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The Sotomayor dissent that is for the ages

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2nd July 2025

A re-statement of the rule of law in Trump v Casa – the universal injunctions case

Some dissents are for the ages. In the United Kingdom, one such momentous dissent from a judge in the minority was that of Lord Atkin in the wartime case of Liversidge v Anderson.

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In the recent – and horrible – case of Trump vs Casa there is another such dissent, this time from Justice Sotomayor.

This blog has already introduced the case (here) and set out why the majority opinion is shoddy even on its own terms (here).

Instead of summarising and paraphrasing her dissent, there are passages which need to be read in the original. Some people are deterred from reading formal(-looking) documents like judgments, and so in this post I am setting out what she said. Please read what is set out below (which I have broken up into smaller paragraphs).

“Children born in the United States and subject to its laws are United States citizens. That has been the legal rule since the founding, and it was the English rule well before then.

“This Court once attempted to repudiate it, holding in Dred Scott v. Sandford, 19 How. 393 (1857), that the children of enslaved black Americans were not citizens.

“To remedy that grievous error, Congress passed in 1866 and the States ratified in 1868 the Fourteenth Amendment’s Citizenship Clause, which enshrined birthright citizenship in the Constitution.

“There it has remained, accepted and respected by Congress, by the Executive, and by this Court.

“Until today.

“It is now the President who attempts, in an Executive Order (Order or Citizenship Order), to repudiate birthright citizenship.

“Every court to evaluate the Order has deemed it patently unconstitutional and, for that reason, has enjoined the Federal Government from enforcing it.

Undeterred, the Government now asks this Court to grant emergency relief, insisting it will suffer irreparable harm unless it can deprive at least some children born in the United States of citizenship. […]

“The Government does not ask for complete stays of the injunctions, as it ordinarily does before this Court.

“Why?

The answer is obvious: To get such relief, the Government would have to show that the Order is likely constitutional, an impossible task in light of the Constitution’s text, history, this Court’s precedents, federal law, and Executive Branch practice.

“So the Government instead tries its hand at a different game. It asks this Court to hold that, no matter how illegal a law or policy, courts can never simply tell the Executive to stop enforcing it against anyone.

“Instead, the Government says, it should be able to apply the Citizenship Order (whose legality it does not defend) to everyone except the plaintiffs who filed this lawsuit.

“The gamesmanship in this request is apparent and the Government makes no attempt to hide it.

“Yet, shamefully, this Court plays along. A majority of this Court decides that these applications, of all cases, provide the appropriate occasion to resolve the question of universal injunctions and end the centuries-old practice once and for all. In its rush to do so the Court disregards basic principles of equity as well as the long history of injunctive relief granted to nonparties.

“No right is safe in the new legal regime the Court creates. Today, the threat is to birthright citizenship. Tomorrow, a different administration may try to seize firearms from lawabiding citizens or prevent people of certain faiths from gathering to worship.

“The majority holds that, absent cumbersome class-action litigation, courts cannot completely enjoin even such plainly unlawful policies unless doing so is necessary to afford the formal parties complete relief. That holding renders constitutional guarantees meaningful in name only for any individuals who are not parties to a lawsuit.

“Because I will not be complicit in so grave an attack on our system of law, I dissent.

[…]

“The rule of law is not a given in this Nation, nor any other. It is a precept of our democracy that will endure only if those brave enough in every branch fight for its survival.

Today, the Court abdicates its vital role in that effort. With the stroke of a pen, the President has made a “solemn mockery” of our Constitution. Peters, 5 Cranch, at 136.

“Rather than stand firm, the Court gives way.

“Because such complicity should know no place in our system of law, I dissent.”

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Justice Jackson concurs (again broken into shorter paragraphs, and emphasis added):

“I agree with every word of Justice Sotomayor’s s dissent. I write separately to emphasize a key conceptual point: The Court’s decision to permit the Executive to violate the Constitution with respect to anyone who has not yet sued is an existential threat to the rule of law.

“It is important to recognize that the Executive’s bid to vanquish so-called “universal injunctions” is, at bottom, a request for this Court’s permission to engage in unlawful behavior.

“When the Government says “do not allow the lower courts to enjoin executive action universally as a remedy for unconstitutional conduct,” what it is actually saying is that the Executive wants to continue doing something that a court has determined violates the Constitution— please allow this. That is some solicitation.

“With its ruling today, the majority largely grants the Government’s wish.

