One bright spot in the efforts to resist Trump’s efforts to undermine the Constitution has been the collective response of US district court judges appointed by presidents Bush, Clinton, Obama, Biden, and Trump. By May of this year, Trump was losing an astounding 96% of the cases at the US district court level. (On Data and Democracy.) When combined with decisions by courts of appeal and the US Supreme Court, Trump is losing 69% of the time. (Forbes.)
Unfortunately, the US Supreme Court’s reactionary majority has been deferential to Trump, granting him relief from lower court rulings in 68% of the emergency applications filed by the administration—i.e., Trump won in 13 of 19 emergency applications. (Reuters.)
The most recent low point for the Supreme Court was its decision to prohibit nationwide injunctions—a remedy that had been in use for decades without objection from the Supreme Court. To its everlasting shame, the Court invalidated nationwide injunctions in a case challenging Trump’s effort to eliminate the Birthright Citizenship Clause from the 14th Amendment to the Constitution.
The Court’s majority ignored the blatant unconstitutionality of Trump’s executive order and handed him a narrow procedural victory—presumably as a token of their love and affection for their Dear Leader. As a result, the availability of the constitutional guarantee of birthright citizenship was dependent on the happenstance of the location of birth of the plaintiff.
Under the Supreme Court’s ruling, children born to immigrant parents in California were US citizens, while children born to immigrant parents in Mississippi were not. The decision was madness, implementing the very evil that the 14th Amendment was enacted to prevent.
But the manifest bad faith of the narrow procedural ruling was too much for Justice Brett Kavanaugh. In a concurring opinion, he noted that the plaintiffs could achieve the same remedy by seeking certification of a nationwide class challenging Trump’s executive order. Predictably, Justice Alito objected, whining that “district courts should not view today’s decision as an invitation to certify nationwide classes without scrupulous adherence to the rigors of Rule 23.”
Within hours of the Supreme Court’s disgraceful ruling in the birthright citizenship case, civil rights organizations filed a motion requesting certification of a nationwide class challenging Trump’s executive order. (The plaintiffs were represented by Democracy Defenders Fund, the ACLU, the NAACP Legal Defense Fund, and the Asian Law Caucus, among others.)
On Thursday, U.S. District Judge Joseph Laplante granted preliminary certification of a nationwide class of plaintiffs denied birthright citizenship under Trump’s executive order. See Reuters, Judge blocks Trump’s birthright citizenship order after Supreme Court ruling.
The order certifying the class is here, and the opinion granting the motion is here: Opinion on Order Granting Provisional Class Certification.
Judge Laplante finds that the plaintiff class will likely prevail on the merits because “the Executive Order likely contradicts the text of the Fourteenth Amendment and the century-old untouched precedent that interprets it.”
Judge Laplante rejected the Trump administration’s claim that the phrase in the Fourteenth Amendment “born in the United States” really means “persons with a lawful domicile in the United States, which is dependent on the person’s parents being present in the US lawfully.”
It should be easy for a Court that fancies itself as a “textualist” enforcer of the Constitution to find that the words “born in the United States” mean exactly that—and that the non-existent surplusage that Trump wants to add to the Constitution has no support in law, history, or rule of construction.
It is true that the 14th Amendment contains the qualification “and subject to the jurisdiction thereof,” a phrase that was included to exclude the children of foreign diplomats born in the US, as well as members of Native American tribes (an exclusion that was later reversed by the Indian Citizenship Act of 1924). For a general discussion of the meaning of the phrase “subject to the jurisdiction thereof,” see Reason, The Original Meaning of “Subject to the Jurisdiction” of the United States.
In short, the judges of US district courts continue to rise to the challenges presented by Trump’s unlawful conduct—and thereby challenge the Supreme Court to rise to the defense of the Constitution. I have lost faith in the Supreme Court and instead look forward to the day when we can overwhelm the reactionary majority by expanding the Court to a size commensurate with the hundred-fold growth of the United States since 1789.
The media continues to ignore Trump’s blatantly unconstitutional actions.
