Saturday, February 8,2025. Annette’s News Roundup.
What is happening? What we must do.
Several posts on this.
1. Autogolpe by Paul Krugman
My very first post after I left the Times and brought this newsletter out of dormancy was about DOGE, the not-a-government-agency created by Donald Trump and run by Elon Musk (Vivek Ramaswamy has been run out of DOGE.) The supposed goal of DOGE was to save taxpayers huge sums by going after “waste, fraud and abuse.” I argued that this effort was doomed to failure as Musk and his cronies appeared completely ignorant about how and why the federal government spends taxpayer dollars.
While everything I said was true, I would like to offer a mea culpa. What should have been clear to me even then, and is unmistakable now, is that everything Musk and Trump say about what they’re doing is false, including what they say about their motivations. The ignorance and chaos are real, but you should never lose sight of the underlying thrust of their actions.
For what’s happening in America right now is an attempted autogolpe.
Latin American readers are surely familiar with the term. An autogolpe is literally a “self-coup” — when a legitimately elected leader uses his position to seize total control, eliminating legal and constitutional restraints on his power. Are Musk and Trump trying to pull off an autogolpe here? Of course they are. And they are doing so with, as far as I can tell, the full support of every Republican in the House and the Senate.
You should look at everything they do through that lens. Yes, we can ask whether a policy move makes sense in terms of its announced goals. But you should also always ask, “How does doing this serve the autogolpe?”
Take, for example, DOGE’s obsession with finding ways to lay off federal workers. This makes no sense as a priority if you know anything about where the taxpayer dollar goes:
The federal work force is no larger now than it was under Dwight Eisenhower.
But making “headcount reduction” a policy goal is a way to purge civil servants who remain loyal to the law and the Constitution and replace them with Trump and Musk loyalists.
Fortunately, the Trump Administration’s push to induce federal workers to take buyouts appears to be a bust. Many of the relative handful of workers who took the sort-of-a-deal before a judge put it on hold were probably planning to leave anyway. But behind this “policy” is an attempt to drive out the most idealistic, most dedicated workers.
Musk-Trumpocracy’s illegal shutdown of USAID should be seen through this lens. Musk clearly hates the idea of helping people in need: just look at the rage he has expressed over the philanthropy of MacKenzie Scott, Jeff Bezos’s ex-wife. While he may believe that the agency is “a viper’s nest of radical-left marxists who hate America”, it also serves the purpose of purging civil servants while demagoguing to Trump’s base. The same can be said of the confected furor over DEI.
It hardly needs pointing out that the attempted purge at the FBI, targeting anyone who investigated Jan. 6 rioters or Trump himself, is an integral part of the autogolpe. And so, obviously, is the terrifying attempt of Musk and his acolytes to seize control of the Treasury payments system and give crucial power to rewrite the code to a 25-year-old who turns out (surprise!) to be a racist and eugenicist.
So what should those of us who would like America to remain America, to not see us descend into dictatorship, be doing?
First, acknowledge the reality. If my use of the word “dictatorship” disturbs you, if your first reaction is to say “Isn’t that a bit shrill?”, you’re part of the problem. The constitutional crisis isn’t something that might hypothetically happen; it’s fully underway as you read this.
But don’t despair. We are in the middle of an attempted autogolpe. It hasn’t succeeded so far. In fact, I’d say tentatively that the autogolpistas are having a harder time than they expected. America’s oligarchs may mostly have preemptively surrendered to the new regime, but many of the rest of us have not.
The attempt to get large numbers of civil servants to self-deport appears, as I said, to have been a bust. The courts, which haven’t been completely corrupted, are throwing up roadblocks to some of the ongoing power grabs. Workers at the FBI and elsewhere are circling the wagons, as are federal unions. Whistleblowers and at least some media organizations have been reporting on Musk’s attempts to seize the digital high ground, and the efforts of political appointees at Treasury to cover up what has actually been happening says that they still fear the consequences of public exposure.
And while we haven’t yet seen the mass demonstrations that faced Trump early in his first term, there are a growing number of protests against both Trump and Musk.
It is time more elected Democrats took a vocal stand.
Now, the enemies of democracy will keep trying to find new ways to undermine rule of law. I have to admit that I never even thought about the federal payments system as a target before the news of Musk’s antics was broken. Special credit goes to Nathan Tankus, an expert on “the technical details of monetary policy”, who has become the man of the moment.
But resistance to the autogolpe will throw sand into its gears. I’ll talk in a minute about why that’s important.
For those writing or talking about what’s happening, it is important not to get distracted by Trump’s bright, shiny objects. No, Trump isn’t going to take over Gaza, annex Canada, try to retake the Panama Canal or seize Greenland. But Trump’s bizarre announcements are a feature, not a bug: they distract from the ongoing autogolpe.
Until a few days ago I thought a gratuitous trade war would actually happen, since tariffs have been a Trump obsession for decades. But his ignominious climbdown over tariffs on Canada and Mexico suggests that I may have taken it all too seriously. Did he fold, or was he fooled into thinking he won? It may not matter. At this point, trade conflict is less important than the assault on democracy.
