of Appeals that reviewed the case was a three-judge panel.  The panel voted 2-1 to uphold the injunction.  I have read the appellate court's entire 101-page decision, as well as the thirty-five page dissent and the papers filed with the Supreme Court in support of and opposition to an emergency stay. (You can thank me later.)  

The undisputed facts here are that Trump demolished the east wing of the White House and started building his architectural eyesore of a ballroom without any Congressional approval whatsoever. In doing so, he violated the Property Clause of the Constitution, six statutes, and two hundred fifty years of precedent. The District Court's injunction was careful to stop only construction of the above-ground 90,000 square foot ballroom. All the subterranean work and upgrades on the White House's east wing underground web of sensitive national security bunkers and technology remains undisturbed and on track.

The fact of a thirty-five-page dissent in the appellate court and Roberts's own single-judge order suggests this case is difficult.  

But it really isn't.

The Property Clause of the Constitution (Art. IV, section 3, cl. 2) says "The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting . . . the Property belonging to the United States". The United States Code provides that "A building or structure shall not be erected on any reservation, park or public grounds of the Federal Government in the District of Columbia without express authority of Congress."  In opposing the lawsuit filed to enjoin his ballroom, Trump claimed that three statutes gave him that authority -- the National Park Service Organic Act, 54 USC 100101(a); the so-called "authorization to appropriate" section of a 1978 Act providing for "Assistance and Services for the President", 3 USC 105(d)(1); and the Economy Act, 31 USC 1535(a). 

He claimed the Organic Act authorized the National Park Service to build his ballroom because the White House is actually part of a designated national park (called "President's Park"). He claimed the "authorization to appropriate" section of the '78 Assistance legislation separately gave the White House's Office of the Executive Residence (EXR) the right to do so.  And he finally claimed that the  Economy Act  gave the Park Service authority to transfer both its authority and any gifts it received to the EXR in order to fund and have EXR take over the project.

None of these claims, however, did the trick.

The Organic Act established the Park Service to "promote and regulate the use of the National Park System by means and measures that conform to the fundamental purpose of the System units, which purpose is to conserve the scenery, natural and historic objects, and wild life in the System units and to provide for the enjoyment of the scenery, natural and historic objects, and wild life in such manner and by such means as will leave them unimpaired for the enjoyment of future generations."  It didn't authorize the Service to tear down the East Wing or build Trump's 90,000 square foot ballroom. In fact, if anything, the Act precludes Trump's monstrosity inasmuch as it will literally eliminate the actual main White House as the focal and central point of President's Park and repudiate the "republican simplicity" the structure was designed to symbolize by dwarfing it with  a super-sized ballroom as its new east wing.

Nor do the other two statutes save Trump's project.

Section 105(d)(1) of the Assistance Act is an  "authorization to appropriate" statute. It only gives the Constitutionally-established appropriators, namely, the Congress, the right to appropriate monies that the President can then use for the "care, maintenance, repair, alteration, refurbishing or improvement, air-conditioning, heating and lighting . . . of the Executive Residence at the White House." As of now, Congress has appropriated about $2.4 million under this section.  The ballroom's cost, however, is $400 million, the east wing is not a part of the main residence, and demolishing that wing so a new 90,000 square foot structure could be erected is neither a mere "alteration" nor a simple "improvement". In the parlance of real estate common law, it is new construction. In the parlance of the plaintiff National Trust for Historic Preservation and most of the public, it will be a grotesque eyesore that destoys the we-are-not-a-monarchy message the White House was always meant to project but this President obviously abhors.

As for the Economy Act, it only permits the Park Service to transfer rights it has to an agency.  Since it had no right to build the ballroom, it could not authorize EXR to do it.  And since EXR is not an "agency", the Service also could not transfer the gifted funding it claims to be receiving even if it had the right to build.

As I said, this is an easy case.

So why is Roberts delaying?

Two reasons.

First, the National Trust could bring this case only because it had "associational standing", about which a couple of  things can be said.  

One is that the doctrine itself has been around for years and has unlocked the courthouse doors for numerous non-profits, groups and associations.  Think Friends of the Earth or the Sierra Club. The other is that conservatives hate associational standing.  Clarence Thomas wants the doctrine repudiated and the conservative who dissented in the DC Circuit, as well as the administration and its friends who filed amicus briefs, were adamant in arguing that the National Trust did not have it here.

Second, the six Republican appointees who now constitute the Supreme Court's conservative majority have made it a habit to avoid confronting Trump by staying injunctions prohibiting his conduct while the litigation on that conduct proceeds. 

Last week they did it in the ballroom case.  

This week they did it on Trump's executive order requiring the Department of Homeland Security to create lists of "confirmed" citizens in each state and DOJ to then investigate and prosecute state and local officials who distribute or count illegal mail-in ballots, which could be the ballots to or from those who are not on the HHS lists and who (so the Trumpists think) are not eligible to vote. The executive order also requires that the Postal Service initiate a proposed rule-making procedure that the envelopes for all outgoing mail-in ballots contain a barcode to enable tracking and that the Postal Service deliver mailed  ballots only from persons on the citizenship lists. The government admitted its citizenship lists would be incomplete.

Trump's mail-in ballot executive order was enjoined because it unconstitutionally interfered with the states' authority to regulate elections. But in a 6-3 vote, the Supreme Court stayed that injunction, holding that the states who sued lacked standing because Trump's order had no immediate effect on them and the possible but unknown future consequences were too speculative to count and therefore not ripe for judicial review at this time. (A second injunction against the order from a different court remains in effect and has not been appealed. But the only Supreme Court comment on the President's unconstitutional plan to suppress mail-in ballots is its 6-3 opinion staying that first injunction.)

