The Trump administration has been an ongoing constitutional violation since Inauguration Day. The courts are catching up. Specious arguments are having their day in court and are losing badly—so badly, in fact, that the Trump administration has adopted the tactic of slow-walking judicial and congressional consideration of those specious arguments. That development should give us hope and confidence that justice will prevail ultimately, and possibly sooner rather than later!
An overview—and acknowledgment of the courageous organizations and lawyers leading the fight
On Thursday, the Trump administration was retreating on two significant legal matters: The question of birthright citizenship and the ability of the president to “impound” funds appropriated by Congress.
The birthright citizenship case consumed much of the oxygen across the media landscape. Some of the reports (not all) suggested that the male members of the Court1 were sympathetic to Trump's arguments. Not so! Most commentators correctly noted that nearly all of the justices rejected Trump's argument about birthright citizenship but seemed flummoxed on the remedy of nationwide class actions. (More on this below.)
The question of what happened in the birthright citizenship cases is important. However, the emerging trend is of greater importance: The Trump administration is retreating on multiple legal and legislative fronts. Today, I will focus on birthright citizenship and Trump's unconstitutional effort to impound funds appropriated by Congress.
Given the complexities of the arguments surrounding these topics, it can be challenging to see the trendlines, but they are unmistakable. As to birthright citizenship and impoundments, the Trump administration is seeking to delay the day of reckoning on the merits before the Supreme Court and Congress.
The fact that Trump is seeking to delay a determination on the merits signals his belief that he will lose. He is temporizing, trying to delay the day when his house of cards will crumble.
Trump's retreat is a testament to the outstanding work of legal advocacy organizations like the ACLU, CASA, Common Cause, Asian Law Caucus, Asian Pacific American Advocates, League of United Latin American Citizens (LULAC), Washington Lawyers’ Committee For Civil Rights, twenty-two state attorneys general, and many others.
In addition, leading law firms and lawyers stepped to the plate to represent plaintiffs in the birthright cases, including Arnold & Porter (John A. Freedman, Sally Pei, Jonathan L. Stern, and Ronald D. Lee).
At a time when the largest and most powerful firms in the American legal profession continue to bow and scrape before Trump, firms like Arnold & Porter are rightfully highlighting their pro bono work as they deliver on their commitment to underserved and vulnerable communities. See the linked video on Arnold & Porter’s website for insight into how firms can and should step up to their professional and ethical commitments: Pro Bono | Arnold & Porter.
Supreme Court hears oral argument in birthright citizenship case
Despite worrisome headlines, I believe we have reason to be optimistic about the short-term and long-term outcome in the birthright citizenship case. There is much ground to cover, and others have done a superb job—so I will not retrace their steps. If you want excellent commentary with details, see Mark Joseph Stern & Dahlia Lithwick in Slate and Chris Geidner on his Substack, Law Dork. 2
Before looking at a few details, it is helpful to note that the birthright citizenship cases raise two questions: (a) Is Trump’s order denying birthright citizenship unconstitutional, and (b) Is it appropriate to block Trump's executive order on birthright citizenship by using a nationwide injunction?
The answers to the two questions are (a) Yes, Trump's executive order denying birthright citizenship is unconstitutional, and (b) Yes, it is appropriate to use a nationwide injunction to block the executive order.
The only question before the Supreme Court during Thursday’s oral argument was (b)—whether a nationwide injunction is appropriate. The Trump administration did not want the Court to address (a) the constitutionality of Trump's executive order denying birthright citizenship.
Trump did not want the Supreme Court to rule on the merits of the executive order because every court at the district court and appellate level to consider the matter has concluded that Trump's executive order is likely unconstitutional.
Although Trump did not want the Supreme Court to consider the merits of his executive order banning birthright citizenship, it turned out to be very difficult to consider the scope of the remedy, i.e., a nationwide injunction, without considering the merits of Trump's executive order.
And the single most important takeaway from today’s hearing before the Supreme Court is that there is little to no support for Trump's ban on birthright citizenship.
