Amicus brief: This isn't an emergency.

The Protect Democracy Project amicus brief argues that President Trump's "emergency" is a pretext. There is no emergency.

The courts can fix this, and should.

Protect Democracy Project website

My attorney Thad Guyer and I filed an amicus curiae brief in the tariff case at the Court of Appeals. Our brief focused on executive power that is metastasizing to take over control of tariffs, the Civil Service, and the judiciary. Tariffs are a place to draw the line and stop the executive overreach because the Constitution makes so clear Congress' sole power to set tariffs and levy taxes.

Other friends of the court made different points. The Protect Democracy Project is a public interest litigation group. They support anti-authoritarian, pro-voting rights causes. The burden of their brief is that Trump is claiming we are amid multiple emergencies means he has been granted Congressional authority to take over managing tariffs. The Protect Democracy brief disagrees, saying we don't have emergencies in the meaning of National Emergency Act or the International Emergency Economic Powers Act or in the common sense understanding of an emergency. 

Trump makes a second claim they oppose. Trump claims that once he announces an emergency the courts cannot review that decision. Only a veto-proof majority of congress can say an emergency doesn't exist. The Democracy Project disagrees, saying the courts can determine whether an emergency exists.

Their brief discusses terms that are relevant to their case.

  -- One is "Chevron deference," a phrase I had heard for years. Based on the 1984 case involving the energy company Chevon and the Natural Resources Defense Council. The courts decided that federal agencies, e.g. the EPA, had the expertise needed to to fill in the blanks on how to set regulations to put into effect the general language of laws Congress enacts. This changed after a 2024 decision involving a Maine lobster company. A 6-3 Republican-appointed majority took power away from Biden's Department of Commerce, and asserted to end that the previous deference to federal agency expertise. Instead, the Supreme Court decided that the courts had the power to resolve gray areas.

  -- Another is "major questions." Cases in the past two decades Courts created a rule that on matters of historical and economic significance, Congress must specify what they authorize the executive to do. They cannot leave it to the White House or executive departments to decide what Congress intended. That would be an improper delegation of power. The "major questions" rule is both a limit on the executive and a demand that Congress do its job when it writes laws.

Their brief argues that mass tariffs are unquestionably a major question. Therefore, the executive would need to have clear congressional authorization to make a tariff takeover like the one he is doing. The brief argues that specific direction had not been given in the NEA and IEEPA laws, and therefore Trump cannot leap into the void of defining what is an emergency. The brief says the courts should use the common sense meaning of an "emergency": an unforeseen transient event requiring immediate action. But Trump's own brief argued that the president "imposed these tariffs . . . to correct decades of trade imbalances and asymmetrical tariffs against American exports.” This isn't a surprise or transient situation, so it isn't an emergency. 

The claim of emergency is a pretext, the brief argues, to advance an authoritarian agenda and claim power given to Congress alone. Courts have the power to acknowledge this, as they did when Biden was president, and they should do so now, their brief argues.

From the Protect Democracy website

The brief puts Trump's actions into the broader context of the rise of anti-democratic authoritarianism worldwide, and warns the Court that the mechanism for the loss of liberty at home is claims of foreign threats requiring emergency powers. They cite the example of Peru, Russia, and Turkey, and they quote James Madison's letter to Thomas Jefferson: "Perhaps it is a universal truth that the loss of liberty at home is to be charged to provisions against danger, real or pretended, from abroad."

There is no emergency and there is no imminent threat. The brief urges the Court not to let Trump's pretexts be the cause of the loss of our Constitutional liberty.

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Easy Sunday: The Jeffrey Epstein mess

     “Are you still talking about Jeffrey Epstein — this guy, this creep? That is unbelievable. Do you want to waste the time?”
          President Trump at a White House press conference

Trump is normally far better at messaging than this.  

I irritate readers sometimes by writing about how successful Trump is at manipulating the message. He throws up diversions. He turns accusations against himself into attacks on the accuser. He makes transparent lies. Yet he gets away with it because he seems so self-confident and insistent. He has a gift.

