Silver Linings Casebook
Lighter fare, a contest, and an opportunity for feedback
Friday is when we try—sometimes against stiff resistance—to end the week on an upbeat note. Even in periods of unsettling news, it’s worth pausing to notice when things don’t go as badly as they might have, or when decisions that nominally favor the Trump administration quietly embed important limits.
This week offered two such examples.
Start with the D.C. National Guard case. On its face, the decision went Trump’s way: the court of appeals allowed the Guard to remain under presidential control. But the reasoning mattered far more than the bottom line—and there, the opinion was quietly encouraging.
The court grounded its holding in the president’s unique authority over the District of Columbia, repeatedly emphasizing that D.C. is different. The panel strongly suggested that the president’s power to deploy or “borrow” National Guard units is far more constrained in the states—and that using Guard troops for law-enforcement purposes in a non-consenting state would be, in the court’s words, “constitutionally troubling.”
Equally notable, the opinion was unanimous, written by Judge Patricia Millett—an Obama appointee—and joined by Judges Neomi Rao and Gregory Katsas, both Trump appointees with a well-earned reputation for pushing the outer boundaries of presidential power. That Millett brought them along on a careful, limiting rationale is significant and suggests their willingness to draw the line against some of Trump’s more outlandish claims of executive authority.
The second silver lining came in the East Wing case. There, Judge Richard Leon—a George W. Bush appointee—allowed the administration to continue with below-ground construction on the White House complex. Again, a nominal win for Trump. But Leon held the administration to its word on something that matters much more: that any above-ground construction would go through the proper planning and review process. At the hearing, Leon made clear that this was not a casual assurance, telling the government that he would “hold them to it.”
That means that before Trump can dramatically and permanently alter the People’s House—before the marble, the columns, the Xanadu ambitions—there will be a public, legally mandated process that takes account of historic preservation, planning concerns, and the public’s interest in what happens to one of the nation’s most symbolic spaces. And that process will take time. Years, most likely.
So two rulings that technically favored the administration nonetheless reinforced constitutional boundaries, preserved procedural checks, and signaled that unilateral power has its limits.
For a Friday, that’s not too shabby.
And one quick final note, I did a YouTube video this morning about perhaps the most blistering opinion calling the admin to the carpet that we’ve yet seen, and by a Trump appointee, no less. In the video, I summarize Judge Brown’s granting of bail to an immigration detainee based on inhumane conditions, dishonest conduct, and failure to produce evidence.
To close out this week, we have our five-words-or-fewer contest winner to crown, a new contest to kick off this week, and an end-of-year-survey for a chance to win a year’s paid subscription free of charge.
Last week’s roundtable featured Alisyn Camerota, David French, and Jonathan Lemire for a discussion about whether Trump is finally losing his grip on the Republican Party. To wrap up the episode on a lighter note, we asked our guests, “What’s going to be the theme of Melania Trump’s White House Christmas decorations this year? You can hear Alisyn, David, and Jonathan’s answers at 51:38. You also can participate in the festive five-words-or-fewer fun by submitting your answer here for a chance to win a Talking Feds mug.
Last week, we asked you all to weigh in, in five-words-or-fewer, what will be the next thing we hear that Kash Patel is using taxpayer dollars to fund in his private life? The winner was Leah with her amusing answer of “picking up dog poop.” Kudos, Leah! A member of our team will be in touch shortly to arrange sending you a mug.
Finally, we’d love your input as we plan for the year ahead—please take a moment to fill out our end-of-year survey and help us make Talking Feds even better. One respondent will be randomly selected to receive a full year of a paid subscription, completely free.
Talk to you later.
I watched the Youtube video re the granting of bail to Aaron Clark. We have all the many instances now of DoJ attorneys lying to federal judges. The judges now know that they are doing it repeatedly. The judges seem to be content with endless rounds of fact finding, show causes, and the like. Why do they put up with it? They just don't seem willing to hold anyone accountable. Justice needs to be certain and swift. There have been no consequences and so Bondi and Blanche and their sub-alterns continue to act and lie as if there will be no consequences.
I think maybe federal judges need to open their hearings involving DoJ counsel with admonitions to all the lawyers present. "If you lie in my courtroom; if you dissemble, if you purposefully omit material facts, if you purposefully misstate a statute, the holding or dictum from a case, or the factual precis upon which a case is based, or the testimony of any witness or other parts of the judicial record, including motions, orders and judgments, then I'm going to hold you in civil contempt, and you will sit in jail until you agree to speak truthfully; and, furthermore, the bar associations in the states or districts in which you are licensed will immediately be notified of your lack of candor before this court. Before we proceed, you will each submit to my Clerk the names of all the states in which you are currently licensed to practice law."
It's not enough, but it would be a start.
a late entry to the Kash Patel contest: BMWs not on bingo card