The good news is that there are many ways in which an autogolpe delayed can become an autogolpe denied. The alliance between Musk and Trump, two men with giant but obviously fragile egos, could break down. Musk’s meddling at Treasury and the assault on federal workers may lead to some highly visible disasters. Voters may eventually realize that Trump’s claims of success are smoke and mirrors and wonder what happened to his promise to make groceries cheaper. And at some point the American people may notice that Russell Vought, the father of the immensely unpopular Project 2025, is actually making policy.
These are scary times. But the bad guys haven’t won yet. (Substack)
2. Now Will We Believe What Is Happening Right in Front of Us
They told us they would smash the institutions that safeguard our democracy. And that is exactly what they are doing.
Many Americans chose not to believe what they were saying. Will we now believe what we are seeing?
To be clear, “they” are not just Donald Trump and his billionaire co-pilot. Over the past half-century, an anti-democratic movement has coalesced in the United States. It draws on super-wealthy funders, ideologues of the new right, purveyors of disinformation and Christian nationalist activists. Though it pretends to revere the founders and the Constitution, it fundamentally rejects the idea of America as a modern pluralistic democracy.
The natural tendency in a functioning democracy is to look for ways to “work across the aisle” and “agree to disagree.” But appeasement now would be a mistake. This anti-democratic movement has no interest in compromise. Any concessions will help consolidate the powers of a lawless presidency and entrench a new, kleptocratic, authoritarian form of government in the United States.
It is also bad politics. The Trump administration has charted a course for eventual catastrophic failure. Those who attempt to work with it will go down with it. We must work instead to safeguard our democratic institutions, communicate the threat to the many sectors of the American public that have yet to understand it and prepare for a major cleanup operation in years to come.
Democracy isn’t just about the results of the most recent election. Without a system of justice that applies equally to all citizens, you’re voting for the next elected despot. That is why the leaders of the anti-democratic movement made clear well before the election — in documents such as the Heritage Foundation’s Project 2025, which sought to provide Trump with an aggressive right-wing agenda he could just pick up and run with — that they intend to demolish the system of justice as we know it and replace it with a form of policing in service of the ruling party and its chosen leaders.
In its first two and a half weeks, the Trump administration has delivered on that promise. The stream of transparently lawless executive orders — to make it easier to fire federal officials, to freeze spending that the president cannot freeze, to take away a right to citizenship that is written into the Constitution, to name just three — tell us in no uncertain terms that this administration has no intention of respecting the law or the Constitution. (And if you are comforting yourself with the idea that the administration will respect injunctions from judges, which it has in the past, I invite you to consider Mr. Trump’s recent behavior in court.
The decapitation at the F.B.I., the sidelining of individuals at the Department of Justice and the de facto shuttering of the foreign aid agency U.S.A.I.D. all serve the same purpose. It means that Mr. Trump and his favorites of the moment will find it much easier to operate with the kind of immunity that the Supreme Court has already granted the president.
Tellingly, the most galling indicator of the administration’s lawless intentions actually came early: the blanket pardon for the Jan. 6 rioters who stormed the Capitol, even those who attacked Capitol Police officers, which provides Mr. Trump with a powerful recruiting tool for elements that might wish to support him with political violence.
Democracy relies equally on a professional government, staffed with individuals who are subject to ethics constraints and act on the basis of reason and evidence in accordance with the law. That is why the leaders of the anti-democratic movement declared war long ago on what they jeeringly call the “administrative state.” Project 2025 promised a brutal assault on what it maintains is a “weaponized” and “woke” civil service bent on persecuting conservatives, and proposed purges.
Russell Vought, a leading figure behind Project 2025 and now Mr. Trump’s director of the Office of Management and Budget for the second time, promised to put government employees “in trauma.” The new-right intellectuals behind the anti-democratic movement draw heavily on crackpot writers like Curtis Yarvin, who condemns “the cathedral” — his term for the people and institutions that sustain a functioning modern state — and openly champions monarchical rule.
In its first weeks, the Trump administration has delivered on that promise. The probably illegal firing of inspectors general throughout the federal government; the tawdry “buyout” offer for federal employees; the commandeering of highly sensitive government data by Elon Musk’s DOGE minions; and the ongoing dismantling, firings and deletions of data at multiple federal agencies — these are not ways of making the government accountable to the voters in the last election, as partisans falsely suggest. They are about making sure that the people can never hold the president and his cronies to account. They also have nothing to do with “efficiency.” We are about to witness administrative dysfunction on a grand scale.
Democracy also depends on a corporate sector and a media sector that work independently of the government in power. That is why the leaders of the anti-democratic movement essentially opened a storefront in advance of the inauguration and began inviting corporations and wealthy individuals to prove their loyalty to the ruling party with inaugural fund contributions. Then came the meme coins that allow anyone to enrich the president and his wife, at least in theory, by purchasing digital tokens with no intrinsic purpose or value.
This proved to be one of the easiest parts of the process. The leaders of Meta, Amazon, JP Morgan, Google, OpenAI and a long list of other corporate titans seem to be making it clear that if protecting their profits means appeasing a corrupt autocratic regime, then that is what they will do.
