Constitutionalism – The Law and Policy Blog

“But what if…?” – constitutional commentary in an age of anxiety

31st March 2025

What constitutional commentary can do and what constitutional commentary cannot do

There are many who are anxious and alarmed at what is unfolding in the United States.

And they are right to be anxious and alarmed – indeed, any other overall response would be strange given what is happening.

There is a certain cruelty in a good deal of what the US government is doing with its executive orders and other measures – and cruelty which is an end in and of itself.

As Adam Serwer rightly out it in his prescient 2018 article and subsequent book, this cruelty is the point.

Nothing in this post should be taken to gainsay this sense of anxiety and alarm – and still less to dismiss or discredit it. It is a perfectly sensible reaction to an unpleasant developing situation. There is nastiness and vileness, and it is horrific.

This post instead is about the limits of constitutional (and legal and perhaps even political) commentary to meet this anxiety and alarm.

For example, there is only so many times a constitutional commentator can usefully respond to the increasingly common “But what if…?” queries about possible future developments.

Today, one issue is about whether President Trump will somehow find a way to serve a third term, notwithstanding what appear (at least at first glance) to be a clear prohibition in the US constitution.

– But what if….he tried?

Well, the constitutional commentator may respond, there are these provisions in the US constitution which would appear to prohibit such a thing, and if those provisions were contested or defied it would be likely to ultimately end up at the supreme court.

– But what if….that did not work?

And it is at this second “But what if…?” that constitutional commentary effectively breaks down and offers no further useful aid to the person pressing for further answers.

A constitutional commentator may perhaps have a go at putting together a further answer, if they are feeling helpful, but both the questioner and the commentator are now leaving the realm of constitutional commentary and entering the world of speculation instead.

For there is only so much a constitutional commentator can say in response to “But what if…?”.

They can set out what the constitution provides for that eventuality and what mechanism can be applied to resolve any tension or dispute. But that is all they can do, for that is all a constitution is.

As a general (not universal) rule-of-thumb, the second “But what if…?” is the limit of any useful exchange about any constitutional query.

With the third and fourth “But what if…?” the value of any constitutional commentary will tend to fall to zero.

And that is because of the nature of constitutional arrangements: they only provide “the rules of the game” for foreseeable situations.

(In addition, few if any constitutional commentators are competent or qualified to deal with the anxiety and alarm of others. Indeed, constitutional commentators are (if they are candid) likely to make such anxiety and alarm even worse.)

All this said, here are some general points about the current constitutional situation in the United States which may provide some comfort.

First, the US government is (or is insisting) that it is complying with court orders. Yes, there are political and media figures boasting about breaching “unconstitutional” court orders – but in the court room, the US government lawyers are saying orders are being complied with.

Second, Trump and his supporters are again seeking to game the US constitution rather than breach it outright. You may recall the “January 6” violence was in respect of an attempt to get the vice-president and senate to exercise their constitutional function in respect of counting and certifying the electoral college in the favour of the losing candidate.

That clever-clever, elaborate (and misconceived) constitutional ploy failed, regardless of the violence. There is no more inherent reason to believe that the new clever-clever, elaborate (and misconceived) constitutional ploys for a third term will work.

Third, the federal executive does not have a monopoly of political power: even with a weak legislature, the federal judiciary and the states also have powers. Any analysis of scenario needs to take account not only of what powers the federal executive have (or wants to have) but which ones it does not.

At this point, a constitutional commentator setting that there are other possible outcomes than catastrophe is accused of “complacency” or “optimism”.

Alas, I am a deep pessimist when it comes to constitutional matters.

My pessimism is deeper than many will imagine.

For me it is a minor miracle that any human gathering greater than Dunbar’s Number ever endures, without breaking up in violence and recriminations.

(It really is not a surprise that every other species in the genus Homo became extinct, despite us supposedly being the most intelligent creatures to have yet evolved: and Homo sapiens have this immense capacity for violence against other members of our own species, and the capacity to make tools as weapons for this violence.)

Constitutions are precarious things, and at some point they will all tend to fail.

The questions are when and how.

The pre-conditions are there for the US constitution to fail – and for the current crisis to become either a civil conflict or the basis of a totalitarian state.

But at the moment, there are still other possible, more positive outcomes.

Again, setting out the limitations of constitutional commentary is not to gainsay the current alarm and anxiety.

And “But what if…?” can actually be a useful question the first time it is asked – and, indeed, thought experiments are sometimes helpful or revealing.

But an infinite regression of “But what if…?” questions to a constitutional commentator helps nobody. It does not help the questioner, for no answer will address the underlying alarm and anxiety, and it does not help the commentator, who will have no useful answers.

The only thing that constitutional commentary can do is to look at the constant stream of heres-and-nows, and to set out contexts and possible outcomes.

It is a plodding, limited, often thankless task.

And let us hope that one day, constitutional law becomes dull again.

***

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A significant defeat for the Trump government in the federal court of appeal

27th March 2025

The US presidency is not getting its own way – even with Republican-nominated appeals judges

Overnight the judgment for the federal court of appeal in the deportations case was handed down – and it was a 2-1 defeat for the Trump presidency.

