Reflections from Today’s Judiciary on the Anniversary of the Declaration of Independence

Americans commemorate the 250th anniversary of the signing of the Declaration of Independence this year. As many in the United States and around the world reflect on the words in the solemn document, it will be readily apparent how the actions of the monarch that prompted the “grievances” of the settlers are echoed by the actions taken by the current presidential administration in its first year and a half. 

We believe there is an important history lesson in simply reading, and rereading, the Declaration and reflecting on the current times in the United States. In the passages below, the text of the Declaration is annotated with the words of federal judges in 52 court cases involving the current administration. We have identified 17 of the 27 grievances with a contemporary analog.

Over the past months, different studies published at Just Security have closely documented how the federal courts have adjudicated Americans’ attempts to vindicate their rights against administration policies. The gravity of the judges’ conclusions are sobering. Indeed, reading the Declaration and their words side-by-side shows how much the very fabric of the American social contract is being tested. Today’s federal judiciary, no less than the signatories of the Declaration 250 years ago, is speaking to the current generation about the foundational needs of a functional and representative American democracy, with meaningful checks and balances, and above all, a commitment to the rule of law.

Historical grievance: The Crown refused assent to colonial legislation (Grievance 1); suspended colonial assemblies that defied royal authority (most directly, the New York Assembly under the New York Suspending Act of 1767), and, through the Declaratory Act (1766), asserted Parliament’s right to legislate for the colonies “in all cases whatsoever” (Grievance 22).
Contemporary translation: Executive refusal to implement or give effect to laws enacted by Congress (Grievance 1). Executive action that displaces or supersedes Congress’s legislative and appropriations authority (Grievance 22).
Note: These grievances are addressed together because both concern the executive usurping legislative power.
Strength of contemporary analog: Strong.

“This case involves a departure from that firmly established constitutional partnership. Here, the Executive has unilaterally deemed that funds Congress appropriated for foreign aid will not be spent. The Executive not only claims his constitutional authority to determine how to spend appropriated funds, but usurps Congress’s exclusive authority to dictate whether the funds should be spent in the first place. In advancing this position, Defendants offer an unbridled view of Executive power that the Supreme Court has consistently rejected …. Asserting this “vast and generally unreviewable” Executive power and diminution of Congressional power, Defendants do not cite any provision of Article I or Article II of the Constitution.”
…
“The Court accordingly finds that Plaintiffs are likely to succeed on their separation of powers claims and rejects Defendants’ unbridled understanding of the President’s foreign policy power, which would put the Executive above Congress.”

— Judge Amir H. Ali (Biden appointee) — executive impoundment of congressionally appropriated foreign assistance funds (link to court opinions)

 

“The President’s efforts here to take over an organization outside of those bounds, contrary to statute established by Congress and by acts of force and threat using local and federal law enforcement officers, represented a gross usurpation of power and a way of conducting government affairs that unnecessarily traumatized the committed leadership and employees of USIP, who deserved better.”

— Judge Beryl A. Howell (Obama appointee) — challenge to executive takeover of congressionally established independent institution, United States Institute of Peace; stay while litigation proceeds (link to court opinion)

 

“The Executive’s categorical freeze of appropriated and obligated funds fundamentally undermines the distinct constitutional roles of each branch of our government. … Here, the Executive put itself above Congress.”
…
“Defendants’ broad, sweeping efforts to indefinitely stop nearly all faucets of federal funding from flowing to carry out the President’s policy priorities, without regard to Congressional authorizations. One cannot set one’s house on fire and then complain that the firefighters smashed all the windows and put a hole in the roof trying to put it out.”

— Chief Judge John J. McConnell, Jr. (Obama appointee) — federal funding freeze across multiple agency appropriations; merits affirmed but remedy vacated on appeal (link to opinion)

 

“Whether or not the Wind Directive ultimately requires the affected agencies to act contrary to statute, it in effect amends several regulations by requiring that the agencies must not follow the usual, specified procedures for an unspecified period of time, enacting a kind of de facto suspension of the law with respect to wind energy development.”

— Judge William G. Young (Reagan appointee) — executive categorical and indefinite pause on federal wind energy leasing and permitting (link to opinion)

 

“Withholding congressionally appropriated funds, and effectively shuttering a congressionally created agency simply cannot be construed as following through on this constitutional mandate. And while Lake has continually used phrases such as ‘shed[ing] everything that is not statutorily required” at USAGM, and “streamlining our operations to what is statutorily required by law,’ insinuating that these actions fall within the statutory parameters laid out by Congress, such language is impossible to square with what Plaintiffs allege has happened—that is, that ‘Defendants have shut down all USAGM operations.’

— Judge Paul Oetken (Obama appointee) — United States Agency for Global Media (USAGM) shutdown (link to opinion)

“Under the guise of promoting American dignity, this Administration seeks to share a limited history by ordering the removal of all signs, displays, and interpretive exhibits at National Parks that do not align with its preferred narrative, thereby telling half-truths.”
…
“A unilateral, unreasoned, and lawless Executive Order of a President cannot be the sole justification for an agency’s actions, lest the country be prepared to entrust its future to the whims of a single individual.”
…
“Defendants have only the powers delegated by Congress and no more. In failing to comply with the Organic Act’s conservation mandate, the Order has exceeded the bounds of any discretion conferred by the statute.”
…
“… Defendants’ efforts, ostensibly taken in the name of restoring dignity, instead seek to rewrite the Nation’s history with a white-out pen.”
…
“The Executive Order, in fact, tarnishes the legacy of this great Nation by attempting to remove these items in time for, and in honor of, the 250th anniversary of our Nation’s creation.”
…
“Because Defendants deemed it important to strip the parks of these undeniable truths in anticipation of the 250th Anniversary of our great Nation, it is equally important that our shared history be honestly told and fully restored by the 250th Anniversary to properly honor the remarkable achievements of the United States.”

— Judge Angel Kelley (Biden appointee) — executive order directing removal of historical and scientific exhibits from National Parks; full restoration of any changes made under the EO ordered by July 4, 2026 — the 250th anniversary of the signing of the Declaration of Independence  (link to court opinion)

Historical grievance: The Crown refused to pass laws beneficial to colonial populations, unless those populations surrendered their right to representation in the colonial legislature.
Contemporary translation: Conditioning governmental benefits, funding, legal status, or participation in public life on the surrender of constitutional or other protected rights (the doctrine of “unconstitutional conditions”).
Strength of contemporary analog: Moderate.

“[I]t is evident that Defendants impermissibly imposed unconstitutional conditions on Harvard’s receipt of federal funds.”

— Judge Allison D. Burroughs (Obama appointee) — federal freeze and termination of Harvard research grants (link to court opinion)

 

“While the Executive requires some degree of freedom to implement its political agenda, it is still bound by the Constitution. And even in the context of federal subsidies, it cannot weaponize Congressionally appropriated funds to single out protected communities for disfavored treatment or suppress ideas that it does not like or has deemed dangerous.
…
This loss not only threatens the survival of critical programs but also forces Plaintiffs to choose between their constitutional rights and their continued existence.”