Democracy relies on something softer, too, namely a sense of unity and shared purpose that allows people to work with one another despite their differences. That is why Rule No. 1 of the authoritarian playbook is to divide the populace. Mr. Trump, of course, is a renowned expert in that department. It is hard to think of another American president who would have taken advantage of an airplane tragedy to push hateful rhetoric about D.E.I. To be sure, reforming policies on diversity is not inherently unreasonable. But the administration’s total war on anti-discrimination law has nothing to do with “merit” and everything to do with stoking division.
Similarly, immigration policy is and ought to be debated. But in the past weeks, the administration has made clear that it will use its powers not to solve the many real immigration issues but instead to perform stunts intended mainly to reinforce the myths that helped get Mr. Trump elected (like the myth that immigrants commit crimes at higher rates than native-born Americans or the myth that the previous administration encouraged bands of these immigrant-criminals to roam free).
Why are they so desperate to weaken or even destroy democracy? Mainly, because they know that our system of justice, a functioning government, an independent economic sector and a united people stand in the way of unearned wealth and privilege. But it is important to understand that the anti-democratic movement is not monolithic. In fact, it isn’t even coherent.
One part of the program answers to the oligarchs — that is, the leaders of tech oligopolies and the most narrow-minded of our nation’s billionaires. These people are betting that the deconstruction of the administrative state means no pesky government oversight on their economic activities, plus tax cuts as well as privileged contracts. They may fatten their pocketbooks in the short term, but the idea that wreaking havoc on our democracy will enhance their wealth is tragically mistaken.
Another part of the program is the work of fanatics. I do not use the term loosely. If you take the trouble to read the writings of the thought leaders of the new right, who form a good portion of the brain trust of the anti-democratic movement, you will discover a group of men who really hate women, admire Nazi political theorists such as Carl Schmitt and believe in the existence of an insidious, all-controlling monster called “the woke,” which apparently works out of diversity, equity and inclusion offices in the back of “the cathedral.” They are acting out their fantasies now, taking revenge on imaginary enemies, and the American republic will be the principal victim.
The Christian nationalist ideologues who supply much of the rest of the ideology of the movement are no less extreme. Just listen to Doug Wilson, the powerful pastor from Moscow, Idaho, whom Pete Hegseth, the defense secretary, has praised. Mr. Wilson is among the growing contingent who say that women should not have a right to vote. Or Lucas Miles, senior director of Turning Point USA Faith and the author of “Woke Jesus: The False Messiah Destroying Christianity,” who has called progressive Christianity “heretical.” In a promotional video at December’s AmericaFest, an annual convention sponsored by Turning Point USA, Mr. Miles said, “I want to see woke church defunded.”
The left, “recognized early on,” Mr. Miles added, “that they knew they needed a vehicle to carry this progressive ideology, this Marxist agenda, and the best vehicle is the church. … It’s been going on since the 1700s that progressive thought has been creeping in.”
Still another part of the movement, which usually gets the most attention even though it has the least power, is the mass of voters who remain faithful to Mr. Trump. They come in many different varieties. No doubt some saw a vote for him as a vote against “Biden-flation” and the sharp rise in the cost of living. Some may really believe that the 2020 election was stolen or that public schools are indoctrination camps forcing gender change on students. Some did not understand the threats to democracy, others did not take them seriously and some simply don’t value democracy.
What is to be done? Let’s start with that dread word: messaging. In the coming months and years, the anti-democratic movement will cause many people to suffer real harm. We need to make sure these people know who did this to them — and who will fight for them.
As people lose their jobs or have to pay more as a consequence of needless tariffs, as they lose out on the benefits they earned and government services they deserve, as the Trump administration prioritizes buffoonish stunts over sound policy, as our most trusted allies abandon us, as women find more of their rights at risk, as people who don’t fit the regime mold find their careers faltering, and as the oligarchs behave ever more outrageously, we need to say, over and over: They did this.
But there is much more we can do. Now is not the time to curl up in despair.
We have institutions to protect, pro-democracy organizations to support, and elections in less than two years. We have lawsuits to pursue, corruption to expose. In normal times, it is the duty of democratic citizens to help a newly elected president succeed. In the present circumstances, it is our duty to protect our democratic republic from a lawless president and the profoundly anti-American movement he leads.( Katherine Stewart, Op-Ed, New York Times)
Fighting back on Diversity.
Target is now a target.
The DEI Meltdown.
Amid corporate America’s rollback of DEI, some announcements caused more of a stir than others. One that hit a nerve was Target’s: The retailer said, four days into the Trump administration, that it was ending its diversity and inclusion programs.
Target’s fear was unsurprising given the Trump administration’s level of vitriol and legal threats toward DEI in both the federal government and the private sector. New attorney general Pam Bondi started her tenure this week with a memo that said the Justice Department would look at companies with DEI initiatives for “criminal investigation.”