In both the ballroom and the mail-in ballot case, the Court's de facto collective ability to forget who they are dealing with and pretend he is normal is truly astounding.  In the latter, Justice Jackson  understood this, concluding her dissent to the Court's stay with the following: "When the Government’s obvious goal is to interfere with the Plaintiff States’ practices and prerogatives in a manner that the Constitution does not authorize, it is both a serious legal error and a grave misuse of our equitable emergency powers to let the Executive proceed even one step further."  And in the former, the record is replete with misrepresentations and l'etat c'est moi assertions by Trump that should have made upholding the DC Circuit's decision an immediate no-brainer. 

At oral argument, the government admitted it was proceeding at warp speed to complete the ballroom and ultimately claimed -- contrary to its earlier express promises and basically as a middle finger to the judiciary --  that once up, the new structure could never come down. It also admitted the structure would have a "permanent adverse impact" because it would "depart from the  . . . architectural integrity of the White House" and “adversely alter the design, setting, and feeling of the White House ". Over time, its argument for the project morphed from the asserted need for a suitable place for state dinners (the larger ones are now held in tents on the south lawn and have been for years) to the claim that the exposed footprint where the east wing once stood is a security threat that can only be remedied with the above-ground ballroom. 

One would think the Secret Service and Army, both of which filed last minute declarations with the appellate court (itself anomalous because evidence is supposed to be presented to the fact-finding district court considering the injunction in the first place), would have thought about all of this before Trump unilaterally demolished the east wing and therefore has a plan in place to deal with the issue. 

But, according to Trump, apparently not.

Or at least not enough.

Chief Justice Roberts and his five conservative colleagues are pretending to be patient with a man whose claim to anyone's patience expired long ago.  Questions regarding standing and ripeness are judicial speed bumps that insulate the courts from false or premature controversies. They make litigation a last, not a first, resort. Ordinarily, this is a good thing.  As Trump has proven, however, merely apparent controversies with him are quite real and waiting before stopping him is dangerous. 

And as Justice Jackson has put it, "This is not a close call."

One hundred twenty-two years ago, Oliver Wendell Holmes, Jr. said "hard cases make bad law."

Today . . .

Easy ones do too.

ON COMPLACENCY AND COOL TEA

John Cornyn and Thom Tillis are current but soon to be former Senators from Texas and North Carolina, respectively.  

Cornyn's departure will have been involuntary.  He was defeated earlier this year in a Republican primary by Texas's ethically-challenged but Trump-loving (and Trump-endorsed) Attorney General, Ken Paxton. 

For his part, Tillis is leaving on his own accord.  

Sort of.  

He announced he would not run for reelection in June of last year.  At that time he was one of only two Republican Senators opposed to the administration's Big Beautiful Bill and was being vilified by Trump for that bout of legislative independence. In resigning, he avoided what almost certainly would have been a Trump-supported primary opponent, most of whom wind up doing rather well in today's MAGA/Trump controlled GOP.  

Just ask . . .

John Cornyn.

In any case, either armed or freed by incipient irrelevance to ignore Trump's on-going corruption, both men recently announced they would not vote to advance Trump's nomination of Todd Blanche as Attorney General out of the Judiciary Committee and onto the Senate floor.  

If it did not get out of committee, the nomination would have died.  

If it did, the GOP's 53-47 control would make Cornyn's and Tillis's opposition irrelevant.

This was a big deal and was driving Trump crazy.

In this corrupt Wizard of Oz presidency, Blanche is the guy pulling the strings for Trump. 

At the Senate Judiciary Committee hearing, his "I'm his lawyer, was his lawyer" Freudian slip broadcast his subservience to Trump. 

Far more damning, however, were the  on-going reprisal prosecutions Blanche as the acting head of DOJ has accelerated against Trump's enemies and the "settlement" Blanche rubber-stamped last May of Trump's bogus suit against the IRS.  

That law suit, which the federal judge in Florida overseeing it later condemned as "improper" and brought in "bad faith", became the artificial basis for the unapproved settlement that created the now-infamous $1.776 billion anti-weaponization fund for J6 insurrectionists and granted Trump, his children, his other relatives, his trusts,  his companies and any affiliated entities or individuals immunity from any on-going audits and penalties for tax liabilities. The immunity may be worth as much as $100 million.

Almost immediately after the anti-weaponization fund was announced, it was broadly condemned. 

AOC called it "outright corruption", and if you think her reaction was just left-wing hyperbole, Mitch McConnell said it was "Utterly stupid, morally wrong -- take you pick." Five lawsuits were filed to stop it and in one, a federal judge in Virginia preliminarily enjoined it. 

At that point, Blanche pretended the gig was up. DOJ announced it would comply with the court order and on June 1 Banche told the House they "were not moving forward with the fund, period." Given the source, however, the court was not satisfied. It demanded that assurance in writing, which the administration would not provide. 

Meanwhile, Blanche made clear that the tax immunity settlement was alive, and on July 13, the judge in Trump's IRS lawsuit (which Trump had discontinued the day before the "settlement" was announced but the court had subsequently reopened) issued an order stating the case and settlement were "the product of collusion". It found that Trump and the other plaintiffs had "pursued [the] lawsuit in bad faith for the improper purpose of  dishonestly advancing a political narrative" and referred the lawyers involved to their respective bars for disciplinary hearings.

In this context, Blanche appeared before the Senate Judiciary committee on July 15. At that hearing, though Blanche claimed the anti-weaponization fund was dead, Cornyn noted that "the president of the United States, who's the plaintiff in the lawsuit, ha[d] not agreed in writing to delete" it.  Later, a July 30 vote in the Judiciary Committee was postponed because both Cornyn and Tillis also wanted "clarification" on the immunity deal.

On Monday, the two holdouts said they had gotten the needed clarification and agreed to allow Blanche's nomination to go forward.  This apparently came in the form of two documents Blanche posted on Sunday night.  In the first, which he signed, Blanche formally rescinded the anti-weaponization fund.  In the second, an unsigned DOJ statement, the department said the immunity deal was only retroactive and only covered the plaintiffs in Trump v. IRS and not any unnamed parties or relatives.