— Judge Jon S. Tigar (Obama appointee) — federal grant conditions terminating awards for DEI and “gender ideology”-related activity; stay while litigation proceeds (link to opinion)

 

“Defendants’ new condition is not a good faith effort to comply with the order; it is a ham-handed attempt to bully the states into making promises they have no obligation to make at the risk of losing critical disaster and other funding already appropriated by Congress.”

— Judge William E. Smith (W. Bush appointee) — federal disaster grant conditions requiring state immigration enforcement cooperation (link to opinion)

Historical grievance: The Crown sought to limit population growth by obstructing immigration, naturalization, settlement, and access to land.
Contemporary translation: Executive action restricting, obstructing or deterring immigration and naturalization.
Strength of contemporary analog: Strong.

“More than a century of precedent assures that ‘over no conceivable subject is the legislative power of Congress more complete’ than it is over the admission of foreign individuals.
…
On Inauguration Day 2025, President Trump issued Proclamation 10888 (Proclamation) …. Invoking authority from various provisions of the INA, the Proclamation and subsequently issued agency guidance (Guidance) suspend the entry of any person who has crossed the southern border outside a designated port of entry, as well as any person crossing at a designated entry port anywhere without sufficient documentation.
…
Our task is to determine whether Congress has granted the Executive the authority to remove foreign individuals present in the United States without adhering to the removal procedures or providing the substantive removal protections that Congress prescribed in the INA.

We conclude that the INA’s text, structure, and history make clear that in supplying power to suspend entry by Presidential proclamation, Congress did not intend to grant the Executive the expansive removal authority it asserts. The Proclamation and Guidance are thus unlawful to the extent that they circumvent the INA’s removal procedures and cast aside federal laws affording individuals the right to apply and be considered for asylum or withholding of removal protections.”

— Judge J. Michelle Childs (Biden appointee), with whom Judge Cornelia T.L. Pillard (Obama appointee) joins — presidential proclamation imposing extra-statutory summary removal procedures and categorically barring asylum access for southern border crossers (link to opinion)

 

“Congress established a comprehensive statutory framework for providing resettlement services to newly admitted refugees.
…
We conclude that by failing to provide these statutorily mandated services, the Government acted contrary to law.
…
[B]y terminating the cooperative agreements, the Government knowingly scrapped its only means of meeting its statutory duties without any sort of contingency in place.

As a result of the Government’s actions, there are thousands of refugees potentially entitled to those services who have not received—and will not receive—them.
…
The Refugee Act provides that the United States shall provide resettlement services to newly arrived refugees …. But the Government does not have discretion whether to provide resettlement services at all. So long as the United States is admitting refugees, the Government has a duty to provide them with resettlement services.

…

The Government acted arbitrarily and capriciously in suspending and terminating the cooperative agreements without providing a reasoned explanation, factual findings, or bases for the terminations.”

— Judge Jay S. Bybee (W. Bush appointee), with whom Judge Richard R. Clifton (W. Bush appointee) joins — executive order suspending refugee admissions and defunding USRAP (link to opinion)

 

“Congress clearly stated its purpose in creating victim-based benefits: to protect noncitizen victims of crime from unnecessary removal. … Congress did this for humanitarian reasons—to protect victims from abuse—and to promote public safety.”
…
“The 2025 Guidance grapples with none of these concerns; it does not even acknowledge that they exist. Rather, it reflects only that it was issued in response to EO 14159’s directive to achieve the “total and efficient enforcement of [immigration] laws,” and it reflects no consideration or acknowledgment of the concerns that animated Congressional legislation or Defendants’ prior policies, let alone any reasoned explanation for rescinding them.
…
By definition, VAWA self-petitioners, and U visa and T visa petitioners are victims—of abuse, of crime, or both. Congress intended for such persons to rely on the offered protections so that they would come forward to seek protection from abuse and assist law enforcement. By Plaintiffs’ estimate, around 600,000 persons have pending VAWA self-petitions and U visa and T visa petitions, many of whom came forward based on the Congressional promise of eligibility for protection from deportation. … The failure to respond demonstrates a lack of consideration of the serious reliance interests of persons impacted by the change in policy.
…
The 2025 Guidance is contrary to law because it does not protect VAWA self-petitioners or U visa or T visa petitioners from enforcement …. By allowing ICE agents to turn a blind eye to persons with pending petitions, the 2025 Guidance undermines the legislative scheme Congress designed to protect such individuals from removal.”

— Judge André Birotte Jr. (Obama appointee) — ICE policy rescinding victim-centered enforcement protections for VAWA, U visa, and T visa petitioners (link to opinion)

 

“I’ve been on the bench for over four decades. I can’t remember another case where the question presented was as clear as this one is. This is a blatantly unconstitutional order. 

Where were the lawyers when this decision was being made? There are other times in world history when we look back, as people of good will, and say, ‘Where were the judges? Where were the lawyers?’ And frankly, I have difficulty understanding how a member of the bar could state unequivocally that this is a constitutional order. It just boggles my mind.”

— Judge John C. Coughenour (Reagan appointee) — birthright citizenship; temporary restraining order granted (link to hearing transcript)

 

“It has become ever more apparent that to our president the rule of law is but an impediment to his policy goals. The rule of law is, according to him, something to navigate around or simply ignore, whether that be for political or personal gain.”

— Judge John C. Coughenour (Reagan appointee) — birthright citizenship; temporary restraining order extended (link to coverage of remarks at hearing)

 

“In ruling on these motions, the Court is reminded of a line often repeated in discussions around immigration policy: If people wish to immigrate to the United States, they ought to ‘follow the law’ and ‘do things the right way.’ This case serves as a perfect example of immigrants doing just that.”
…
“Since then, individuals from these countries have been categorically barred from receiving final decisions on, among other things, their asylum, work permit, green card, and citizenship applications.
…
In enacting its latest immigration policies, USCIS: claims statutory and regulatory authority that it does not possess; makes decisions without the reasoned explanations that it must provide; acts without regard for the reliance interests of applicants that it must consider; and justifies its actions with pretextual concerns of “national security” that mask anti-immigrant sentiments that it is forbidden from letting influence its decision-making.”

— Chief Judge John J. McConnell (Obama appointee) — USCIS Benefits Hold Policy, Global Asylum Hold Policy, Comprehensive Re-Review Policy, and the Country-Specific Factors Policy (link to opinion)

 

“The Court will not allow federal authorities to use a new and erroneous statutory interpretation to terrorize refugees who immigrated to this country under the promise that they would be welcomed and allowed to live in peace, far from the persecution they fled.
…
Decades ago, as a nation, we made a solemn promise to refugees fleeing persecution: that after rigorous vetting, they would be welcomed to the United States and given the opportunity to rebuild their lives. We assured them that they could care for their families, earn a living, contribute to their communities, and live in peace here in the United States. We promised them the hope that one day they could achieve the American Dream. 

The Government’s new policy breaks that promise—without congressional authorization—and raises serious constitutional concerns. The new policy turns the refugees’ American Dream into a dystopian nightmare. Until the Court can resolve those issues on the merits, it will not allow federal authorities to cast aside the commitment made to those who were vetted, admitted, and came to this country in reliance on our word.”