But I never understood what Trump was doing with the Jeffrey Epstein case, tweeting about it, encouraging his MAGA team to promise they would get to the bottom of it, implying that Democrats were the ones in trouble here. I thought he was playing with fire, a fire that was too close to home. There are real photos of Trump and Epstein together, and video of Trump looking lustily at young women at an Epstein party. There is Trump's reputation. There are witnesses, and vivid, mentally-sticky public statements from young women. A woman, then 13, says she gave a hand job to Trump at an Epstein party. She used a glove, having been instructed that "No one touches Mr. Trump's penis without wrapping it up."

With all that out there, it would have been smart for Trump to have stayed far, far away from the Epstein mess, but the conspiracy, if it could be laid onto Democrats, was too tantalizing to avoid. There is a conspiracy cabal within MAGA drawn to the idea that rich and powerful people -- Democrats or Republican opponents of Trump -- are evil and nasty. Trump stoked those fires. 

See! We have Epstein files ready to show!

Now it is blowing up in his face. The worst way in the world to get people to move on from a deliciously evil story of rich men and young women in private jets and hide-away islands is to tell people not, not, not to bother looking into it. 

Trump and his top campaign spent years assuring people that they would get the goods, that they had the goods including huge hoards of videotapes and photos, and then -- wait for it -- the big reveal is coming! -- it's on the attorney general's desk! -- 

                  Never mind.  Zero. Nothing to see here.

Well, that is a letdown. 

Nothing?  That doesn't sound right. There must be something really, really awful in those file after all that build up. Ghislaine Maxwell is in prison for something. Right?

You don't have to be a Trump-hater or a conspiracy kook to think this looks suspicious. It looks like a cover-up. It looks like Trump has something to hide. 

So Trump is scrambling, and there is a desperate quality to it.  His long Truth Social post yesterday begins with an appeal to the team to do this for the Gipper, to go with loyalty to the MAGA team, not truth and transparency. 

What's going on with my "boys" and, in some cases, "gals?" They're all going after Attorney General Pam Bondi, who is doing a FANTASTIC JOB! We're on one Team, MAGA, and I don't like what's happening. . . ."

He goes on to blame the files -- files that aren't there -- on Obama, Crooked Hillary, Comey, Brennan and Losers and Criminals of the Biden Administration. He doesn't have his story straight. Democratic files, fake files or no files?  

Trump did a good job selling a tawdry product: the idea that Epstein was in some dark conspiratorial way tangled up with Trump's enemies. There was a big audience for that. But now even people in the center of the MAGA world are asking what the heck happened. This is too weird to be true. What's the real story? They are demanding answers.

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Goldwater Institute Brief: Trump is acting like a king, not a president.

My amicus curiae brief in the Trump tariff case focuses on the dominos of expanding presidential power. Attorney Thad Guyer argued we are seeing a runaway power grab.

Other briefs took different approaches. 

The Goldwater Institute looked at the history of parliaments and kings. Maybe they think the Supreme Court justices really are "originalists." 

The Goldwater Institute is what anyone old enough to remember Barry Goldwater might expect it to be. The Goldwater Institute describes itself as 

a nonpartisan public police and research foundation devoted to advancing the principles of limited government, individual freedom, and constitutional protections.

Barry Goldwater, the U.S. senator and the 1964 presidential candidate, was an old school conservative of exacting principle. He was a conservative first, a Republican second. Limited government conservatism led him to do unpopular things. He opposed the 1964 Civil Rights Act, with its demand of public accommodation of all races by places open to the public. By 1964, even among Republicans, it was no longer popular for private businesses to put up signs that said, "We don't serve Colored People" or something cruder. Goldwater wasn't noteworthy for being racist. That political space belonged to George Wallace. Goldwater didn't want government telling restaurants and gas stations and motels who they had to serve, and if it meant a harsher, more cruel world for Black Americans, so be it. It was the price of freedom, as he saw it. 