This is what passes for courage in the Republican party these days.

In fact, however, it is just complacency.

According to behavioral psychologists, complacency is "a natural byproduct of the brain's tendency to automate repetitive tasks."  As Daniel Kahneman, the Israeli-American expert in this field, explained in his Thinking, Fast and Slow,  we are hard-wired to turn thinking that must be deliberate and analytical (or slow) into that which can be made routine and automatic (or fast). Usually this works.  Our careful and deliberate assessment of a new situtation can over time become more immediate as it recurs. 

This can be true even in relationships.

Where initial analytic hesitancy can be replaced by automatic routines borne of repeated trust.

The criticism that first created an "I wonder if she really likes me" can much later turn into a "She's saying it because she loves me."

Sometimes, however, we get it wrong.

We substitute routine for analysis.

The fast for the slow.

And we fail.

John Cornyn and Thom Tillis just failed.

The promise they got is riddled with holes that both Trump and Blanche in the future will willingly exploit.  On the anti-weaponization front, that agreement between Trump and the IRS is in a writing that says it can only be modified in another writing.  Trump and the other plaintiffs never signed any modification.  Trump has appealed the Florida decision (which prohibits the parties from calling their deal a "settlement" and refers the lawyers to state bar disciplinary committees), and still thinks all the J6 insurrectionists who ransacked the Capitol in the service of his 2020 election lie were victims who deserve compensation. The J6 insurrectionists themselves are anxious to cash-in on this insistence and Trump can just as easily pay them via tort claim settlements as through his now (supposedly) defunct anti-weaponization fund.

The immunity deal is even worse.

Even as limited by the department's unsigned Sunday statement, it is a massive, underserved windfall to Trump, his two sons Don Jr. and Eric, and the entire Trump Organization. Cornyn's and Tillis's demand that its retroactivity be confirmed was in truth pointless since by its terms it already was, and the "get" they got in the form of restrictions to just the plaintiffs does not remotely minimize the deal's inherent corruption.

So why did Cornyn and Tillis give up?  

Both of them are leaving office and Trump had no continuing leverage over them.

The answer is . . . 

Complacency.

They decided that  the routine act of blocking a nominee in committee could result in what otherwise would be the needed concessions.  

Because with any other president it would have.

But not this one.

A deliberate analysis would have made clear that the needed concessions were (i) eliminating any possible payments to J6 insurrectionists and (ii) tearing up any immunity deal of any sort. It would have entailed  a long, slow process in which  Trump would have had to cave and save Blanche's current nomination but give up both the anti-weaponization and immunity deal, or he would have had to take his chances on retaining control of the Senate in order to renominate Blanche next year. 

Neither of these options appealed to Trump, mostly because, however much he cared about compensating J6 insurrectionists or retaining his personal attorney as the nation's Attorney General, he cared much more about preserving his windfall tax immunity.  And it is not clear that any lawyer other than the hopelessly compromised Blanche would be willing to preserve it.

The Senate is supposed to be the enemy of complacency.

It is slow by design.

During the founding era, Thomas Jefferson reportedly called upon President Washington. As the two drank tea and Jefferson poured his into a saucer, he asked "Of what use is the Senate?"  Washington explained that Jefferson was "answering [his] own question" and then asked "Why do you pour your tea into the saucer?" When Jefferson said "To cool it," Washington replied "The senate is the saucer into which we pour legislation to cool."

All Cornyn and Tillis had to do was wait.

But they didn't.

Instead . . .

They threw out the saucer.

And pretended the tea had cooled anyway.

THE FOURTH OF JULY

America celebrates its 250th birthday tomorrow.

It is an interesting number.

At two hundred fifty years of age, we have outlived Athenium democracy by sixty-three years but are only a little more than half way to matching the Roman republic's almost five century life span or the Republic of Florence's four hundred fifty four years. By these measures, America can claim to be  either the oldest surviving democracy  or a middle-aged republic.  

So . . .

What should be celebrate?

An historic milestone?

Or a mid-life crisis?

I vote for . . . 

Neither.

On Wednesday I went to a program at the Old State House in Hartford sponsored by the Connecticut Democracy Center. The program featured re-enactors from Connecticut's Revolutionary era and a presentation on the history of that era from Central Connecticut State University Professor Matthew Warshauer.  

The re-enactors played the state's pre- and post-revolutionary Governor Jonathon Trumbull and its most notable founder Roger Sherman.  Trumbull, who served from 1769 to 1785 and thus two putative sovereigns, was the only colonial Governor to support American independence, and Sherman signed all four of the Revolutionary period's central documents -- the Articles of Association, the Declaration of Independence, the Articles of Confederation, and the Constitution. Professor Warshauer painted a vivid picture of Connecticut's contribution to American independence. He claimed  that contribution was "indispensable", and in both his presentation as well as an enlightening reprint of an article he previously wrote and made available, he laid out the series of acts that made it so. 

Under Trumbull, Connecticut became the "Provisions State". It sent desperately needed men to Washington's Continental Army and, perhaps even more importantly, desperately needed food to feed the General’s oft-times starving soldiers. (Though not mentioned in Wednesday's talk, Trumbull also embraced what today we would call big government -- he controlled inflation by limiting the amount of paper money in circulation in the state and by increasing taxes, and he supported embargoes to protect the supplies of materials needed for the war effort.)

For his part, Roger Sherman, the man of many formative documents, appeared to know the outcome of the struggle had to be independence avant la lettre. In July 1775, he wrote Gov. Trumbull's son, Joseph, that "after . . . Concord and Lexington . . . I hope every Colony will take Government fully into their own hands until matters are settled." As Prof. Warshauer explained in his monograph, "Whether Sherman thought settled matters might ultimately include a return to British rule is unclear, but he very soon after was appointed by the Second Continental Congress to the important committee on the regulation of trade . . . and had to consider the question of independence in March 1776 because any agreement for foreign trade 'would imply independence.'"

