Category: Uncategorized

Before March of this year, I tended to stay away from politics on FB. This changed when the Admin began targeting lawyers and law firms. The Admin issued and threatened to issue Executive Orders seeking to punish lawyers and law firms for representing the President’s political opponents and for taking positions that were adverse to the President’s agenda. Having spent nearly 30 years practicing law, I could no longer sit idly by in the face of this unprecedented attack on my profession.

A Handful Of Law Firms Are Fighting Back

On Friday, one of the law firms being targeted, Perkins Coie, secured a significant victory in its lawsuit against the government challenging the EO. The Court issued a 102-page opinion in which it found that the EO violated the First, Fifth and Sixth Amendments to our Constitution. The Court found that the EO was unconstitutional because, among other reasons, it retaliated against the law firm for engaging in protected activity (free speech), deprived the law firm of equal protection of the law, and interfered with the rights of the law firm’s clients to counsel of their choosing.

Three other law firms have brought suits challenging similar Executive action. We can expect decisions in those cases in the coming weeks and months. Each case will undoubtedly be appealed to the DC Circuit Court of Appeals and, from there, possibly to the Supreme Court.

A Larger Number of Law Firms Capitulated

In the meantime, a larger number of law firms have capitulated and entered into deals with the Admin to avoid adverse Executive action. It is possible – perhaps probable – that each of those law firms faced an existential crisis whereby challenging the President meant losing valuable clients and partners that may mark the end of the law firm. I can scarcely imagine how difficult those decisions must have been. Still, this illustrates how effectively the President can quell speech and interfere with our right to counsel of our choosing, if unchecked.

We All Need The Law Firms To Keep Fighting

For the rest of us lawyers, and for the clients who engage us, we owe a debt of gratitude to the four brave law firms risking public scrutiny and worse to protect the rule of law and our Bill of Rights. They are patriots to be sure.

I do not profess to be a military expert. I am certain some of my friends know more than I do, particularly my friends who are veterans. But the situation in Ukraine has my attention.

Russia Is Digging In And Increasing Its Rhetoric

Russia seems to be digging in its heals in negotiations with Ukraine and showing little signs of compromise. Russia apparently wants an acknowledgement from the international community that Crimea and other parts of Ukraine that Russia invaded in violation of international law, are now lawfully part of Russia.

At the same time, Russia is increasing its rhetoric toward our fellow NATO members. Some Russian officials have even invoked the “nuclear” word in recent days. Russia is moving troops to the Finland border seemingly in response to Finland joining NATO last year.

I read a horrific story yesterday about a Ukrainian reporter who was taken captive by Russia in 2023. Her dead body was recently returned to Ukraine reportedly with signs of torture, including abrasions, hemorrhages, a broken rib and possible traces of electric shock.

The US Response Has Been Tepid So Far

In the meantime, the US announced that it has reached a deal with Ukraine giving us access to rare earth minerals. It is unclear how this might impact the US posture toward the war in Ukraine.

The question is what ought the US be doing right now. I understand the Admin’s demand that other member nations offer proportionate support to NATO. But it strikes me that these Russian advances might pose a clear and present danger to US interests. Can the US afford to wait until other NATO nations put in their fair share? Should our military be mobilizing and repositioning troops? Should we be taking steps to deescalate the situation with with Russia? What steps are those? Do we have confidence that this Admin has the knowledge and expertise to negotiate with Russia? Is the US leadership pulling the right levers? Is there strength in numbers such that the US and NATO ought to be presenting a united front?

I am sure there are other questions we ought to be asking about the war in Ukraine. These are fraught times, my friends. We need to remain vigilant.

Illegal immigration. The words alone evoke all sorts of emotions. Fear. Compassion. Hostility. Empathy. Frustration. A majority of Americans seem to agree that we have an illegal immigration issue in this country that needs to be addressed. Opinions on how to address it vary widely.

The Admin issued several Executive Orders and took a number of actions during its first 100 days to stem the tide of illegal immigration. You may have heard the Admin invoke the Alien Enemies Act of 1798 to justify some of its more aggressive actions. But does this Act do what the Admin says it does? I don’t think so.

The Alien Enemies Act Has A Troubling History

The Alien Enemies Act is a wartime act. Before this year, a sitting U.S. President had invoked the Act three times in our history: the War of 1812, World War I and World War II. During World War II, President Roosevelt used the Alien Enemies Act to justify the incarceration of 120,000 individuals of Japanese ancestry in internment camps. The vast majority were American citizens. This is widely regarded as a shameful episode in our history, when our President, our Congress and our Courts all got it very, very wrong. So wrong, in fact, that the government subsequently issued public apologies and passed laws authorizing the payment of more than $1.6 billion in reparations to more than 80,000 Japanese Americans. Given this history, we might want to look more carefully at what the Act allows.