But the abrupt shift from Target’s friendly and inclusive brand identity just a year ago left a sour taste with consumers. In May 2023, CEO Brian Cornell told Fortune that DEI had “fueled much of our growth” over nine years. While consumers weren’t happy about similar decisions rolling back DEI at Meta, Amazon, and Walmart, Target’s felt more personal. The $108 billion-in-revenue retailer’s brand had benefitted from its public-facing support of Black-owned businesses, proving out the theory that consumers like shopping a diverse array of products. Especially in a physical retailer where customers can touch and see products ranging from food to makeup to household items, going back on that commitment felt like a betrayal, to some, and simply a worse shopping experience to others.
Reactions have been passionate and complicated. Calls to boycott Target started immediately. Others called on shoppers to continue to support Black-owned brands independently and at Target’s stores—if a brand’s sales falter, it gives Target a further excuse to question the value of these brands, they argued. Independent e-commerce isn’t a solution for all brands, the Honey Pot founder Bea Dixon said; for those that sell inexpensive products, it often isn’t economically viable to sell direct-to-consumer. “I know it may seem like I’m defending Target, but I’m not,” Dixon wrote on Instagram. “I’m advocating for the small businesses that depend on this opportunity.”
Aurora James, who founded the Fifteen Percent Pledge in 2020 and convinced businesses to commit 15% of their shelf space to Black-owned brands, has spent the past few weeks unpacking why the tide has turned so quickly. “If it weren’t working, they wouldn’t be spending so much time trying to dismantle it,” she says. The Pledge’s contractual commitments are still up and running, and Sephora (which is owned by LVMH, whose family ownership attended the Trump inauguration) doubled down on its support for Black-owned brands at the Pledge’s annual gala this past weekend. James says she’s had lots of conversations with signers of the Pledge over the past couple weeks, but none have backed out.
Target never signed the Fifteen Percent Pledge, and instead announced the launch of its own initiative to support Black-owned brands—which could now be part of this rollback. Yesterday, Target was hit with a shareholder lawsuit alleging that the company failed to disclose the risks of its DEI efforts. (Target hasn’t commented on the suit and responded to Fortune’s request for comment with a fact sheet about their recent changes.)
“Consumer data has not changed,” James says. “We still know consumers are interested in shopping with their values.” What has changed is politics. And when a company’s commitment to DEI—or abandonment of DEI—is politically motivated, consumers can sniff it out. (Emma Hinchliffe, Fortune).
One more thing.
Costco.
Costco has refused to back down on DEI. Its Management has stood fast as has its Board of Directors at its annual meeting.
Support them. Even if you don’t shop there, you can become a Costco member. $65 year.
Key points about joining Costco:
Required information: Name, address, date of birth, email, phone number, and photo ID.
- In-person: Go to the membership counter at a Costco warehouse.
- Online: Visit the membership page on the Costco website.
- Phone: Call Costco's Member Services at 1-800-774-2678.
A hopeful note on one very important matter.
There May Be Enough Supreme Court Votes to Save the Government | The New Republic.
Trump’s executive order stripping federal workers of legal protections is the most dangerous of his unlawful power grabs. But there is a way to win them back.
It probably goes without saying, but the Trump administration’s blizzard of executive orders have been more numerous, far-reaching, and cataclysmic than liberals—and even conservatives—foresaw. Naturally, this has provoked instant pushback in courts, the op-ed pages, and press releases from elected officials. What was more predictable, however, is the target of the president’s counterstrikes: assaults on well-telegraphed targets such as birthright citizenship, migrants and asylum-seekers, and diversity, equity, and inclusion programs.
Less attention has been paid to spotlight—let alone quash—Trump’s gambit to exponentially magnify his power to weaponize the federal government to better advance his personal, partisan, illegal, or otherwise corrupt designs. The ne plus ultra of his dictator-on-Day-One executive orders empowered him with the ability to summarily fire, demote, transfer, harass, or otherwise abuse any career employee whose job he, or his political appointees, deems to be a “policy-influencing” position. This diktat would transform all career civil servants into actual or potential at-will employees, with no substantive or due process legal job security, just as if they were political appointees having never had any expectation of serving beyond that president’s term in office. Naturally, virtually all federal employees, regardless of their rank, of needs must “influence” policy; Article 2 of the Constitution defines their role, as members of the executive branch, as the execution of policies enacted by Congress.
At this juncture, the only hope to counter Trump’s subversive enterprise lies with the federal courts—ultimately, the Supreme Court. Congressional Republicans’ near-total capitulation has paved the way for normal political boundaries to be all but erased. Persuading and enabling federal judges—to say nothing of the Supreme Court’s justices—to block this administration’s yen to shred laws and the Constitution will be an imposing challenge. But not an insuperable one, if done the right way.
The “right way” means two things: First, one must craft legal arguments capable of peeling off at least two of the six Republican-appointed conservative justices, and that resonate widely enough to embolden the court to stand up to an administration openly proclaiming a “post-constitutional order,” flaunting its scorn for judges and justices whom Trump himself appointed, as “squishes,” and for the Federalist Society, which recommended their selection, as “not know[ing] what time it is.” Second, constitutional defenders must roll out—fast—and implement a bipartisan messaging strategy that will build media, political, and public support for those arguments. When the battle reaches the Supreme Court, the off-the-court environment must have already framed the issues along lines configured to win a majority there and defend that outcome in relevant opinion-shaping arenas.
