Trump administration doing legislative end run by suing friendly adversaries

Last June, the Trump administration hauled Texas into court, claiming that a decades-old state law once championed by Republicans violated federal law.

Within six hours, the two sides reached an agreement, reported The New York Times.

Instead of fighting, Texas immediately settled. Led by Attorney General Ken Paxton, a close ally of President Trump, Texas simply agreed the state law, which allowed undocumented high school students to pay in-state tuition at public universities, should be invalidated. The resolution eliminated any need for a slow and messy vote to overturn the statute in the State Legislature.

It was one of a string of lawsuits in which the Trump administration has reached settlements with friendly adversaries.

The strategy appears to have allowed the administration to do an end run around the legislative process and enact policies that will affect states and, in some cases, the whole country.

The settlements have come despite Supreme Court rulings that require lawsuits to be waged between adversarial parties and a reticence among administration officials dating to Mr. Trump’s first term with entering legal settlements that bind the government’s hands.

In some cases, like in Texas, the legal maneuver has allowed states to quietly break free from their own laws, outside the normal legislative process. In others, it has helped the Trump administration lock in changes at the federal level that could persist for years after Mr. Trump leaves office.

In Florida, for instance, the Trump administration in February reached a legal settlement with the Republican-led state requiring the Department of Homeland Security to forgo one of its authorities to admit immigrants for 15 years. Though reached with a state government, the settlement could affect immigration policy for the whole nation, through the next four presidential administrations.

In Kentucky, the federal Transportation Department proposed a settlement in a case with a pair of industrial companies challenging decades-old racial and gender-based preferences, acceding to the businesses and agreeing to end use of the preferences in its contracting nationwide.

Asked to comment on the pattern of settlements, a spokeswoman for the Justice Department indicated that the laws at issue in each case were problematic for different reasons. In Florida, a judge had already sided with the state before the agreement. And in Texas, the spokeswoman said the fact that the law remained on the state’s books, despite the parties agreeing it was illegal, amounted to a real dispute.

But the speed at which cases have been settled and the shared political priorities involved have led outside groups and former officials to call foul, arguing that the cases appear plainly collusive.

“This isn’t a controversy,” Shelby Leighton, a lawyer at Public Justice, said of cases the Justice Department has brought regarding in-state tuition. She is asking a judge in Kentucky to reject a settlement there similar to the one in Texas. “The federal government and the state government agree a hundred percent on the issue, and they’re just working together to do an end run around the democratic process.”

The Supreme Court has long maintained that federal judges cannot hear cases where there is no genuine dispute between the parties, warning that the Constitution bars judges from hearing cases that are not adversarial. Such collusive lawsuits are dangerous, the justices have found in multiple instances, because they exclude third parties with real stakes in the outcome.

For decades, the Justice Department has likewise discouraged legal settlements that could reduce the executive branch’s power in the long run.

In 1986, President Ronald Reagan’s attorney general, Edwin Meese III, sent a memo to colleagues specifically urging them to use caution when ending lawsuits through consent decrees, a particular type of settlement in which the resolution is monitored by a judge.

At the time, the Reagan administration was defending the government against a crush of lawsuits from environmental groups.

The department, Mr. Meese wrote, should not enter into a consent decree that “divests the secretary or agency administrator, or his successors, of discretion committed to him by Congress or the Constitution,” particularly if the power had been granted to allow government officials “to respond to changing circumstances.”

The vision was reaffirmed and expanded in 1999 by Randolph D. Moss, now a federal judge in Washington, under President Bill Clinton.

In the mid-2010s, during President Barack Obama’s second term, conservative scholars accused him too of collusive lawsuits, criticizing what they called “sue and settle” schemes, especially in the environmental realm. Academics cataloged a number of examples in which they said watchdog groups sharing the administration’s environmental goals sued the Environmental Protection Agency or a related department, followed by a quick settlement that shifted regulations.

