#17 - Trump, Tariffs, & Transgender Travel
Also Amendments, SNAP, and National Guard News
Supreme Court signals skepticism of tariffs and grants Trump admin two emergency docket wins, pronoun trouble in the lower courts, and updates on the 28th Amendment that never was.
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News Desk - This Week’s Top Ten Headlines
Supreme Court Hears Tariffs Case
On Wednesday, the Supreme Court heard oral argument in the consolidated cases concerning President Trump’s emergency tariffs, as imposed on over fifty countries earlier this year. Overall, the Justices appeared skeptical of the core arguments from the administration, with only Justices Alito and Kavanaugh asking questions favorable to the government. A decision is expected in a number of weeks, though it could come later. For a full analysis of the case and the hours-long oral argument, see this summary from last Friday:Tariffs Recap
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On Wednesday, the Supreme Court deeply probed President Trump’s use of emergency tariffs. Even in the face of a loss, this case is a win-win for the administration.
SCOTUS Rules for Trump in Transgender Passport Case
In its 29th emergency docket victory at the Supreme Court, the Trump administration successfully appealed a lower court’s orders against its passport policy designed around biological sex. The Court issued a temporary stay, writing that “displaying passport holders’ sex at birth no more offends equal protection principles than displaying their country of birth—in both cases, the Government is merely attesting to a historical fact without subjecting anyone to differential treatment.”Court of Appeals Invalidates Biden-Ratified Equal Rights Amendment
Now here’s a blast from the not-so-recent past. In late January 2025, right before exiting office, Joe Biden announced that the Equal Rights Amendment was, unbeknownst to all scholars, lawyers, and citizens nationwide, suddenly part of the United States Constitution. At the time, many made the rational and obvious observation that the President simply has no power to add an amendment to the Constitution, any more than Congress, the Supreme Court, or the National Archives does. On Tuesday, the Ninth Circuit quietly laid Biden’s declaration to rest, unanimously ruling that the ERA is not part of the Constitution. “We do not,” the Court said, quoting its precedents, “engage in anticipatory overruling of Supreme Court precedent.” The ERA “was not ratified by three-fourths of the States prior to the deadline set by Congress, June 30, 1982, and the Archivist of the United States did not publish or certify the ERA.” Case closed.Kansas District Court Greenlights Convention of States Effort
On the subject of amendments, the U.S. District Court for the District of Kansas ruled in Thompson v. Masterson on Wednesday that a provision in the Kansas Constitution requiring a two-thirds super-majority vote to apply for an Article V convention is unconstitutional. The Court said the provision conflicts with the Supremacy Clause and text of Article V. This victory for Article V proponents clears the path for Kansas to potentially become the 20th state to adopt the Convention of States resolution when the House reconvenes in January. For more on Article V, make sure to stay tuned for my post this Friday:Justices Barrett and Kavanaugh Speak at National Lawyers Convention
The Federalist Society held its 2025 National Lawyers Convention this past week, with speeches and appearances from Senators, Judges, and two Supreme Court Justices. Justices Barrett and Kavanaugh delivered remarks encouraging law students to hold firm to conservative and originalist principles during the Scalia Dinner. Justice Barrett invoked the memory of Charlie Kirk, urging conservatives to take “the high road like Erika Kirk and show grace and strength in the face of hatred.”Court Tosses Lawsuit Against Iowa Pollster
On Thursday, a federal district court dismissed a class-action suit brought against longtime Iowa pollster J. Ann Selzer. Shortly before the 2024 election, Selzer released a poll showing a tight race between Donald Trump and Kamala Harris, with Trump trailing 44% to the VP’s 47%. Weeks later, he would win by 13 points. Even if the polling was false, the Court reasoned, the First Amendment protects even false political speech. The Court held that the First Amendment prevents suits “against newspapers engaged in political polling absent a showing of actual malice.” A similar suit brought by President Trump was refiled earlier this year.SCOTUS Pauses SNAP Orders in Emergency Appeal