The issue decided in this appeal was whether the “temporary restraining order” (TRO) – a form of interim injunction – should stay in place. This TRO, which was granted by the federal court in Washington D.C., prevents the federal government from removing alleged “enemy aliens” under the Trump proclamation of earlier this month.

In practical terms, of course, it is preventing the US government from placing currently detained Venezuelans – including those against whom there is no actual evidence – on planes to be sent to a El Salvador mega-prison under a commercial agreement between the US and El Salvador.

The TRO is not intended to be a permanent injunction – the key is the word “temporary” – but “to hold the ring” (as lawyers say) until there can be a proper hearing on the substantive case, after which it seems it can either be discharged or be converted into a firmer “preliminary” injunction.

The US government really do not like this TRO – for it is a powerful legal weapon and it applies across all the United States at the federal level. The government wants this TRO to be somehow vacated, so that they can go back to the business of mass deportations under the Trump proclamation.

But.

The US government failed to get the judge at first instance to vacate his own order – in a sterling (and highly readable) judgment, Chief Justice Boasberg rejected the US government’s application.

The US government appealed – and you can hear the audio of the appeal hearing here.

The appeal court comprised three judges – two of whom were nominated by Republican presidents (one by Bush the other by Trump) and one nominated by a Democrat president.

And in the appeal judgment now published, the TRO was upheld by a 2-1 majority, with only the Trump-nominated judge dissenting.

And even his dissent admits that the individuals can use habeas corpus to challenge removals, but they have to do it (if they can) in the state they are being detained, if they somehow get notice.

(This is, of course, on par with saying the detainees’ access to justice is via “the bottom of a locked filing cabinet stuck in a disused lavatory with a sign on the door saying ‘Beware of the Leopard.’”)

That said, that is still a move from saying that the individuals can have no absolute access to justice at all, which was the US government’s initial view.

The majority also gave a wide-ranging ruling, going against the government on point after point, and not just going against the government on a technical narrow basis.

And so the TRO stands – for now.

The US government may now seek to appeal to the Supreme Court – where there is also a majority of Republican-nominated judges.

But if the US government cannot win over the more moderate Republican judge at the court of appeal, it is an open question whether they will win over Chief Justice Roberts and Justice Barrett who, although conservatives, are independently minded and less prone to slavishly follow a party line in such political cases than their conservative colleagues.

Had the court of appeal gone the other way, with a 1-2 majority against the TRO that may have indicated that the detainee plaintiffs would have a harder time at the Supreme Court.

So this is good news for liberals – for now.

There has been a win in another court skirmish.

But a win in a skirmish is not a win in a battle, and still less a win in a war.

The broader, longer battles – and the war itself – may still be lost.

The US government may eventually get its legal act together – rather than the amateur hour antics they have exhibited so far – and they have at least another four years to do so.

But.

If the tide was to turn, this appeal win also would be an early sign.

What the appeals win signifies beyond doubt is that the US government is not getting its own way – and that its improvised “shock and awe” “move fast and break things” tactics can become undone.

Even if the Supreme Court side with the dissenting judge here (and somehow also insist that detainees can challenge their removals via “the bottom of a locked filing cabinet stuck in a disused lavatory with a sign on the door saying ‘Beware of the Leopard’”) the losses so far for the government at first instance and on appeal on the TRO issue means they have not (and will not) have an easy legal time with other such measures.

The US government will not be happy today.

‘This must be Thursday,’ said Arthur to himself, sinking low. ‘I never could get the hang of Thursdays.’

***

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Making sense of the Trump-Roberts exchange about impeachment

19th March 2025

Two public statements about the impeachment of judges – and why the Roberts one is highly significant

We are in strange constitutional times.

Yesterday there were two public statements, from the heads of their respective branches of the United States constitutional system.

The first was from the president of the United States Donald Trump on social media:

“This Radical Left Lunatic of a Judge, a troublemaker and agitator who was sadly appointed by Barack Hussein Obama, was not elected President – He didn’t WIN the popular VOTE (by a lot!), he didn’t WIN ALL SEVEN SWING STATES, he didn’t WIN 2,750 to 525 Counties, HE DIDN’T WIN ANYTHING! I WON FOR MANY REASONS, IN AN OVERWHELMING MANDATE, BUT FIGHTING ILLEGAL IMMIGRATION MAY HAVE BEEN THE NUMBER ONE REASON FOR THIS HISTORIC VICTORY. I’m just doing what the VOTERS wanted me to do. This judge, like many of the Crooked Judges’ I am forced to appear before, should be IMPEACHED!!! WE DON’T WANT VICIOUS, VIOLENT, AND DEMENTED CRIMINALS, MANY OF THEM DERANGED MURDERERS, IN OUR COUNTRY. MAKE AMERICA GREAT AGAIN!!!”

This social media post indicated Trump was perhaps a little disappointed with how the current case on deportations is going (covered on this blog in the last couple of days).