But Mr. Trump’s officials have generally been critical of using legal settlements to achieve policy aims, particularly given their history of use to force police reform. Last year, Mr. Trump issued an executive order prompting the Justice Department to withdraw from oversight of nearly two dozen police departments. 

For that reason, the administration’s actions in Florida stunned many legal experts.

The state had sued the Biden administration in 2023, seeking to stop the federal government from paroling scores of migrants arrested at the southern border into the country, just as strict pandemic-era restrictions at the border were expiring.

At the beginning of February, Mr. Trump’s Department of Homeland Security entered a consent decree to settle the three-year-old suit, agreeing to impose a 15-year freeze on using a mass parole power that allows the government to quickly release migrants into the country while they wait for a court date.

Strikingly, of the six members of the Florida attorney general’s office helping represent the state when the suit was filed, four are now senior officials in Mr. Trump’s Justice Department. Just two months before the case was settled, a fifth — James Percival — took over as the top lawyer at the Department of Homeland Security.

A homeland security spokesman provided a signed ethics agreement Mr. Percival submitted to the Office of Government Ethics in which he agreed to recuse himself from lawsuits that he worked on, directly related to Florida. A separate signed authorization from the department’s secretary, Kristi Noem, directed Mr. Percival to step aside from cases involving the state “if you personally worked on litigation related to the same matter while serving in the Florida Office of the Attorney General.”

“Mr. Percival has fully complied with that commitment during his D.H.S. employment,” the spokesman said.

A spokeswoman for the Justice Department said that the agreement was approved by the department’s leadership and that the agency does not entirely avoid consent decrees.

Under the consent decree, Florida can return to court at any time to challenge any federal parole policy, citing the consent decree in which the government agreed to forgo the authority. The agreement will be overseen by Judge T. Kent Wetherell, a Trump appointee.

Tom Jawetz, who served as the Homeland Security Department’s deputy general counsel in the Biden administration, said the agreement would put “an asterisk” on future presidents’ ability to use the parole power, even if they hold different policy views on immigration than Mr. Trump.

“They’re going to have to think about, not just whether using parole is within their legal authority, but also whether Florida is going to believe it’s a violation of this consent decree, and what the consequences of being hauled into court will be over that decision,” he said.

In the case out of Kentucky that the Trump administration inherited, officials used a lawsuit as an opportunity to take a swipe at diversity requirements set out in a law passed by Congress.

On returning to office, one of Mr. Trump’s earliest priorities was purging race-based preferences and other hiring practices he deemed “diversity, equity and inclusion” from the federal government and beyond. The president has said those policies, intended to correct years of systemic racial inequality, amounted to reverse racial discrimination against white people.

Two federal contractors sued in 2023 over set-asides in the Disadvantaged Business Enterprise Program, which Congress enacted in 1983. Last year, the Transportation Department ceased defending the law and moved to settle with the companies, adopting their stance that the practice of favoring businesses owned by women or certain ethnic minorities was unconstitutional.

A judge has not yet accepted the settlement agreement. But after a coalition of minority-owned business groups intervened in the lawsuit, the Transportation Department bypassed the court proceedings, issuing a new federal rule that effectively tossed out the diversity requirements nationwide.

To read more CLICK HERE

DOJ will pursue guardianships in state courts for homeless veterans

The Trump administration announced a new effort to initiate legal guardianships for hundreds of veterans, including some who are homeless or “at risk of homelessness,” that could be used to force more of them into involuntary or institutional care, reported The New York Times.

Under the new arrangement, the Justice Department would give officials at the Veterans Affairs Department authority they currently lack to initiate guardianship proceedings in state courts for veterans who have no family and are “unable to make their own health care decisions.”

If a state court determines that a veteran is incapable of making health care decisions, it would appoint a third-party guardian not employed by the V.A., who would be charged to act in the veterans’ best interests, said Pete Kasperowicz, the V.A. press secretary.

The initiative comes amid a push by the Trump administration to compel more homeless people into institutional treatment for mental illness and drug addiction.

