United States Law and Policy – Page 2 – The Law and Policy Blog

“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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Oh Canada

16th March 2025

Canada is unlikely to really want to join the European Union, but here is a thought-experiment anyway

These are strange times for law and policy commentary. On one hand, there is some new thing to write about every day – almost every hour. On the other hand, most of what is being is written in response to those new things is the same. There is only so many ways of saying things are bad, and they are getting worse.

And so it came as a light relief when the media reported that an opinion poll showed substantial support among Canadians for joining the European Union.

And any comics fan knows the fun to be had with a good What If team-up.

(Source.)

So I did a post over at Prospect on What If…Canada wanted to join the European Union?

(Click and read here.)

Sadly, we could not commission Marvel cover art, and so we got a stock photo of President Macron and Prime Minister Trudeau instead.

But the sentiment behind the article was the same: What If?

Pretty soon in putting together the post it became obvious that it would have to be about what is meant by a country being a “European state”.

This was because the formal legal gateway to EU membership – Article 49, the sister provision to the exit provision Article 50, of which you have no doubt heard – is limited to European states.

Of course, this is no absolute barrier: what is done by a treaty can in general be undone by a treaty. If all the parties to a treaty agree to a change then a provision can be amended.

But as Professor Steve Peers – a one-person boon to the public understanding of EU and other international law – avers, the EU treaties generally are framed about the ever closer union of European peoples etc.

And so the question becomes: what actually is a European state?

Here there are at least two complicating factors.

First, the European Union already extends far beyond any meaningful definition of the continent of Europe. Indeed, it goes as far as the Indian Ocean.

Second, an actual full member state of the European Union – Cyprus – is, according to many geographers, part of West Asia and not Europe.

And if so, if there is an absolute binary that a member state itself (notwithstanding any overseas extensions) has to be part physically part of Europe, it is perhaps difficult to make a categorical argument why Cyprus can be a member, and Canada cannot be.

At least, that is, without advancing an argument that being European is ultimately just a state of mind.

Another thing that came up when putting together the post was about the curious position of Morocco.

What “everybody knows” – that is anybody who has followed such things – is that Morocco was once turned down for membership of the European Economic Community (the predecessor of the EU) for not being European.

But this story was curiously difficult to pin down with any official documentary evidence – which is curious, given how much sheer documentation the EU does publish.

(At one point it seemed as if the story existed entirely as lore, and not law and policy.)

This is not the place to explore what happened when Morocco made enquiries about joining the EEC – that fascinating story warrants a separate post.

But whatever did happen would not, in any case, bind the EU now as a precedent.

It would come down to politics.

In essence: if both Canada and the EU really wanted to come together, no mere legal formalism would stop them.

What would be more sensible, however, would be for the sensible liberal members of the EU – that is the current ones minus the illiberal headbangers of Hungary and Slovakia – to join with non-EU members such as Canada, the United Kingdom, Norway, Iceland, and perhaps Greenland and Ukraine – and form a new grouping.

Other non-European states may also like to join in: Mexico and Panama may have common interests.

This grouping could complement and fit with the EU, but not be beholden to the vetos of illiberal EU (and NATO) states.

This grouping may adopt the trappings of a formal identity – with its own acronym and permanent staff – or it may be simply a coalition of states working together.

And this may achieve what the 44% of Canadians in that poll presumably want: a closer connection with those who can counterbalance its erratic southern neighbour, which is currently experiencing a spectacular political and diplomatic breakdown.

Joining (or leaving!) the EU is never to be done lightly: it can (and should) take years to reconfigure a state’s laws and policies so as to align and then fuse with those of the EU.

And that is before a candidate member state has to work out how to deal with the institutional framework of this complex supranational organisation, where the council, the commission, the court of justice, and other bodies can (and will) clash with domestic institutions.

All this, of course, is merely a thought-experiment.

But such exercises can be useful in separating out the plausible from the implausible, and the compelling from the unnecessary.

Any sensible person will sympathise with the predicament of Canada – and of other countries being bullied by the United States.

But.

What if…

…all other countries now adjusted their affairs so as to eliminate or minimise the power and influence of the United States?

Now, there is a thought-experiment.

***

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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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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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The president who believes himself a king

23rd February 2025

A telling joke told by the president of the United States

During the last week the president of the United States compared himself to a king.

Of course, it was intended to be a joke – not in the sense of being funny, but in the sense of saying something without any adverse consequences.

But what struck me when he said it is that this is exactly sees power: that all power – executive, legislative, judicial – flows from him, and is ultimately exercisable by him. He wants to block laws and ignore court orders at will.

As such he does see himself as an absolute ruler.

In the United Kingdom – or at least in England – the theory is that while all power flows from the Crown, it is institutionalised so that the legislature legislates (as the “Crown-in-Parliament”) and the courts adjudicate (including in the Royal Courts of Justice).