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Like Atkin’s famous war-time speech, these dissents should endure.

These dissents have got the fundamental issue right, and they have said the right things about that fundamental issue.

What is currently happening in the United States is nothing other than a polity voluntarily sabotaging itself.

Congress and the courts could stop it. Yes, there is Trump – but there are always Trumps. But instead of checking and balancing Trump, Congress and the courts are nodding and clapping instead.

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The next post in this series will be an overall assessment of this unfortunate case.

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Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.

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Last Year's Move to Toronto

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It took me a while, but I can now see a purpose in speaking to the discussion of my departure from Yale University for the University of Toronto. Hence this video.

I moved with the family last year, largely for family reasons, attracted personally by the prospect of a change to Toronto and to its Munk School in particular; both Yale and the University of Toronto dealt with the transition very gracefully. I loved being at Yale, and at the same time I am looking forward to some new possibilities in Toronto.

Because I regarded the departure as relevant to students and colleagues at the institution where I taught for almost a quarter century, I laid out my reasons for the move in my departure note to Yale.

Without speaking too directly in the video about private matters, I address four public framings of last year’s move which arose in recent weeks: (1) that I fled the present administration; (2) that I am a coward; (3) that leaving Yale is politically regressive; and (4) that I have disengaged.

None of these framings touches the circumstances of my decision. I address them because they tell us something about the moment that we are in.

I can see why personal attacks are tempting, and also where they lead. If we tear down others, we can tell ourselves that we are doing something ourselves — when in fact the opposite is true.

No one has to take me as their guiding light. We all though have to recognize that our allies are imperfect, and seek out what is best in those with whom we choose to work. Freedom is solidarity. The path to unfreedom passes through dismissal and disdain.

I am not a very on line person, so I wasn’t really aware that there was some sort of imbroglio until friends sent me nice messages (always a bad sign) and this wise essay by Rebecca Solnit (there are sentences in it that are worth reading twice; she is a perceptive person.)

Like I always do, I made this video in one take, improvising. There is one thing that I wish I had said to Americans but didn’t: I am still with you.

This past academic year, after the family move to Canada, and before and after the inauguration, I made appearances in Connecticut (twice), Illinois (three times), Michigan (twice), Ohio (seven times), Oklahoma, Pennsylvania, New York (four times), Rhode Island (twice), Tennessee, Texas, and Washington DC (twice).

That’s in addition to a series of wonderful public events in Toronto and Vancouver and the two trips to Ukraine and the visits to eight European countries that I mention in the video.

I’m out there. I’m trying. In various places. And what I have to offer in one place has to do with things I learn from people in others. The photos below give a taste of where I was this last academic year, and what I was doing.

Other than these paragraphs, those photos, and the Yale letter, the video is what I have to say. There won’t be more. Let’s do the things that we can do.

TS, recorded 26 May, photo added 30 May, to be published 2 June 2025

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On resistance see On Tyranny

For positive solutions see On Freedom

Kyiv, 30 May 2025, Book Arsenal. Brave people read books. Volodymyr Zelens’kyi, Olena Zelens’ka, Marci Shore, Amelia Glaser. A nice thing Marci has been working on is Small Acts of Resistance Amelia recently helped translate the poetry of the Ukrainian poet Halyna Kruk in A Crash Course in Molotov Cocktails A number of the people at the book fair are alumni of Documenting Ukraine, a wartime project to give Ukrainians their own lasting voice that I am proud to have co-founded.
Providence, Rhode Island, 25 May 2025, where the great Jon Baptiste was awarded an honorary degree and played for Brown’s graduating students. Freedom
Poznan, Poland, 14 May 2025, making Barack Obama smile
Zaporizhzhia, Ukraine, 11 February 2025, with the amazing Minister for Digital Transformation Mykhailo Fedorov. Brave people build schools. This is the underground school I mention in the video. These kids, after covid and war, were so very happy to be in an actual classroom. If you want to help Ukrainian kids sleep at night, you can make a donation here.
Columbus, Ohio, 15 October 2024, getting schooled apparently by the erudite Nicole Fleetwood, who is writing a book about Hamilton, Ohio.
Kyiv, 14 September 2024, running a race in support of Ukrainian prisoners of war and their families, Run for Freedom
Kyiv, 11 September 2024. Handing over a copy of On Freedom to someone who figures in it, but mainly informing the president of the existence of Ukrainian History Global Initiative, a project of which I am very proud.
Kharkiv, Ukraine, 8 September 2024, speaking in a bunker about freedom with the philosopher Volodymyr Yermolenko, who runs PEN Ukraine and is behind the fabulous Ukraine World podcast
Clinton County, Ohio, 18 August 2024, turning 55

