By Ella Lee and Zach Schonfeld | Wednesday, November 5 |
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By Zach Schonfeld and Ella Lee Wednesday, November 5 |
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Toymaker, wine importer take on Trump's tariffs |
Rick Woldenberg's family-run educational toy business will forever be known by its blockbuster Supreme Court case against President Trump's tariffs. He's OK with that. "I wanted my name on this lawsuit," Woldenberg said. "I'm not embarrassed for bringing it, and I think it's an important lawsuit." The Supreme Court will hear arguments this morning in Learning Resources v. Trump, the case led by Woldenberg, and VOS Selections v. Trump, a challenge led by a wine importer. Ahead of the blockbuster case, the small businesses' CEOs sat down with The Gavel about the consequential moment to come. Unlike Woldenberg, who has a law degree and entered entered the political fray during Trump's first term by opposing a border adjustment tax championed by then-Speaker Paul Ryan (R-Wisc.), VOS Selections founder Victor Schwartz has no such background. "I didn't even know the law. All I knew was this was bad for business," Schwartz told us. Schwartz runs the business with his daughter. He sued after a relative connected him with their former law professor at George Mason University, Ilya Somin, who teamed up with the Liberty Justice Center, a libertarian public-interest firm, to represent him and four other small businesses. Schwartz said he was always willing to join. But initially, he had concerns when asked to be the lead plaintiff, knowing a prominent clash with the Trump administration lay ahead. Family, friends and attorneys Schwartz knew pushed him forward. "They all said I should do it anyway, because it was just too important," Schwartz said. "In my heart of hearts, I realized I had to do it," he continued. "I kind of felt it was a moral imperative. Somehow it landed on my doorstep. I could not walk away from it." The case hinges on whether the International Emergency Economic Powers Act (IEEPA), a 1977 statute authorizing the president to impose necessary economic sanctions during an emergency, can be used to justify Trump's far-reaching levies. Pre-argument reading: Five things to watch as the justices weigh Trump's tariffs Both Woldenberg and Schwartz said the policy would endanger their livelihoods. "I felt like the future of our business was being directly threatened by this federal policy," Woldenberg said. "And so I felt that, among the things that we could do to protect ourselves, aside from publicizing the ill effects of the tariffs, was to take action and follow up on my conviction that the tariffs were unlawful." Learning Resources and VOS Selections filed separate lawsuits with two different legal teams, and they both won in lower courts. But now at the Supreme Court, their challenges are consolidated, and the justices told them they could only have one advocate argue Wednesday. They chose Neal Katyal, a high-powered Supreme Court advocate and former solicitor general under President Obama who often speaks out against the Trump administration. Katyal has argued more than 50 cases before the justices. It's a stacked team. Michael McConnell, a former appellate judge put on the bench by President George W. Bush, and Pratik Shah, who leads law firm Akin's Supreme Court practice, also represent some of the businesses. Woldenberg confirmed to us Bloomberg's report that a coin was flipped to decide whether Katyal or Shah would take the lectern. When we asked Schwartz, he said "it looks good in the press" but doesn't think "we would leave it to a coin flip." But the toymaker said his confidence in the case hardly hinged on which side of the coin landed face up. "We're going to be successful either way, and you can't complain about the choices that we had," Woldenberg said. Trump on Monday called the case "one of the most important in the History of the Country," with government lawyers describing his tariffs in court papers as the president's most significant economic agenda. For a wine importer like VOS Selections, it's not as simple as just buying American. "You cannot make a Chianti in Oregon," Schwartz said. |
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SCOTUS' speedy docket; Trump on SNAP; Jack Smith report |
What to call the Supreme Court's speedy decisions? |
A debate is raging among Supreme Court nerds: what to call the justices' consequential, speedy orders that are handed down often without explanation. Is it the emergency docket? The interim docket? Short order docket? How about shadow docket? Even the justices can't seem to agree. The latter term was invented in 2015 by William Baude, a University of Chicago law professor and former clerk to Chief Justice John Roberts. Baude didn't intend for it to be so pejorative. It was just before Trump's first term in 2017, and Baude coined the phrase to refer to anytime the court does not explain its reasoning or disclose the full vote count. That covers not just emergency appeals, but also when the court declines to take up thousands of cases each year without comment. In years since, "shadow docket" has increasingly been used by Supreme Court critics to take aim at the conservative majority. "The