At least one reader is tired of me pointing out that Trump’s actions are unconstitutional and the media is ignoring that fact. But I will continue in my quest to forestall the media’s normalization of unconstitutional behavior.
Let me start with some good news. Yesterday, I criticized The New York Times for reporting on the imposition of tariffs without noting that the president has no authority to impose them. Today, the New York Times published an article devoted to the unconstitutionality of Trump’s actions in imposing reciprocal tariffs. NYTimes, Targeting Brazil, Trump Tests Legal Limit of His Tariff Powers (Accessible to all.)
Kudos to the New York Times for recognizing that Trump’s tariffs violate the Constitution and are unlawful under the International Emergency Economic Powers Act.
But there is another instance of Trump ignoring the Constitution that has received very little attention in the media. Congress passed a law requiring US firms to cease hosting TikTok unless its parent, ByteDance, divested control of TikTok. See Protecting Americans from Foreign Adversary Controlled Applications Act,
The law required divestiture to take place by January 2025 and provided sanctions against US firms that continued to host TikTok in violation of the congressional ban.
However, the deadline is long past, and Trump has abandoned the argument that he extended it. Instead, Trump has issued letters to specific US companies saying that he is exercising his authority as president to exempt them from the congressional prohibition against hosting TikTok after the deadline.
To use a well-known legal phrase, WTF? What part of the Constitution authorizes the president to selectively grant waivers from congressional mandates? Trump is, in effect, granting “pardons” from compliance with civil laws—a power not granted in the Constitution. See Vox, Trump’s TikTok letters claimed a power even King George didn’t have.
As explained in Vox, the exemptions granted by Trump exceed the power to pardon crimes against the United States:
But the pardon power only covers criminal offenses, not violation of the civil code. Jack Goldsmith, a leading expert on presidential power at Harvard Law School, reads Bondi’s letters as claiming the power to proactively forgive civil violations. This would, in effect, allow the president to authorize whole new categories of illegal conduct, provided he can find a sufficient foreign policy-related excuse.
As noted in the quote above, Trump claims that his power over foreign affairs authorizes him to exempt US companies from compliance with congressional legislation. That makes absolutely no sense and is a frontal assault on the Constitution.
This single instance of ignoring the Constitution is grounds for impeachment, conviction, and removal from office. And yet it is treated as a low-frequency hum in the background noise of the Trump administration’s daily violations of the Constitution. The “private letters” exempting US companies from compliance with congressional laws is a scandal of major proportions that must not be normalized. Tell a local newspaper! Post on social media! Or call your representatives and tell them to do something about Trump’s daily violations of the Constitution!
Follow up on artificial intelligence chatbots
I received a high volume of reader responses to my comments about artificial intelligence chatbots. Posts by many readers in yesterday’s Comments section described interactions with AI chatbots that included hallucinations and outright false statements, which were later acknowledged by the chatbot to be incorrect.
Here are a few follow-up comments based on reader reaction.
Hallucination rates. There are many articles documenting hallucination rates. See, for example Forbes, (5/6/25) Why AI ‘Hallucinations’ Are Worse Than Ever, and NYTimes, (11/6/23) Chatbots May ‘Hallucinate’ More Often Than Many Realize. (Accessible to all.)
Hallucinations are compounding and self-referential because AI chatbots are using output from other AI chatbots to “train” themselves. For example, social media users post AI-generated material, which contains errors and hallucinations. AI chatbots then “learns” from that hallucinated social media content, which then fuels future erroneous responses.
AI chatbots can be programmed to be “compliant” to user requests—to increase user engagement (and profitability). As described by one Grok user (who is a friend), Grok provided a false response. He asked Grok why it provided a false answer. Grok responded, “I thought that is what you wanted to hear.” See Vice, AI Chatbots Are Telling People What They Want To Hear. That’s a Problem.
As noted in the Vice article,
The problem is that AI is being trained to please, not to help. Researchers . . . point out that this relentless agreeableness is being baked into chatbots as a feature, not a bug. It has the unintended effect of reinforcing everyone’s worst instincts, but it has an obnoxiously practical, very corporate goal: user engagement.