At first blush, getting five Supreme Court votes may appear a prohibitively steep climb. This is because the statutory phrase on which the Trump team relies excludes from civil service protections any employee “whose position has been determined to be of confidential, policy-determining, policy-making, or policy advocating character and has been excepted from the competitive service by the President.” The executive order, and its architect, Office of Management and Budget Director Russell Vought, read that language to confer on the president unlimited discretion to define what constitutes “policy-determining, policy-making, or policy-advocating” character.
But on examination, Vought’s interpretation plainly fails, even—especially—with a court whose members all espouse fidelity to the text of statutes they are asked to apply, for two reasons: First, Vought mischaracterizes the statutory language on which he relies. Contrary to the executive order, the statutory terms “policy-determining, policy-making, policy-advocating” are not equivalent to “policy-influencing.” As noted above, all or virtually all federal employee positions can be characterized as policy-influencing. But only a thin layer at the top—most of them political appointees, not career officials—determine, make, or advocate policy; the rest provide information, perform research, apply and carry out their superiors’ decisions and directions.
Indeed, an Office of Personnel Management regulation still in effect as of January 30 expressly provides that “Confidential, policy-determining, policy-making, or policy-advocating means of a character exclusively associated with a noncareer political appointment.” (Trump’s lawyers had evidently not proposed to repeal this regulation, presumably to avoid the stringent procedures required by the Administrative Procedure Act.)
Moreover, apart from leaving this conflicting regulation in place and misreading the very statutory words on which he and his team base their case, Supreme Court precedent and common sense mandate that proper statutory interpretation can never thus pluck out of context words or phrases and view them in isolation. The relevant context means the statute as a whole, its language, legislative, implementation, and judicial history, and its purposes, especially as those purposes are specified in the statute itself.
In this case, the relevant statutory context comprises the text and history of the civil service laws, as codified in former President Jimmy Carter’s Civil Service Reform Act of 1978, which built on the 1883 Pendleton Civil Service Reform Act. Those landmark enactments created and strengthened the modern merit-based civil service system, to replace the notoriously corrupt “spoils system” that marred the first century of the American republic. That prism exposes Vought’s argument as a contorted misread, to dismember the elaborate legal edifice in which the phrase is embedded.
Rebuffing Trump’s attempted coup is not as implausible as the existing 6–3 Republican-appointed majority may suggest. “Significantly,” as law professors William Eskridge, Brian Slocum, and Kevin Tobia tallied in September 2023:
[Liberal justices] Sotomayor, Kagan, and Breyer or Jackson were all in the majority for thirteen of nineteen cases [in which the six conservatives split since Justice Gorsuch joined the Court in April 2017], Roberts and Kavanaugh were in the majority for fifteen cases and Barrett for eleven of the fifteen cases for which she sat. But Thomas, Alito, and Gorsuch were in the majority for only seven cases apiece. Interestingly, Roberts and Kavanaugh voted more often in these cases with Sotomayor and Kagan than with Thomas and Gorsuch.
The records of the Trump-appointed justices, in their opinions, comments in oral arguments, and off-court writings and statements, suggests that two or more of them, plus the three liberal justices, could come together to overturn the Trump-Vought executive order.
Key to attaining that result is a 2015 decision, King v. Burwell, which rejected an analogous, acontextual, isolated-phrase-based attempt to undermine the Affordable Care Act. Had ACA opponents prevailed, the result would have rendered unworkable the entire section of the law providing subsidized insurance to lower- and middle-income subscribers—who numbered 24 million in 2024. Chief Justice John Roberts’s decision blocking that perverse result is a powerful precedent for quashing an executive order that would even more completely vaporize the long-established statutory framework undergirding a merit-based federal workforce.
In King, Roberts elaborated a blueprint for exegeses of complex landmark statutes. We “must,” he instructed, follow “the fundamental canon ... that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.”
“Here,” he reasoned, ACA opponents’ “interpretation would destabilize the individual insurance market … and likely create the very [chaos] that Congress designed the Act to avoid.… We cannot interpret federal statutes to negate their own stated purposes. It is implausible that Congress meant the Act to operate in this manner.” (Emphasis added.)
Pointedly, Roberts concluded with a mandate to follow Congress’s real-world operational design: “A fair reading of legislation demands a fair understanding of the legislative plan. (Emphasis added.) Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them.”
Without doubt, Roberts’s detailed catechism was no off-the-cuff one-shot. Moreover, the King precedent would, if applied conscientiously, compel rejection of the Trump-Vought attempt to “undo” Congress’s “plan” for a merit-based civil service system, by arrogating to the president open-ended authority to unilaterally convert any federal employee into an at-will officeholder.
In his March 2, 1978, message transmitting the proposed Civil Service Reform Act, or CSRA, to Congress, Carter described its “objectives” as, first “to strengthen the protection of legitimate employee rights,” and second, “to provide incentives and opportunities for managers to improve the efficiency of the Federal Government.”