During this period, Prof. Warshauer continues, "the dominoes of American colonial independence began to fall." Thomas Paine's Common Sense was published in January 1776 and, Warshauer notes, became an instant best seller "with 120,000 copies printed in the first three months and 500,000 in twenty-five editions by the end of 1776." Historians estimate that, for every published version, there were four readers. Because the pamphlet was also serialized in newspapers, including in the Connecticut Courant a mere month after publication, and the country's 2.5 million inhabitants were highly literate, the likelihood is that almost all American adults read its "unadorned, no nonsense style about the situation . . . America found itself in after a decade of opposition to Parliament following the 1765 Stamp Act, the closing and occupation of Boston by British troops, and the bloodletting that had occurred at Lexington and Concord . . . and then . . . at Bunker Hill". 

With Paine, they concluded . . .

"'Tis time to part.'"

On June 7, 1776, Virginia's Richard Henry Lee formally asked the Second Continental Congress to declare "That these United Colonies are, and of right ought to be, free and independent States . . .  absolved from all allegiance to the British Crown".  

On June 8, Connecticut's General Assembly adjourned for the year. On learning of Lee's request, however, Gov. Trumbull called them back into session on June 14. In mere days, they wrote the colony’s own Declaration of Independence and by June 20 had it delivered to their Congressional delegates in Philadelphia, Roger Sherman included. As Prof. Warshauer pointed out, that Declaration and those from other colonies and towns throughout America so anticipated Jefferson's, "utilizing many of the same words and phrases . . . and certainly much of the intent”, as to make the Virginian’s famous version a compilation as much as a  creation.

Either way, it was a singular document.

At the end of his talk, Prof. Warshauer told us what he does every year to celebrate the Fourth of July.

He re-reads the Declaration of Independence and Frederick Douglass's "What To The Slave Is The Fourth of July".  The latter was Douglass’s address to the Rochester Ladies' Anti-Slavery Society in June 1852.

The professor advised we all do the same.

So I did.

It is good advice. 

It shouldn't replace parades, fireworks,  barbecues, the Boston Pops or whatever DC celebration PBS will broadcast this year.

But it doesn't take long. 

And it is as important or, dare I say, more important than all those alternatives.

In reading Jefferson's Declaration of Independence and Douglass's Anti-Slavery Society Address side by side, the documents share many features.  The most obvious similarity is that they are both briefs. They make arguments.

For most Americans,  the line we remember from the Declaration of Independence is the famous one, the one Walter Isaacson dissects in The Greatest Sentence Ever Written:

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the Pursuit of Happiness."  

The line is, of course, great. 

And it is fundamental. 

It is also revolutionary. 

And not just politically.

It elided the on-going debate over what was knowable.  Its reliance on what was  "self-evident" tied truth to experience without making it unduly contingent. This wasn't a stand based on Plato's forms, St. Thomas's Summa, Descarte's cogito, or even Hume's skepticism. Instead, inserted as an edit to Jefferson's draft by Benjamin Franklin, it was a piece of American pragmatism that allowed us to understand truths without fretting over whether they were divine or mathematical, and then act on them without pretending they were dubious.

This was important.

For two reasons.

First, though God is mentioned for the first time in the third clause of the greatest sentence, the truths are knowable by us without assistance from Him. We know them because we live them, see them and feel them.  Second, although the Creator -- whoever that uspecified He, She or It may be -- is acknowledged as the source of those endowed "unalienable Rights" --  "Life, Liberty and the Pursuit of Happiness -- we know them for the same reason . . .

They too are self-evident.

They weren’t revealed by a Church, granted by a King or conjured from an abstract thought.

They were just evident. 

And in America, all you had to do to understand this  was . . . 

Live there.

Going into battle from this impregnable fortress, Jefferson then launched his central structural claim and "legal" argument.  

The claim was that "Governments are instituted among Men, deriving their just powers from the consent of the governed" and could be changed "whenever any Form . . . becomes destructive of these ends."

The argument was an eighteen point itemized bill of particulars that catalogued King George III's "long train of abuses and usurpations" and justified American independence.  

The bill was detailed. Among others, it indicted the King for shutting down the governments and courts the Crown had accepted for over a century; for quartering a standing army of soldiers "in time of peace" and "imposing taxes without our consent"; and for sending "large Armies of foreign mercenaries" to suppress the colonists' justifiable insurrection.

Seventy-six years later, Frederick Douglass delivered his "What To The Slave Is The Fourth of July" address to the Rochester Ladies' Anti-Slavery Society. 

It too was an argument.

And it too started with self-evident truths.

For him, the Declaration of Independence was '"the Ringbolt to the chain of [America’s] destiny."

"The principles in that instrument” were, he argued, “saving principles."

"Stand by those principles," he implored his audience.

“Be true to them on all occasions, in all places, against all foes, and at whatever cost . . . Cling . . . to [them] with the grasp of a storm-crossed mariner to a spar at midnight."  

They were non-negotiable. 

Then he praised the Founders.  

"They seized upon eternal principles,” he said, “and set a glorious example in their defence."

But, he admitted, that was then.

And his "business" was now.

“Why am I called upon to speak here today,” he asked.

“What have I, or those I represent, to do with your national independence?”

“Are the great principles of political freedom and of natural rights, embodied in the Declaration of Independence, extended to us?”

The answers were self-evident.

They were not.

The revered Declaration was  a fraud.

"The sunlight that brought life and healing to you," he intoned, "has brought stripes and death to me. The Fourth of July is yours, not mine. You may rejoice. I must mourn.”

His subject, he said, was “AMERICAN SAVERY.” On it, he would “not hesitate to declare . . . that the character and conduct of this nation never looked bleaker . . . than on this Fourth of July.” And by virtue of it, “America [was] false to the past, false to the present, and solemnly binds itself to be false to the future."