As Mark Joseph Stern and Dahlia Lithwick write
[N]ot one justice even hinted that they think Trump should eventually win on the merits and get the green light to start stripping birthright citizenship from immigrants’ children.
The good news is that the nine justices of the Supreme Court were able to see the bad-faith, disingenuous arguments of the Trump administration up close and personal. The US Solicitor General, John Sauer, made ridiculous and dangerous arguments that seemed to take the breath away from some justices.
As widely noted, Justice Barrett grilled Sauer over whether the administration would follow binding precedent. Suaer repeatedly said, “Generally, yes . . . .” In that context, “Generally,” means “No,” the administration will not follow binding precedent.
Sauer effectively told the Court, “The administration doesn’t have to follow Supreme Court rulings.” It was a clarifying moment and a personal affront to the Justices. They have now had a taste of what the rest of the world has been dealing with for the last three months. Good!
And Ketanji Brown Jackson distilled the administration’s arguments into a “catch-me-if-you-can” scenario in which every plaintiff must file their own lawsuit to challenge the validity of Trump's executive order. That approach leads to chaos and madness. And the only reason to adopt such an approach is to avoid the day on which the Supreme Court finally tells Trump his executive order is unconstitutional.
Inviting the Court to start down the road to madness and chaos as a way of avoiding a loss on the merits of a patently unconstitutional order again demonstrates the administration’s bad faith in dealing with the judicial process. Allowing the Justices to see that bad faith up close and personal is clarifying and helpful.
Perhaps the strongest argument was made by New Jersey Solicitor General Jeremy Feigenbaum. Per Stern and Lithwick, Feigenbaum
hammered to the court, pruning back these injunctions to the plaintiffs alone would mean that birthright citizenship is protected in 22 states but not in 28 others. “We’ve never in this country’s history since the Civil War had your citizenship turn on when you cross state lines.”
Suggesting that birthright citizenship as a US citizen would depend on the state of one’s birth is ludicrous and cuts at the foundation of the United States of America.
The Solicitor General of the US was forced to make such absurd arguments because the administration is desperate to avoid a ruling on the merits of Trump's executive order.
So, the risible arguments by John Sauer on Thursday are a sign of the administration in full retreat.
We have the administration on the run. We need to keep up the pressure, with the help of legal advocacy organizations and principled law firms.
Trump walks-back effort to obtain congressional ratification of DOGE cuts
The “cuts” by DOGE are unconstitutional. All of them. It is a bedrock principle of the Constitution that Congress appropriates funds and the president “faithfully executes” the laws that appropriate those funds.
By withholding (“impounding”) funds appropriated by Congress, Trump is violating the Constitution. Every day. That ongoing constitutional violation is a scandal that is being ignored by the media.
Trump is now seeking to avoid a confrontation in Congress, testing his ongoing unconstitutional conduct. He is again in retreat—because he does not want to know the answer that Congress will give.
Here is a quick example: On January 21, 2025, Trump withheld funds appropriated to USAID. A constitutional violation occurs on the first day of the impoundment. And the next. And the next, and next, and next . . . .The initial violation is ongoing until Trump complies with the appropriation mandate by Congress.
Now multiply that single impoundment by thousands of additional “cuts”—unconstitutional impoundments—by DOGE. Every one of those “cuts” is a violation of the Constitution that continues every day that funds are illegally withheld.
The media doesn’t care about this story. Or maybe it doesn’t understand the Constitution or the nature of DOGE’s actions. But the media reports the “cuts” as if DOGE has the authority to make them. It does not.
Cases challenging the unconstitutional impoundments are wending their way through the federal courts. Yesterday, I discussed the sweeping ruling by US District Judge Susan Illston that tees up the constitutionality of DOGE’s actions writ large. Ultimately, the courts will tell Trump that DOGE’s cuts violate Article I of the Constitution.
In the meantime, someone in the Trump administration came up with the “brilliant” idea of having Congress “ratify” DOGE’s unconstitutional cuts—thereby heading off a judicial decision that Trump has been violating the Constitution every day since Inauguration Day. See Talking Points Memo, Trump Allies Prep Plan To Make DOGE Seem Like A Good, Normal, Law-Abiding Operation.