To attain the second, efficiency-enhancing objective, the act’s principal innovation was the establishment of a “Senior Executive Service,” or SES, to be populated by both political appointees and senior career appointees. But the CSRA did NOT make SES positions at-will, as does the executive order for any position the president designates. On the contrary, the act detailed substantive standards for determining and disciplining SES members for inadequate performance; adverse actions for inadequate performance can include removal from the SES—but NOT from federal employment altogether. Stricter criteria and procedural safeguards (and penalties, including termination of federal employment) are prescribed for “misconduct.” In all cases, SES procedures include “advance notice [of any proposed disciplinary action], reasonable time to reply, representation, and a written decision by the agency.” All these protections are still codified on the books.
Were the executive order’s regime authorized by the CSRA, there would have been no need to carve out an SES to give the president and political appointees increased management flexibility, and carefully delineate criteria and procedures governing SES officials’ performance, evaluation, and discipline.
To circumvent these decades-old foundational safeguards, Vought and his team hang their hat on a change made by a 1990 amendment to the civil service laws codified in 1978. That amendment rephrased provisions governing administrative “exceptions” to placing positions in the “competitive service”—hence, removing such positions from otherwise applicable employee protections. But this 1990 amendment was written to expand federal employees’ protections, not constrict, let alone eliminate them. Indeed, the purpose of the 1990 amendment, stated in the opening sentence of the House Committee Report accompanying it to the House floor, “is to extend to certain employees in the excepted service the same administrative notice and appeal procedures currently provided employees in the competitive service.” Further, as the Committee Report stressed:
The fact that an employee is not in the competitive service does not mean that the employee can be hired or fired at whim.… Nor can employees in excepted service positions be fired without notice.
In keeping with the express rights-protective purpose of the amendment on which the executive order relies, Vought’s ploy plainly flunks the strictures for contextual interpretation laid down in King v Burwell.
The executive order’s bid to bypass the King precedent rests on a hope that changes in the court’s membership will jettison Roberts’s commitment to commonsense contextual interpretation. Since 2015, when King was decided, two members of Roberts’s 6–3 majority have left the court—liberal Justice Ruth Bader Ginsburg and maverick-conservative Justice Anthony Kennedy. Assuming that Roberts will stand by his own precedent, he will need at least one other conservative to make a majority, joining himself and the three liberal justices (Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson). There is good reason to expect that, properly framed and publicly supported, a challenge can gain votes from at least one and quite possibly more of this more right-tilted court.
The most likely candidate to join Roberts and the liberal justices is Justice Brett Kavanaugh. On the high court, on his prior perch, the D.C. Circuit Appellate Court, and in extrajudicial writings, Kavanaugh has shown an affinity for interpreting major statutes holistically, in sync with Roberts’s King v. Burwell operational focus, their purposes, and their implementation history.
Most recently, in a dissent joined by Roberts, Sotomayor, and Kagan, Kavanaugh attacked a five-justice majority’s rejection of a bankruptcy district court’s resolution of the Purdue Pharma–Sackler family OxyContin catastrophe settlement. Kavanaugh led off his argument writing that the district judge’s “plan was a shining example of the bankruptcy system at work.… But the Court now throws out the plan—and [practices] which have long been a critical tool for bankruptcy courts to manage mass-tort bankruptcies like this one. The Court’s decision finds no mooring in the Bankruptcy Code.” (Emphasis added.)
The Purdue Pharma bipartisan majority included Justice Jackson (who presumably agreed that remanding the case could force the Sacklers to acquiesce in a better deal for their OxyContin victims—as may have transpired last month). In a challenge to the Trump-Vought executive order, Jackson would surely form a fifth vote to reject any such order.
In 2023, Kavanaugh wrote a lengthy opinion joined by the three liberal justices (Sotomayor, Kagan, and Jackson), concurring in a unanimous judgment that the Environmental Protection Agency exceeded its Clean Water Act authority when it barred a landowner from building on dry land standing between two sites covered by the CWA—a navigable waterway and a wetland. But Kavanaugh and the three liberals disputed the majority’s reversal of a “longstanding and consistent agency interpretation” of the act embraced by “eight administrations since 1977.” Kavanaugh added that the court’s rejection of long-standing agency practice would have substantial real-world consequences inimical to the manifest purpose of the act: “By narrowing the Act’s coverage … the Court’s new test will [have] significant repercussions for water quality and flood control throughout the United States.”
In addition to Kavanaugh, Justice Amy Coney Barrett seems likely to be skeptical of the Trump-Vought emasculation of the merit-based civil service statutory framework, if opponents frame their attacks as based on “commonsense,” long-standing agency and judicial practice, and contextual interpretation confirming close reading of the particular statutory phrase at issue. Barrett’s increasingly outspoken willingness to break with her conservative colleagues has been widely noted; during the 2023–24 term, Barrett voted “for the liberal outcome on 48% of divided cases with an ideological bent, the highest percentage among the Republican appointees.” At the end of that term, Barrett authored, on behalf of herself and the three liberal justices, a blistering, extensively documented dissent to a 5–4 majority’s grant of a preliminary injunction against a “major” EPA rule, on the basis of a “barely briefed … undeveloped theory [that] leaves large swaths of upwind States free to keep contributing significantly to their downwind neighbors’ ozone problems for the next several years.”