"What, to the American slave, is your Fourth of July," he demanded.

That too was self-evident. 

It was:

"[A] day that reveals to him, more than all other days in the year, the gross injustice and cruelty to which he is the constant victim.  To him, your celebration is a sham; your boasted liberty, an unholy license; your national greatness, swelling vanity."

He was not finished.

Before the ladies could leave, he condemned America's internal slave trade in which "millions were pocketed every year by dealers in this horrid traffic"; its recently-enacted  Fugitive Slave Law that effectively nationalized slavery and incentivized judges to decide cases in the slaveholder's favor; and its churches, which refused to condemn that law and thus "convert[ed] the very name of religion into an engine of tyranny." 

"The existence of slavery," he told them, "brands your republicanism as a sham, your humanity as a base pretense, and your Christianity as a lie."

With all that, however, he ended "where" he "began”.

And that was  “with hope."

" [M]y spirit is . . . cheered by the obvious tendencies of the age,” he explained. “Nations do not now stand in the same relation to each other as they did ages ago. No nation can now shut itself up from the surrounding world . .  . Oceans no longer divide . . . Space is comparatively annihilated. Thoughts expressed on one side of the Atlantic, are distinctly heard on the other."

In that world, he concluded, all would draw "encouragement from 'the Declaration of Independence'" and "the great principles it announces.”

So . . . 

What is Prof. Warshauer celebrating this and, so he says, every Fourth of July?

Perhaps it is the reality that our capacity to deceive must be acknowledged alongside our capacity to inspire . . .

That self-denial can kill self-evident . . .

That none of us are equal until all of us are . . . 

And that, however unalienable those Rights may be . . . 

The Creator who endows them exists alongside  . . . 

The Devil who would destroy them.

We celebrate independence tomorrow.

But we must fight for it every day.

And, perhaps now more than ever, that too is . . .

Self-evident.

Happy Fourth.

RANDOM THOUGHTS THIS (ALMOST) SUMMER

If Trump receives the Nobel Peace Prize, it will be the first time someone wins it for stopping a war he started.  

In that case, maybe it should be called the "Second Thoughts Prize".

Or, in his case, the "I Don't Want To Be Herbert Hoover Prize".

If, as JD Vance claims, the just-signed Memorandum of Understanding (MOU) between the United States and Iran is such a great deal, how come Trump's partner-in-crime, Netanyahu, doesn't think so?

If the MOU fails and Trump blames JD Vance, I will feel sorry for the Vice-President.

Because he wasn't really for the war in the first place.

If the MOU fails and Trump blames JD Vance, I will also laugh at the Vice President.

Because we all know loyalty is a one-way street with Trump . . .

And responsibility is something  he never accepts . . .

And Vance knew all this when he signed-up.

If Trump tries to run for president again and the Supreme Court allows it, I will be shocked.

But not surprised.

Because a Supreme Court that granted him criminal immunity cannot be trusted to enforce the 22nd Amendment's two-term limit.

If Trump tries to run for president again and the Supreme Court allows it, Democrats should resurrect Barack Obama and make him their nominee.  

Because, as Obama demonstrated at his presidential center opening today, he's still got it. See https://www.youtube.com/watch?v=QEAmx1vsuMo.

If Trump tries to run for president again . . . and the Supreme Court allows it . . .  and the Democrats . . . being Democrats . . . still want to honor the Twenty-Second Amendment's two-term limit, they should run Michelle Obama. 

Because, as demonstrated by her speech at the opening of the Obama presidential center today, she'd waste him.  See https://www.youtube.com/watch?v=v8mGupg83tQ.

Come to think of it, regardless of who the Republicans run, the Democrats should run Michelle.

If, á la General Sherman, she says "If nominated I shall not run, if elected I shall not serve," they should ignore her.

Because she's too good to be on the sidelines.

And the country is too far gone to let her.

If the Democrats win the mid-terms this year in a wave election that gives them a 20-30-member advantage in the House, it will prove gerrymandering does not really matter.

If the Democrats do not win the mid-terms this year in a wave election that gives them a 20-30-member advantage in the House, or if they win with only a small majority, either result will prove gerrymandering does really matter.

My hope is with the first.

But my bet is on the second.

If Bill Pulte ever actually serves as the Director of National Intelligence and does not weaponize the position against Trump's enemies, I will be speechless.

Because that is the only reason Trump is sending him there.

If, as the polls report, 16% of the country actually approved of Trump's South Lawn, cage-side UFC birthday/blood-fest grift, replete with the (predictable) racist slur from Josh Hokit, the people who make up that group of supporters should be identified.

Because my soon to be two-year-old grandson must know who to ignore as he grows up.

If George Conway wins the Democratic nomination for Congress in NYC's 12th Congressional district next week, I will congratulate him.

Because courage is rare and needs to be recognized.

If Jack Schlossberg wins the Democratic nomination for Congress in NYC's 12th Congressional district next week, I will congratulate Democratic primary voters.

Because whoever the Democratic nominee is in that district, he will win the November election . . .

And the only Kennedy holding public office these days should not be RFK, Jr.

MEMORIAL DAY 2026 — NOT THIS

On Tuesday, Acting Attorney General Todd Blanche testified before the Senate Appropriations Committee.

In that testimony, Blanche attempted to defend DOJ's settlement of President Trump's suit against the IRS for allegedly disclosing a portion of Trump's tax returns. 

In the past, Trump has pledged to disclose those returns but said he could not because of pending audits. In 2019 and 2020, portions of those returns were leaked, not by the IRS but instead by a government contractor who has since been prosecuted and sentenced to five years in jail for doing so. Nonetheless, and as is his wont as a forever victim, this past January -- more than six years after the disclosure -- Trump sued for $10 billion, claiming the IRS was negligent in not protecting his returns from the illegal leak. 