As explained in the TPM article,
Republican lawmakers, hoping to save face with the public, have been asking the Trump administration to send in a rescission package in order to formalize the cuts he and DOGE have been enacting unilaterally.
If Trump were to ask Congress to ratify his unconstitutional cuts, he would need to identify the nature and amount of those cuts. In effect, Trump would be asking for forgiveness for his unlawful cuts when he should have sought permission.
[The 1974 Impoundment Control Act gives a president 45 days to notify Congress of the intention to impound funds, which starts a clock for congressional approval. Trump gave no notice to Congress about any impoundments.]
Asking forgiveness for the unconstitutional cuts would, of course, require Trump to identify the unlawful cuts and their amounts. The approach would effectively be a confession by Trump of his unlawful behavior.
Trump now realizes that asking Congress for post-facto approval of unconstitutional conduct is a bad idea—and so has withdrawn the effort. See Talking Points Memo, Trump Decides Now Is Not The Time To Make Republicans Rubber Stamp His DOGE Power Grab—Maybe Later.
Per the TPM article, Trump has decided to delay seeking approval for DOGE cuts by two years—which is the same as “never.” In truth, Trump doesn’t want to know whether Congress will approve the DOGE cuts on a retroactive basis (which would not comply with the Impoundment Control Act in any event).
To save face, Trump's surrogates claim that he will file a suit to invalidate the Impoundment Control Act. Such talk is empty blather by Trump. Several lawsuits holding that Trump violated the Constitution and the Impoundment Control Act will make their way to the Supreme Court long before Trump can challenge the Impoundment Control Act.
When the issue is posed to the Supreme Court, Trump's challenge to the Impoundment Control Act will receive the same derisive welcome as his birthright citizenship order received on Thursday.
Trump's “two-year delay” in seeking Congressional ratification and his pie-in-the-sky threat to challenge the Impoundment Control Act are signs of a hasty retreat.
Trump is losing. He knows it. He seeks delay to avoid his day of reckoning. That undercurrent runs beneath the Supreme Court hearing on birthright citizenship and his decision not to seek congressional ratification of DOGE cuts.
Concluding Thoughts.
There is more, but I hope I have helped readers to see beyond the details and understand that we are winning and that Trump is retreating.
I will hold a Substack livestream on Saturday, May 17, at Noon Eastern / 9:00 a.m. Pacific. Everyone is welcome. Join on the Substack App on your phone or tablet.
My conversation with Marc Elias of Democracy Docket can be viewed here: Democracy Docket x Robert Hubbell - Zoom. It is 30 minutes long but I hope you will take the time to watch through the end. Marc Elias and Democracy Docket are doing tremendous work in the defense of democracy. I was inspired anew after talking to Marc. If you want to support Democracy Docket, the link is here: Support Democracy Docket.
A final note on the Supreme Court. Readers have understandable anxiety every time the Supreme Court hears a case challenging Trump’s unlawful actions. The anxiety is understandable given the Court’s atrocious decisions in Dobbs and Trump v. US (and others).
But we should not shrink from pushing for Supreme Court review of Trump’s actions. We need to know which side of democracy the Court is on. While I have very modest hopes that we will receive some support from the Court, we need to know sooner rather than later if the Court will abandon us again.
If the Court does abandon us, we may need to change tactics. Let’s find out and move on. The Court isn’t going to save us. It might help us. Or not. Either way, it is up to us. It always is. And we are up to the task.
Talk to you tomorrow!
Daily Dose of Perspective
1
I am having trouble coming up with an appropriate nickname for the male members of the Court. Suggestions are welcome!
2
Chris Geidner’s Substack, Law Dork, is first-rate and deserves a better name! Chris has quickly become one of the leading commentators on the federal judiciary. There is nothing “dorky” about Chris or his analysis. I subscribe to Geidner’s Substack and follow him on BlueSky. (@chrisgeidner.bsky.social).