President Trump identified homelessness as a priority during the 2024 presidential campaign and promoted it last July in an executive order that called on agencies to use civil commitment to move homeless people into “long-term institutional settings.”

Critics say the policy shift raises significant civil liberties concerns, noting that in earlier generations, people with severe mental illness were routinely stripped of their legal rights and confined to state hospitals.

To read more CLICK HERE

CREATORS: Forget Habeas Corpus at Your Own Peril

Matthew T. Mangino
CREATORS
March 10, 2026

Normally, when someone is confronted with a Latin legal term their eyes glaze over and their brain shuts down. Well, here is a Latin term you need to know — habeas corpus.

The term is a legal concept meaning "that you have the body." Known as "The Great Writ," habeas corpus has been around a long time, dating back to England's Magna Carta in 1215. It is a procedure that allows any person detained on a charge "without sufficient cause" to challenge their detention in court.

The founders included habeas corpus in Article I, Section 9 of the U.S. Constitution, "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."

In the spring of 2025, White House Deputy Chief of Staff Stephen Miller responded to a question from reporters about the Trump administration suspending habeas corpus in regard to immigration law enforcement. "The Constitution is clear and that, of course, is the supreme law of the land, that the privilege of the writ of habeas corpus could be suspended in time of invasion ... (s)o that's an option we're actively looking at."

When the Department of Homeland Security and the Department of Justice adopted a policy that made most detained immigrants who entered the country without permission — including those who had lived in the United States for years and had no criminal history — ineligible for a bond hearing, lawyers responded with habeas corpus. According to Mother Jones, habeas corpus, "once an emergency legal remedy against unlawful imprisonment ... is now an everyday tool."

The authority outlined in Article I is vested in Congress, and that includes Section 9. Suspending habeas corpus is an extraordinary response to an extreme crisis. The writ has been suspended only four times in our nation's history.

Former President Abraham Lincoln suspended habeas corpus in 1861 during the Civil War. According to the Brennan Center, that move was challenged in court and led to a constitutional showdown between the executive and judicial branches. Chief Justice Roger Taney wrote that only Congress had the power to suspend habeas corpus, not the president. It took two years to get Congress to act — but in the meantime, Lincoln never followed Taney's ruling.

The three other instances, according to the Constitution Center, include Congress granting former President Ulysses S. Grant the ability to suspend the writ during an ongoing crisis involving the Ku Klux Klan after the Civil War.

In passing the KKK Act of 1871, lawmakers made it clear that the president had authority to suspend habeas corpus within any state or territory where persons sought to "overthrow, or to put down ... the government of the United States." Grant used that authority; he deployed the 7th U.S. Cavalry to work with U.S. Marshals to detain suspected Ku Klux Klan members.

The United States had annexed the Philippines under the terms of the Treaty of Paris that ended the Spanish-American War. In 1902, Congress passed a law that allowed the writ of habeas corpus to be suspended by the president or governor if needed in the Philippines.

In 1905, the appointed Gov.Luke Edward Wright used the law to suspend the writ of habeas corpus in two provinces. Wright believed the independence forces had caused "a state of insecurity and terrorism among the people, which makes it impossible in the ordinary way to conduct preliminary investigations before justices of the peace and other judicial officers."

Hawaii was a territorial possession of the United States when Pearl Harbor was attacked by Japanese on Dec. 7, 1941. After the attack, the Territorial Governor declared martial law, and suspended habeas corpus. Two days later, former President Franklin Roosevelt approved the suspension of the writ and martial law remained in place until October 1944.

Can the president convince Congress to suspend habeas corpus for illegal immigrants or how about American citizens who smuggle drugs or sell drugs on the streets? Could Congress, at the behest of the president, suspend habeas corpus for people protesting the war in Iran or the release of the Epstein Files?

Forget habeas corpus at your own peril.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book, "The Executioner's Toll," 2010, was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.

To visit Creators CLICK HERE

Justices Jackson and Kavanaugh spar over SCOTUS emergency orders

Sharing a stage, Supreme Court Justices Ketanji Brown Jackson and Brett Kavanaugh sparred recently over the many emergency orders the court has issued allowing President Donald Trump to move ahead with key parts of his agenda, reported The Associated Press.