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Download audio: https://api.substack.com/feed/podcast/164527749/b270fe77ee7daad08f4b8ef106d88467.mp3
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A weaponized AI chatbot is flooding city councils with climate misinformation

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Internal instructions accessed by Canada’s National Observer show that the chatbot produces tailored scripts, petitions, reports and even speeches for council chambers. The messaging is all framed to resonate with municipal officials’ duty to represent local interests. The chatbot drops the cost of misinformation to "close to zero."
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Aging condos get expert help with clean upgrades

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As summers get hotter, condo residents want better cooling, ventilation and energy efficiency. They might drive an EV, too. Who can help meet their needs and reduce emissions at an affordable price? Try calling a Strata Energy Advisor.
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48 days ago
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Philadephia Inquirer and Chicago Sun-Times Publish Summer Reading List of Nonexistent Books

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Happy cheerful hipster man with a laptop sitting outdoors in nature.The Philadelphia Inquirer and The Chicago Sun-Times published a summer reading list in a special insert section that listed authors, most of whom are real, and books, most of which are fake. Signs (it’s a big neon sign about 100 meters tall) point the text being generated by AI.

Here’s a picture circulating on social media:

A picture of the sun times reading list for summer. It includes nonexistent and fabricated books by Andy Weir, Taylor Jenkins Reid, Ray Bradbury and others.

Here are two from the list:

“The Last Algorithm” by Andy Weir – Following his success with “The Martian” and “Project Hail Mary:” Weir delivers another science-driven thriller. This time, the story follows a programmer who discovers that an Al system has developed consciousness-and has been secretly influencing global events for years.

Ha, ha, very funny.

“The Collector’s Piece” by Taylor Jenkins Reid – Reid continues her exploration of fame with this story of a reclusive art collector and the journalist determined to uncover the truth behind his most controversial acquisition. Expect the same compelling character development that made “Daisy Jones & The Six” a hit.

Neither of those two books are real. My sympathy for the librarians who will have to explain that to patrons.

The Sun-Times released a statement on Bluesky and in other locations at about 10am eastern time as many, many people began to say, What the Actual Fuck is This:

We are looking into how this made it into print as we speak. It is not editorial content and was not created by, or approved by, the Sun-Times newsroom. We value your trust in our reporting and take this very seriously. More info will be provided soon.

The newspaper…doesn’t know how this insert section was printed in the newspaper.

Albert Burneko at Defector has excellent coverage of this shanda for the journalism:

Examination of the insert’s other sections soon unearthed other oddities. A bland quote about “campus hammock culture” from a Dr. Jennifer Campos, professor of “leisure studies” at the University of Colorado, who seems not to exist, or at any rate not to have any presence anywhere online.

Above an uncanny image of some bread with weird, cold-looking slices of butter on it, a nondescript quote about the viral success of the butter-board food trend from a Dr. Catherine Furst, food anthropologist at Cornell University, who likewise evidently has left no verifiable trace of her existence anywhere on the internet. A worthless quote about ripe-harvested food from the evidently nonexistent book Eating by Season, by the evidently nonexistent author Sophia Chen.

Just making up whole entire people here, no big deal.

Burneko, who I hope is having a very good day, dug deeper after 404 Media reached out to one of the writers who had a byline in this insert. This is a “special section” sold to multiple newspapers, and, as Burneko put it,

An insert such as this, even in its less cynical forms, exists less to serve readers than as scaffolding for some greater number of advertisements than could run in a normal edition of the paper. That’s only where it isn’t outright sponsored content.

Scaffolding is a perfect analogy. It’s more ad space to sell, with content they don’t have to write – and don’t expect anyone to read?

404 Media’s Jason Koebler investigated as well, and found that the source of the “special section” was from a subsidiary of Hearst Media. Koebler spoke to the Sun-Times about it:

Victor Lim, the vice president of marketing and communications at Chicago Public Media, which owns the Chicago Sun-Times, told 404 Media in a phone call that the Heat Index section was licensed from a company called King Features, which is owned by the magazine giant Hearst. He said that no one at Chicago Public Media reviewed the section and that historically it has not reviewed newspaper inserts that it has bought from King Features.