The suit was likely to be dismissed as barred by the two-year statute of limitations. The Court itself was troubled by the absence of true adversity given Trump's control of the defendant he was suing, and had ordered briefing by Wednesday on whether there was a real case in controversy. Without that, the Court had no jurisdiction and the suit could not proceed.  Trump and the DOJ, however, short circuited this entire process by agreeing to settle.

And what a settlement it was.

In return for Trump dropping his stale claims, the government agreed to take $1.776 billion from the DOJ's judgment fund, a permanent, indefinite appropriation that covers judgments against the United States, and set up a separate account run by five people appointed by the Attorney General (one in "consultation" with Congress) who will then decide claims made by any who think they were victims of, as Blanche put it, "lawfare and weaponization".  

Those supposed victims are likely to include the January 6 insurrectionists pardoned by Trump on the first day of his second term, and may even include the president himself, who (falsely) believes he was also a victim of lawfare and who will now appoint people beholden to him to rule on any such claims and distribute pay-outs on them. 

This separate account will last until December 2028 and then end just as Trump's term is set to end. No other president will appoint any Attorney General who in turn would appoint the five people to manage the account and rule on any claims.  

Not coincidentally, therefore, critics are calling the account a slush fund Trump will control and use to reward and pay off his previously pardoned insurrectionist allies . . .

And himself.

Separately, the agreement also precludes the government from auditing Trump's, his family's or any of his affiliates' tax returns, and from prosecuting any actions for tax fraud or back taxes against them.  This part of the deal relieves Trump of what experts estimated was a potential $100 million liability, and was so offensive that DOJ did not even disclose it until after Blanche had testified. 

Whether DOJ had any right to enter into this settlement is not remotely clear.

Under applicable regulations, DOJ can only settle "actual or imminent litigation" and -- as opponents have argued -- "a feigned or collusive suit over which no court has jurisdiction -- to say nothing about one that has been voluntarily dismissed to avoid a jurisdictional ruling -- is not 'actual or imminent litigation.'"  The settlement itself was not made a part of the record or reviewed by the judge supervising Trump's suit against the IRS, and in dropping it, Trump asserts that judge now has no further authority. 

So . . . 

To recap . . .

A collusive and dismissible law suit was settled in return for the creation of a $1.776 billion fund Trump's appointees will control to decide whether pay outs should be made to, among others,  J6 insurrectionists who were alleged victims of lawfare . . .

The Trumps writ large have been granted immunity from and no longer have to worry about past tax liabilities . . .

No court will approve of the settlement . . .

And no court will review any payments made from that $1.776 billion fund.

This is corruption on steroids.

But it is also typical Trump.

The Republican defense of the deal is that it is a version of what President Obama did in Keepseagle v. Vilsack in 2011.  In that case, a court-approved settlement of a class action alleging discrimination against Native American farmers and ranchers created a $680 million settlement claims fund. After all the claims had been paid, however, $380 million remained undistributed. 

As CNN's Tierney Sneed and Devon Cole explained yesterday, because the Keepseagle  settlement said nothing about how to handle undistributed amounts, the parties negotiated a separate deal to distribute those unpaid funds to other groups -- none of which had filed lawsuits or were parties to the original one -- that served Native American farming and ranching communities. 

That separate agreement was court-approved. 

The subsequent pay outs were also court-monitored.

And, as the attorney who represented the plaintiffs noted in distinguishing that case from Trump's IRS deal, "The really . . . critical issue [is you] have to serve the same community whose interests were at stake in the litigation that was brought."  

Here, the claimants eligible to be paid from Trump's $1.776 billion "Anti-Weaponization Fund" are not limited to those whose tax returns were improperly publicized.

On last Sunday's edition of ABC's This Week, George Stephanopoulos asked SCOTUS-blog editor Sarah Isgur if she expected the administration to "go through with" the Anti-Weaponization Fund deal, which at that point had not been announced. Noting "they certainly expect to", she explained that "this started during the Obama administration with third party settlements. This idea that a friendly group would sue, they would settle it. And [as] part of the settlement you would pay to a third party that was friendly to the administration."

"People were decrying that at the time," she continued, but "like everything else, whether it's executive orders, sue and settle, third party settlements, Donald Trump just turns it up to eleven."

So . . .

Now we know.

FDR gave us the "New Deal".

Truman, the "Fair Deal".

Kennedy, the "New Frontier".

Johnson, the "Great Society".

With Trump, we get the "Turns It Up To Eleven Deal".

In 2000, Vice President Gore thought he won the presidential election, sued to have the vote in Florida recounted, lost in the Supreme Court, and then went home.

In 2020, President Trump thought he won the presidential election, sued and lost sixty cases trying to reverse the result, asked state officials to find votes for him in Georgia, created false electoral college slates in seven states he lost, demanded that Vice President Pence either send the election back to those states for a certification on Trump's behalf or send it to the House of Representatives where he would have won, told his followers on January 6 that Pence could do this and they should to go to the Capitol and "fight like hell" to make him, and then happily watched as those followers ransacked the place, attacked and seriously injured Capitol police, threatened to kill Pence and Speaker Pelosi, and stopped the certification of Joe Biden's unquestionable victory.

In 2016, after Justice Scalia died on February 13 and the Senate refused for nine months to even hold a hearing on and consider President Obama's nomination of Merrick Garland to replace him, candidate Trump supported this unprecedented delay on the grounds that the next president should make the appointment.

In 2020, after Justice Ginsburg died on September 18,  President Trump demanded that the Senate immediately confirm Amy Coney-Barrett, even though  early voting in that year's presidential election had already begun.

In 2003, President Bush claimed (as it turned out, inaccurately) that Saddam Hussein possessed weapons of mass destruction, sought Congressional authorization to eliminate that threat, and then went to war against Iraq.

