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47
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Federal court judges are typically not given to lengthy diatribes in their written opinions. They might gently reprimand or remind the parties and their counsel of certain protocols, but their decisions don't get personal. Unless, of course, one of those parties holds the highest office in the land, and is abusing that power to destroy American democracy, while simultaneously having the audacity to claim they have the absolute right to do so. That tends to piss a judge off.
Yesterday, while Donald Trump was declaring war on Americans to 800 stone-faced and unimpressed military officers, a Ronald Reagan-appointed judge was declaring Trump a menace to the country. In an absolutely blistering 161-page opinion, which he described as the most important of his 40-year career on the bench, U.S. District Court Judge Bill Young found that Trump, Secretary of State Marco Rubio, DHS Secretary Kristi Noem, and the rest of the clown car violated the First Amendment when they arrested legal non-citizens for protesting the treatment of people in Gaza. Young is the judge also overseeing the NIH grants case, where the government suspended more than $800 million in grants ostensibly for "DEI" reasons. In granting a preliminary injunction reinstating the grants (which was later stayed by the Supreme Court), Young said that he had "never seen government racial discrimination like this." And that's a guy who was appointed by Ronald Reagan and who's been on the bench for nearly half a century.
Young's opinion starts with an anonymous note that was received in his chambers on June 19. On the top of what's called the caption page, which normally just lists the party names and identifies the court where the case is located, the judge included a copy of the handwritten postcard, which reads, "Trump has pardons and tanks... what do you have?" Just below it is the judge's reply: "Dear Mr. or Ms. Anonymous: Alone, I have nothing but my sense of duty. Together, We the People of the United States—you and me—have our magnificent Constitution. Here's how that works out in a specific case—"
The case was brought by university professors and free speech groups alleging that Trump's targeting of non-citizen student activists, who had been protesting in support of Palestinians, was an intentional violation of the First Amendment to intimidate students generally and chill free speech. After a two week trial on the merits, Young ruled that the defendants "deliberately and with purposeful aforethought, did so concert their actions and those of their two departments intentionally to chill the rights to freedom of speech and peacefully to assemble of the non-citizen plaintiff members of the plaintiff associations." He held that non-citizens who are lawfully present in the U.S. have the same free speech rights as U.S. citizens and that Trump's deliberate targeting of activists like Mahmoud Khalil and Rumeysa Ozturk served to "strike fear" into all students and stifle political speech he disagrees with. The First Amendment states that "Congress shall make no law... abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble..." "'No law' means 'no law,'" he wrote. Young pointed out that while there are limits on free speech, those limits are the same for citizens and non-citizens alike. "The president's palpable misunderstanding that the government simply cannot seek retribution for speech he disdains poses a great threat to Americans' freedom of speech." He noted how the administration went to great lengths to publicize the arrest of Ozturk and Khalil and that the president himself trumpeted their arrests on social media and claimed that others who engage in speech deemed unacceptable or "antisemitic" are also at risk of detention and deportation.
But the Judge didn't stop there. He offered a full assessment of Trump's abuses of power beyond college campuses. Section V of the opinion is titled: "Justice in the Trump Era." He notes that Trump ignores everything, "The Constitution, our civil laws, regulations, mores, customs, practices, courtesies—all of it; the President simply ignores it all when he takes it into his head to act." He continues, "Small wonder then that our bastions of independent unbiased free speech—those entities we once thought unassailable—have proven all too often to have only Quaker guns. Behold President Trump's successes in limiting free speech—law firms cower, institutional leaders in higher education meekly appease the President, media outlets from huge conglomerates to small niche magazines mind the bottom line rather than the ethics of journalism." The courts don't escape Young's criticism either. In a footnote, he admits that the courts' deliberateness, which is usually an asset, only serves Trump's overall goals: "The federal courts themselves are complicit in chilling would-be litigants. It is not that we are less than scrupulously impartial. We demonstrate our judicial independence and utter impartiality every day whatever the personal cost. It is, rather that in our effort to be entirely fair, thorough, and transparent, we are slow, ponderously slow. This in turn means we are expensive, crushingly so for an individual litigant. Frequently, the threat of federal civil litigation, however frivolous, is enough severely to harass an individual and cause his submission."
Young also had some choice words for ICE, who pose as police and who wear masks during operations. "ICE has nothing whatever to do with criminal law enforcement and seeks to avoid the actual criminal courts at all costs. It is carrying a civil law mandate passed by our Congress and pressed to its furthest reach by the President. Even so, it drapes itself in the public's understanding of the criminal law though its "warrants" are but unreviewed orders from an ICE superior and its "immigration courts" are not true courts at all but hearings before officers who cannot challenge the legal interpretations they are given." On the subject of masks, Young says this, "ICE goes masked for a single reason—to terrorize Americans into quiescence. Small wonder ICE often seems to need our respected military to guard them as they go about implementing our immigration laws. It should be noted that our troops do not ordinarily wear masks. Can you imagine a masked marine? It is a matter of honor—and honor still matters. To us, masks are associated with cowardly desperados and the despised Ku Klux Klan. In all our history we have never tolerated an armed masked secret police. Carrying on in this fashion, ICE brings indelible obloquy to this administration and everyone who works in it. "We can not escape history," Lincoln rightly said. "[It] will light us down in honor or dishonor, to the latest generation." Abraham Lincoln, Second Annual Message to Congress (Dec. 1, 1862)."
The only thing left for Young to do is to fashion a remedy. Importantly, he determined that simply telling Trump to knock it off would be wholly inadequate. He's going to hold additional proceedings to determine the appropriate relief. He could conceivably enjoin ICE from making arrests on college campuses or could designate certain areas as off-limits. He could also prohibit agents from being masked while on campus. Trump will no doubt appeal, but at some point even SCOTUS will tire of this recurring drama. (L)