— Judge John R. Tunheim (Clinton appointee) — refugee detention during adjustment process (link to court opinion)

 

“[T]he Proclamation does more than restrict the entry of noncitizens .… [the] payment requirement amounts to a tax, which exceeds the scope of the President’s discretionary authority under the INA. Neither INA § 212(f) nor § 215(a) delegates Congress’s taxing power.”

— Judge Leo T. Sorokin (Obama appointee) — $100,000 H-1B fee

 

“The Constitution does not permit immigration detention to be used as a punitive or suppressive tool against protected speech.” 

— Judge Jerry W. Blackwell  (Biden appointee) — habeas corpus case for international student detained for speech on the Israel-Hamas war (link to opinion)

Historical grievance: The Crown obstructed the colonial administration of justice by blocking the establishment of independent judicial institutions, by refusing assent to colonial laws that would have created them.
Contemporary translation: Executive action obstructing, undermining or impairing, on a systemic basis, the administration of justice or the functioning of the judiciary as an institution.
Strength of contemporary analog: Strong.

“For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision. The normal appellate review process exists for that purpose.”

— Chief Justice John G. Roberts Jr. (W. Bush appointee) — (in response to a Trump Truth Social post calling for the impeachment of judge ruling against the administration on immigration matters)

 

“‘Facilitation’ does not permit the admittedly erroneous deportation…in disregard of a court order that the government not so subtly spurns.
…
The respect that courts must accord the Executive must be reciprocated by the Executive’s respect for the courts. Too often today this has not been the case, as calls for impeachment of judges for decisions the Executive disfavors and exhortations to disregard court orders sadly illustrate.
…
It is in this atmosphere that we are reminded of President Eisenhower’s sage example. … [i]n Brown v. Board of Education II. … This great man expressed his unflagging belief that ‘[t]he very basis of our individual rights and freedoms is the certainty that the President and the Executive Branch of Government will support and [e]nsure the carrying out of the decisions of the Federal Courts.’ Indeed, in our late Executive’s own words, ‘[u]nless the President did so, anarchy would result.’

Now the branches come too close to grinding irrevocably against one another in a conflict that promises to diminish both. … The Executive will lose much from a public perception of its lawlessness and all of its attendant contagions. The Executive may succeed for a time in weakening the courts, but over time history will script the tragic gap between what was and all that might have been, and law in time will sign its epitaph.

— Judge J. Harvie Wilkinson III (Reagan appointee), with whom Judge Robert B. King (Clinton appointee) and Judge Stephanie D. Thacker (Obama appointee) join  — deportation of Maryland resident to Salvadoran prison in violation of withholding order (link to opinion)

 

“But as events over the past several months have revealed, these are not normal times—at least regarding the interplay between the Executive and this coordinate branch of government. It’s no surprise that the Executive chose a different, and more confrontational, path entirely.
…
Indeed, over the past several months, principal officers of the Executive (and their spokespersons) have described federal district judges across the country as ‘left-wing,’ ‘liberal,’ ‘activists,’ ‘radical,’ ‘politically minded,’ ‘rogue,’ ‘unhinged,’ ‘outrageous, overzealous, [and] unconstitutional,’ ‘[c]rooked,’ and worse. Although some tension between the coordinate branches of government is a hallmark of our constitutional system, this concerted effort by the Executive to smear and impugn individual judges who rule against it is both unprecedented and unfortunate.”

— Judge Thomas T. Cullen (Trump appointee) — executive branch lawsuit against all fifteen District of Maryland judges challenging standing orders imposing two-business-day removal holds on habeas petitioners (link to opinion)

 

“Whereas a party subject to an adverse order from an Immigration Judge currently has at least the hope of persuading the BIA [Board of Immigration Appeals] that the Immigration Judge erred, as soon as the IFR takes effect, that same party will almost certainly lose his case before the BIA before it even begins; in the vast majority of cases, the case will be disposed of by summary dismissal. By most lawyers’ count, that is a loss.
…
[A]n individual subject to an adverse decision from an Immigration Judge has ten days (except in certain asylum cases) to obtain counsel (if not already represented), to arrange for payment of the $1030 filing fee or to request a waiver, to identify all appellate issues (often without the benefit of a written decision), and to prepare and file a notice of appeal—all on pain of waiving any issue not raised in the Notice of Appeal and thereby defeating any opportunity for further administrative and (perhaps) judicial review. … If there is ever a case that satisfies the D.C. Circuit’s test for applying the notice-and-comment requirement to ‘rule[s] [that] prescribe[] … timetable[s] for asserting substantive rights,’ this is it; that is, this is a case in which ‘the time allotted is so short as to foreclose effective opportunity to make one’s case on the merits.’
…
[I]t is a near certainty that the IFR will invite extensive litigation on waiver and exhaustion in the courts of appeals and very possible that, at least in some cases, substantive claims will be lost forever. … Issues that are so fundamental to the rights of tens of thousands of individuals…ought to be considered and addressed before—rather than after—a rule takes effect.

“[T]he Department of Justice itself has recognized that ‘[i]n the case of immigration proceedings, the private interests at stake are undoubtedly very weighty.’ … [T]hose who face removal and other adverse immigration actions have a significant ‘interest’…in administrative review of adverse Immigration Judge decisions. That interest is currently enshrined in regulations, and the IFR would—at minimum—sharply curtail the ability of interested parties to pursue that remedy.” 

— Judge Randolph D. Moss (Obama appointee) — executive dismantling of administrative appellate review in immigration proceedings (link to opinion)

 

“This scenario…would open the door to a game of judicial whack-a-mole, requiring…contested contempt proceedings against non-compliant agencies.
…
This is not the first instance in this case that has raised the potential specter of noncompliance, which has only crystallized the seriousness of the issues raised. … Luckily, forewarned is forearmed.”

— Judge Beryl A. Howell (Obama appointee) — law firm executive order naming Perkins Coie; plaintiffs’ motion to amend granted (link to opinion)

 

“In a cringe-worthy twist on the theatrical phrase ‘Let’s kill all the lawyers,’ EO 14230 takes the approach of ‘Let’s kill the lawyers I don’t like,’ sending the clear message: lawyers must stick to the party line, or else.”

— Judge Beryl A. Howell (Obama appointee) — law firm executive order naming Perkins Coie; permanent injunction granted (link to court opinion)

 

“The Order sanctions WilmerHale and its attorneys for their conduct before Article III courts. This encroaches on the Judiciary’s exclusive power to sanction attorneys. If the President believed that the firm ‘engaged in improper legal advocacy,’ he should have ‘appeal[ed] to the judiciary to make appropriate findings and fashion an appropriate sanction.’ The Executive was not empowered to take it upon itself to sanction this purportedly improper conduct! 

This attempted usurpation ‘threatens severe impairment of the judicial function’ by ‘sift[ing] out’ certain challenges and cases.’ An informed, independent judiciary presumes an informed, independent bar’ The Order leaves attorneys wary of making certain arguments and representing certain clients for fear of retribution from the Executive Branch.
…
In short, the WilmerHale Order violates the separation of powers by attempting to usurp the Judiciary’s authority to resolve cases and sanction abuses of the judicial process.”