In 2026, President Trump claimed (falsely) that either an Iranian attack against the US was imminent, or (again falsely) Iran was imminently able to create a nuclear weapon, or (which was false and may have presented an opportunity to the US but certainly no imminent danger) Iran's fascist theocrats would fall if he attacked, did not seek any authorization from Congress but went to war against Iran anyway.

In 2011, President Obama settled a class action and used the unspent portions of the settlement to fund, subject to court approval, non-party organizations whose missions closely tracked those with whom the government had settled.

In 2026, President Trump "turn[ed] it up to eleven" and settled his own dismissible claims against the IRS by extorting immunity on any tax liability and creating a fund to pay on third-party, non-tax lawfare claims his appointees will rule on, no court will supervise, and for which no disclosure is required.

Memo to AAG Blanche: Ask your boss if he intends to disclose his tax returns now that an audit no longer exists.  

Looking forward to your response. 

Not holding my breath.

We celebrate Memorial Day next Monday, May 25.

In 1994, Michael Anania wrote a poem called "Memorial Day".

Here it is:

    It is easily forgotten, year to

    year, exactly where the plot is,

    though the place is entirely familiar --

    a willow tree by a curving roadway

    sweeping black asphalt with tender leaves;

    damp grass strewn with flower boxes,

    canvas chairs, darkskinned old ladies

    circling in draped black crepe family stones,

    fingers cramped red at the knuckles, discolored

    nails, fresh soil for new plants, old rosaries;

    such fingers kneading the damp earth gently down

    on new roots, black humus caught in grey hair

    brushed back, and the single waterfaucet,

    birdike upon its grey pipe stem,

    a stream opening at its foot.

    We know the stories that are told,

    by starts and stops, by bent men at strange joy

    regarding the precise enactments of their own

    gesturing. And among the women there will be

    a naming of families, a counting off, an ordering.

    The morning may be brilliant; the season

    is one of brilliance -- sunlight through

    the fountained willow behind us, its splayed

    shadow spreading westward, our shadows westward,

    irregular across damp grass, the close-set stones.

    It may be that since our walk there is faltering,

    moving in careful steps around snow-on-the-mountain,

    bluebells and zebragrass toward that place

    between the willow and the waterfaucet, the way

    is lost, that we have no practiced step there,

    and walking, our own sway and balance, fails us.

In 2026, America has "forgotten . . . where the plot is".

And "since . . . the way is lost . . . we have no practiced step . . .  and walking, our own sway and balance, fails us."

Though not ever thus in our lifetime as a nation, it has been for a while. The sway and balance of normal politics has been lost, replaced by violent losers, corrupt winners, and a coven of enablers in robes or courtiers in Cabinet and Congress pretending to clothe an otherwise naked emperor.

Those who died in all our wars and on all those battlefields fought for many things.

But not this.

LOSING

My favorite team, the New York Mets, is on a tear.

And not in a good way.

This was not supposed to happen.

The Mets are run by Steve Cohen, their hedge funder and mega bucks owner. The team's $369 million payroll is second only to the Los Angeles Dodgers and exceeds that of their cross-town rivals, the perpetually well-funded Yankees.  This year they were expected to be in the play-offs and some even realistically hoped for  a world championship, something that has not happened in forty years.  

But the season is not even a month old. 

They are 8-16.

And they have lost twelve of their last thirteen games.

The losses themselves amounted to a streak.

As in twelve in a row.

In April.

In yesterday's Wall Street Journal, Jason Gay noted that the Mets' twelve game losing streak was their second longest. The first one, however, didn't really count.  It occurred in 1962 when the first-year Mets, a team of cast-offs and past-their-prime veterans others in the league were willing to give away in a one-time expansion draft, lost seventeen in a row.  In those days, the Mets were hapless but loved and New Yorkers in mourning from the loss in 1958 of their beloved Brooklyn Dodgers (and less loved New York Giants) showered them with affection. That affection, however,  had nothing to do with the quality of play. 

In their first seven seasons, the Mets finished last five times and second to last twice. In none of those seasons did their wins exceed their losses and in 1962, their seventeen-game losing streak was matched by three other eleven-game ones.  

Nevertheless, fans supported them in the only real way fans can.

They showed up.

In record numbers.

In those first seven years, initially at the Polo Grounds in upper Manhattan and then at Shea Stadium in Queens starting in 1964, their attendance records placed them second in their ten-team league three times, third in the league twice, and fourth and sixth, respectively, once. 

1969, of course, was the year of the miracle Mets. 

That year they actually led the league in attendance. And from then until 1972, when they won their second pennant and were genuinely competitive, they were also first.  Thereafter, however, the gravity of expectations asserted itself.  When they were winning in the '80s, the fans showed up in record numbers.  When they were losing in the mid to late '70s and '90s, those numbers were at the bottom of the pack.  

The 1966 and 1977 teams captured this dichotomy. 

Both teams had virtually identical records -- 66-95 for the first, 64-98 for the second. But the '66 team  in the franchise's era as lovable losers finished second in attendance while the '77 team following the era of genuine success finished tenth.  

And since then that pattern has prevailed. 

In fact, as ownership via the Payson family changed starting in 1980 and has thereafter cycled through various well-funded corporate or individual Doubledays, the Wilpons and their Sterling Equities, and now the hedge funder Cohen, it has solidified.

Loveable losers no more, today's Mets are fielding the best players money can buy.

They are not expected to regularly lose.

And they certainly are not expected to make it a habit.

In his column in the Journal, Gay explained "There's nothing quite as dreary as a baseball team that takes itself out of contention before the kids get out of school.  As Yoda Yogi said, it isn't over until it's . .  .  well, you know the rest." 

But, he warned, "These are the Mets." 

They were the best team in baseball through June of last year and then imploded in the second half and sacrificed a play-off berth on the season's last day. Long after their infancy, similar crushing declines have been the franchise's fate in the past, and no team has ever lost twelve in a row and made it to the play-offs. 