And unlike many of the documents examined on this blog, this Trump post really is not a difficult text to parse.

Once upon a time, when things were normal, such a statement by a president or anyone else in a position of power would have caused consternation, and maybe even triggered its own impeachment.

Now, we just expect these things – and one’s eyes glaze over such missives, with their lines of block capitals, just like one’s eyes can glaze over those irksome American contracts which insist in putting dozens provisions in block capitals so as to make them (supposedly) duly prominent.

And the fact that Trump was attacking a judge and calling for their impeachment also registered hardly a shrug.

So what? This is what he does. Next news item, please.

But.

It is a text not without interest – not for what it says, but for its context.

The timing of this post would accord with when Trump was probably being told of how the court case was going, with federal lawyers briefing him on the merits of the success of the defence.

As this blog has said, the US federal government are facing a hard time in this particular case – and there seems no obvious way that the government was not in breach of a court order.

If that was the substance of what Trump was being told, there is no wonder his response was this social media text. He would not take such news well.

But even after setting out this possible context, few would give such blather a second thought. More of the same.

But.

Then something unexpected happened.

John Roberts, the chief justice of the United States Supreme Court, put out his own public statement.

Such statements are as rare as Trumps posts are ubiquitous, and so it had the sudden effect that Trump’s posts have lost long lost.

Roberts simply said this, in a mere two sentences, and without any block capitals or exclamation marks:

“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.”

Bang.

Of course, this does not mention Trump expressly. And nor it is it an exceptional statement – it states the obvious.

In and of itself, it is not a radical text.

Yet the context of this text maybe makes it very potent indeed, and for at least two possible reasons.

First, it perhaps indicates that Roberts – part of the nominal conservative majority on the court – is not happy with threats to impeach judges over how cases are decided.

And if Roberts is not happy, it is likely that other conservative justices such as Amy Coney Barrett are unhappy too.

Given that Trump and his supporters hope and expect the conservative majority on the supreme court to ultimately uphold a lot of what they are currently doing, this statement was a signal that this majority cannot be taken for granted.

Second, it appears to also be a signal of judicial leadership. Roberts is implicitly telling the other federal judges across America who are having to adjudicate legal claims arising from the current political turmoil not to be intimidated by threats of impeachment.

(Any impeachment would also require two-thirds of the senate – votes which the conservatives have not (yet) got.)

If it is such a signal of leadership then, again, this is not good news for Trump and his bullying supporters.

Was it proper for Roberts to make such an extra-judicial statement?

Already conservative senators are saying that Roberts has trespassed onto the arena of the legislature, for it is Congress that decides whether to impeach.

(Such senators, of course, are silent on whether it was proper for the president to usurp the role of Congress on impeachment – but presumably such intellectual consistency is for the hobgoblin of little minds.)

But in any case Roberts was correctly stating the appropriate response to disagreeing with a court decision – you appeal, which is certainly proper for a chief justice to say.

And by saying what is the appropriate response, you are also necessarily saying what is not the appropriate response, and there is nothing wrong with him doing that expressly.

One never would have expected the president and chief justice to engage in, what is in effect, a twenty-first century pamphlet war – to have such a row in public.

To his credit Roberts avoided joining with Trump expressly, but the meaning of his speech act was plain: it was a public correction, if not a contradiction, of the president of the United States. It was a public rebuke.

Roberts would not have enjoyed doing this, and so there must have been for him a compelling reason to overwhelm his usual reluctance to make such statements.

(One wonders if he is also tempted to make a general statement that court orders should also be complied with unless appealed – though that may be too close to the facts of many currently contested cases.)

Many – fully aware of Roberts’ own rather illiberal judicial record – were unimpressed with this intervention. It was too little, too late and he only has himself to blame for much of the current law and policy dumpster fires.

Perhaps.

But here Roberts did do the right thing, and for that he should be commended – even if much of the rest of his record should be condemned.

And if politics is about getting people to shift their position to a better position, then any such move should always be welcomed.

Of course, the Roberts statement will make little difference to the current spectacular legal and political breakdown of the United States.

But it is a signal that those seeking to bring about this breakdown are not going to have it all their own way.

***

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“Oopsie” – the word that means the United States has now tipped into a constitutional crisis

17th March 2025

The United States federal government disregards a court order and jokes about it on social media

In the beginning was a word, and that word was “Oopsie”.

It was a word posted on social media yesterday in the name of the President of El Salvador:

This was then re-posted by the social media account of the United States Secretary of State Marco Rubio (though from his political account, not his official account):

Why is this posted word so significant that it signals a constitutional crisis is now happening?

Well.

The reason is about court orders, and about the response to court orders by the federal government.

Disagreements between the executive and the courts are not, by themselves a crisis. They are tensions. And constitutions exist so as to regulate and resolve those tensions. That is what constitutions do.

And loud shouts and boasts and threats by the executive about what they will do with the courts are also not by themselves a crisis, though they may well be dramatic. Such bluster can be accompanied by the quiet compliance with court orders, and the noise is just for the claps and cheers of supporters.