The setting was extraordinary, a federal courtroom filled with legal luminaries, including the federal judge singled out by Trump after blocking part of the president’s immigration crackdown.

Kavanaugh, 61, and Jackson, 55, sat a few feet apart in a courtroom in which they both heard cases when they served on the federal appeals court in Washington. They were separated only by a federal judge who asked questions of them both. The occasion was an annual lecture in memory of a former federal judge and prosecutor, Thomas A. Flannery.

Trump appointed Kavanaugh to the high court in 2018. Jackson moved up from the appeals court in 2022, appointed by President Joe Biden.

The issue in emergency appeals is whether a policy that has been challenged in court should be allowed to take effect while a legal case that could last for years continues.

Jackson, a frequent dissenter from the emergency orders, said Kavanaugh and the other conservatives who repeatedly sided with Trump last year were not serving the court or the country well.

“The administration is making new policy ... and then insisting the new policy take effect immediately, before the challenge is decided. This uptick in the court’s willingness to get involved in cases on the emergency docket is a real unfortunate problem,” Jackson said to loud applause.

The court is “creating a kind of warped” legal process by intervening in an early stage of a case and essentially predicting the outcome before arguments are fully developed, she said.

The Justice Department’s rush to the Supreme Court is not unique to the Trump administration, Kavanaugh said, explaining that as enacting legislation through Congress gets harder, administrations “push the envelope in regulations. Some are lawful, some are not.”

He said some critics of the recent orders had no objection when the justices allowed challenged Biden administration policies to take effect even as court cases were proceeding.

Many of the judges in attendance have been involved in high-profile challenges to administration policies, including U.S. District Judge James Boasberg. His clash with the administration over deportation flights to a notorious prison in El Salvador prompted Trump to call for Boasberg’s impeachment.

Also on hand was U.S. District Judge Royce Lamberth, who ruled two days ago that Kari Lake, Trump’s choice to lead the U.S. Agency for Global Media, did not have legal authority to take the actions she’s done to largely dismantle the Voice of America.

Neither Jackson nor Kavanaugh mentioned judges by name. But Jackson repeated a complaint she and the other liberal justices have made in their dissents.

“Should the Supreme Court be superintending the lower courts when they are hearing and deciding the issues?” she asked.

Kavanaugh, who joined an opinion criticizing lower-court judges for ignoring Supreme Court rulings, said the issues for the justices are often complicated and cases, close.

“None of us enjoys this,” he said.

To read more CLICK HERE

Maurer: OLC memo on boats strikes is 'bullshit'

 Dan Maurer of Lawfare describes the difference between a lie and “bullshit” in the context of the military boat strikes which continued yesterday with six more deaths:

The Department of Justice’s Office of Legal Counsel (OLC) has become a flashpoint in the public debate over the Trump administration’s compliance with federal laws, the Constitution, and foundational rule-of-law principles. The Justice Department’s resistance to publishing the OLC opinion on the lawfulness of the military’s counternarcotic boat strikes is one such lingering controversy. But lack of transparency is not always the problem. On Dec. 23, 2025, the OLC provided its opinion on the “Proposed War Department Operation to Support Law Enforcement Efforts in Venezuela” (called “Operation Absolute Resolve”) to the legal adviser for the National Security Council.

This particular OLC memorandum—more specifically, the argument it makes based on an interpretation of law and many now redacted facts—contains “bullshit”: in the technical sense of the term first described by philosopher Harry Frankfurt in his classic book, On Bullshit. Frankfurt’s chief accomplishment is lexicographically and conceptually distinguishing a lie from bullshit, an approach that has been applied since in many disciplines, including ethics, international relations, and rhetoric.