The Alien Enemies Act Is Quite Narrow

The President can invoke the Alien Enemies Act in two circumstances: 1) when there is a “declared war”; or 2) when a foreign government threatens or undertakes an “invasion” or “predatory incursion.” In those circumstances, the President can detain or deport citizens or subjects “of the hostile government or nation” who are 14 or older. The Act does not give the President any authority to detain or deport U.S. citizens.

The U.S. is not currently at war. Under our Constitution, only Congress can declare war. Congress has made no such declaration.

There is no foreign government threatening or undertaking an invasion or predatory incursion. We have heard the President and other government officials claim that illegal immigrants are “invading” our country. However, immigrants crossing the border illegally is not the same as a foreign government making a hostile attempt to invade and take over our country.

Illegal Aliens Are Entitled To Due Process

There are also challenges to the constitutionality of the Alien Enemies Act and the manner in which it is being used. The argument goes that deporting enemy aliens without a hearing violates the due process clause in the Fifth Amendment. But from my perspective, we don’t need to get there because we have not satisfied the preconditions for invoking the Act.

Congress Needs To Act Here

The Alien Enemies Act is not the only tool in the Administration’s tool chest. The other tools generally require more time and involve more process. The Administration and perhaps some of our citizens want the deportation process to happen faster in certain circumstances. However, it is important for us to remember that ours is a country of laws, not men (or women). Under our Constitutional construct, the Congress makes the law, the President enforces the law, and the Courts interpret the law. If the Constitution and laws do not give the President the authority to do certain stuff, then it is up to Congress to pass new laws granting the President authority to do that stuff. Saving that, we can expect the Courts to continue pushing back on the President and other immigration enforcement officials when they engage in activity that is not authorized by law.

In recent FB exchanges, a number of people have raised the escalating debt in this country as reason for implementing tariffs. So I decided to drill into it a bit. Our national debt sits at about $36.6 trillion. For those keeping score at home, that’s about $107,000 of debt per citizen and $323,000 of debt per taxpayer. For fiscal year 2025 (which ends September 30, 2025), the government is projecting approximately $5.5 trillion in receipts and $7.3 trillion in expenditures, so we are adding another $1.8 trillion to the debt this fiscal year. If current spending levels continue, well, you can imagine where it goes.

Tariffs Will Not Eliminate The Deficit

With this as backdrop, tariffs might seem like a good idea on the surface. Let’s have foreign companies pay down our debt through the collection of tariffs on imports. Except for a few things. First, we do not yet know precisely what trade deals will be cut, but there is no scenario where tariffs alone will eliminate our deficit. That doesn’t mean they can’t be part of the solution, though, which brings me to my second point.

Tariffs Are Being Used To Support Tax Cuts, Not To Decrease The Deficit

The Admin seems to be selling the tariffs, not as a way to reverse the deficit and help pay down the debt, but as a way to support income tax cuts. Income tax cuts sound great, except when you consider that they do the opposite of eliminating the deficit. I have seen estimates suggesting that the proposed tax cuts will cost $5-11 trillion over ten years. The current proposal in the Senate includes tax cuts and raising the debt ceiling by another $5 trillion. If we are raising the debt ceiling, then maybe it’s not the best time to be implementing tax cuts. As a country, we can’t afford tax cuts. For every dollar of tax revenue that we eliminate, we need to find that dollar of revenue plus some from another source.

Tariffs Will Be Passed On To US Companies And US Consumers

Third, tariffs are taxes on consumers, not on foreign countries. Foreign exporters will raise prices to US retailers who will in turn raise prices to consumers. Thus, even if the Admin passes income tax cuts, it will really be just a shell game of shifting from taxing income to taxing consumption. We will not experience a real tax decrease. And tariffs add to inflation, so our dollars will not go as far.

Tariffs Will Not Help Grow The Economy

Fourth, tariffs are widely considered to be anti-growth when we ought to be pursuing pro-growth policies and strategies. The surest way to increase tax revenue is to grow the economy. In theory, tariffs may help us at home (though I don’t believe they will), but if they are met with reciprocal tariffs, as they have been so far, it will make it more difficult for US companies to access foreign markets, which is where the growth opportunities are.

DOGE Is Not The Answer

I know many people are excited about the work being done by DOGE and others to reduce the size of government. I certainly applaud work to reduce waste in government. However, we need to keep in mind that the federal workforce accounts for only about 4.3% of the federal budget. The various workforce reductions (if lawful) and the DOGE cuts will not come anywhere near eliminating the deficit.