Goldwater played dispositive role in the Nixon resignation a decade later. Republican senators saw that President Nixon had obstructed justice when he lied to suppress the investigation of the Watergate break-in. The president broke the law. Back then Republican officeholders cared about whether a Republican president broke the law. Goldwater said he would vote to convict in an impeachment. That was the final straw. If conservative icon Barry Goldwater would not overlook presidential lawbreaking, then Nixon's presidency was over. Nixon resigned.

Principle matters in the Goldwater amicus curiae brief. The principle is that taxation of the people must come from the people not the king. Their brief was primarily a history lesson going back to Magna Carta and the centuries-long struggle between British kings and Parliament over exactly who had the power to levy taxes. Parliament fought and won. British kings lost their heads in this battle. 

The Constitution’s authors were well aware of the possibility of an executive official imposing taxes unilaterally. The history of the Stuart kings, who ruled England from 1603 until 1689 before being dethroned by the Glorious Revolution, was (and remains) infamous for just that reason, and that history was well known to the Constitution’s framers. 

For colonists in North America, "No taxation without representation" went beyond opposing taxes from a distant king. It meant that the only legitimate taxes come from representatives, and indeed one's own representatives. The brief reads:

Parliament imposed levies on imported tea, glass, lead, paper, and paint. Protests over these duties led to the repeal of all but the tea tax. When Parliament reinforced that tax with the Tea Act of 1773, the result was an outbreak of protests in which Americans forced tea shipments to return to England or, in the most famous case, destroyed 92,000 pounds of tea by throwing it into Boston Harbor.  

The reason for these protests was, again, that the taxing power should be held exclusively by the people’s elected representatives. While the 1760s taxes were levied by Parliament instead of the king, as the Stuart impositions had been, Americans were not, and could not be, represented in Parliament. That meant its taxes were as illegitimate as the Stuarts’ prerogative taxation

The Goldwater brief argues that the taxation power cannot be delegated from the people's representatives to the executive. It reminded the Supreme Court both of its prior decisions and the text of the Constitution.

The Constitution is unusually clear in vesting Congress, and Congress alone, with that power [to tax.] Not only does it state that “[t]he Congress shall have power to lay and collect taxes, duties, imposts and excises,” U.S. Const. art. I § 8, but it also specifies that all bills for raising revenue must originate in the House.

The Goldwater Institute brief concludes arguing a point that is central to several other amicus briefs, that the power to impose tariffs is unquestionably a "major question." Major questions -- issues with historical and economic consequence -- require specific language from Congress that spells out exactly what discretion the executive has if this is to be a proper delegation of power.  I will explore the "major question" issue further when I look at other briefs in future posts. What is unique about the Goldwater brief is that 28 of 34 pages of their brief hammer home the historical record showing`that the original purpose and text of the Constitution places the power to impose tariffs with Congress alone.

If the majority of the Supreme Court, where this case will likely eventually land, are in fact principled "originalists" wedded to the plain meaning of text when it was written, then the Goldwater brief will persuasive. This brief is a good effort, and it might shame them into ruling in congruence with their stated principles. But it might be to no avail. The Supreme Court majority might only pretend originalist principles, when their real principle is to empower a Republican president, whatever he might choose to do.

The Goldwater Institute gave it a shot. Perhaps their focus on British and early American history seems excessive, maybe even extreme. But in Barry Goldwater's memorable words from the 1964 presidential campaign, "Extremism in the defense of liberty is no vice."

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RISE Law Group clarifiction

An Oregon Bar adjudicator recommended a 120-day suspension of attorney Maryanne Pitcher. 

The suspension is not yet in effect. 

I had used the present tense in my previous post.

Ms. Pitcher is eligible to appeal the Bar decision to the Oregon Supreme Court. They can sustain the Bar recommendation, increase the sanction, or decrease it.