Where such tension and drama flips into a crisis is when there is is open, seemingly inconsequential defiance of court orders by the executive.

That means the constitution can no longer do its its job of regulating and resolving tensions between the executive and the courts, for that role presupposes that the executive will comply with unwelcome court orders until and unless those orders are set aside.

Once court orders are freely ignored by the executive, it is a form of constitutional ‘game over’.

In this case, there are newspaper reports that there was an order by a federal court that the relevant flights deporting individuals should return.

From the BBC:

A federal judge has stopped US President Donald Trump from using a 227-year-old law meant to protect the US during wartime to carry out mass deportations of Venezuelans. Trump proclaimed on Saturday that immigrants belonging to the Venezuelan crime gang Tren de Aragua were "conducting irregular warfare" against the US and that he would deport them under the Alien Enemies Act of 1798. But US District Judge James Boasberg that same evening ordered a halt to deportations covered by the proclamation lasting for 14 days, according to media reports. Judge Boasberg told a hearing he had heard planes with deportees were taking off and ordered them turned back, the Washington Post reported.

The federal government knew about this reported court order.

The federal government ignored this reported court order.

The Secretary of State himself effectively laughed and giggled on social media about ignoring this reported court order.

There were some early half-hearted attempts of trying to say the federal government had not brazenly defied a court order.

Perhaps it was a question of timing and the order was given too late and so had no effect.

Or perhaps there was a legal basis for the deportations outwith the court order and so there was no breach.

And indeed, if this is litigated we may see if there may be some force to these counterpoints.

But.

That was not the attitude of the White House – at least according to reports.

According to the Axios news site:

“The Trump administration says it ignored a Saturday court order to turn around two planeloads of alleged Venezuelan gang members because the flights were over international waters and therefore the ruling didn’t apply, two senior officials tell Axios. […]

“Inside the White House, officials discussed whether to order the planes to turn around. On advice from a team of administration lawyers, the administration pressed ahead.

“There was a discussion about how far the judge’s ruling can go under the circumstances and over international waters and, on advice of counsel, we proceeded with deporting these thugs,” the senior official said.

“They were already outside of US airspace. We believe the order is not applicable,” a second senior administration official told Axios.”

According the same new report, the White House press secretary then released this statement:

“The Administration did not ‘refuse to comply’ with a court order. The order, which had no lawful basis, was issued after terrorist TdA aliens had already been removed from U.S. territory.

“The written order and the Administration’s actions do not conflict. Moreover, as the Supreme Court has repeatedly made clear — federal courts generally have no jurisdiction over the President’s conduct of foreign affairs, his authorities under the Alien Enemies Act, and his core Article II powers to remove foreign alien terrorists from U.S. soil and repel a declared invasion,”

“A single judge in a single city cannot direct the movements of an aircraft carrier full of foreign alien terrorists who were physically expelled from U.S. soil.”

The White House is thereby publicly still asserting that they did not breach a court order. They are maintaining that the court order was either invalid or did not apply.

Of course, in the words of the eminent jurist Mandy Rice-Davies, they would say that wouldn’t they.

But the things is that until or unless a court order is discharged, it stands.

If the federal government genuinely believed the federal court order was invalid then the correct route was to appeal it – and to abide with it in the meantime.

The federal government does not (and should not) get to gainsay whether the court is acting inside or outside its jurisdiction or has made some legal error. That is for a superior court, and not for internal White House lawyers and press spokespeople to take upon themselves.

Even taking what the White House is saying at its highest, they are still acting unconstitutionally.

And, in any case it would appear that the “international waters” and the “already been removed from U.S. territory” lines are hogwash.

An obligation to comply with the order of the court attaches itself to the person of the defendant, not to where the defendant is performing its action or inaction.

(Note here I am not an American lawyer, but it would appear that this fundamental point is the position of American law too.)

What happens next?

Well that is the thing about a genuine constitutional crisis. Nobody knows what will happen next – not the federal government, not the courts, not the pundits.

For that is the nature of a crisis.

If an outcome of all this was foreseeable, let alone certain, then it would not be a crisis.

There is this fascinating and informative article about how the courts may deputise their own marshals to enforce contempt rulings, if the federally employed marshal service refuses to execute court orders.

Reading that article evokes thoughts about those Western films where a new sheriff in town has to resort to deputising the good town folk as sheriffs against the baddies.

It is a remarkable prospect – and it is remarkable that we are even asking questions like this, let alone people having to set out such detailed possible answers.

But whatever does happen next may not necessarily itself be dramatic.

Some crises are quiet or even silent to begin with, with only their effects manifesting later on.

Like an apparent bomb under the table in, say, an Alfred Hitchcock film, there may or may not be an explosion, which may be sooner rather than later.

Nobody knows.

What we do know is that the United States government is now picking and choosing whether to comply with court orders.

And when they do not comply, they do not seem to care and even seem to be laughing about it on social media.

In contrast, in the United Kingdom, there was a recent (2021) supreme court judgment (which I wrote about here) which said it was never for the government to pick and choose which court orders to comply with.