So, Gay concluded . . .

 "It might be."

Over, that is.

Pace Yogi Berra.

Today, something similar is happening in the country.

In another piece in yesterday's Wall Street Journal, the paper editorialized against the Food and Drug Administration's rejection of Replimune's RP1 drug.  The drug is considered a "life-saving" treatment for "metastatic melanoma."  Though the initial panel that reviewed RP1 approved it, that recommendation was later overruled by the FDA's biologic chief, Vinay Prasad.  According to the Journal, "After an uproar among oncologists, the FDA last fall agreed to reconsider" that disapproval. It then adhered to its initial rejection.

At a hearing last Thursday, Secretary of Health and Human Services Robert F. Kennedy, Jr. testified that he supported the reconsidered rejection. He claimed Replimune "only did a 'one armed trial, and all the people who were tested also received a chemotherapy drug, so we don't know what the effect was.'" In fact, however, as the Journal noted, "No patients in the trial received chemotherapy." Instead, "they were given the RP1 oncolytic virus therapy, in addition to an anti-PD-1 immunotherapy that is a first-line melanoma treatment.  However, the cancer had worsened for all patients in the trial on an anti-PD-1 immunotherapy, so it would have thus been unethical to give some patients an anti-PD-1 drug alone merely to serve as a control group."  

As the Journal also explained, "RP1 was given in combination with an anti-PD-1 drug because its aim is to activate the immune response, and in doing so overcome resistance to other immunotherapies.  FDA reviewers would have understood all this had they consulted melanoma doctors who tell us the RP1 rejection makes no sense and will cost thousands of lives."

Unfortunately, making "no sense" appears to be American policy these days.

On the war with Iran, the administration's views and policy appears to change by the day if not the hour.  One day the war is over, the next there are threats to resume it. One day peace talks are going forward, the next they are suspended. One day the ceasefire is extended, the next it is about to expire. 

On a number of occasions, Trump has explicitly told us Iran agreed to any number of things -- giving up its uranium stockpile, opening the Strait of Hormuz -- that Iran then tells the world it has not agreed to. One day ships can move through the Strait. The next they are attacked in it.

The economic turmoil caused by the war is not going away anytime soon.  

Gas is about $4 per gallon across the country, which the administration now concedes is likely to be the case into 2027. Inflation has reemerged as the energy supply chain deals with the war's eruption. And America's allies are hedging their bets against whatever unpredictable (or unhinged) step Trump decides to float (usually via a Truth Social post at two in the morning).  

Meanwhile, the Pope is praying for peace and condemning those who "manipulate religion and the very name of God for their own military, economic and political gain, dragging that which is sacred into darkness and filth."  

In response, JD Vance has invoked St. Augustine's support for "just war" and said the Pope should be "careful when he talks about matters of theology."

The Pope is an Augustinian. 

He is more than familiar with the saint's "just war" theory. 

As Washington DC's Cardinal Robert McElroy has explained, to be just, a war must satisfy three criteria.  First, there must be "an existing or imminent and objectively verifiable attack by" the enemy, Second, the war must satisfy the criterion of "right intention."  Third, "the benefits" of the war must  "outweigh the harm."

While conceding "Iran's own morally despicable decision to target its neighbors in the region and spread the expanse of destruction," he argues that none of these requirements were met here.

Even under the administration's view, the imminence requirement was unmet.  There was no evidence Iran was about to attack us.

But the other two were not met either.

"One of the most worrying elements of [the] first days of the war in Iran," McElroy explained, "[was] that our goals and intentions [were] absolutely unclear, ranging from the destruction of Iran's conventional and nuclear weapons potential to the overthrow of its regime to the establishment of a democratic government to unconditional surrender."

"You cannot satisfy the just war tradition's criterion of right intention," he continued, "when you do not have a clear intention."

As to whether the benefits here outweigh the costs, he noted that "The potential disintegration of Iran could well produce new and dangerous realities . . . And the possibility of immense casualties on all sides is immense."

"Finally," he emphasized, "you must ensure that this war does not turn into a prolonged conflict, lurching from goal to goal and from strategy to strategy." 

"One of the most important Catholic teachings on war and peace is that nations have the strict obligation to end war as soon as possible.  This is particularly true when the decision to go to war was not morally legitimate.  There is a logic to war that presses onward, escalating in its dimensions and timeline. Our country has fallen victim to the logic of war in the recent past, especially in the Middle East.  We must all work together to forbid this expansionism to lead us into an ongoing morass in Iran."

Unfortunately, the administration is swinging and missing on much more than the war and RP1. 

A column by Thomas Edsall in Tuesday's New York Times sets out a laundry list of fatal consequences brought on by non-sensical policies.  To wit:

•  over 14 million deaths through 2030 due to cuts in U.S.A.I.D. funding.
• 30,000 expected deaths from the elimination or weakening of "30 major rules that seek to protect air and water and reduce emissions that cause climate change".
• terminated N.I.H. grants in 2025 "supporting 383 unique clinical trials, affecting 74,311 individuals".
• a disdain for renewable energy and the notion of climate change that puts "China . . . on track for 1,400 GW [of clean energy], while the US will reach only about 350 GW."
• a White House turned into "a corrupt enterprise" of pardoned donors as the president's "family's companies receive millions through cryptocurrency purchases from foreign  and crypto operators subject to US regulation." And finally . . .
• a "negative legacy" comprised of "the erosion of trust in the US by European and Asian allies; the erosion of US dominance of higher education; and huge budget deficits (not only due to Trump, but exacerbated by him)".

My baseball team is losing.

Which in the world at large is not a big deal.

But so is my country.

Which is.

CORNERED

Tonight at 8 pm EST we will know.

If he bombs Iran "back to the Stone Ages," he will be a war criminal. 

If he does not, he will just be a fool.

It's not a corner into which he has inadvertently backed himself.

It's the one in which he lives.