Rays of Hope

The Rule of Law Has Its Best Ten Days Since Trump Returned to Office

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Fridays are usually reserved for lighter fare—shorter, less somber, often accompanied by a fun contest and a Talking Feds mug. Today’s essay is lighter in a different sense: less grim and foreboding. The last ten days have brought a cluster of ten genuinely encouraging developments for the rule of law—some in the courts, some at the ballot box, and one from the jury system.

No illusions, of course, that we’re out of the woods. Just yesterday, the Supreme Court issued its twenty-fourth consecutive emergency ruling for the Trump administration—this one in Trump v. Orr, authorizing the administration to put into effect, while the case proceeds on the merits, the policy that passports must list a person’s biological sex at birth. The Court’s cramped logic—that sex, like birthplace, is merely “historical fact”—drew a pointed dissent from Justice Jackson, who also called out the majority’s “unfortunate pattern” of ignoring the standards for overturning stays.

Still, the last ten days—days 283-292 of Trump’s second term—have to be the most hopeful stretch since Trump returned to office. Taken together, these developments give breath to the prospect that the country’s legal and civic immune systems, though battered, are not beyond repair.

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1. The Ninth Circuit Reaffirms Limits on Emergency Powers

Ten days ago, the full Ninth Circuit vacated a divided panel decision that had overturned Judge Karin Immergut’s ruling curbing Trump’s claimed emergency powers under 10 U.S.C. § 12406. Immergut had written that deference cannot extend to factual assertions “completely untethered to the facts.” Her reasoning—shared by courts in Illinois and California—rejects the administration’s fantastical claims that blue-state cities are “in rebellion.”

By reinstating Immergut’s analysis, the Ninth Circuit effectively endorsed her view that presidential declarations of emergency are subject to real judicial scrutiny. The decision gives momentum to a line of reasoning that is now before the Supreme Court in Trump v. Illinois.

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2. The Supreme Court Issues a Heartening Order in Trump v. Illinois

When the Court accepted the administration’s emergency application in that case, many feared the Court would endorse Trump’s efforts to gain and exploit emergency powers even when the justification was based on lies.

Instead, it issued an unusual supplemental-briefing order that signaled division and genuine engagement. The justices asked specifically about the phrase “regular forces” in § 12406—an invitation to grapple with the statutory text rather than rubber-stamp Trump’s invocation of emergency powers.

The order implicitly rejects the administration’s claim that such determinations are unreviewable and appears skeptical of its strained reading of “rebellion.” It also elevates Georgetown professor Marty Lederman’s persuasive amicus argument that “regular forces” means the standing U.S. military—a definition that would undercut Trump’s entire rationale. The structure of the order suggests Chief Justice Roberts is at least open to joining a bloc that resists the administration’s maximalist view of executive authority.

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3 & 4. The Comey and James Prosecutions Falter

The administration’s prosecutions of James Comey and Letitia James—both resting on the legally dubious appointment of Trump loyalist Lindsay Halligan as U.S. Attorney—are collapsing under judicial scrutiny. Courts in other jurisdictions have already found similar appointments unlawful under 28 U.S.C. §§ 541 and 546 and the Vacancies Reform Act, statutes meant to prevent presidents from bypassing Senate confirmation.

The victories for the rule of law came in the form of sharp judicial pushback against the administration’s ham-handed attempts to elude court orders. In these cases, judges have rejected the government’s evasions and ordered full grand-jury disclosures, including Halligan’s own statements, which prosecutors initially withheld. The defiance infuriated the courts and further eroded the Justice Department’s credibility. What began as headline-grabbing indictments is devolving into a pattern of self-inflicted humiliation and a consensus that even the DOJ must follow the law.

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5. The Tariff Case: Justices Push Back on Boundless Power

In this week’s Supreme Court oral argument over Trump’s sweeping use of “emergency” tariff powers, even conservative justices seemed ready to draw a constitutional line. The administration’s claim—that the president can unilaterally impose tariffs anywhere he chooses—amounts to a transfer of Congress’s core taxing authority to the executive.

Justices Gorsuch, Barrett, and Kavanaugh all pressed hard on Solicitor General John Sauer, invoking the non-delegation and separation-of-powers doctrines and warning against a “one-way ratchet” of power flowing ever more to the presidency. If the Court ultimately rules against the administration, it would be the first full-throated rebuke of Trump’s emergency-powers theory and a landmark reaffirmation that Congress, not the president, controls the nation’s purse strings.

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6. Voters Reject Trump

Last week’s elections produced a stronger-than-expected Democratic sweep—a clear repudiation of Trumpism and a sign that public fatigue with authoritarian governance is growing. The results may finally weaken Republican lawmakers’ fear-based loyalty to Trump, especially if clinging to him becomes a political liability. The structural challenges remain—many GOP members occupy safe red districts—but public sentiment appears to be shifting, and with it the possibility of restoring some balance to Congress.

That’s a cause for celebration, not in partisan terms but among all supporters of constitutional rule. Anything that weakens Trump augments the potential survival of the rule of law.