The United States government plainly do not think that is the legal position there – and they seem confident that if litigates a majority of the United States supreme court will support them.

One hopes that confidence is misplaced: Justices Roberts and Barrett may again show their independence of mind. But then again, they may not.

So what we have is a situation the outcome of which cannot be predicated, where the United States government nonchalantly says it can can select which court orders to comply with.

Americans now thereby face a federal government practically free from constitutional checks and balances in the exercise of its brute, coercive force.

If a judge goes against the federal government, all they will say is that the judge is wrong and carry on regardless, retweeting “Oopsie” as they go.

Brace, brace.

***

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Thinking about a revolution

5th March 2025

Some things are changing rather fundamentally and the way we think should perhaps change too

There is that scene in Monty Python’s Quest for the Holy Grail where an armed knight crashes and easily wastes a wedding party.

And of course, this armed knight is able to cause so much damage at a wedding party – nobody would expect this to happen and so nobody would think to to stop him.

He shows that it is really not very difficult to move fast and break things.

The surviving gate guard outside just looks on bemused at this, and he says, “hey”.

This is pretty much what many are also doing as they watch what is happening in the United States.

They see what is happening, and their response is also a bemused “hey”.

Students on university history courses often study historiography – the study of historians and how they write about history.

Sometimes this study of historiography includes a look at how different historians have used certain words and concepts, such as ‘revolution’.

And those students then find that such words and concepts have been used at different times and in different ways.

So, for example, students looking at ‘revolution’ may come across the so-called ‘diplomatic revolution’ of 1756.

In early 2025 we seem to be having a similar ‘diplomatic revolution’ – in real time, and this feels odd as in the United Kingdom we have not really had one for a long while.

When I mentioned this on social media, this was one insightful response:

The United States’ current deliberate alienation (and worse) of its long-term allies is a similarly fundamental – and, no doubt, similarly consequential – shift.

And although one should hesitate before saying anything as pointed as describing president Trump and Vice-President as Russian assets, their conduct is indistinguishable from them being so.

Everything they are doing appears to increase Russian power and to limit United States power.

There seems to be no other explanatory model that explains as much.

This is not to say that they are necessarily actively corrupt: one is reminded of an old joke-poem about Fleet Street journalism:

You cannot hope
to bribe or twist,
thank God! the
British journalist.

But, seeing what
the man will do
unbribed, there’s
no occasion to.

In addition to any actual corruption, there seems to be also an ideological commitment to promote and protect Russia at the expense of everyone else.

Perhaps the ghost of Stalin is now kicking itself – had he only described his regime as Russian nationalist as opposed to communist, he may not have been bothered by American cold war policy and 1950s McCarthyism and so on.

One thing about a (genuine) revolution, like a (genuine) crisis, is that they are unpredictable in their course and in their outcome.

And another thing about a (genuine) revolution is that it often requires there to be new concepts and new words, so as to describe things which are new.

Imagine living through the French Revolution without the benefit of hindsight: from the storming of the Bastille and the ending of the monarchy to the Terror, and from the Terror to the rise of Bonapartism, and from Bonapartism to a massive war and imperial conquest, and from a massive war and imperial conquest to a total defeat and the restoration of the monarchy.

And at each stage, nobody knowing what will happen and everything always confused and foggy and (frankly) terrifying.

Events unfold into things which were not only unexpected but also unprecedented.

Decades later, of course, the frenzy settles down to calm historical narratives.

But at the time, things did not seem like that.

As somebody once said of “realistic” war films, the only realistic war film would have bullets spraying out randomly from the cinema screen.

The same can be said about reading about social and political upheavals.

Revolutions are thereby not often fun – despite (or because of) the enthusiasm of self-appointed revolutionaries.

Wise conservative once knew this. There is a good case that modern conservatism (at least in Europe) came out from the reaction to the French Revolution – with its philosophy articulated by Edmund Burke and its statecraft practiced by Metternich.

Constitutional arrangements and the international order were regarded as fragile things – to be, well, conserved.

(Hence, conservatism.)

Yes, one could (to be anarchistic) move fast and break things. But that was neither clever nor wise. One can imagine the looks at the faces of Burke and Metternich and others at the antics of Elon Musk and DOGE

And the reason and the motive to oppose liberals, progressives and radicals was for Burke and Metternich that in their demands for reform and progress the liberals, progressives and radicals risked the fragility of constitutional arrangements and the international order.

One of the most remarkable features of current “conservatism” is that that it turns this conservatism of Burke and Metternich on its head.

It is almost as if the word and concept of conservatism has had its own revolution, and it has now become the very thing it once opposed.

The only common quality is that both old-style and new conservatism grasp the fragility of constitutional arrangements and the international order.

But instead of the caution of old-style conservatives, the new conservatives see that very fragility as an opportunity to trash and do damage.

And so all sorts of things are now being unleashed.

Here are a couple of literary examples of horrors being unleashed in their giddy destructive excitement.