catchy and sinister term 'shadow docket' has been used to portray the Court as having been captured by a dangerous cabal that resorts to sneak and improper methods to get its way," Justice Samuel Alito said in a 2021 speech at Notre Dame Law School. With Trump's administration having now filed a staggering 30 emergency applications to lift lower court injunctions, the debate over what term to use has returned. Justice Elena Kagan called it the "shadow docket" in 2021 when she dissented from an emergency order that left in place Texas's abortion ban. "I think I once used the term, when I was feeling particularly annoyed," Kagan reflected at a July judicial conference in California. "Now I use the term emergency docket. I think that that's a more accurate term just in terms of reflecting the fact of what it is." Justice Amy Coney Barrett told The Dispatch on her book tour, "I say emergency docket." Days earlier, Justice Brett Kavanaugh had told a judicial conference in Memphis that he prefers "interim docket" since not all the cases are true emergencies, according to The New York Times. No matter what the docket is called, one thing is clear: it's jam-packed. For nearly a month, the justices have been sitting on the Trump administration's bid to restrict transgender Americans from matching the sex listed on their passports with their gender identity. The administration's appeals seeking to deploy the Illinois National Guard and fire the nation's top copyright official will become ripe for a decision later this month. And the court has yet to rule on whether to block a seven-year-old girl's deportation to Venezuela. The child's mother brought her to the U.S. without her father's consent, and the father filed a petition seeking to return the child to Venezuela. Neither parent currently lives there. |
Will he or won't he? The latest on Trump paying SNAP benefits |
It has been a rollercoaster week for the Supplemental Nutrition Assistance Program (SNAP), which provides more than 40 million people with grocery assistance. On Friday, federal judges ruled the Trump administration must deplete an emergency fund before cutting off the program. On Monday, the U.S. Department of Agriculture (USDA) indicated it was preparing to do so. Then, on Tuesday, the president appeared to threaten withholding the benefits entirely. In a Truth Social post, Trump wrote that SNAP "will be given only when the Radical Left Democrats open up government, which they can easily do, and not before!" Later in the day, press secretary Karoline Leavitt clarified the administration was "fully complying" with the court order and was working to get SNAP payments "out the door as much as we can and as quickly as we can." It has left SNAP in a state of uncertainty as the government shutdown enters its sixth week. The battle began when the Trump administration announced it would not dole out November SNAP benefits, estimated to cost upwards of $9 billion. The administration's legal argument is straightforward: There's no appropriation, so there's really no program. Blue states, cities and private organizations went to court last week, asserting federal law requires the administration to, at minimum, tap an emergency fund. That fund can only cover about half of November's benefits. Two judges separately agreed with the challengers and demanded the administration provide a plan by this past Monday. The administration said it would comply and deplete the emergency fund. But it declined to tap a separate funding source, known as Section 32 funds, to fill the remaining gap for November. Officials said it would create an "unacceptable risk" and they needed to conserve the funds for child nutrition programs. Instead, the administration indicated it would provide partial payments to states. USDA officials have warned it could create weeklong delays before states provide households with their reduced November benefit. Now, an effort is underway to compel the administration to offer full payments, saying the partial ones aren't a workable solution. A hearing is set for Thursday at 3:30 p.m. ET. "This record shows that USDA's true reasons for withholding full SNAP benefits are to gain partisan advantage," the cities and private groups wrote in court filings Tuesday. The White House clarified during a Tuesday press briefing however that it does intend to fund the SNAP benefits, despite the confusion Trump stirred. "The recipients of these SNAP benefits need to understand it's going to take some time to receive this money because the Democrats have forced the administration into a very untenable position," Leavitt said. Asked how Trump's earlier post did not amount to defying a court order, Leavitt said the president was referring to "future SNAP payments." |
Jack Smith's report could see the light |