Inspired by other legal scholars’ use of Frankfurt’s “bullshit” concept to address serious controversies, including constitutional interpretation, I aim to apply Frankfurt’s definitional clarity to another legal methodology target: national security-related OLC opinions that rely extensively on previous OLC opinions as support for their key propositions. This matters because those key propositions in turn result in legal conclusions aligned with known policy preferences of the president. As Michael Smith put it: “Bullshit is worth calling out wherever it may be.”

This piece takes up that challenge and finds that “the President’s law firm” is as guilty of purveying bullshit as any other group of legal professionals. This is an especially dangerous practice for a government agency. It often results in a superficial legal argument that supports a presidential policy preference well known to the OLC, that may or may not reflect the “best view” of the law, and provides a veneer of authority masking its objectionable “truthiness.”

In the national security context, the danger of a bullshit OLC argument is elevated for four reasons: (a) The OLC’s influence and authority within the executive branch enables it to claim its own conclusions are quasi-precedential and conclusive unless the OLC, the attorney general, or the president chooses to override them (see this important law review article by Trevor Morrison, a former OLC attorney); (b) the actions analyzed frequently deal with life and death decisions involving the U.S. military; (c) the relevant facts are often classified and kept from public scrutiny; and (d) the decisions these OLC opinions validate often avoid judicial review.

 

Frankfurt defined “bullshit” as a fouler version of “humbug,” which Max Black defined as “short of lying,”  but a “deceptive misrepresentation ... of somebody’s own thoughts, feelings, or attitudes” and “especially by pretentious word or deed.” Frankfurt does not say “bullshit” is better or worse than a lie. In fact, the bullshit statement may actually be true. Rather, Frankfurt distinguishes its purveyors’ goals and methods. A lie is a deliberate statement of a falsehood. The speaker knows the statement to be false or at least thinks he knows. And the liar’s intent is to keep the listener or reader away from the truth of the matter via his deliberately false statement. Delivering an effective lie takes “craftsmanship.” But, unlike a liar, the bullshitter does not care if the statement is false, has no intent to lasso the listener or reader away from the truth, may accidentally be stating the truth, and may not even know if the statement is true or false. The bullshitter has a different objective:

[T]he bullshitter hides ... that the truth-values of his statements are of no central interest to him …. He does not care whether the things he says describe reality correctly. He just picks them out, or makes them up, to suit his purpose.

 To read more CLICK HERE

DOJ wants to screen prosecutor misconduct complaints before adjudicated by state disciplinary authorities

The US Department of Justice (DOJ)  introduced a proposed rule that would establish a formal procedure for reviewing complaints and allegations of professional misconduct against department attorneys before they are taken up by state disciplinary authorities, reported JuristNews.

The proposal, which comes amid increasing scrutiny of the department’s attorneys and their adherence to ethical obligations in implementing Trump administration policies, seeks to empower Attorney General Pam Bondi to request the suspension of state bar investigations until the Department of Justice conducts a review of any originating complaint. The department said the proposed rule reflects concerns about what it described as the increasing “weaponization” of bar complaints against government lawyers, including complaints filed by political activists against senior DOJ officials and career attorneys.

The department argued that such complaints risk interfering with the attorney general’s statutory responsibility under 28 U.S.C. 519 to supervise DOJ litigation and legal activities.

The proposal would amend 28 CFR Part 77 to allow the Attorney General to review allegations that a current or former DOJ attorney violated ethics rules while performing federal duties. Under the proposal, if a complaint is filed with a state, territorial, or District of Columbia bar disciplinary authority, the DOJ could request that the authority pause investigative steps requiring participation from the attorney until the department completes its review.

Hilary Gerzhoy, chair of the rules of professional conduct review committee for the District of Columbia Bar, said the proposal “is incredibly concerning, adding that it “is inconsistent with all precedents,” and that attorney discipline in Washington, DC, is conducted through an independent process overseen by the District of Columbia Court of Appeals rather than the federal government.

Public comments on the proposed rule will be accepted through April 6, 2026.

To read more CLICK HERE

Mangino discusses Ohio school's video game lawsuit on WFMJ-TV21

 To watch the interview CLICK HERE