— Judge Richard J. Leon (W. Bush appointee) — executive sanctions against law firms (link to court opinion)

 

“To begin, Plaintiffs’ hasty and secretive removal from the United States was certainly intended to deprive them of an opportunity to secure prior judicial review. … They were then flown out of the country literally as this Court conducted an emergency hearing on the validity of their removal. For what reason? Plaintiffs were already detained, so there was no threat that announcement of the Proclamation would somehow lead to their evading capture. Reuveni’s whistleblower statements corroborate the Court’s conclusion. According to his disclosure, the Principal Assistant Deputy Attorney General stated in a meeting that if courts attempted to stop the removals, DOJ would need to consider telling the courts, ‘Fuck you’ and ignore any court order.”

— Chief Judge James E. Boasberg (Obama appointee) — Alien Enemies Act removals / concealment of removal-flight details (link to court opinion)

 

“The President cannot summarily declare that a foreign nation or government has threatened or perpetrated an invasion or predatory incursion of the United States, followed by the identification of the alien enemies subject to detention or removal. Allowing the President to unilaterally define the conditions when he may invoke the AEA [Alien Enemies Act], and then summarily declare that those conditions exist, would remove all limitations to the Executive Branch’s authority under the AEA, and would strip the courts of their traditional role of interpreting Congressional statutes to determine whether a government official has exceeded the statute’s scope.”

— Judge Fernando Rodriguez, Jr. (Trump appointee) — Alien Enemies Act removals (link to court opinion)

 

“With the evidence currently before the Court, it can only conclude that Respondents are attempting to ‘undermin[e] the regulatory and statutory authority of the immigration courts to coerce perpetual, infinite detention.’”

— Judge Michael J. Davis (Clinton appointee) — government refusal to confirm arrest warrant for court-ordered bond hearing (link to court opinion)

Historical grievance: The Crown exercised direct control over colonial judges by making their tenure subject to royal pleasure and by paying their salaries from the Crown’s purse.
Contemporary translation: Executive action making quasi-judicial officers dependent on the president’s will for the tenure of their office.
Strength of contemporary analog: Strong.

“The American people rebelled against the tyrant King George III in part because he ‘made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.’…‘A Judiciary free from control by the Executive and the Legislature is essential if there is a right to have claims decided by judges who are free from potential domination by other branches of government.’
…
The Judiciary won’t be deferring to the Executive branch about what the law says.
…
If you’re living in the United States, and armed men take you off the street when you’ve done nothing wrong, a judge must decide whether you’re dangerous before the Government can keep you indefinitely locked up.
…
‘Policy is the Executive’s job. But passing the law is the Legislature’s job. And saying what the law means and ensuring that the law is followed by the Executive—just like everyone else—is the Judiciary’s job. We’ll keep doing it.’”

Judge Roy B. Dalton, Jr. (Obama appointee) — immigration detention habeas challenge (link to court opinion)

 

“[T]he plain purpose of providing for-cause protection was to assure members of the Board of Governors—and national and global markets—that they do not serve at will and thus enjoy a measure of policy independence from the President.
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[T]he government does not dispute that it provided Cook no meaningful notice or opportunity to respond to the allegations against her.
…
Cook’s due process claim is very likely meritorious.
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[T]he government may not ‘prioritize any policy goal over the Due Process Clause.'” 

— Judge Bradley N. Garcia (Biden appointee), with whom Judge J. Michelle Childs (Biden appointee) joins — attempted removal of Federal Reserve Governor Lisa Cook (link to opinion)

Historical grievance: The Crown created proliferating customs offices and enforcement bodies in the colonies, dispatching swarms of officials empowered to conduct general searches of homes and vessels, to the harassment of the colonial population.
Contemporary translation: The executive’s rapid expansion of ICE and deployment of federal agents to conduct mass interior enforcement operations.
Strength of contemporary analog: Strong.

“Apparent also is the government’s ignorance of an American historical document called the Declaration of Independence. Thirty-three-year-old Thomas Jefferson enumerated grievances against a would-be authoritarian king over our nascent nation. Among others were:

1. ‘He has sent hither Swarms of Officers to harass our People.’
2. ‘He has excited domestic Insurrection among us.’
3. ‘For quartering large Bodies of Armed Troops among us.’
4. ‘He has kept among us, in Times of Peace, Standing Armies without the consent of our Legislatures.’

‘We the people’ are hearing echoes of that history.”
…
“With a judicial finger in the constitutional dike”

— Judge Fred Biery (Clinton appointee) — habeas petition on behalf of five-year-old detained with father by ICE agents (link to court opinion)

 

“Antiseptic judicial rhetoric cannot do justice to what is happening. Across the interior of the United States, agents of the federal government—masked, anonymous, armed with military weapons, operating from unmarked vehicles, acting without warrants of any kind—are seizing persons for civil immigration violations and imprisoning them without any semblance of due process. The systematic character of this practice and its deliberate elimination of every structural feature that distinguishes constitutional authority from raw force place it beyond the reach of ordinary legal description. It is an assault on the constitutional order. It is what the Fourth Amendment was written to prevent.”
…
“An anonymous government is no government at all. It cannot be held accountable. A masked agent freely uses force without justifying his actions, and the public cannot name him to challenge his conduct. A regime of secret policing has no place in our society. Here, the Government’s power is derived by the People, and the People must be able to identify the Government when it acts to infringe on their liberty.”

— Judge Joseph R. Goodwin (Clinton appointee) — challenge to masked, warrantless ICE arrests in the interior United States (link to court opinion) 

 

“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.”

— Judge William G. Young (Reagan appointee) — challenge to ICE masking policy in interior enforcement operations; stay granted on inter-district transfer holding (link to court ruling)

 

“Moreover, the avalanche of evidence before the Court—along with federal officials’ statements—suggests that federal agents acted pursuant to a common and widespread practice of violating the First Amendment rights of journalists, legal observers, and protestors. … The record also suggests that Defendant Noem ratified Defendants’ practice of meeting First Amendment protected activities with force.”

— Judge Hernán D. Vera (Biden appointee) — federal agents’ use of force against journalists, protesters, and legal observers (link to court order)

 

“In October of 2025, ICE and Customs and Border Protection (hereinafter collectively “ICE”) officers from around the country reported to Oregon to execute what President Trump describes as ‘the single largest Mass Deportation Program in History.’ ICE officers are casting dragnets over Oregon towns they believe to be home to agricultural workers, calling them ‘target rich.’”

— Judge Mustafa T. Kasubhai (Biden appointee) — warrantless mass immigration arrests without individualized escape-risk determinations (link to court opinion)

Historical grievance: The Crown maintained a standing army in the colonies in peacetime without colonial legislative consent (Grievance 11); and compelled colonists to house troops in inns, taverns, and vacant buildings and supply them with provisions (Grievance 14), using military presence as a tool of domestic control.
Contemporary translation: Executive deployment of federalized military forces for immigration, protests, and domestic law enforcement without state legislative consent and in defiance of statutory limits, including the Posse Comitatus Act.
Note: These grievances are addressed together because both concern the executive’s use of military force against the civilian population without legislative consent.
Strength of contemporary analog: Strong.