The findings of former special counsel Jack Smith's investigation into Trump's handling of classified records may actually see the light of day. A federal appeals panel on Monday issued the first sign of hope in months that a report ordered to remain secret by a judge could eventually be revealed, at least to some. On Inauguration Day, after Trump was sworn in, U.S. District Judge Aileen Cannon issued an order blocking the Justice Department from sharing the volume of Smith's report reviewing his investigation into Trump's mishandling of classified records with four top lawmakers. Under former Attorney General Merrick Garland, the DOJ was set to turn over the report to leaders of the House and Senate Judiciary committees — a move Cannon criticized as a result of Garland's "limited time" in office. "There is no 'historical practice' of providing Special Counsel reports to Congress, even on a limited basis, pending conclusion of criminal proceedings," Cannon wrote at the time. "In fact, there is not one instance of this happening until now." The government ethics watchdog American Oversight and Columbia University's Knight First Amendment Institute each moved to intervene and seek to have Cannon's order barring the report's release thrown out in February. Months went by without a ruling from Cannon, and in July, the groups each notified the court that their motions had been fully briefed for more than 90 days. Still, nothing from Cannon. In September, they asked the U.S. Court of Appeals for the 11th Circuit to order the judge to act. A panel of circuit judges signaled Monday that Cannon had delayed long enough. The three-judge panel — composed of an Obama appointee, Trump appointee and appointee of former President Biden — noted the months that have passed as the groups' motions have been before Cannon. "To date, the district court has not ruled or conducted any other further proceedings on the pending motions," the judges wrote. "Accordingly, Petitioners have established undue delay in resolution of their motions to intervene." The panel placed the groups' petitions for the appeals court to step into the fight in a state of suspension for 60 days so Cannon can "fully resolve the motions," putting the ball back in her court. In a statement, American Oversight executive director Chioma Chukwu applauded the 11th Circuit for "calling out" Cannon's delay. "As the Trump administration targets its perceived political enemies over alleged mishandling of classified documents, today's order is an important step toward increased transparency and accountability for the president's own conduct," Chukwu wrote. "If the very actions he condemns in others mirror what he did before leaving office, the public has a right to know." The remarks appear to reference recent charges against former national security adviser John Bolton. |
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- SCOTUS wants more info on National Guard: Don't expect the high court to imminently rule on Trump's emergency appeal seeking to deploy the National Guard in Illinois. The justices asked for additional briefing on the meaning of a provision Trump cited to deploy the troops. The schedule runs through Nov. 17, so don't expect a ruling until after that.
- Oregon guard trial wraps: Meanwhile, a federal judge held a trial last week on Trump's deployment of the National Guard in Portland. On Sunday, the judge blocked the deployment temporarily until she issues her final ruling. She's expecting to do so by Friday night.
- State senator charged over secret recording: Federal prosecutors unveiled criminal charges against a Democratic Maryland state senator, Dalya Attar, for allegedly secretly recording a political critic in bed and using it as blackmail. Attar says she hasn't seen "tangible evidence" that shows she knew about any illegal actions.
- Congressional candidate charged over ICE protest: In Illinois, federal prosecutors brought charges against progressive congressional candidate Kat Abughazaleh, who said she'll plead not guilty. She and other defendants are accused of unlawfully crowding around an officer's vehicle as he attempted to reach an immigration facility in Broadview, Illinois, and causing damage.
- Loan forgiveness rule change lawsuit: Twenty-one Democratic states and Washington, D.C., as well as a pair of advocacy groups, sued the Education Department over a recent rule change to the Public Service Loan Forgiveness (PSLF) student debt relief program.
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- It Ends With...Judge: A judge threw out actor-director Justin Baldoni's $400 million countersuit against Blake Lively and Ryan Reynolds after missing the deadline to amend his complaint, ending that arm of the legal saga following their film "It Ends With Us."
- Miele Culpa: Ex-Rep. George Santos (R-N.Y.) said on X he has "formally asked" Trump to commute the yearlong sentence of his former campaign aide, Sam Miele, after the president shortened his own sentence.
- The Alito defense: A Maryland Supreme Court justice was met with criticism after Halloween decorations outside his home depicted political messages. The gravestones showed messages like, "Here lies the Constitution," "RIP Food Aid," and "RIP Climate Science." Reached for comment by The Gavel, a spokesperson for the Maryland Judiciary said, "the signs belong to Justice (Peter) Killough's wife" and declined to comment further. Sound familiar?
- Hoagie horror: At the trial of D.C.'s "sandwich guy," Sean Dunn, a federal agent testified that he could "feel it through his ballistic vest" when the sub was thrown at him, CBS News's Jake Rosen reported. The sandwich "exploded all over" him, and he could "smell the onions and mustard" on his uniform."