In an emergency stay granted at 9:17 on Friday night, Justice Ketanji Brown Jackson paused the lower court rulings from last week which had ordered the Trump administration to “find” money to fund SNAP during the shutdown. Left of center commentators let out an audible groan when Jackson did her job, but the final result in the SNAP case remains unknown. Should the shutdown end and a CR pass to fund SNAP, the case will be moot and dismissed. Until then, the First Circuit has been ordered to resolve the case at their court “with dispatch.”Judge Rules Against Oregon National Guard Deployment; DOJ Says Moot
The National Guard Cases continue to progress, with a judge issuing a partial final judgment in Oregon v. Trump after a three-day bench trial, ruling that President Trump’s federalization and deployment of troops to Oregon was ultra vires and violated Title 10 and the Tenth Amendment. The court permanently enjoined Secretaries Hegseth and Noem from implementing the relevant policy, immediately blocking deployment of any state’s National Guard to Oregon. Federalization of the Oregon National Guard is stayed for 14 days to preserve the status quo, while the government has appealed to the Ninth Circuit and moved to dismiss the case.California Sup. Ct. Forces School Pronoun Use; Sixth Circuit Rules Against It
Two decisions came down from state and federal courts upholding and reversing misgendering laws, respectively. On Thursday, the California Supreme Court upheld a state law that prohibits staff at care facilities from willfully and repeatedly misgendering residents by failing to use their preferred names or pronouns. The court classified the provision as a regulation of discriminatory conduct rather than speech, finding it constitutional under the First Amendment and noting its narrow application to protect vulnerable seniors. Sanity, however, still exists, as the Sixth Circuit essentially reached the opposite conclusion about an Ohio school district’s policy punishing students for using biological pronouns instead of preferred ones. The federal appeals court, sitting en banc, held this likely violates the First Amendment, as it fails the Tinker standard for substantial disruption of the learning environment. The majority held that merely using biological pronouns is not inherently abusive or disruptive and protects students’ right to express their views on sex and gender without compelling speech.SCOTUS Prepares for Oral Arguments in ICE, Religious Liberty Cases
The Supreme Court will hear arguments this week on whether a Rastafarian prisoner, Damon Landor, can sue Louisiana prison officials for money damages under the Religious Land Use and Institutionalized Persons Act (RLUIPA) after they forcibly shaved his dreadlocks despite a federal appeals court ruling affirming his religious right to keep them. Landor argues that RLUIPA’s “appropriate relief” provision allows individuals to bring damages claims, mirroring other federal laws, and that without such remedies, the law would provide no meaningful protection for short-term or transferred inmates. Argument is scheduled for Monday.
Picks of the Week - Articles Worth Your Time
The Justices Are Skeptical of the Trump Tariffs, But Are They Skeptical Enough to Strike Them Down?
Source: Volokh Conspiracy | Author: Jonathan Adler | Link
Although you should certainly read my Friday post, this analysis from Prof. Adler works too (and is somewhat shorter).
No, The House Should Not Impeach Judge Boasberg
Source: Jonathan Turley | Link
Words I did not expect to hear from Turley, but ones I cannot help but agree with.
Six Significant Cases the Justices are Deciding Whether to Hear
Source: SCOTUSBlog | Author: Kelsey Dallas | Link
Looking ahead to cases that the Court may grant.
(Introducing) Quote of the Week
If you don’t want to get criticized, this is not a good gig.
Justice Kavanaugh, National Lawyers Convention 2025
Justice Kavanaugh gave these remarks at the Scalia Dinner, and they are particularly reminiscent of the late Justice’s attitude to his work. They are also notable coming from a Justice who was almost murdered in 2022 over that term’s decision in the Dobbs case. Staying open to criticism after such scenarios is remarkably difficult.
Papers and Research - Serious Scholarly Selections
Utopian Constitutionalism, by Dixon & Landau | Link
Warns against the more aspirational versions of constitutionalism seen worldwide.
The Interstitial Executive: A View from the Founding, by Christine Chabot | Link
Attempts to “debunk” the unitary executive theory. For a different view, see below:
That’s a wrap! Thank you for reading. Like and share below, and I’ll see you this Friday!
In liberty,
Ethan Savka