“We’re talking about the president exercising his authority, and the president is of course limited in that authority. That’s the difference between a constitutional government and King George.” 

“This country was founded in response to a monarchy. The Constitution is a document of limitations.” 

— Judge Charles R. Breyer (Clinton appointee) — federalization of California National Guard (link to reported bench statements: quote 1, quote 2)

 

“The Founders designed our government to be a system of checks and balances. Six months after they first federalized the California National Guard, Defendants still retain control of approximately 300 Guardsmen, despite no evidence that execution of federal law is impeded in any way—let alone significantly. What’s more, Defendants have sent California Guardsmen into other states, effectively creating a national police force made up of state troops.”
…
“Indeed, at the motion hearing, Defendants confirmed their position that, after an initial federalization, all extensions of federalization orders are utterly unreviewable, forever. That is shocking. Adopting Defendants’ interpretation of Section 12406 would permit a president to create a perpetual police force comprised of state troops, so long as they were first federalized lawfully. …  Defendants’ argument for a president to hold unchecked power to control state troops would wholly upend the federalism that is at the heart of our system of government.”
…
“It is profoundly un-American to suggest that people peacefully exercising their fundamental right to protest constitute a risk justifying the federalization of military forces.” 

— Judge Charles R. Breyer (Clinton appointee) — federalization of California National Guard; renewed motion for preliminary injunction granted (link to court order)

 

“The Court rejects Defendants’ fly-by assertion of constitutional power, finding that such a broad reading of the President’s Article II authority would erase Congress’s role in governing the District and its National Guard.”
…
“At its core, Congress has given the District rights to govern itself. Those rights are infringed upon when defendants approve, in excess of their statutory authority, the deployment of National Guard troops to the District.”
…
“Defendants’ reading of section 502(f) would obviate the need to satisfy the predicates found in Title 10 and the Insurrection Act and provide an escape hatch from the PCA, allocating power to the President without any corresponding checks.”

— Judge Jia M. Cobb (Biden appointee) — D.C. challenge to Guard’s policing role; stay while litigation proceeds (link to court opinion)

 

“Moreover, this Court notes that in Los Angeles, the National Guard mobilizations inflamed protests, spawned unrest at new locations, and required additional resources from the California Highway Patrol. Likewise, the deployment of federal law enforcement officers to Portland in 2020 ‘reignited’ protests and riots that had ‘largely self-extinguished.’”

— Judge Karin J. Immergut (Trump appointee) — Oregon challenge to federalized Guard deployment (link to court opinion)

 

“The Court believes that allowing them to deploy at the Broadview Processing Center or anywhere else in Illinois will only add fuel to the fire that Defendants themselves started”

— Judge April M. Perry (Biden appointee) — Illinois challenge to federalized Guard deployment (link to court opinion)

 

“The evidence at trial established that Defendants systematically used armed soldiers (whose identity was often obscured by protective armor) and military vehicles to set up protective perimeters and traffic blockades, engage in crowd control, and otherwise demonstrate a military presence in and around Los Angeles. In short, Defendants violated the Posse Comitatus Act.”
…
“The record is replete with evidence that Task Force 51 executed domestic law in these prohibited ways.
…
Troops do not serve a protective function when they act as a force multiplier at a ‘show of presence’ (as in MacArthur Park), when they outnumber federal personnel by 100 at a remote location with a low risk of resistance (as in Mecca), or when they are deployed merely to speed up federal operations (as in Carpinteria).”

“President Trump’s recent executive orders and public statements regarding the National Guard raise serious concerns as to whether he intends to order troops to violate the Posse Comitatus Act elsewhere in California.”

— Judge Charles R. Breyer (Clinton appointee) — federalization of California National Guard; injunctive relief granted (link to court opinion)

Historical grievance: Parliament’s Administration of Justice Act (1774) allowed royal officials accused of murder or capital crimes in the colonies to be tried in Great Britain rather than before local juries, effectively guaranteeing impunity.
Contemporary translation: Executive action shielding federal enforcement agents from legal accountability for allegedly unlawful killings and serious use of force against civilians.
Strength of contemporary analog: Strong.

“Federal agents blocked them from accessing the scene. … BCA agents returned to the scene and presented the search warrant to federal agents. As far as the federal agents were concerned, the warrant didn’t make a difference. They ‘once again blocked the BCA agents and crime scene personnel from accessing the scene.’”

“Stephen Miller…described Mr. Pretti in a January 24 X post as a ‘domestic terrorist [who] tried to assassinate federal law enforcement.’ The same day, the Department of Homeland Security posted on its X account that the incident ‘looks like a situation where an individual wanted to do maximum damage and massacre law enforcement.’ Kristi Noem…was reported to have said essentially the same thing. These statements are troubling. They reflect, not a genuine interest in learning the truth, but snap judgments informed by speculation and motivated by political partisanship.“

— Judge Eric C. Tostrud (Trump appointee) — state investigators’ challenge to federal agents’ exclusion from scene of civilian killing; denied the Minnesota Bureau of Criminal Apprehension’s motion for a new temporary restraining order, and granted government’s motion to seal the FBI’s declaration (link to court opinion)

 

“‘The accumulation of all powers, legislative, executive, and judiciary, in the same hands…may justly be pronounced the very definition of tyranny.’ [quoting The Federalist No. 47 (James Madison)]”
…
“Even though these press releases might contain an inkling of truth, they ignore a greater, more dire reality. Americans have expressed deep concerns over unlawful, wanton acts by the executive branch. It is not the ‘worst of the worst’ that are swept into the nationwide and reckless violations of the law by the executive branch. In the past weeks, the Government detained Adrian Conejo Arias and his five-year-old son without a valid warrant. Beyond its terror against noncitizens, the executive branch has extended its violence on its own citizens, killing two American citizens— Renée Good and Alex Pretti—in Minnesota.” 

— Judge Sunshine S. Sykes (Biden appointee) —  mandatory detention policy for noncitizens who entered without inspection or individualized bond hearings; separate holdings in order stayed on appeal (link to court order)

 

“Due to her status as a material witness to Alfredo and Julio’s alleged crimes, on February 3, 2026, Judge Magnuson ordered that Petitioner not be removed from the United States. Suspiciously, the very same day that Judge Magnuson issued his Order, Respondents transferred Petitioner to the Otero County Processing Center in Chaparral, New Mexico. The next day—February 4, 2026—the Government expedited her immigration proceedings, moving her next regularly-scheduled appearance in Immigration Court up by six months from August 2026 to February 6, 2026. The reason is clear: the Government wants to remove Petitioner from the country before she can (1) assist the Minnesota authorities who are investigating the ICE agent for unreasonable use of force and (2) assist Julio and Alfredo in their defenses—an allegation that Respondents have never disputed in these proceedings.
…
If a reasonable basis for any of the actions described above exists—and the Court is doubtful—Respondents have failed to articulate it.”

