Category: 3-LawSometimeCommentary

The Supreme Court struck down Donald Trump’s sweeping tariffs on Friday, ruling 6–3 that they vastly exceed anything federal law allows a President to do. It was a massive loss for a signature component of Trump’s economic agenda, and a coalition of liberals and conservatives on the court agreed that the statute invoked to impose these tariffs was never intended to be wielded in this fashion. The 6 disagreed emphatically as to the reasoning. The dissenters were Big Mad. On this week’s Amicus, Dahlia Lithwick and Mark Joseph Stern unpack the rationale behind the decision, and the implications for those seeking a remedy. And they ask what to make of this massive loss from a court that has yet to truly tell this President “no.”  

Then, the press clause of the First Amendment, a once-cherished constitutional right, has fallen victim to neglect and sabotage in recent years, taking a back seat to the more vaunted love affair with individual “free speech.” But, as recent developments—including the arrest of journalist Don Lemon and the heavy-handed interview-spiking “guidance” of late night host Stephen Colbert—illustrate, the freedom of the press is no slam-dunk when it comes to saving democracy in Trump’s America. Dahlia speaks with First Amendment scholars Sonja West (University of Georgia) and RonNell Andersen Jones (University of Utah) about the health of the press clause and the themes in their book, The Future of Press Freedom: Democracy, Law, and the News in Changing Times. They trace the ways in which the framers viewed press freedom as a core, structural “bulwark of liberty,” and why the Supreme Court has increasingly treated it as a neglected companion to free speech rights; leaving weakened and fragile protections for news gathering. The conversation contrasts Trump’s first-term rhetorical delegitimization of the media with a second-term shift toward tangible actions: access restrictions, funding cuts, agency leverage, and selective regulatory pressure.

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• 3/6/26 – San Francisco

• 3/7/26 – Los Angeles

OA1237 - The U.S. Department of Justice is not sending their best these days. From the problematic indictments of journalists Don Lemon and Georgia Fort for their coverage of the protest of a church in Minnesota whose pastor runs the local ICE field office to the unexpected dismissal of Mohsen Mohdawi’s deportation proceedings to a bizarre argument (and more good news) in Kilmar Abrego Garcia’s custody proceedings, we are continuing to see what happens when authoritarian lawyering meets actual federal judges applying actual federal law to the facts and parties before them. 

Finally, in today’s footnote: can you sue your ex for telling millions of people about your enormous penis? We debate whether a former football player’s claims are giving BDE or legal shrinkage.

1. Federal indictment of Nakima Levy Armstrong, Don Lemon, Georgia Fort, et al in connection with January 18, 2026 protest at Cities Church

2. DOJ Office of Civil Rights memo re: FACE Act charging policy (Jan 24, 2025)

3. The Freedom of Access to Clinic Entrances (“FACE”) Act, 18 USC 248

4. Petitioner’s 28(j) letter in Mahdawi v. Trump with copy of the Immigration Judge’s order terminating Mohsen Mahdawi’s removal proceedings attached (Feb. 17, 2026)

5. Judge Xinis’s order preventing Kilmar Abrego Garcia’s re-detention by ICE (Feb. 17, 2026)

6. Complaint in Kalil v. Kalil, filed Jan. 6, 2026

7. Excerpts from Rev. Jesse Jackson’s “Keep Hope Alive” speech at the 1988 Democratic National Convention

Check out the OA Linktree for all the places to go and things to do!

E23 - For today's amuse douche: a savory sample of our favorite Harvard Law professor’s extremely normal 2015 explanation of his appearances in Jeffrey Epstein’s flight logs. We then take on an almost painfully normal 1997 Dersh LA Times oped in which the lawyer who would go on to secure one of the best plea deals a pedophile has ever received complains about all of those pesky age of consent laws. Finally: some of the worst reactions from men exposed in the Epstein files. 

You can also watch this episode on YouTube!

1. “Gelernter tells dean he stands by praising student's looks to Epstein,” Yale News, Feb 5, 2026

2. “Statutory Rape is an Outdated Concept, Alan Dershowitz, LA Times (1997)(retrieved from Newspapers.com.) 

3. Steven Pinker's linguistic analysis for Epstein's defense team, eventually resulting in Epstein's "sweetheart deal" (attachment in linked email, June 28, 2007).

Check out the OA Linktree for all the places to go and things to do!

Jeff Bezos emasculated the Washington Post; now he has virtually killed it.  Why?  And what does this mean for the nation?  What is the importance of major newspapers to the American constitutional system?  We bring you the great Ruth Marcus, former deputy editorial page editor, long-time columnist, with over 40 years at the Post, to offer an in-depth, insider perspective on this shocking set of events.  CLE credit is available for lawyers and judges from podcast.njsba.com.

• Kate: Bad Bunny's Super Bowl Halftime Show; Universities Are Sending Trump a Dangerous Message, Arne Duncan & David Pressman (Washington Post); The Field of Blood: Violence in Congress and the Road to Civil War, Joanne B. Freeman
• Leah: We Have to Look Right in the Face of What We Have Become, Jamelle Bouie; What It Means to Be a White ‘Race Traitor’, Nikole Hannah-Jones (NYT)

• Melissa: MS NOW Presents: Clock It with Symone Sanders Townsend & Eugene Daniels; A Pilot Fired Over Kristi Noem’s Missing Blanket and the Constant Chaos Inside DHS (WSJ); Jessica Bichler for NC State Senate

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  3/6/26 – San Francisco

• 3/7/26 – Los Angeles

OA1236 - Elections grab bag! Election news has been accumulating, so Jenessa helps us get caught up on what’s going on. Who’s winning elections? What’s going on with redistricting? Heard something confusing about the mail? Trump back on his bullshit again? Good news, mixed news, debunking alleged bad news, bad news with plans for how to turn things around; we’ve got it all.