The Bar originally recommended a 90-day suspension, but the Bar adjudicator, after review of aggravating and minimizing evidence, concluded that Ms. Pitcher lied under oath at the Bar hearings, and therefore added 30 days to the penalty for a total of 120 days.

I have received comments expressing surprise that the penalty assessed by a Bar adjudicator who concluded that Ms. Pitcher lied to him under oath merited only an additional 30-days of suspension. Isn't lying under oath perjury? Isn't that a prosecutable crime? Doesn't lying in a forum about attorney ethics seem especially misplaced and wrong? I have to wonder: Have attorneys become so inured to dishonesty that a Bar official considers the suitable penalty for lying under oath is to add 30 days of enforced vacation? 

Lawyers take care of their own.

But to clarify my previous post: Maryanne Pitcher's suspension is pending, is not in effect, and she has the right to appeal the penalty, and the Supreme Court may decide that no penalty or sanction is necessary.

 

RISE Law Group trouble.

      "Peter, whatever happened to that Medford law firm you wrote about last year? The one where you watched an eight-day trial about excessive legal fees."

The law firm is the Rise Law Group. 

They have had some trouble since I last wrote.

Amid news of national and worldwide import, I am taking a day to look at something hyper-local, the operations of the Jackson County, Oregon, courts. Why? Because most of the "liberty and justice for all" that we acknowledge in the Pledge of Allegiance takes place in local state courts like the ones here. Dysfunction at the U.S. Supreme Court gets examined; dysfunction at local courts and within a local legal community is not, yet problems there affect thousands of people. 

Eighteen months ago I heard there were problems at the Jackson County courts. Divorce cases were slow to be processed. Judges were avoiding serving in front of certain lawyers. Judges were being taken off cases. Clients were filing bar complaints. The same name kept coming up: the RISE Law Group.

The RISE Law Group has a reputation for being very aggressive in their litigation strategy and in their billing practices, which ran up costs for their divorce clients. The firm has a practice of suing former clients for unpaid bills, which leads to a high volume of client complaints to the state Bar. A client with modest income and assets, plus very limited English, had a legal bill from RISE of some $50,000. She sued RISE. The case went to trial. I spent eight days viewing that trial. I wrote about it in a March, 2024, post titled "Trouble in the Jackson County Courts." 

My blog post quoted Maryanne Pitcher, a partner in the firm, saying she knew she was unpopular, but she contended that the firm was worth the money they charge clients and that they had good reason to force judges off their cases. 

The result of that case was mixed. The jury told me after the trial that they thought the firm was more billing-focused than client-focused, but they awarded no money to the client who protested the firm's fees. That was a win for RISE. Still, the trial turned out to be costly for RISE. Because they lost on some points, they owed attorney fees to the attorneys representing the former client. Judge Charles Kochlacs, the judge in that case, determined that they owed Matthew Sutton, the lead opposing counsel, about $111,000. (That was far less than he requested, but more than RISE wanted to pay.) When the RISE Law Group went to court again, this time to protest the attorney fee judgment, it took Sutton more time and money to defend that fee, which he did successfully. This week he was awarded about $15,000 more to cover that defense. 

There is more news this week on the RISE group, this time from the Oregon Bar. The Bar announced they suspended Maryanne Pitcher from the practice of law for 120 days. [Note, see below. The suspension is pending and not now in effect.] Pitcher resisted the suspension. She claimed some of her actions at issue were affected by a mental freeze from a limbic system that "hijacks the brain," following a mental health treatment called rapid transformational therapy. The adjudicator was not persuaded. He wrote:

I find that Respondent’s claim that she suffered a medical or emotional reaction during the courtroom incident is clearly and convincingly contradicted by the video evidence. Respondent was lucid and appeared at all times to be in control of her behavior while she was in the courtroom. . . .

Further, I find that Respondent’s credibility is irreparably damaged by the fact that she offered deceptive and misleading expert testimony to support her claim. A party that is complicit in such a charade is inherently untrustworthy. 