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7. The Jury Acquits the “Sandwich Guy”

Even at the margins of political protest, juries are beginning to push back. Sean Charles Dunn, the so-called “Sandwich Guy,” was acquitted of assault after throwing a sandwich at a federal agent during a D.C. protest. The case had already proven to be an albatross for the Department after a grand jury declined to return a felony charge—a very rare event—and prosecutors were forced to proceed on a misdemeanor count. The Department’s humiliation deepened with the jury’s verdict, which rejected the administration’s heavy-handed prosecution and stood as a modest but meaningful reaffirmation of expressive freedom and proportional justice.

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8. Judge Calls out Administration’s “Unnecessarily Cruel” ICE Detention Facility

Yesterday, a federal judge in Chicago issued a blistering order against the government over conditions at the Broadview immigration detention center, calling them disgusting and unconstitutional, as they surely were. Testimony described detainees sleeping for days on floors beside overflowing toilets, without bedding, privacy, or regular meals—conditions the court compared to a “black site.”

The judge required the facility to provide beds, hygiene supplies, showers, and food—the bare constitutional minimum. Government lawyers, in their now familiar refrain, argued that complying would make immigration enforcement in Illinois impossible, a claim the court rejected out of hand. The scandal underscores the deep moral collapse of the country we and the world not long ago held out as a “city on a hill.”

In a pointed address, and a black eye for the country, the Pope, himself Chicago-born, urged “deep reflection” on America’s treatment of migrants. It’s even more shameful when you consider that the government’s crackdown on immigrants has been predominantly on people whose only offense has been, at most, some form of illegal entry perhaps decades ago, not at all the murderers, marauders, and pet-eaters Trump proclaimed. It is these people that we are treating worse than animals in conditions not even fit for barnyard animals.

9. Court excoriates Administration for “conscience shocking” tactics in immigration crackdown

And that brings us to just this morning, when a different federal judge in Chicago tore into the Trump administration’s excessive use of force in its anti-immigration operations. Judge Sara Ellis slammed the government’s use of tear gas, pepper balls, and flash‑bangs on peaceful protesters, journalists, and clergy “outrageous” and “shocking to the conscience.”

She issued a preliminary injunction banning these abusive practices while mandating body‑worn cameras. And she called out senior officials, including Gregory Bovino, for deliberately misleading the court. That again is a growing trend in the Trump era: courts, fed up with the Administration’s lies and squirreliness, refusing to credit the good faith of Administration lawyers. That kind of criticism would have sent shockwaves through the former Department of Justice, but Bondi and company have disabled the shock sensors since coming into power.

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10. Judge orders Trump Administration to fund SNAP … again

The government shutdown, now the longest in American history, has left 42 million Americans without access to SNAP benefits—the contemporary version of food stamps—that they depend on to feed their families. A federal judge ordered, again after issuing the same directive last week, that the administration use emergency funds to fully fund SNAP benefits for the month of November.

Judge McConnell was furious that his first order was ignored and accused the administration of inflicting “needless suffering.” His condemnation caps off a stretch in which the Administration has been repeatedly clobbered, particularly in the lower courts. Of course, their common strategy is to cry “emergency” and seek review in the courts of appeals, which is exactly what they’ve done here. We’ll track the Seventh Circuit response and tell you about it when it happens. But it’s one more heartening sign for now that the Administration’s lawless and cruel maneuvers just might founder in the end.

We published a great guest column on the SNAP scandal a couple days ago. Here’s the link if you missed it.

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There you have it – ten encouraging developments in the last ten days. This Substack has a name, coined from the first essays: Talking Feds: Constitution in Crisis. The last ten months have lived up to the name, chronicling a steady decline in the rule of law and constitutional democracy. During that time, it has felt as if all three branches—the Supreme Court, Congress, and the executive—were rowing in Trump’s direction, while the public looked on in weary resignation.

These developments don’t yet mark a clear turning point, but they point in that direction. Given the razor’s edge on which Trump’s governance rests, and the deep unpopularity of his presidency, it may not take much to shift the balance. The rule of law is still fragile and under assault; yet over the past ten days, a series of unconnected rulings and political jolts have begun to bend in the same direction. It’s a hugely welcome reminder that even after long decay, the habits of democracy can still stir themselves to action.

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Last week’s episode of Talking Feds featured a terrific roundtable of David A. Graham, Katie Phang, and Maya Wiley. We discussed the increasingly out-of-control federal presence in Chicago and elsewhere, the upcoming elections, and the warning signs that Trump may try to interfere with the midterms.

We taped this spooky discussion on Halloween morning. To celebrate, we asked our guests: What is the White House handing out to trick-or-treaters this year? Hear their answers at 55:43 and submit your own here for a chance to win a Talking Feds mug.

Our latest five-words-or-fewer winner was Sybil, with a brilliant answer of “Elvis impersonator only real king” to the question “to predict in five-words-or-fewer: what would be the craziest costume at the No Kings protests?” Kudos to Sybil! You have boasting rights already, and a member of our team will be in touch shortly to deliver your Talking Feds mug.

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Talk to you later.