“Historically, we don’t have editorial review from those mainly because it’s coming from a newspaper publisher, so we falsely made the assumption there would be an editorial process for this,” Lim said. “We are updating our policy to require internal editorial oversight over content like this.”

I’m just brimming with confidence in the choices of everyone involved.

Here’s what pisses me off, and I ranted about this on Bluesky earlier today. Exactly how, and why, should I trust this newspaper, or any other, if they’re publishing AI-generated garbage for a summer reading list that no one looked over?

This reading list of fake books (by real authors! Who I assume are pissed) left me feeling really sad and exhausted and frustrated. It wasn’t just this singular instance; it’s a larger pattern I’m struggling with. Yet again, I have fewer and fewer reasons to trust any news organization. Which is Not Great.

As I said, I ranted about this on Bluesky, but I’m still thinking about this mistrust and frustration.

Let’s go back in time a bit. I, as a sample of one, started distrusting major media outlets twenty-four years ago.

I haven’t let a White man on a tv screen tell me things since 2001.

Generally speaking, this has been an excellent policy.

Why? On and after 9/11, TV news stations both local and national were reporting random fake and unverified shit. Live. Constantly. I lived in Jersey City at the time, and the WTC was right across the river. It looked like it was at the end of my street. I remember what 9/11 smelled like, and I don’t talk about it.

I also remember how much absolute unverified bullshit was broadcast on television. At one point, there was allegedly a fertilizer truck going over the George Washington Bridge, possibly as a makeshift bomb? I heard that on at least two different stations.

Show Spoiler

Maury povitch looking at the camera with a subtitle, and the lie detector determined that was a lie.

I looked it up to be sure. Even Google’s shitty AI search results (forgot to type -ai, oops) confirmed it wasn’t true:

A screenshot of my phone search results that reads There's no confirmed report of a fertilizer truck incident at the George Washington Bridge on September 11th. The commonly known events of 9/11 involve terrorist attacks, not incidents involving specific types of trucks at specific bridges. The George Washington Bridge does have specific regulations for trucks, including requiring them to use the upper level and being subject to searches, according to the Port Authority. However, there is no widespread information about a truck incident on the bridge related to 9/11, or any other events involving fertilizer.

I don’t give a flaming turd whether it’s a developing story. Do your job.

When I realized how much utter nonsense was blathered as fact, I crafted my personal policy in response: I don’t let White men on TV tell me things. I am, unsurprisingly, still pretty well informed.

But my distrust still grew.

Now, a majority of local “news” channels are owned by conservative conglomerate Sinclair media, which frequently distributes right-wing talking points as “news” across the local television stations it owns.

As Eric Berger at The Guardian reported in July 2024,

Sinclair, one of the largest owners of US television stations, has established itself as an influential player in the conservative movement by using trusted local news channels to spread disinformation and manipulated video of Joe Biden, media analysts say.

The company, which gained notoriety in 2018 for requiring local anchors across the country to read the same segment, has since created a national news show that produces stories distributed to its stations – often at the expense of local news coverage.

When you were younger, did you know the local newscasters? For me, in Pittsburgh, they were like local celebrities. Well, no, they actually were. I saw the late Patti Burns, a local news anchor, at an Eat n’Park and was extremely awed. I was probably about 12 years old. But since Sinclair took over so many stations, the news is less “local” and more “national right wing talking point,” so again, I tune them out.

And it’s not just tv, of course. Sinclair also buys newspapers, like The Baltimore Sun, which was covered by NPR with the headline, “More crime and conservatism: How new owners are changing ‘The Baltimore Sun‘.” So if it’s Sinclair, better beware.

Beyond conglomerate ownership of media, major newspapers have covered themselves in the opposite of glory. In the last few years, myriad newspaper editorial staff have published multiple editorials full of hateful, inaccurate, and dangerous “opinions” about trans people. I’m old enough to remember when all these same talking points were used about gay marriage. They’ve collectively done so much damage to the safety and care for a tiny part of the population, then and now.

Last year, Kamala Harris endorsements became non endorsements because oligarch bozo owners squelched them. They were all at the inauguration so I guess the endorsements were bad for their bottom line and their political aspirations.

But back to me, my sample size of 1. Why should I trust any of them? Or believe what they print? How can I fully trust the reporting from even a credible journalist now that I know they’re working under cowardly, amoral censors? I’m not even going to get into the media’s role in electing our current president twice.

There are, of course, terrific independent journalists and I follow many of them in as many places as possible.

But where are they writing and publishing?