— Judge Margaret I. Strickland (Biden appointee) — unlawful immigration detention (link to opinion) 

Historical grievance: The Boston Port Act (1774) shut down Boston Harbor, the Restraining Acts (1775) barred New England from trading outside the British Empire, and the Prohibitory Act (1775) prohibited American trade altogether (Grievance 16). The Sugar Act (1764), Stamp Act (1765), and Townshend Acts (1767) imposed direct taxation on the colonies without their consent or representation in Parliament (Grievance 17).
Contemporary translation: Executive restriction of international trade (Grievance 16); and executive imposition of tariffs (considered a tax by the Supreme Court) without congressional authorization (Grievance 17).
Strength of contemporary analog: Strong.

“Based on two words separated by 16 others in Section 1702(a)(1)(B) of IEEPA — ‘regulate’ and ‘importation’ — the President asserts the independent power to impose tariffs on imports from any country, of any product, at any rate, for any amount of time. Those words cannot bear such weight.

Article I, Section 8, of the Constitution sets forth the powers of the Legislative Branch. The first Clause of that provision specifies that ‘The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises.’ It is no accident that this power appears first. The power to tax was, Alexander Hamilton explained, ‘the most important of the authorities proposed to be conferred upon the Union.’ It is both a ‘power to destroy’ and a power ‘necessary to the existence and prosperity of a nation’ — ‘the one great power upon which the whole national fabric is based.‘

The power to impose tariffs is ‘very clear[ly] … a branch of the taxing power.’ ‘A tariff,’ after all, ‘is a tax levied on imported goods and services.’ And tariffs ‘raise[] revenue’ — the defining feature of a tax
…
Recognizing the taxing power’s unique importance, and having just fought a revolution motivated in large part by ‘taxation without representation,’ the Framers gave Congress ‘alone … access to the pockets of the people.’ see also Declaration of Independence ¶19[sic]. … They did not vest any part of the taxing power in the Executive Branch.”

“We are therefore skeptical that in IEEPA — and IEEPA alone — Congress hid a delegation of its birth-right power to tax within the quotidian power to ‘regulate.'”

— Chief Justice John G. Roberts Jr. (W. Bush appointee) — IEEPA as a basis for presidential tariff power (link to Supreme Court opinion)

Historical grievance: The Sugar Act (1764) and Stamp Act (1765) transferred customs cases to admiralty courts, which operated without juries and before Crown-appointed judges who collected fees from litigation.
Contemporary translation: Executive actions that deny individuals access to courts and the procedural protections including the right to seek judicial review of detention and enforcement.
Strength of contemporary analog: Moderate.

“The Government remains free to seek appellate review. But it is not free to disregard uniform district authority and continue imposing custody this court has declared unlawful, treating habeas relief as a routine administrative checkpoint.”
…
“This is not what civil enforcement looks like in a humane system of government under law”
…
“‘When English monarchs jailed their subjects summarily and indefinitely, common-law courts employed the writ as a way to compel the crown to explain its actions’. We are no longer governed by a monarchy.”

— Judge Joseph R. Goodwin (Clinton appointee) — habeas challenge to civil immigration detention without bond hearing or custody determination (link to court opinion) 

 

“Interpreting § 1252(g) to bar all detention-related claims—the effective result of Respondents’ proposed reading—would raise serious constitutional concerns. Absent the right to judicial review through a habeas petition, the government could detain noncitizens indefinitely without needing to provide a justification to anyone. The Supreme Court has already thrown cold water on that approach.”

— Judge Kyle C. Dudek (Trump appointee) — mandatory detention / bond-hearing policy (link to court opinion) 

 

“A hypothetical posed at the Show Cause Hearing demonstrates the dystopian absurdity that could stem from the Government’s incorrect, unfounded interpretation of the law. By the Government’s own admission, its position is that if an ICE officer made a mistake and, pursuant to § 1225, detained somebody who was legally in the United States, that detainee would not be entitled to a bond hearing. Instead, that detainee—who is confined to a jail cell and may not have a mastery of the English language—could only have their case heard by a neutral judicial officer if they were somehow able to file a habeas petition with a Court of Appeals or the District Court of D.C.

This concession should concern everyone. A threat to anyone’s constitutional rights is a threat to us all. Today, immigrants are being detained without due process. Tomorrow, under the Government’s interpretation of the law, American citizens could be subject to the same treatment. This Court will not allow such an unraveling of the Constitution.” 

— Judge Thomas E. Johnston (W. Bush appointee) — habeas challenge to civil immigration detention without bond hearing (link to court opinion) 

 

Historical grievance: The Dockyards Act (1772) allowed colonists accused of destroying British military property to be tried in Great Britain, depriving them of local juries and the right to face charges in the place where the alleged offence occurred.
Contemporary translation: Executive removal or transfer of individuals to foreign prisons or punitive settings beyond the reach of U.S. domestic courts without notice, due process, or the opportunity to challenge removal.
Strength of contemporary analog: Strong.

“In our nation — unlike the one into which K. awakes — the Government’s mere promise that there has been no mistake does not suffice.
…
Defendants plainly deprived these individuals of their right to seek habeas relief before their summary removal from the United States … a right that need not itself be vindicated through a habeas petition. Perhaps the President lawfully invoked the Alien Enemies Act. Perhaps, moreover, Defendants are correct that Plaintiffs are gang members. But — and this is the critical point — there is simply no way to know for sure, as the CECOT Plaintiffs never had any opportunity to challenge the Government’s say-so. Defendants instead spirited away planeloads of people before any such challenge could be made. And now, significant evidence has come to light indicating that many of those currently entombed in CECOT have no connection to the gang and thus languish in a foreign prison on flimsy, even frivolous, accusations.”

— Chief Judge James E. Boasberg (Obama appointee) — Alien Enemies Act case (link to court opinion)

 

“The United States Government has no legal authority to snatch a person who is lawfully present in the United States off the street and remove him from the country without due process. The Government’s contention otherwise, and its argument that the federal courts are powerless to intervene, are unconscionable.”

— Judge Stephanie D. Thacker (Obama appointee), with whom Judge Robert B. King (Clinton appointee) joins — wrongful removal of Abrego Garcia to CECOT; denying government’s motion for stay pending appeal and immediate administrative stay (link to court opinion)

 

“The facts of this case thus present the potential for a disturbing loophole: namely that the government could whisk individuals to foreign prisons in violation of court orders and then contend, invoking its Article II powers, that it is no longer their custodian, and there is nothing that can be done. It takes no small amount of imagination to understand that this is a path of perfect lawlessness, one that courts cannot condone.”

— Judge J. Harvie Wilkinson III (Reagan appointee) — wrongful removal of Abrego Garcia to CECOT; denying government’s motion for stay pending appeal and immediate administrative stay (link to court opinion)

 

“The government is asserting a right to stash away residents of this country in foreign prisons without the semblance of due process that is the foundation of our constitutional order. Further, it claims in essence that because it has rid itself of custody that there is nothing that can be done.
…
Allowing all this would ‘facilitate’ foreign detention more than it would domestic return. It would reduce the rule of law to lawlessness and tarnish the very values for which Americans of diverse views and persuasions have always stood.
…
If today the Executive claims the right to deport without due process and in disregard of court orders, what assurance will there be tomorrow that it will not deport American citizens and then disclaim responsibility to bring them home? And what assurance shall there be that the Executive will not train its broad discretionary powers upon its political enemies? The threat, even if not the actuality, would always be present, and the Executive’s obligation to ‘take Care that the Laws be faithfully executed’ would lose its meaning.
…
We are told that neither government has the power to act. The result will be to leave matters generally and Abrego Garcia specifically in an interminable limbo without recourse to law of any sort.

