#government + #trump

Until recently, the government rarely asked the justices to decide cases on the emergency/interim/shadow docket. Presidents George W. Bush and Barack Obama sought such action only 8 times in 16 years. But in the last decade, the Court’s definition of “emergency” has grown to include almost any lower-court ruling the justices feel like weighing in on. While these shadow docket orders are not final in a legal sense, they often are in a practical one — say, when the Court allows the president to deport an undocumented immigrant or fire thousands of civil servants.

Combine this with a president who believes everything is an emergency — during Trump’s first term his administration sought shadow docket relief 41 times — and you have a recipe for the sort of arbitrary, unexplained exercise of power that led Americans to declare their independence from the Crown in the first place.

Currently the Court is considering emergency appeals from Trump regarding whether he can build a new White House ballroom without going through Congress, and whether he can make it harder for Americans to cast their vote by mail (the way Trump himself votes).

Requiring officials to give reasons for their actions is the foundation of liberal society, the sine qua non of modern representative government. It’s what separates a constitutional democracy from an authoritarian regime. Indeed, it’s right there in the Constitution: The Great Writ — habeas corpus — is based on the principle that if the state wants to detain you or deprive you of your liberty, it must first bring you into open court and provide the precise reasons why.

In an incident from another case last fall, a veteran federal district judge, William G. Young, blocked the Trump administration from canceling millions of dollars in grants by the National Institutes of Health. Apparently, Young had failed to intuit the meaning of an earlier shadow docket ruling by the Supreme Court, which involved the canceling of grants by a separate agency while offering almost no actual reasoning. For this crime, the judge endured a harsh public scolding by Justices Neil Gorsuch and Brett Kavanaugh.

“Lower-court judges may sometimes disagree with this Court’s decisions, but they are never free to defy them,” Gorsuch wrote.

Young, a Reagan appointee and judge for 47 years, apologized in open court. “Never before this admonition has any judge in any higher court ever thought to suggest that this court had defied the precedent of a higher court — that was never my intention,” he said. “I simply did not understand that orders on the emergency docket were precedent,” he added. “I stand corrected.” (Never mind that the justices seem unable to agree even with themselves on this point: In his smackdown of Young, Gorsuch wrote that a Supreme Court decision is a “precedent that commands respect in lower courts,” but only five years ago Justice Samuel Alito had said emergency docket rulings are not precedential.)

From taxes to the environment to public broadcasting like PBS and NPR, the Senate has recently passed record levels of legislation and confirmed record numbers of nominations with senators representing less than half the people.

Using historical data, GovTrack found 56 examples of Senate votes on legislation that passed with senators representing a “population minority.” 26 of those 56 examples, nearly half, have occurred since President Donald Trump’s current term began.

Several of the second Trump administration’s most prominent members were confirmed by Senate “population minority” votes – including RFK Jr. (Secretary of Health and Human Services), Pete Hegseth, Pam Bondi, Kash Patel, and Tulsi Gabbard.

The oldest example GovTrack found of a “population minority” Senate vote is actually  famous: Clarence Thomas’s 1991 Supreme Court nomination by President George H. W. Bush. The Senate approved Thomas with 52% support, but 49% of the population.

He still serves on the Court today.

GovTrack found three other “population minority” Senate confirmations for Supreme Court justices, totalling four: Thomas plus Trump’s three first-term nominees. All four still serve on the Court.

Currently, Republicans hold a Senate majority: 53 to 47. However, based on the Census Bureau’s current estimates, it’s actually the other way around by population: Democratic senators represent a 53% majority of the states’ population, versus Republicans with 47%.

How is this possible? Because while the U.S. House is apportioned based on population, with larger states receiving more representatives, the U.S. Senate guarantees each state two senators regardless of size.

This was baked into the American system from the beginning, creating what political scientists call a “counter-majoritarian” institution.

In 2025, according to Census Bureau estimates, the most populous state (California) had about 67x the population as the least populous: Wyoming. Today, a Senate voting majority could be cobbled together from senators representing just 17% of the population.

But that’s actually been the same for a while. Going back to 1900, a Senate voting majority could be cobbled together with senators representing 16% to 20% of the population.

Instead, small states may be more politically aligned than they used to be and are voting together more often as a bloc.

Senators have recently taken advantage of old rules, and also changed some rules, to use lower vote thresholds. This means votes are more often succeeding with less support.

Both parties contributed to this.

In 2013, under President Obama, Senate Democrats changed the threshold for most nominations from three-fifths to a simple majority. They left it at three-fifths for the Supreme Court, though.

Then in 2017 during Trump’s first term, Senate Republicans changed the threshold for the Supreme Court, too, to confirm Justice Gorsuch by a simple majority. (This rule applied to all subsequent justices, too.)

As for legislation, many of the recent “population minority” Senate votes used the Congressional Review Act of 1996, which lowered the usual Senate vote threshold from three-fifths to a simple majority for certain deregulation bills. The One Big Beautiful Act and the Rescissions Act were both voted on under other rules, which lower the vote threshold for certain spending-related bills.

So the three-fifths threshold is now gone for nominations and some types of legislation.

It might not stop there. Trump has called for the Senate to end the three-fifths threshold for all legislation, in order to enact certain Republican policies – particularly regarding election rules. If that happens, “population minority” Senate votes could become even more frequent.

Why does this usually benefit Republicans?

This discrepancy usually benefits the GOP, since they tend to represent smaller states.

This small-state Republican benefit also holds true at the presidential level. Indeed, two presidents in living memory won election despite losing the national popular vote, both Republicans: George W. Bush in 2000 and Donald Trump in 2016.

The Congressional Review Act, which makes it easier for Congress to deregulate – and the rules for rescissions bills, which makes it easier to cut funding – also are more aligned with Republican goals than Democratic goals.

But for better or for worse, it’s clear that the Senate is diverging from popular opinion far more than ever before, at least in recent memory. Even if one believes the Senate is, in fact, “right” while popular opinion is “wrong.”

That’s the New York Times, CNN, CNBC, NBC, and the Guardian all confidently telling their readers that Trump can magically override state sovereignty with a memo. These aren’t fringe blogs—these are supposedly serious news organizations with actual editors who apparently skipped the day they taught how the federal government works. They have failed the most simple journalistic test of “don’t print lies in the newspaper.”

Executive orders aren’t laws. They’re memos. Fancy, official memos that tell federal employees how to do their jobs, but memos nonetheless. You want to change what states can and can’t do? You need this little thing called “Congress” to pass this other little thing called “legislation.” Trump can’t just declare state laws invalid any more than he can declare himself emperor of Mars.

But here’s where this gets kinda funny (in a stupid way): that “interstate commerce” language could backfire spectacularly. Almost all state laws trying to regulate the internet—from child safety laws to age verification to the various attempts at content moderation laws—might run afoul of the dormant commerce clause by attempting to regulate interstate commerce if what the admin here claims is true (it’s not really true, but if the Supreme Court buys it…). Courts had been hesitant to use this nuclear option because it would essentially wipe out the entire patchwork of state internet regulation that’s been building for years, and a few decades of work in other areas that hasn’t really been challenged. Also, because they’ve mostly been able to invalidate those laws using the simple and straightforward First Amendment.

The real story here isn’t that Trump signed some groundbreaking AI policy—it’s that the entire mainstream media apparatus completely failed to understand the most basic principles of American government. Executive orders aren’t magic spells that override federalism. They’re memos.

Instead of presenting a new indictment to the full panel after it rejected one of the counts, interim U.S. Attorney Lindsey Halligan gave the grand jury’s foreperson an updated version — not seen by the other grand jurors — to sign.