We Borrowed The Money And We Will Pay It Back

The harsh reality that politicians do not want to discuss is that we can’t cut and tariff our way out of the debt crisis we are facing. We spent the money, and we are going to have to pay it back. It will be painful for all of us, and for our children, and likely for our grandchildren. Any politician who tells you otherwise is ignoring the arithmetic. The first step in solving a problem is acknowledging that we have one and calling it what it is. We are addicted to debt. Our government is the worst offender. We need to break the cycle.

When I was in law school, one of my professors had us read his book on the First Amendment. One thesis in his book was that the First Amendment, freedom of speech in particular, was intended to protect dissent. This is an oversimplification, but he reasoned that those in the majority, almost by definition, did not need to have their speech protected. We were going to hear the majority view with or without the First Amendment. It was those in the minority, the dissenting views, that were most susceptible to government overreach and most in need of protection. I subscribe to a slightly different theory, namely, that the First Amendment is intended to facilitate a robust exchange of ideas, but that theory depends on dissenting views being part of the exchange.

The United States Has A Tradition Of Dissent

Dissent is in our DNA. Dissenters founded and built our country. Many great advancements in our country were born from questioning the status quo or bucking conventional wisdom. Dissent is critical to our democracy. Listening to dissent, really listening, forces us to self-examine and to sharpen our own thinking. In some cases, dissent might even change or reshape our minds.

The Government Should Welcome Dissent

Whenever a government actor, be it the Executive, the Legislature or the Courts, tries to silence dissent, we should ask First Amendment questions. When government actors try to dictate to our people or our institutions what or how to think or what questions to ask, we should push back. Think Senator Joseph McCarthy and the Red Scare of the 1950’s. Our leaders should not fear dissent or new ideas. They should welcome them and engage with them. Trying to quash dissent is not who we are. We should demand more courage from our leaders.

We had a lively exchange on FB last weekend regarding tariffs and trade wars. Since then, the Admin “paused” (read: capitulated) the reciprocal tariffs for 90 days on everyone but China. The market rebounded a bit, but the full depth of the losses already sustained have been a bit stickier. The market has had the tremors since then as investors try to figure out what the hell might happen next. More recently, the Admin exempted from its China tariffs (read: capitulated again) personal electronics like cell phones and computers. It is too soon to tell how the markets will react to this latest move.

We Need To Take Inventory

China Is The Thing

The real target here has always been China. Only this version of China can go toe-to-toe with us on most fronts and has some cards of its own to play, like rare earth minerals and holding $760 billion worth of US debt. If we were going to enter a trade war with China, it sure would have been nice to have some allies. But the Admin has depleted our goodwill, undermined our credibility, and otherwise worn out our welcome with most of our allies. Don’t expect anyone other than Israel to stick its neck out for us now.

This Still Looks Like A Bluff

Maybe it wasn’t a bluff, but this tariff gambit sure does look, walk and quack like a bluff. And if it wasn’t a bluff, then that means this Admin is willing to burn it all down every time it has a temper tantrum. That’s not good for any of us. Plus, we are counting on our friends and foes to act rationally in the face of our own irrational actions. The whole “I’m crazier than you are” bit works better in the Lethal Weapon movies than it does in matters of international trade and diplomacy.

A year’s worth of gains wiped out in a few short days. Retirement accounts decimated and retirement plans delayed indefinitely with one man’s stroke of a pen. All while the Social Security Admin is being gutted. Retirees and aspiring retirees, keep an eye on your plans and benefits. This administration just made an all-in bet with your hard earned money. China, the EU, Mexico, Canada — they are calling the bluff. And it is a bluff. A ruinous bluff. Even if – and it is a big if – manufacturing jobs were to return, it will take years for that to happen. And how exactly will we support the manufacturing Renaissance when China refuses to process our rare earth minerals? We don’t have the capacity to do it ourselves, and we won’t anytime soon. The pain is not short term. It will take years to recover. I can’t tell if the administration is irresponsible or simply wants to watch the world burn.

For myself, I have decided that silence is complicity.

Wherever the government intrudes into the private lives of citizens, a lawyer is standing in the breach protecting those citizens. Make no mistake — the government’s attack on law firms is designed to deny you the right to counsel of your choosing and to interfere with your lawyer’s fundamental obligation to advocate zealously on your behalf. People like to make fun of lawyers … until they need one. I can assure you that you don’t want your lawyer to be compromised. Stay vigilant, friends, or there will be no one left to advocate for you when the government comes calling.