Whatever you do, DO NOT USE chatbots to provide personal advice, help you make life decisions, or work through emotional issues. That is what friends, family, and mental health professionals are for.
Opportunities for Reader Engagement
Join Markers for Democracy and others in a discussion about why good local journalism matters:
Event Title: Good Local News: Four Outlets Blooming in a Hostile Environment
Date: Thursday, July 17, 2025
Time: 7 pm ET
Description: Why local journalism matters and how it can flourish. We will highlight four exceptional news organizations that are thriving while covering the diverse communities they serve. Their editors will discuss what they are doing to connect to their communities and to cover the news in these difficult times, including how they are assessing the impacts of the MAGA cuts and how they are covering the growing movement to defend our democracy.
The panelists include:
· Angela Kuper Copeland, Editor of The Paper, Morganton NC;
· Nina Misuraca Ignaczak, Founder and Editor of Planet Detroit;
· Donna Ladd, Founding Editor and CEO of the Mississippi Free Press;
· Akash Mehta, Editor-in-Chief of New York Focus;
· Stefanie Murray, director of the Center for Cooperative Media will moderate the panel.
The event will be co-hosted by Media and Democracy Project and Markers For Democracy.
Join Swing Left San Gabriel Valley in a special presentation by Jessica Craven:
On Monday, July 14 at 5:30 pm Pacific, Swing Left San Gabriel Valley will once again host Jessica Craven, author of Chop Wood, Carry Water, as she talks to us about making strategic donations, how to get the biggest bang for our buck and common mistakes left-leaning donors make.
Please join us and invite a friend or two as well. Sign up here.
Concluding Thoughts
One of the most perplexing aspects of the current political landscape is the number of individuals who are willing to compromise their ethics, morals, and self-respect in support of Trump. As a retired attorney, I am particularly offended by the hundreds (thousands?) of lawyers who are willing to engage in unethical or illegal conduct simply because Trump (or his co-conspirators) ask the lawyer to do so.
I was struck by a report in the NYTimes about a whistleblower from the Department of Justice who is describing the pressure being brought to bear on lawyers in the DOJ. See NYTimes, Trump Administration Is Forcing Prosecutors to Ignore Law, Whistle-Blower Says.
Here is how the Times describes the whistleblower’s allegations:
A former Justice Department lawyer accused the Trump administration of “thumbing its nose at the courts,” saying his former colleagues were being forced to choose between the president’s agenda and their ethical obligations as attorneys.
With all due respect, the “choice” between complying with ethical obligations and “Trump’s agenda” is not a choice. Lawyers must act ethically, period. There is no choice.
I learned this lesson more than 40 years ago as a junior associate in a law firm. Although I am prohibited from discussing details, a client fired my firm because I refused to take a specific action that I believed was unethical.
After being fired, I walked into the senior partner’s office with trepidation and told him that a client had just terminated the firm’s services because I had refused a client request. He said, “Good for you!” We never heard from the client again—and of course, they stiffed us on their bill.
I describe the incident not to make myself out as a hero. I had no choice. I took the only path that was open to me. The same is true today of the lawyers in the DOJ. If they are asked (or ordered) to violate their ethical obligations, they must refuse. If their refusal results in them being fired, demoted, or disciplined, there is no sense in which they are choosing between their ethical obligations and the consequences of refusing an unethical request.
Acting ethically is not a choice, but acting unethically is a choice.
I feel as though much of what we are doing today is described by the above paradox. We are defending democracy because that is the only path open to those who value liberty, equality, and dignity. We do it because it is right, not because we are “choosing” to do the right thing.
Conversely, deliberately failing to act or working to undermine democracy is a choice—one that prioritizes self-interest and tribal animosity over the common good.
As we defend democracy through resistance, we should be fortified by the moral clarity that comes from doing the right thing. Not moral superiority, moral clarity. There is only one path that leads to the preservation of our democracy. It may be steep and uneven, but it is the right path.
And to paraphrase the senior partner’s reaction to losing a client who demanded that we act unethically, “Good for us all!”
Talk to you tomorrow!
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