In the words of Yeats:

“Things fall apart; the centre cannot hold;

Mere anarchy is loosed upon the world,

The blood-dimmed tide is loosed, and everywhere

The ceremony of innocence is drowned;

The best lack all conviction, while the worst

Are full of passionate intensity.”

Or in the words of C. S. Lewis:

“But such people! […] bull-headed men; spirits of evil trees and poisonous plants; and other creatures whom I won’t describe because if I did the grown-ups would probably not let you read this book—Cruels and Hags and Incubuses, Wraiths, Horrors, Efreets, Sprites, Orknies, Wooses, and Ettins. In fact here were all those who were on the Witch’s side […]”

Alas, unlike the original literary texts from which those quotes are extracted, we are perhaps unlikely to be saved by a second coming, or even a first one.

What has been done in the last few weeks by Trump and his cronies cannot – at least on a conceptual level – be undone.

They have shown just how fragile are their constitutional arrangements and the international order.

That cannot be un-invented.

Other countries would now be prudent to regulate their affairs so as to minimise or eliminate their dependency on the United States – it is no longer a question of waiting out until the next United States elections.

And other political systems would be wise to limit what can be done within their own constitutions by executive order, and to strengthen the roles of the legislature and the judiciary (and also of internal independent legal advice within government).

What is happening in the United States can happen elsewhere.

It can happen here.

Any political culture has a stockpile of political anecdotes, precedents and other antecedents, examples and illustrations, fables and proverbs.

“Peel did this” and “Roosevelt did that” and “This is just like the 1930s”.

There is nothing wrong with this – indeed it is an inevitable part of any political culture, essentially it is a shared set of memes and gifs that help us make sense of what is going on around us.

The problem is that old categories and concepts often do not match the novelty of what is now unfolding.

We many need to think about things in a new way – so as to work out to defeat what is unwelcome.

We may need to have a revolution in our own minds.

And not just go “hey” instead.

(And to my history tutors from the early 1990s, I am really sorry this historiography essay is thirty-five years too late.)

***

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

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The fog of lawlessness: what we can see – and what we cannot see – in the current confusions in the United States

25th February 2025

“l’histoire […] [est] après tout qu’un ramas de tracasseries qu’on fait aux morts.”

[“History […] [is] an annoying trick we play upon the dead.”]

~ Voltaire

(See here regarding the translation.)

A war or a revolution or a riot often makes little sense to contemporaries. There is a metaphorical fog, and there is confusion. Information is incomplete or unreliable. There is anxiety and excitement. Nobody really knows what is going on.

It is only in the later clear prose of a good historian, or the elegant prose of a confident judge, that the events seem to take some form of order: that what was messy and complex becomes a neat linear narrative, with reasoned conclusions based on tested evidence.

But it is not like that for those at the time.

What is actually happening currently in the United States is unclear.

There is a metaphorical fog, and there is actual confusion. Information is incomplete or unreliable. There is anxiety and excitement. Nobody really knows what is going on.

Not even those instigating the chaos know what is going on: they are too busy moving fast and breaking (and taking) things.

They may have some vague ideas about what they will do next, but one suspects what they will do next will come down to opportunism and cunning more than anything more concrete.

But in this fog there are certain things which can be made out.

For example, there are individuals who are insisting on being constitutionalist – despite the intense pressure and open threats to be otherwise.

There are the federal prosecutors who refused to apply for the prosecution of a politician to be dismissed:

There is the federal judge who appointed an independent lawyer to assist the court when nobbled prosecutors were found to apply for that dismissal:

There is the governor who said “see you in court” in the face of a president announcing that they were the federal law:

“See you in court” is a phrase that conveys the essence of the rule of law: that there is a forum where assertions of power can be tested for their legality.

And then there are things which are not being said.

Here is what seems to be the sound of constitutional silence:

Some are suggesting that the lawyers here are acting in bad faith, and that they do indeed know whether DOGE has an administrator.

Perhaps.

But what is more likely – and what would be far more significant – is that the lawyers do not actually know if DOGE has an administrator.

And here the word “know” is crucial – do they have knowledge?

They may have an understanding, a guess – or they may have heard somebody say something.

But if they do not know, they do not know.

And they are not going to mislead the court otherwise.

Indeed, whether DOGE actually exists is becoming more of a question for a theologian or a philosopher than for a mere legal commentator.

Perhaps soon all this will settle down, and the fog and confusion will clear, and we will see what has really happened.

The problem is that in fog and confusion a lot of things can happen which we cannot now know and maybe will never know.

It takes time to “see you in court” – and one does not know what one cannot see before one eventually gets to court.

By the time a court intervenes – and the adults stop the infantile antics – a lot of damage can be done – and certainly a lot of data and other material can be taken.

The law is sometimes not well placed to deal with what happens under the fog of war.

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Making sense of what is happening in the United States

18th February 2025

How can we make sense, from a constitutionalist perspective, of what is currently going on in the United States?

Perhaps it cannot make sense, perhaps it is senseless – and so there is nothing more to be said.