Most often: Substack.

Show Spoiler

A girl is grossed out

Substack regularly gives comprehensive tongue baths to nazis and white supremacist shitbags. And has defended their decision to do so. 

I get that it’s a fast and relatively easy way to sell writing directly. I understand the job market for journalists. But I won’t subscribe to any more Substacks. I do not want to give them any money. I have three that I pay for, and I likely won’t renew when they’re due. That said – sometimes folks on the platform will comp your subscription if you pay them directly. I appreciate that.

But what about community sponsored and nonprofit journalists, and free presses? Free presses are so great! I follow so many.

For example, on several social media platforms, I follow The Tennessee Holler, which is doing outstanding coverage of how Elon Musk’s Grok AI facility is poisoning the air and causing respiratory problems for the residents of mostly-Black neighborhoods in Memphis. The Southern Environmental Law Center has comprehensive coverage as well.

But that means I go hunting and build my own feed, and constantly make sure what I’m following is real and not a fake account. I have to research, source, verify, and fact check the information sources every time.

So here comes the Sun-Times publishing an AI-generated summer reading list of real authors and made up books. Add it to the pile.

Staying informed is increasingly exhausting (I’m sure that’s the whole entire point of course). And I’m so tired that I’m nuclear furious about how tired I am.

I run a site about romance novels. I’m a blogger, for crying out loud. And I take my job seriously. I’m the writer, editor, fact-checker, peri-menopausal-brain wrestler, and publisher. And I try to operate with integrity.

I’m tired of having to weigh demonstrated heinous priorities against being reliably informed about matters local and national (and I’m outside DC so it’s often the same thing). Whether it’s AI-generated literary waste, the environmental harms of said AI-generated literary waste, or the righterly-leaning conglomerates and oligarchs owning and defining “news” coverage, it all yields the same outcome.

Strategic erosion over decades has led me to a point where the institutions I was led to respect are defacing themselves for fun and profit, and determinedly pretending that none of it is happening.

Ugh.

I’ve been looking at a blinking cursor for 15 minutes now, trying to work on a conclusion to this rant. “This sucks and I hate it,” basically. What about you?

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The US as an Authoritarian State: Danger to the Global Rule of Law

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Donald J. Trump’s second term as President of the United States has stunned the world. Commentators increasingly say the US has now crossed the Rubicon into authoritarian territory.

While some say Trump’s actions are erratic, a closer look reveals a methodical attempt by his administration to dismantle a broad range of US institutions and agencies and to suffocate international institutions, universal human rights, and the rule of law. The breakneck speed, scope, and impact of the Trump administration’s actions through Executive Orders and directives has created a chaotic atmosphere of uncertainty and fear around the world.

Checks and balances among the three US branches of government are in tatters. Congress is overwhelmed by Trump loyalists. Despite the Republican Party’s thin majorities in the House of Representatives and Senate, the opposition Democratic Party is dismayingly weak. The Executive under Trump has been defying the Constitution as well as its obligation to uphold the laws made by Congress. It is unclear whether the US legal system can withstand the Trump administration’s increasingly brazen threats against judges and lawyers.

Trump secured and maintains his power through alliances with billionaire backers, religious nationalists, and the Republican Party. This three-legged stool is supported by sinuous networks of propaganda, disinformation, and smear campaigns.

The authoritarian agenda of Trump 2.0: Selected domestic issues

While the US has often been a violator of international law, the second Trump administration has plunged the US into open defiance of its international human rights obligations, including conventions on civil and political rights, elimination of racial discrimination (ICERD) and the prohibition of torture and ill-treatment. These treaties have been ratified by the vast majority of the world’s countries. Mr. Trump’s threats against other countries and territories puts the US at odds with the Charter of the United Nations (UN Charter). His administration is also contravening the US Constitution, including its provision that international treaties are part of the “supreme Law of the Land.”

The DOGE chainsaw

President Trump appointed a multi-billionaire, Elon Musk, and his Department of Government Efficiency (DOGE) to wield a proverbial chainsaw to slash indiscriminately through the US civil service and dismantle major foreign policy programs, including the US Agency for International Development (USAID). The USAID cuts have been devastating worldwide, because a whopping 43 percent of the world’s humanitarian funding came from the US. Dramatic cuts to the US domestic civil service and social programs have had disproportionately negative impacts on women, Black people, Indigenous Peoples, transgender people, people with disabilities, veterans, and older people. DOGE’s cavalier operations have cast a pall of dread and silence over the civil service and beyond.