It is, as we have noted, all too possible to see in this case an incipient crisis, but it may present an opportunity as well. We yet cling to the hope that it is not naïve to believe our good brethren in the Executive Branch perceive the rule of law as vital to the American ethos. This case presents their unique chance to vindicate that value and to summon the best that is within us while there is still time.” 

Judge J. Harvie Wilkinson III (Reagan appointee), with whom Judge Robert B. King (Clinton appointee) and Judge Stephanie D. Thacker (Obama appointee) join — Abrego Garcia removal to CECOT; denying government’s motion for an emergency stay pending appeal and for a writ of mandamus (link to court opinion)

 

“This case is about whether the Government may, without notice, deport a person to the wrong country, or a country where he is likely to be persecuted, or tortured, thereby depriving that person of the opportunity to seek protections to which he would be undisputedly entitled. The Department of Homeland Security has adopted a policy whereby it may take people and drop them off in parts unknown—in so-called ‘third countries’—and, ‘as long as the Department doesn’t already know that there’s someone standing there waiting to shoot . . . that’s fine.’

It is not fine, nor is it legal. Congress made it ‘the policy of the United States not to expel, extradite, or otherwise effect the involuntary return of any person to a country’ where that ‘person would be in danger of being subjected to torture.’ Congress decided that the Government ‘may not remove’ someone to a country where her ‘life or freedom would be threatened’ on account of her ‘race, religion, nationality, membership in a particular social group, or political opinion.’”

“[T]he Court need have looked no further than Plaintiff O.C.G., who likewise has no known criminal history, and who was granted withholding of removal from Guatemala based on sexual violence he experienced there. In response to his being granted that protection, Defendants threw him on a bus to Mexico, where he had just been raped, and where he was quickly sent back to Guatemala, the place an immigration judge had just found he would likely be persecuted. And then Defendants lied about it.” 

— Judge Brian E. Murphy (Biden appointee) — third-country removal / deportation without notice or opportunity to challenge removal to potentially dangerous country; stay while litigation proceeds (link to court opinion)

 

“‘Cristian is not here to receive the process only because the Government removed him. [T]he…order required Cristian to be returned to this country[ ] to get the process’ the Settlement Agreement guaranteed him.
…
Cristian concludes that the Indicative Asylum Decision is a ‘litigation-driven’ document — a ‘contrivance‘ ‘created just for this case.’ The Government has no response to this charge — a deafening silence.
…
Nothing here is meant to pass judgement on whether Cristian is entitled to asylum—that question is beside the point. Rather, the Settlement Agreement guaranteed Cristian an adjudication of his asylum application on the merits—something his summary removal deprived him of.” 

— Judge DeAndrea Gist Benjamin (Biden appointee), with whom Judge Roger Gregory (W. Bush appointee) joins — settlement agreement governing asylum class members breached by Alien Enemies Act removal to CECOT without final asylum adjudication (link to court opinion) 

 

Historical grievance: The Massachusetts Government Act (1774) revoked the colony’s charter, replaced elected councils with royally appointed ones, and fundamentally restructured colonial governance without consent.
Contemporary translation: Unilateral executive action to dismantle, restructure, or nullify established governmental institutions and statutory frameworks in defiance or absence of congressional mandate.
Strength of contemporary analog: Strong.

“The Constitution does not permit the Executive to commandeer the entire appointments power by unilaterally creating a federal agency pursuant to Executive Order and insulating its principal officer from the Constitution as an ‘advisor’ in name only.”
…
“No branch may aggrandize its own appointment power at the expense of another and no branch may abdicate its Appointments Clause duties. And the Judiciary has a duty to maintain ‘the constitutional plan of separation of powers’. Consequently, the court will reject Defendants’ perverse reading of the Appointments Clause.”
…
“Under this reasoning, the President could authorize an individual to act as a Prime Minister who vetoes, amends, or adopts legislation enacted by Congress, as an Ultimate Justice who unilaterally overrules any decision by the Supreme Court, as a King who exercises preeminent authority over the entire nation, or allow a foreign leader to direct American armed forces without violating the Appointments Clause
…
Defendants appear to sanction unlimited Executive power, free from checks and balances, but the Constitution prohibits unilateral control over ‘official appointments’ by ‘dividing the power to appoint the principal federal offices … between the Executive and Legislative Branches.’”

— Judge Tanya S. Chutkan (Obama appointee) — Appointment Clause challenge to Elon Musk’s exercise of authority, without Senate confirmation, as head of DOGE (link to court opinion)

 

“[T]he Court finds that Defendants’ actions taken to shut down USAID on an accelerated basis, including its apparent decision to permanently close USAID headquarters without the approval of a duly appointed USAID Officer, likely violated the United States Constitution in multiple ways.”

— Judge Theodore D. Chuang (Obama appointee) — unilateral dismantlement of USAID by DOGE and Musk without Appointments Clause authority or congressional approval; stay while litigation proceeds (link to court opinion)

 

“By now, the question presented in this case is a familiar one: may the Executive Branch undertake such actions in circumvention of the will of the Legislative Branch? In recent months, this Court—along with other courts across the country—has concluded that it may not. That answer remains the same here.”
…
“A mere day after the Reduction EO’s issuance, Congress passed a statute appropriating the funds necessary to carry out the functions of each agency. Nevertheless, in the weeks that followed, Defendants proceeded to effectively shutter the very same agencies that Congress had just funded and had charged them with administering. These actions ‘simply cannot be construed as following through on [the] constitutional mandate [of the Take Care Clause].’”

— Chief Judge John J. McConnell, Jr. (Obama appointee) — mass reduction of congressionally established agencies (link to opinion)

 

“The Executive Orders and DOGE-directed termination process did not carry out the NEH grantmaking scheme Congress prescribed by law in a duly enacted statute. They displaced it. … DOGE substituted a presidential policy judgment for a statute duly enacted by Congress. That is not faithful execution of law; it is executive lawmaking in precisely the sense Youngstown forbids.”
…
“This case presents something more basic. It is not that DOGE misconstrued a statutory provision conferring authority on it; it is that Congress conferred no authority on DOGE at all with respect to the awarding, continuation, or termination of NEH grants.”
…
“An Executive Order can organize the Executive Branch and direct the exercise of existing authority, but it cannot create new authority where none exists.”
…
“Just as Congress may not intrude upon powers the Constitution commits to the President, the President and his subordinates may not use an Executive Order to set aside the laws Congress has passed.” 