Even Justice Neil Gorsuch, frequently considered one of the court’s furthest-right members, would seem potentially susceptible to textualist arguments that highlight the ahistorical distortion of the text on which Vought and his team rely. That approach produced Gorsuch’s blockbuster 2021 decision that anti-LGBTQ practices violate the ban in Title VII of the 1964 Civil Rights Act on workplace “discrimination because of sex.”
To put it another way, Trump and his team have every reason to recognize Justices Kavanaugh, Barrett, and even Gorsuch as Trump appointees but not necessarily “Trump justices.” On the contrary, they and the court they control could well constitute a uniquely critical threat to their agenda of consolidating all federal power in the president’s hands. Already, the first federal branch, Congress, has acquiesced in its own marginalization. The justices need to grasp that Trump’s “career/policy” executive order, along with other unlawful actions, targets the court itself, aiming to marginalize the third branch’s independent constitutional role. If there is no law that the president feels bound to respect, that Congress will defend, or that citizens can rely on, then there is no role for federal judges other than as bystanders or rubber stamps.
In order to avoid that fate, the court cannot embrace the normal routine of deferring a decision to strike down the administration’s law-breaking until after cases have wound their way up the multiyear ladder from trial to appeals to the high court. In the meantime, of course, Trump and his agency heads will gleefully terminate, or in Vought’s words, “traumatize” into resigning, tens or perhaps hundreds of thousands of worthy career officials.
This exigent need for fast disposition is recognized by the sole court challenge to this executive order that, to my knowledge, has yet been filed, by the National Treasury Employees Union, or NTEU. Noting that the executive order “explicitly states that OPM regulations in conflict with the order ‘shall be held inoperative and without effect,’” the NTEU complaint seeks a declaration that the executive order is unlawful, and an injunction barring Trump or his appointees from “implementing or enforcing” the order. The court’s own independence as the constitutionally designated head of a coequal branch of government requires just such an immediate interment of the administration’s bid to marginalize its authority to “determine what the law is,” as Chief Justice John Marshall ruled magisterially in 1803.
For their part, liberal leaders need to break free from their subject-matter silos and recognize the priority stake they and their constituencies have in securing that outcome in this case. Russell Vought has said, with disarming candor, that his strategic lodestar is that “personnel is policy.” On that point, Trump’s COO is 100 percent correct: Nowhere can liberal policies be expected to live to fight another day if the personnel executing those policies are replaced, down as well as up the line, by hacks dedicated to dismantling them. Liberal lawyers, activists, advocates, and politicians must mobilize their constituents and allies and assemble broad coalitions—including independents and rule-of-law conservatives—to detail the devastating impacts the Trump-Vought assault portends. To that end, they must deploy message points calculated both to galvanize popular support and to appeal to the justices whose votes are needed and within reach: namely, the Trump appointees whom he and his allies disdain as independent potential threats, not grateful vassals. (Simon Lazarus, Simon Lazarus served as associate director of President Jimmy Carter’s White House Domestic Policy Staff, and since then with private and public-interest law firms in Washington, D.C., New Republic)
A Jewish Coalition challenges Trump.
Exclusive: Jewish groups rebuke Trump on immigration, Musk moves
A broad coalition of Jewish organizations, including reform and conservative Jewish groups, is denouncing President Trump over moves on democracy, his "scapegoating" of immigrants and transgender people, and says his empowering of Elon Musk "to force ideological conformity" threatens the country's "democratic norms."
Why it matters: The open letter, which was released Friday, is signed by more than 100 groups from many Jewish denominations, perspectives and broad missions. It's the latest criticism of Trump by religious organizations over his immigration and cost-cutting policies.
Zoom in: The groups say Trump's moves to deport huge numbers of undocumented immigrants, freeze federal funds and dismantle international programs "fundamentally threaten the freedoms and safety of all Americans."
The groups emphasize that legitimate policy debates and disagreements are fine — and note that there are disputes among the letter's signees — but say Trump's recent actions go far beyond that.
"It is a direct assault on the very principles that underpin our democracy — principles including equal justice under the law; the protection of fundamental civil liberties and civil rights," the groups write.
The letter expresses concern about the "scapegoating and dehumanization of immigrants, people of color, transgender people and other marginalized groups to justify draconian and unconstitutional policies."
Zoom out: The letter was organized by the Jewish Council for Public Affairs and representatives of two of the major Jewish denominations: the Religious Action Center of Reform Judaism and the Conservative movement's Rabbinic Assembly.
Other notable signatories include National Council of Jewish Women, HIAS, J Street, T'ruah, Bend the Arc and the Reconstructionist Rabbinical Association.
The White House did not respond directly to the letter's message in a statement to Axios.
"President Trump is delivering on the promises that earned him a resounding mandate from the American people," Harrison Fields, the White House's principal deputy press secretary, told Axios.