Or perhaps one day we can look back at what is happening, with glorious hindsight, and see that it makes perfect sense.

Perhaps.

This post, however, is an attempt to make some sense of what is happening, based on currently available information.

First, there is not – yet – a constitutional crisis in the United States, though it seems from the outside that the United States is very close to one.

Yes, there is conflict – but constitutions exist to regulate conflict. It is only a constitutional crisis when a constitution fails to resolve that conflict: when tensions harden to contradictions, which in turn can even prompt civil discontent and even violence.

And yes, there seems to be defiance by the executive of court orders, though the picture here is not clear. There are court skirmishes and filed appeals, and it may be that the apparent defiance is bluster and not reality. It is too soon to tell.

But if the executive branch deliberately and openly (and brazenly) defy the orders of a federal court then, yes, that would be a crisis. It would be a serious contradiction the outcome of which is not clear. Such a crisis may not lead to civil strife, but it would still be an unstable, unpredictable situation.

Second, it would appear that an attempt is being made to avoid Musk having any legal responsibility for what this DOGE entity is doing:

It will be (grimly) fascinating to see how this somewhat desperate tactic works out in court.

One would hope that such a tactic should fail before any objective judge looking at substance of matter, but it may work before partisan Trump appointed judges. ‪

And we should remember that Musk is no legal tactician or strategist, let alone 4D chess player when it comes to the courts.

He got himself in legal knots in his attempt to withdraw from buying Twitter, which he was then legally obliged to purchase:

And he could not even arrange his own pay-rise in the company he actually controls:

This is not masterful legal strategy or tactics, just loudly confident, well-resourced legal blundering.

Curiously Trump is a lot more legally cautious than Musk, and Trump is instinctively good at avoiding (evading) legal responsibility under a general air of plausible deniability.

Yes, he has not always succeeded – and he has criminal and civil findings against him – but these are very few compared to the sheer number of legal threats he has faced in his political and business careers.

Think about how he managed to get out of almost all the cases against him about 6 January 2021 – from impeachments to federal prosecutions.

Think about how he has always avoided personal bankruptcy – despite his many business failures.

One suspects Trump would never have ended up having to buy Twitter against his will because of legal blunders.

This reckless/cautious distinction is one key difference between Musk and Trump.

One suspect that after all this, Trump will deftly survive/avoid the legal consequences of DOGE shenanigans, and Musk and his cronies will not.

Third, the three key legal protections for Trump’s administration may not apply to the civil (not criminal) liability that may be triggered by what DOGE is doing:

- - Presidential pardons do not apply to civil liability – if Musk and others involved with DOGE are sued, no presidential pardon will help them.
  - The recent Supreme Court ruling giving the president a certain immunity from criminal prosecution similarly does not apply to civil matters.
  - Control of the Department of Justice will not help when matters fall to be determined by the federal courts – not all of which are (yet) dominated by Trump appointees.

The civil exposure – from being sued rather than being prosecuted – of those involved in DOGE would seem eye-wateringly high.

All sorts of contractual, proprietary, data and other rights of individuals appear to have been freely disregarded.

And on the face of it, the presidential machine offers no protection from suit from those whose rights have been breached.

No wonder Musk and others are now trying to distance themselves from legal responsibility for DOGE.

And fourth, and to return to an old theme of this blog: the legal form of a constitution – codified, “written” or otherwise – offers no protection in and of itself when key political actors care not for constitutionalism.

(Constitutionalism is when those with political power accord with organising rules and principles despite partisan or personal advantage.)

There is no formal impediment to determined unconstitutional behaviour.

The real problem is how one gets politicians – and voters – to care about constitutionalism.

And that is a problem which has no obvious answer.

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From constitutional drama to constitutional crisis?

1st February 2025

When do constitutional problems become incapable of constitutional solutions?

What is a “constitutional crisis”?

There has certainly been a great deal of constitutional drama in recent years – in the United Kingdom, the United States, and elsewhere.

But some of this drama somehow resolved itself.

In the United Kingdom, for example, the breathless threats and press briefings that the government was to do unlawful things in respect of Brexit in the end came to very little, though some (impotent) legislation was passed.

The United Kingdom supreme court in the Miller cases and parliament, by means of the Benn Act, put the government back into its constitutional box – and the once intense political-media frenzy over the Northern Irish protocol came to a whimpering end with the Windsor framework.

But sometimes constitutional dramas do spill into constitutional crises – political tensions harden into political contradictions, and these in turn can result in bloody violence.

On the islands of Britain and Ireland this has happened at least four times since the 1620s: the civil wars and political violence of the 1630s and the 1640s; the succession and religious conflicts from 1685 to 1746; the Irish war of independence and the Irish civil war; and most recently, the Troubles.

The execution of Charles I

Constitutional crises are serious political conflicts where constitutional means are unable to resolve the conflict, and the ultimate outcome of the conflict then becomes uncertain.

Often the political actors involved in the crisis will resort to violence – or be prepared to do so.

At such times it may not matter that a constitution is codified or not. For what has failed is not the form of the constitution, but its substance. The real failure is that of constitutionalism.