But.

The “founding fathers” who devised the United States constitution rejected this approach – for them, the executive, legislature, judiciary each derived their powers separately from the constitution document itself – and not from the executive.

Trump’s approach is a flat contradiction to this codified constitutional arrangement.

I have written more about this over at Prospect – please click and read here.

***

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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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The paradox of the Billionaires saying that Court Orders have no value, for without Court Orders there could not be Billionaires

11th February 2025

Those saying that Orders of the Court can be freely defied should be careful what they wish for

Imagine a billionaire, and imagine then their billions being somehow, unlawfully confiscated.

These unlawful confiscations could be in terms of their physical possessions being taken away; or titles to their real property being transferred to someone else; or the transfer away of monies in bank accounts and trust funds; or the titles in intangible property, such as intellectual property rights, being fraudulently assigned; or their contractual entitlements being wrongly nullified; or whatever.

Imagine whatever the species of wealth, it was by some unlawful means no longer to be the wealth of the billionaire.

What is the poor billionaire to do?

The billionaire would contact their lawyers, and the lawyers would then take legal actions; if needs be, the lawyers would apply to the Courts for remedies and sanctions, so that the unlawful confiscations are ceased and desisted from, and the property returned, and so on.

Whatever the species of wealth, there will be some legal means for the billionaire’s lawyers to seek legal redress form a court of competent jurisdiction.

And so in each and every case, the lawyers will be seeking an Order of the Court.

And not only would the lawyers be seeking an Order of the Court, they would be expecting that the Order of the Court would be respected and would be enforced.

The wealth of any billionaire (or of anybody else) is ultimately a bundle of legal rights – in contract, in property, in trusts, and so on.

It is because these rights are enforceable that the wealth exists and accumulates. Unless the legal rights are enforceable, there simply is no wealth.

And any enforceable legal right usually means ready access to an Order of the Court.

But.

If Orders of the Court have no inherent value – that it is open for others to freely disobey the Orders of the Court – then what ultimately depends on Orders of Court becomes suddenly precarious.

Therefore those – billionaires and others – who say that Orders of the Court can be freely defied, on a pick-and-choose basis should be very careful for what they wish for.

For without compliance with Orders of the Court, there cannot be any billionaires.

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Why Donald Trump is not really “transactional” but anti-transactional

4th February 2025

A contract lawyer’s perspective on how Trump uses deals and deal-making

Contract law is (for me) the most exciting and satisfying area of law.

(Constitutional law and criminal law and media law are all very interesting in how they regulate real life activity, but only contract law is exhilarating. I once read Patrick Atiyah’s extraordinary Introduction to the Law of Contract in one go on a long plane journey, and the same author’s The Rise and Fall of Freedom of Contract is one of the best intellectual histories ever published.)

And so it is from a contract law perspective that this post looks at the question of whether Donald Trump, the businessman-turned-President, is “transactional” in his political approach.

This is certainly what many pundits are saying:

Are these pundits right?

Has this new conventional wisdom hit upon something?

From a contract law – and contract lawyer’s – perspective, Trump is not “transactional”.

Indeed, he is the opposite of transactional: he is instead anti-transactional.

A transaction is a two-way process, an exchange where a party agrees to do a thing in return for another party agreeing to do a thing.

To use old-style language, a transaction is a bargain, an exchange of promises.

And for the business people concerned in a commercial transaction, that contract has sanctity. So if a party does not comply or even breaches the contract there are remedies which are intended to place the injured party in the position they would have been had the agreement been properly performed. Often these are “money” remedies, but sometimes they can be injunctions or other court orders.

The court will enforce what the parties had agreed, for the agreement is the thing.

But for Trump, the agreement is not the thing.

An agreement is there to be opportunistically repudiated, and not to be performed.

An agreement offers an opportunity to gain leverage, for a new negotiation. for a new exertion of power.

This approach has also been spotted by one acute British observer:

For Trump, notwithstanding his ghost-written book The Art of the Deal, deals are not an art but about artfulness.

For Trump, a hire is only of any use so long as they can then be “fired”.

Transactions are just there for suckers.

There is nothing inherently weak in this anti-transactional approach: and indeed it has proved successful for Trump, both politically and commercially.

And, yes, he does deploy the rhetoric of “the deal”.

But this only makes him transactional in the same way an atheist going on about “God” makes them a Christian. There is instead a positive disbelief in the words and concepts being used.

And so each supposed agreement with Trump is a mere marker for the next use (and abuse) of leverage: few if any transactions will ever be transacted. Things will move on, there will be new exertions of power, and new things demanded.

For Trump, a contract, like Littlefinger’s chaos, is a ladder.

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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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