A central preoccupation: Abolishing DEI

A major goal of the Trump administration is represented by the President’s Executive Order to eliminate government programs supporting “diversity, equity, and inclusion” (DEI). The Executive Order also requires federal agencies to ensure that its contractors terminate DEI policies and to encourage the private sector “to end illegal DEI discrimination and preferences.”

President Trump’s Executive Order portrays DEI policies as a guise for “dangerous, demeaning, and immoral race- and sex-based preferences.” Mr. Trump and his supporters counterfactually claim, without evidence, that DEI fosters illegal discrimination. Such portrayals are contrary to the purpose of DEI programs which UN guidelines say are rooted in the Universal Declaration of Human Rights and the ICERD, and are intended to address and remedy the “causes and consequences of historic, structural or systemic discrimination.” The manner by which the anti-DEI agenda is being carried out leaves no reasonable doubt that the administration objects to DEI policies because they threaten the historic privilege of White people, particularly White males.

Anti-DEI measures have included clear messages that discrimination against women and non-White people is now the expected default position. Arlington Cemetery removed African-Americans, Hispanic people, and women from its highlighted profiles of prominent veterans buried there. The Department of Defence’s “auto removal process” scrubbed webpages featuring the Tuskegee Airmen of WWII, Indigenous “Code Talker” units of World Wars I and II, a Vietnam War General Medal of Honor recipient, and the baseball legend Jackie Robinson. After public outcries, the DOD reinstated these pages.

The impact extends to corporations including Google, Amazon, Meta, and Netflix, which have compliantly retreated from DEI commitments. Foreign corporations in other countries, including Canada, may also be impacted by anti-DEI requirements for US government contractors. No fewer than 14 independent human rights experts appointed by the UN Human Rights Council have jointly expressed alarm that the US administration is trying to reverse decades of work to address structural inequalities and discrimination; they have urged businesses to hold firm to DEI principles.

Assault on the legal system, legal education, and lawyers

Anti-DEI policies have been used to target law schools, the American Bar Association (ABA) and private law firms. Georgetown University’s law school is among several law schools that received letters from the Department of Justice that no applicant will be considered for internships or employment if they are a student or are affiliated with a law school that “continues to teach and utilize DEI.”

The Dean of Georgetown Law pushed back publicly with a reminder that the US Constitution guarantees that “the government cannot direct what Georgetown and its faculty teach and how to teach it. The Supreme Court has continually affirmed that among the freedoms central to a university’s First Amendment rights are its abilities to determine, on academic grounds, who may teach, what to teach, and how to teach it.”

The ABA has run afoul of Trump’s Attorney General (AG), Pam Bondi, over DEI policies. In February, the ABA suspended its DEI policies pending revisions to comply with the US Supreme Court’s 2023 decision that struck down affirmative action in college admissions as unconstitutional. Suspending the policies was not enough for the AG. On 5 March, Ms. Bondi threatened the ABA with removal of its status as an accrediting body for law schools if it did not strike down the whole DEI policy “immediately and entirely.”

Department of Justice officials involved in past criminal cases against Mr. Trump have faced dismissal. Several prosecutors resigned after being ordered by the Trump-appointed acting Attorney General to drop charges in a prominent corruption case; the prosecutors believed the instructions compromised their professional ethics.

President Trump has subjected prosecutors, law firms, and individual lawyers to public vilification, threats and administrative harassment in retaliation for their work on past cases against him. For example, the President issued a 6 March Executive Order against the law firm of Perkins Coie suspending its security clearances, terminating its government contracts, and threatening it for its DEI practices. Perkins Coie took the matter to court, saying it “is an unlawful attack on the freedom of all Americans to select counsel of their choice without fear of retribution or punishment from the government.” On 10 March they received a temporary restraining order.

On 14 March, the President issued a similar retaliatory Executive Order against the law firm of Paul Weiss. On 21 March, Mr. Trump rescinded the order after Paul Weiss agreed to backtrack from DEI and provide US$40 million in pro bono legal services on White House initiatives. The capitulation of Paul Weiss has led over 1,300 associate lawyers from hundreds of US law firms to join a letter demanding that large law firms speak out to defend US lawyers from intimidation and to uphold the rule of law.

In mid-March, 20 US law firms, including Perkins Coie, received letters from Trump’s newly-appointed Acting Chair of the EEOC, expressing concern that their employment practices, including DEI, might be discriminatory and seeking detailed personal information about people hired since 2015. The Lawyers’ Committee for Civil Rights Under Law condemned the EEOC’s letters as part of a politically-motivated “anti-DEI crusade.”