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Petitions to take up cases that the justices are keeping a close eye on. Later this week, the Supreme Court will consider taking up a case that explicitly asks the court to overturn its precedent guaranteeing same-sex marriage, Obergefell v. Hodges. Former Rowan County, Ky., clerk Kim Davis's petition is poised to dominate the public discourse heading into Friday's conference. But most court watchers don't expect the justices to indulge Davis's effort. Even some critics of the court's conservative majority agree. "Kim Davis just ain't it," University of Michigan law professor Leah Litman said on a recent episode of her Strict Scrutiny podcast. Why? At its core, Davis's case is a dispute over emotional distress damages, not the constitutional right to marry. Let's rewind to 2015, when the high court decided Obergefell. Davis, who objects to same-sex marriage on religious grounds, was months into her job as county clerk. She responded by stopping the issuing of of marriage licenses entirely. David Ermold and David Moore sued Davis after her office denied the couple a license. She was later found to have violated a judge's order in another lawsuit that required her to keep issuing licenses. Davis was jailed for five days, the couple obtained their license, Kentucky later passed a law enabling clerks to keep their signatures off marriage certificates and Davis is no longer in office. Now at issue before the Supreme Court in Davis v. Ermold is a $100,000 jury award the couple won from Davis for violating their constitutional rights plus $260,000 in attorney's fees. Davis's appeal primarily argues she should be able to assert a private First Amendment religious defense against the award, despite acting as a government official. But tacked onto her high court petition is a bid to overturn Obergefell outright. "If ever there was a case of exceptional importance, the first individual in the Republic's history who was jailed for following her religious convictions regarding the historic definition of marriage, this should be it," wrote Matthew Staver, Davis's lawyer. At least one justice requested the couple respond in writing. They told the justices Davis failed to raise overturning the Obergefell argument earlier, and her case is a poor vehicle for reconsidering the precedent, anyway. When the Supreme Court rejected Davis's appeal at an earlier stage, in 2020, Alito and Justice Clarence Thomas agreed. "This petition implicates important questions about the scope of our decision in Obergefell, but it does not cleanly present them," wrote Thomas, who has called for the case to be reconsidered. Separately, the court on Friday will consider Watson v. Republican National Committee (RNC). Mississippi is attempting to revive its law that accepts mail ballots received after Election Day, so long as they were postmarked by then. Republicans have challenged the practice across the country. Last month, the Supreme Court heard arguments as to whether candidates have standing to bring such lawsuits. In Watson, it's a non-issue, as no one disputes the RNC has standing. Taking up the case would enable the court to reach the actual legality of the post-Election Day deadline this term. |
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Don't be surprised if additional hearings are scheduled throughout the week. But here's what we're watching for now: |
- The Supreme Court is set to hear oral arguments over whether the International Emergency Economic Powers Act (IEEPA) authorizes the president to impose tariffs. The cases are Learning Resources v. Trump and VOS Selections v. Trump.
- The U.S. Court of Appeals for the 1st Circuit is set to hear oral arguments in the Trump administration's appeal of an order blocking a reduction in caps on indirect costs for National Institutes of Health (NIH) grants.
- A federal judge in Virginia is set to hold a pretrial conference in former Trump campaign manager Chris LaCivita's defamation lawsuit against The Daily Beast.
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- A federal judge in Wisconsin is set to hold a status conference in the case of Wisconsin Judge Hannah Dugan, who is accused of helping a migrant evade arrest by federal immigration agents.
- Notable Justice Department officials and judges are set to speak at the conservative Federalist Society's annual conference, including Brett Shumate, the head of DOJ's Civil Division; Chad Mizelle, former DOJ chief of staff; Judge James Ho of the U.S. Court of Appeals for the 5th Circuit; and U.S. District Judge Aileen Cannon.
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- Deputy Attorney General Todd Blanche will give a fireside chat at the annual Federalist Society convention, moderated by Gene Hamilton, president of the conservative America First Legal Foundation. He'll be introduced by Benjamin Paris, president of Harvard's FedSoc chapter.
- A federal judge is expected to issue her final ruling on whether to block Trump's National Guard deployment in Portland.
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- The Supreme Court will announce orders.
- The Supreme Court will hear oral arguments over whether an individual may sue a government official in his individual capacity for damages for violations of the Religious Land Use and Institutionalized Persons Act (RLUIPA). The case is Landor v. Louisiana Department of Corrections and Public Safety.
- The justices will also hear oral arguments over whether a government contractor can immediately appeal when their sovereign immunity is denied. The case is The GEO Group v. Menocal.
- The trial of Rep. LaMonica McIver (D-N.J.) on charges she assaulted and interfered with immigration officers at a New Jersey detention center during a congressional oversight visit is set to begin.
- A federal judge in New York is set to hold a preliminary injunction hearing in New York City Public Schools' lawsuit against the Education Department over the discontinuation of its five-year Magnet Schools Assistance Program (MSAP) grants over alleged Title IX violations.
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- The federal courts are closed for Veterans Day.
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We'll be back next Wednesday with additional reporting and insights. In the meantime, keep up with our coverage here. |
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