Updates since we recorded: The SAVE America Act passed the House. Also the affidavit for the warrant in Georgia was unsealed. We’ll talk about it soon, but the short version is these people really still believe in election conspiracy theories. It’s gross. We’ll survive.

• John Hanna & Julie Carr Smyth (Feb. 1, 2026). Texas stunner: Democrat Taylor Rehmet flips Republican state Senate district Trump won by 17 points, Associated Press.

• Amy Howe (Feb. 4, 2026). Supreme Court allows California to use congressional map benefitting Democrats, SCOTUSBlog.

• Tangipa v. Newsom (docket and SCOTUSBlog coverage), SCOTUSBlog.

• Abbott v. League of United Latin American Citizens (docket and SCOTUSBlog coverage), SCOTUSBlog.

• H.R.7296 - SAVE America Act, Congress.gov.

• H.R.7300 - Make Elections Great Again Act. Congress.gov.

• Domestic Mail Manual 608.11

• Domestic Mail Manual amendment explanation (Nov. 24, 2025). Postmarks and Postal Possession, Federal Register.

• 39 CFR Part 111

• Dan Mooney, What Is RTO? Why Do We Have It?, National Association of Postal Supervisors (Aug. 19, 2025) 

• Regional Transportation Optimization (RTO) initiative. (Feb. 2, 2025). Service Standards for Market-Dominant Mail Products, Federal Register.

• 39 CFR Part 121

• Track Your Ballot or Ballot Application, Vote.org.

• 2 U.S.C. § 7 - Time of election

• (Dec. 24, 2025). Table 11: Receipt and Postmark Deadlines for Absentee/Mail Ballots, National Conference of State Legislatures.

• Evan Lee (Jan. 15, 2026) Court holds that all candidates can challenge rules governing vote counting in elections, SCOTUSBlog.

• Bost v. Illinois State Board of Elections, 607 U.S. __ (2026).

• Bost v. Illinois State Board of Elections (docket and SCOTUSBlog coverage), SCOTUSBlog.

• Amy Howe (Nov. 10, 2025). Justices agree to decide major election law case, SCOTUSBlog.

• Watson v. Republican National Committee (Election Law) (docket and SCOTUSBlog coverage), SCOTUSBlog.

Check out the OA Linktree for all the places to go and things to do!

The machinery to enable Stephen Miller’s darkest deportation dreams is both tangible and legal. In this week’s show, Dahlia Lithwick explores the statutory and regulatory foundations of the Trump administration’s expanding network of detention camps, plus the historical background of the vast warehouse system they are using to imprison tens of thousands of migrants. First, she speaks with Linus Chan, who represents Minnesotans detained by ICE, he teaches law at the University of Minnesota School of Law. Chan describes how the most basic right of habeas corpus has been whittled away by the courts to a filament when it comes to immigration law, allowing the federal government to weaponize brutal detention against ordinary Americans. 

Next, Dahlia is in conversation with Andrea Pitzer, about her chilling and urgent new piece, Building the camps: The warehouseification of detention and initial thoughts on stopping it. It is essential reading (and listening!) in light of the billion dollar detention camp system being built in warehouses near you in cities around the nation. 

If you want to check if your town is on the list, Andrea recommends checking out Project Salt Box.

Want more Amicus? Join Slate Plus to unlock weekly bonus episodes with exclusive legal analysis. Plus, you’ll access ad-free listening across all your favorite Slate podcasts. You can subscribe directly from the Amicus show page on Apple Podcasts and Spotify. Or, visit slate.com/amicusplus to get access wherever you listen.

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OA1235 - Today on Rapid Response Friday: Matt’s still on island time, so it’s a good-news-only kind of day as we review (1) the historic termination of deportation proceedings against Tufts grad student Rumeysa Ozturk, (2) new judicial restraints on ICE, (3) a DC federal judge’s outstanding rebuke to DHS Secretary Kristi Noem’s attempt to deport 350,000 Haitians, and (4) a Republican revolt on Trump’s emergency tariffs. (Also: just how stupid is the super-secret memo which ICE has apparently been using to justify breaking into some immigrants’ homes without a judicial warrant?)

Finally in today’s footnote: Matt shares how his attempt to mail some pants from the U.S. Virgin Islands revealed a weird loophole in Trump’s emergency tariff orders which is now forcing some U.S. citizens to pay international duties on domestic shipments.

1. In re: Ruiz-Massieu, Int. Dec. #3400, Board of Immigration Appeals (June 11, 1999)

2. Whistleblower Aid letter detailing secret ICE memo allowing arrests without warrants (memo attached at Ex. 1)(Jan. 6, 2026)

3. Sample I-205 ICE administrative warrant

4. D.C. District Court judge Ana Reyes’s decision in Moit v. Trump  preserving Temporary Protected Status for Haitians in the U.S. (2/2/2026)

5. “Suspending Duty-Free De Minimis Treatment for All Countries,” The White House (July 30, 2025)

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It’s becoming apparent that the theory that Professor Amar put forth 40 years ago in a now-famous law review article, Of Sovereignty And Federalism, is being taken seriously by more and more legislatures, newspapers, and the general public. Therefore, we bring the two leading experts on this – Professor Akhil Amar, and his brother Professor Vik Amar - together to go over the background, theory, and intricacies of this important development. It’s a master class that takes you back to an earlier master class we had, on the venerable and crucial case of McCulloch v. Maryland. What does this have to do with converse 1983? You’ll find out.  CLE credit is available for lawyers and judges from podcast.njsba.com.