On 21 March, President Trump issued a chilling memorandum directing the AG to “seek sanctions against attorneys and law firms who engage in frivolous, unreasonable, and vexatious litigation against the United States or in matters before executive departments and agencies of the United States.” He directed her “to review conduct by attorneys or their law firms in litigation against the Federal Government over the last 8 years.” He singled out one lawyer, Marc Elias, who was successful in defeating dozens of lawsuits filed by Mr. Trump’s 2020 campaign team to challenge the results of the 2020 election. While the current AG promised to act independently during her Senate confirmation hearings, she has so far conformed to the President’s wishes.

Law suits and retaliation against judges

At least 135 law suits have been commenced against the government by civil servants, military service people, civil society groups, churches, Indigenous Peoples and others. The lawsuits challenge the administration’s actions on various issues, including USAID, DEI, military service by transgender people, immigration, and deportations. Preliminary injunctions have been issued in favour of a number of complainants pending full hearings.

The administration has failed or refused to comply with some orders. Several judges who have made rulings unfavourable to Mr. Trump or his administration have been subjected to public derision, threats of violence, and impeachment proceedings and other plans in Congress to limit “rogue rulings.” The Federal Judges Association has registered concern about increased criticism, threats and violence aimed at judges, noting that “irresponsible rhetoric shrouded in disinformation” undermines public confidence in the justice system.

Arbitrary detention, mass deportations, and resistance to court rulings

Mr. Trump’s election promises included mass deportations of “criminal aliens.” Over the past two months many undocumented and documented immigrants, visa-holding visitors, and even permanent residents – with no criminal records – have been detained or deported, often without due process. Many have been denied timely access to lawyers. Some have been ill-treated and/or subjected to enforced disappearance.

One case involves Columbia University graduate student, Mahmoud Khalil, a US permanent resident married to a pregnant US citizen. On 8 March, unidentified Immigration and Customs Enforcement (ICE) agents arrested Mr. Khalil at his New York City home. He was first taken to New Jersey, but he disappeared overnight, emerging the next day at a Louisiana immigration detention centre.

He was targeted for organizing Palestinian rights protests at Columbia University. While Mr. Khalil did not himself participate in protests, he served as an intermediary between protestors and the University administration.

Mr. Khalil has no criminal record and has not been charged with any offence. Officials claim his actions led to protests that created an atmosphere of antisemitism where Jewish students suffered harassment. In April 2024, Mr. Khalil had told CNN, “[t]here is, of course, no place for antisemitism.” He is also accused of facilitating activities “aligned to Hamas,” a US-designated terrorist group. No evidence has been made public that he has links to Hamas or that he has provided support for any terrorist organization. Rather, the grounds for deportation are that his “presence or activities in the United States would have serious adverse foreign policy consequences” for the US.

On 10 March, a federal judge blocked his deportation pending an immigration court hearing in Louisiana on 8 April. Mr. Khalil’s lawyer also filed a habeas corpus application, which a US District Court has ordered moved to New Jersey. At the time of writing, Mr. Khalil remains detained in Louisiana.

Another international PhD student at Columbia University fled to Canada after learning that ICE agents were looking for her. She was a passerby during a Palestinian rights protest at Columbia. She fled for fear of indefinite detention or enforced disappearance. A chilling climate of self-censorship has fallen over universities across the US, particularly among international students, who fear for their safety.

On 15 March, hundreds of Venezuelans were deported in planes to an El Salvador prison without due process. The government said the mass deportations were justified under the 18th century Alien Enemies Act used in the past only to deport nationals of enemy States during wartime. It was last used during World War II to intern noncitizens of Japanese, German and Italian descent.

The government says the Venezuelan deportees are terrorist gang members engaged in “irregular warfare” against the US. So far the government has refused to provide the court with the deportees’ identities or the evidence against them, saying the government will not “reveal details about a counter-terrorism operation.” Several people who are believed to be possibly among the deportees have disappeared.

The Venezuelans’ deportations contravened a temporary restraining order by US District Judge James Boasberg prohibiting their removal from the US and ordering any flights in the air to be turned around. The administration ignored the order, claiming that the judge’s oral order was invalid and did not apply to flights that were already over international waters.