— Judge Colleen McMahon (Clinton appointee) — termination of NEH grants without statutory authority (link to opinion)

Historical grievance: Declaring colonists rebels and traitors, subjecting them to military force, and treating those who resisted as enemies of the state rather than subjects entitled to the Crown’s protection.
Contemporary translation: Executive action that treats domestic populations as internal enemies subject to military or paramilitary force, invoking emergency or wartime powers against people within the United States who are entitled to the protection of domestic law.
Strength of contemporary analog: Moderate.

“While Defendants have pointed to several instances of violence, they have not identified a violent, armed, organized, open and avowed uprising against the government as a whole. The definition of rebellion is unmet. Moreover, the Court is troubled by the implication inherent in Defendants’ argument that protest against the federal government, a core civil liberty protected by the First Amendment, can justify a finding of rebellion.
…
The idea that protesters can so quickly cross the line between protected conduct and ‘rebellion against the authority of the Government of the United States‘ is untenable and dangerous.” 

— Judge Charles R. Breyer (Clinton appointee) — challenge to federalization of California National Guard; Ninth Circuit reversed on other grounds (Breyer J. holding on §12406(2) not reversed on appeal) (link to court order)

 

“Political opposition is not rebellion. A protest does not become a rebellion merely because the protestors advocate for myriad legal or policy changes, are well organized, call for significant changes to the structure of the U.S. government, use civil disobedience as a form of protest, or exercise their Second Amendment right to carry firearms as the law currently allows. Nor does a protest become a rebellion merely because of sporadic and isolated incidents of unlawful activity or even violence committed by rogue participants in the protest. … But because rebellions at least use deliberate, organized violence to resist governmental authority, the problematic incidents in this record clearly fall within the considerable daylight between protected speech and rebellion.
…
The spirited, sustained, and occasionally violent actions of demonstrators in protest of the federal government’s immigration policies and actions, without more, does not give rise to a danger of rebellion against the government’s authority.”

— Judges Ilana Rovner (H.W. Bush appointee), David Hamilton (Obama appointee), and Amy St. Eve (Trump appointee) — challenge to federalization of Illinois National Guard (link to court opinion)

 

“[A] rebellion is an organized group engaged in armed hostilities for the purpose of overtaking an instrumentality of government by unlawful or antidemocratic means.”
…
“Based on trial testimony that this Court found credible, particularly the testimony of Portland Police Bureau command staff, who work in Portland and have first-hand knowledge of the crowds at the ICE building from June to the present, the protests in Portland at the time of the National Guard call outs are likely not a ‘rebellion,’ and likely do not pose a danger of rebellion. … Defendants have not …proffered any evidence demonstrating that those episodes of violence were perpetrated by an organized group engaged in armed hostilities for the purpose of overtaking an instrumentality of government by unlawful or antidemocratic means.”

— Judge Karin J. Immergut (Trump appointee) — challenge to federalization of Oregon National Guard (link to court opinion)

Historical grievance: The Crown actively encouraged loyalist violence against patriot communities and fomented domestic insurrections.
Contemporary translation: Executive or presidential encouragement or incitement of domestic unrest, civil disorder, or political violence.
Strength of contemporary analog: Strong.
Note: The cases we rely upon below are post January 20, 2025. Notably, before that date, nine federal judges made statements suggesting that President Trump was responsible for the attack on the Capitol.

“No ‘national injustice’ occurred here, just as no outcome-determinative election fraud occurred in the 2020 presidential election. No ‘process of national reconciliation’ can begin when poor losers, whose preferred candidate loses an election, are glorified for disrupting a constitutionally mandated proceeding in Congress and doing so with impunity. That merely raises the dangerous specter of future lawless conduct by other poor losers and undermines the rule of law.
…
Having presided over scores of criminal cases charging defendants for their criminal conduct both outside and inside the U.S. Capitol Building on January 6, 2021 … this Court cannot let stand the revisionist myth relayed in this presidential pronouncement.” 

— Judge Beryl A. Howell (Obama appointee) — dismissal of charges against Capitol rioter following Trump’s January 6 pardons (January 22, 2025) (link to court opinion) 

 

“It cannot whitewash the blood, feces, and terror that the mob left in its wake. And it cannot repair the jagged breach in America’s sacred tradition of peacefully transitioning power. 

In hundreds of cases like this one over the past four years, judges in this district have administered justice without fear or favor. The historical record established by those proceedings must stand, unmoved by political winds, as a testament and as a warning.” 

— Judge Tanya S. Chutkan (Obama appointee) — dismissal of charges against Capitol rioter following Trump’s January 6 pardons (January 22, 2025) (link to court order) 

 

“’Having considered the President’s January 6 Rally Speech in its entirety and in context, the court concludes that the President’s statements that, ‘[W]e fight. We fight like hell and if you don’t fight like hell, you’re not going to have a country anymore,’ and ‘[W]e’re going to try to and give [weak Republicans] the kind of pride and boldness that they need to take back our country,’ immediately before exhorting rally-goers to ‘walk down Pennsylvania Avenue,’ are plausibly words of incitement not protected by the First Amendment.’”

“For the reasons discussed, it is plausible that President Trump had the requisite intent to produce imminent disorder.

Since the court’s decision, new allegations have surfaced that only confirm this conclusion. … [Cassidy Hutchinson] described [Trump] as angry that the rally space was not full of spectators, and she heard him complain about the Secret Service setting up magnetometers, or ‘mags,’ that were preventing people who possessed weapons from entering the rally. Hutchinson ‘overheard the President say something to the effect of, “You know, I don’t F’ing care that they have weapons. They’re not here to hurt me. Take the F’ing mags away. Let my people in. They can march to the Capitol from here.”
…
[T]hose words support the reasonable inference that he meant for his Ellipse Speech to be heard as ‘an implicit call for imminent violence or lawlessness.’ His remarks on January 6 therefore plausibly were inciting words that are not protected by the First Amendment.

To illustrate the point, he poses the hypothetical of a popular rapper (bearing some resemblance to Eminem) whose concert performance leads to fan violence.
…
President Trump fears that, under the court’s ruling, ‘there is a compelling argument to be made that the rapper’s speech—”in context” … —constitutes incitement to violence.’ 

… But here is what is missing from the President’s hypothetical. There is no contention that, for weeks before the concert, the rapper told his fans that the Establishment had taken something valuable from them through fraud and deceit. No assertion that the rapper knew his fans had prepared to act violently on that very day (including by bringing weapons to the show) to reclaim what was taken from them. No averment that during the performance the rapper specifically identified the members of the Establishment who took this thing of value. And no allegation that, at the show’s crescendo, he implored his fans to ‘Fight the Establishment’ and ‘Fight like hell’ and then directed them, without warning local law enforcement, to descend thousands strong on the very place the Establishment was working to finally take away that thing of value. Only if those facts are included does the rap concert begin to resemble January 6, and only then do the artist’s song lyrics and exhortation to ‘Fight like hell’ mirror the Ellipse Speech.”

— Judge Amit P. Mehta (Obama appointee) — civil lawsuit by Capitol Police officers and members of Congress alleging Trump’s January 6 Ellipse speech incited the Capitol attack (March 31, 2026); stay while litigation proceeds (link to court opinion)