What then is constitutionalism? It has many definitions, but one approach is to regard it as the acceptance that there political rules and principles that should apply, regardless of partisan or personal advantage.

In other words that there are rules of the game.

What has happened in the United States over the last few days looks like a determined and comprehensive attack on various political institutions, by and on behalf of the newly re-elected President Trump.

As there are well-grounded fears that neither the federal judicial benches nor Congress will check and balance this attack, then there are the makings of a genuine constitutional crisis.

And the ultimate cause of this is not so much the failure of their codified constitution, but a deeper and wider failure of constitutionalism – including but not limited to the licence given by the United States supreme court to the president to do unlawful acts, and the failure of the Senate to discharge its constitutional obligation to convict Trump on impeachment after the attempted insurrection of 2021.

From such things, other things have now followed.

Brace, brace.

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Looking critically at Trump’s flurry of Executive Orders: why we should watch what is done, and not to be distracted by what is said

21st January 2025

Around Westminster, the most useful guides to the nature of modern politics may not be the journalists and commentators, still less the ‘think tanks’ with their portentous names and solemn but flimsy ‘reports’.

They are perhaps instead the con-artist conjurers on Westminster Bridge – whose activities are detailed in this fine piece.

For it is these lowly tricksters that remind us that we should watch what is done, and not to be distracted by anything else.

The Conjurer, painted by Hieronymus Bosch

In the United States and the United Kingdom there is currently a lot of noise and a lot of misdirection.

As a famous chess player once observed:

“The point of modern propaganda isn’t only to misinform or push an agenda. It is to exhaust your critical thinking, to annihilate truth.”

The constant noise and endless misdirections are indeed exhausting.

By the time any of the noise and misdirections are translated into action (or inaction), you are tired to notice and others will be too tired to care.

We will be onto the next outrage, and then the next, and the next.

The hard thing is to separate out what is done (and not done) from what is said.

In the United States there has been a flurry of Executive Orders from the newly inaugurated President Donald Trump.

This sounds very impressive, and it sounds very scary.

But, an Executive Order is not a precise thing – it is a generic term to describe a range of documents that can come from the President.

As this US academic explains:

Some of these Executive Orders will be instruments provided for and envisaged by pre-exisiting enacted legislation: and these will usually have direct legal effect.

Others will have no legal framework and have no legal basis for having any effect.

Many will range between these two extremes.

All will be ‘Executive Orders’ put forward and signed by the President – but pretty much that is all they will have in common.

And according to another US observer, many of these Executive orders are not even of serviceable quality:

This is not surprising: competent legal drafting is not easy, and many of these “Executive Orders” are from pressure groups and professional antagonisers.

Like the Truss legal letter recently examined on this blog, what you have here are media-political devices disguised in the form of legal documents.

But it is a mask, and what we are seeing is essentially a masquerade.

This is not to say that some – maybe many – of these Executive Orders are not going to have adverse effects for somebody – especially in the short term.

Indeed, given the many partisan conservative judges now on the federal bench, there will be energetic judicial exertions to give effect to otherwise shoddy Executive Orders.

But what it does mean is that we should be careful not to accept everything at face value.

For a flurry of Executive Orders may be little different from a flurry of Press Releases.

And we should be mindful that we are dealing with con-artist conjurers.

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Some of President Carter’s judges can still judge, 44 years later – and so we can see how long Trump’s new nominees will be on the bench

New year’s eve, 2024

The former US President Jimmy Carter, who has just died, left office in January 1981 – just under 44 years ago.

Yet one of his many bench nominees was still actively serving as a federal judge as recently as 2021:

And that list also indicates that about 29 of those judges – while not on active service – have the semi-retired “senior status” and so can still serve as judges if required.

This shows the significant lingering power of every US President on the shape of the judiciary.

A 100 year-old president former president has died who left office over 40 years ago, and yet his appointments can still decide cases.

Bringing this around to today: the newly re-elected Donald Trump and the Republican Senate will be appointing a raft of young conservative judges to the judicial benches, in addition to those which were appointed during his first term.

And some of these will still be judging (or able to judge) in 40 or 50 years – long after many of you reading this post may be here.

The lingering effect of the two Trumpite moments will last for political generations. Some appointed judges may see out ten or more presidential terms and still be judging.

And judicial time limits are now more unlikely than ever: Trump and the Republican senators have no interest whatsoever in limiting the enduring power of their nominees. And presumably as and when (or if) the Democrats ever regain power, they will have no interest in limiting the terms of their appointees.

This is a practical effect of how what some say (or hope) may only be short-term political surges can have consequences that will last decades.

(See also: Brexit.)

We are not dealing only with the politics of the here and now, but about the law and government of the hereafter.

Perhaps things will one day get better for liberals and progressives.

Perhaps.

But it is going to be a long haul.

Happy new year to the readers of this blog.

Thank you for your ongoing support.

There is going to be a lot to write about in the new year – and I am also going to explore the law and policy of AI, following my Candlemas story.

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