El Salvador’s president, who agreed to house the prisoners, posted to his social media an article about the judge’s order with the comment, “Oopsie … too late.” The Secretary of State, Marco Rubio, joined this mockery by reposting the comment.

The judge ordered the government to appear on 17, 18 and 21 March to account for its actions. The government continues to refuse to provide the requested information, citing national security.

Mr. Trump’s appointed “border czar” said on 17 March, “I don’t care what the judges think.” On 18 March, President Trump wrote, “this judge, like many of the Crooked Judges’ I am forced to appear before, should be IMPEACHED!!!” The President did not mention the judge’s name, but Republican House representatives knew what was expected and initiated articles of impeachment against Judge Boasberg.

The same day, Supreme Court Chief Justice John G. Roberts issued a statement: “For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision. The normal appellate review process exists for that purpose.”

President Trump dodged the Chief Judge’s rebuke, saying, “he didn’t mention my name.” The President continued talking about impeachment.

International issues: Shift from international legal order to imperial power

The Trump administration has withdrawn from several international organizations and agencies, including the Paris Accord on climate change, the World Health Organization, UNESCO, and the UN Human Rights Council. President Trump has upended longstanding international alliances and economic relationships, engaging in economic coercion through tariffs against Canada, Mexico, and other countries. Legal commentators say the North American tariffs violate international trade law and the US-Mexico-Canada trade agreement (USMCA).

Mr. Trump’s tariffs against Canada have appeared to be aimed at destroying the Canadian economy with the goal of annexing Canada. President Trump has threatened the sovereignty of several countries or territories, including not only Canada but also Panama, Greenland and Gaza. Such threats violate fundamental principles of international law, including the UN Charter. The President has couched these threats not in legal terms but in terms of naked power. Trump has also sided with Russia in its aggression against Ukraine.

Indigenous leaders in Canada point out that talk of annexation threatens Indigenous Peoples’ sovereignty and right to self-determination guaranteed by international law, including the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), endorsed by the US in 2011.

Crossing the line into authoritarianism

In summary, President Trump has subordinated international and domestic law to his own interests or those of his business cronies and religious nationalist base, who have buttressed his power through donations to his campaign or skewed news or social media in his favour.

Canadian human rights advocate Alex Neve pronounced the rule of law in the US dead after the Trump administration openly defied the court in the Venezuelan deportees’ case. There is good reason to conclude that the Trump administration has transformed the US into an authoritarian State.

Authoritarian governments generally try to bolster their legitimacy by using laws, decrees, and court hearings to justify their actions, often creating, twisting, interpreting, or manipulating laws to suit their purposes and to punish resistance. This is called “rule by law” or “rule by decree,” which contrasts starkly with the rule of law. In this regard, the Trump administration is operating like other authoritarian governments.

The rule of law has been replaced by “rule by decree,” including Presidential Executive Orders and directives, often capriciously announced and justified with disinformation through social media, and amplified by Mr. Trump’s supporters. Respect for the rule of law has been replaced by contemptuous propaganda that judges who uphold the law are “corrupt” and lawyers who oppose his policies are “scum.”

What does this mean for Canadian lawyers?

It is now implausible – and a mistake – to treat the Trump administration like a normal government. Americans are now living under authoritarian rule. Canadians are living in its oversized, ominous shadow.

Canadian lawyers and legal organizations need to take firm stands to uphold the rule of law. This includes clear denunciation of threats against the sovereignty of any country, territory, or people. It also includes strong advocacy to uphold international law and standards for independence of judges, prosecutors and lawyers.

Canadian lawyers have a duty to resist pressures on their cross-border clients to erode anti-discrimination policies of Canadian businesses or organizations; such capitulation may violate the Charter of Rights or the Canadian Human Rights Act. Canadian lawyers should also publicly reject all propositions to adopt copy-cat anti-DEI policies in Canada, which violate international law and standards by fostering racial and gender-based discrimination.

Human rights lawyers have long worked in solidarity with colleagues at risk around the world. Now is the time to publicly stand with judges and lawyers in the US, as have a number of lawyersorganizations around the world.

Authoritarian environments (or life in their chilling shadows) make it tempting to retreat from robust articulation of human rights principles so as to avoid tensions or repercussions. Yet, as Elie Weisel famously said, sometimes “we must take sides. Neutrality helps the oppressor, never the victim.” Polite self-censorship will only foster the continued erosion of the rule of law.

The post The US as an Authoritarian State: Danger to the Global Rule of Law appeared first on Slaw.

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