The intrigue: The freezing of federal funds and a takeover of the federal payments system and classified information by Elon Musk, an unelected ally of Trump, alarms the Jewish groups.
Those moves are "intended to force ideological conformity" and "make it harder for individuals and groups to exercise their rights," the groups' letter says.
What they're saying: "We know where this leads, for Jews and for so many others, and we are proud that this broad coalition is sending an unmistakable message that Jewish Americans will stand for democracy at this critical moment," Amy Spitalnick, CEO of the Jewish Council for Public Affairs, tells Axios.
"When we see an administration upend democratic norms and take actions that clearly ignore the law and upend the Constitution, we must stand up for democratic processes, and the rights of all vulnerable people," Rabbi Jacob Blumenthal, CEO of the Rabbinical Assembly, tells Axios.
"Threats to democratic norms and our democracy overall make us less safe as Jews and as Americans," said Rabbi Jonah Dov Pesner, director of the Religious Action Center of Reform Judaism.
Context: The U.S. Conference of Catholic Bishops, the Episcopal Church and Quaker groups have criticized Trump for allowing federal officials to arrest undocumented immigrants in "sensitive" spaces such as schools and houses of worship.
Pope Francis called Trump's plan to deport millions of immigrants from the U.S. a "disgrace."
Vice President Vance countered that the U.S. Conference of Catholic Bishops has "not been a good partner in common-sense immigration enforcement." (Axios)
Read for yourself. The letter from a broad coalition of Jewish organizations.
Maybe the dam has started to crack.
A Republican Senator has split from Trump.
Republican Senator Jerry Moran of Kansas.
This is a Hopeful Parody. It is up to us to make real Resistance true.
The Resistance is Here - by Andy Borowitz
If you’re under the impression that there’s no resistance to Trump, it’s because corporate media aren’t showing you pictures like this.
Dear Friends,
Yesterday, [Wednesday] Americans from coast to coast took to the streets to protest Elon Musk’s presidency—despite the corporate media’s claims that there’s been “no resistance.”
Meanwhile, around the world, allies and foes of the U.S. alike agreed that our senile leader’s proposal to turn Gaza into the Trump Riviera was moronic.
Today, the judicial branch fulfilled its constitutional duty and slammed the brakes on Project 2025.
And in our little corner of the world, the response to Van Jones’s call to action on TBR podcast has been overwhelming.
At the end of the podcast, I asked readers to share what they’ve been doing to take part in the resistance. Here are just a few of their comments. I hope you’ll find them as inspiring as I do.
As Van Jones said, “This will not stand.”
Love,
Andy
At urging of a friend I relentlessly called my red congresspeople in my red gerrymandered state. On speed dial until they picked up. Two offices, two congresspeople. Expressed not only my outrage but resolve to fight with all of my resources the criminal acts of the rethuglican party. And to arrest and deport the illegal immigrant Musk. --Patricia
I called both Wyoming senators today and asked if they became senators to become true statesmen or merely useful idiots for the administration. Too harsh? --Tim
I am contributing to the campaigns of Democratic candidates running in special elections for US House seats. We are in striking distance of a majority. --Mark
I'm going to the 50501 protest on Wednesday (50 states, 50 protests, 1 day). I am really really trying to get friends who talk the talk to walk the walk by contacting reps and donating to: the ACLU because we need lots of lawsuits, AOC because she is the only one I've heard who is getting loud until yesterday, Public Citizen--lawsuits again. Fetterman and McCormick's phones don't even take messages so I leave them on their websites which are completely devoid of any meaningful reaction to what's happening. I have a lot of training and experience visiting politicians' offices so I will get a group of friends to go with me since I don't feel my message is getting thru by phone or website. --Betsy
Please sign up for Postcards to Voters. It really helps get candidates elected, especially in special elections where getting the vote out can make all the difference. It is free for candidates to sign up and the cost to the writer is minimal. I ordered postcards from Etsy and rolls of postcard stamps. It is easy, feels empowering and effective. --Marjorie
I'm a Massachusetts Democrat woman who just sent letters to all Republican Senators appealing not to their ethics, integrity, patriotism, etc., because there's no point - but appealing to their big, fat, bloated macho egos, asking them why are they letting Musk piss all over their turf and why don't they stop him emasculating them and making the Senate irrelevant and impotent...BTW I identified myself as a Republican man because who would listen to a Democrat woman, esp. from MA, except of course my hero and force of nature, Elizabeth Warren. --June
As the editor of a local newspaper. I have reached out to the VFW and gave them a non-political column on our site. The bad guys cannot own our flag and our vets. The Vets need to know that they are valued and cared about by the greater community. They do not have to rely on the Republicans. Positive, energetic, supportive coverage. No candidates but plenty of PTSD support and engagement. We are a small outfit, but we’re trying. --Maureen
I repeat to myself what sustained me through being a Vietnam draftee. They can control what they will, but they cannot have my humanity, nor my soul. --Fred
TBR Question of the Day: Are you ready to join the fight?
(The Borowitz Report).