The Bar originally suggested a 90-day suspension, but following evidence of aggravating circumstances, the Bar's adjudicator, Mark A. Turner, added another 30 days. He concluded that she had "offered a false narrative" about one of the charges and "did so knowing they were material to the Bar's investigation" and then "repeated her false assertions under oath." 

That is the fresh news from the Jackson County courts.

Yesterday I posted about filing an amicus brief in the U.S. Court of Appeals, saying that Trump is breaking the law and he is getting bolder about it. That is controversy on a large scale. Now this, with a post about client complaints, legal fees, and 120-day bar suspensions. What small potatoes. Why bother with this? Here is why. This week's posts are all part of the same justice system, with rules that allow our complex society to function. It is good to see rules enforced up and down the justice system. Dysfunction at any level reduces confidence in the courts, and I see that taking place across the U.S. I would like to reverse that.

Sometimes our justice system gets out of whack. But sometimes the system takes steps to repair itself. I consider it reason for optimism in a tough time for justice in America.

Update and correction:  The Bar adjudicator announced a recommendation of a 120 day suspension after a review of the evidence, but the penalty does not go into effect for 30 days. Ms. Pitcher has the right to appeal the penalty to the Oregon Supreme Court. If it is appealed, they can ratify the decision of the Bar adjudicator of a 120 day suspension, or either increase or decrease the penalty.  

[Note: These are my opinions; no one else’s. My wife is an attorney. She is the Executive Director of the Center for Nonprofit Legal Services. Neither she nor CNPLS has anything to do with my blog. She doesn't even read it. She is busy providing access to justice for people in need.]

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Domino theory: Trump's overreach is metastasizing.

 "Give him an inch and he'll take a mile."

The burden of the amicus curiae brief my attorney filed is that President Trump is out of control, a flagrant scofflaw.

And that he's getting worse.

Today's news makes my point for me. 

Wall Street Journal: Trump and Bolsonaro

Trump is using the threat of a punitive, trade-killing tariff as a lever to bully Brazil into not prosecuting a former president, Jair Bolsonaro, who, like Trump, attempted unsuccessfully to stay in power after having lost a presidential election. Trump sympathizes with Bolisaro and wants the U.S., via our trade policy, to give him a boost.

Attorney Thad Guyer prepared the brief. It combines three examples of Trump's overreach:

  -- Trump's claim that he has the power to set tariffs on a whim;

  -- the claim that he can ignore laws passed by Congress to ensure a professional, merit-based Civil Service;

  -- his lawsuit against every federal district court judge in Maryland, for having insisted on due process on deportations.

The point of the brief is that Americans need to hold the line, stopping Trump on tariffs, because if he gets away with ignoring clear Constitutional separation of powers here, there is no stopping him. The cancer is metastasizing. 

The authors of the Constitution had good reason to want Congress, not the Executive, to set tariffs. They were attempting to keep unified a set of former colonies with very different interests, and Congress is set up to broker those conflicts. Cloth manufacturers in mill towns in New England would want tariffs on foreign cloth. Southern tobacco and cotton farmers would want the cheapest and best cloth, wherever made. Congress, with representatives giving voice and power to everyone, kept tariff policy from exploding the country -- a difficult task at a time when tariffs were a primary source of national income. A president -- John Adams from Massachusetts, for example -- if left alone to set tariffs might please textile manufacturers of his acquaintance in Massachusetts with tariffs, convinced he was serving the national interest, putting a burden on people in southern states -- who were not likely to vote for Adams, anyway -- who paid higher prices because of the tariffs. A president couldn't be trusted with that power.

In the case of southern Oregon wine, the premise behind my interest in the case, tariffs on China matter. In stores like Costco, where margins are tiny, a rise in wine bottle prices from 90 cents to $1.75 squeezes out all the margin in competition with Spanish wines. Senator Jeff Merkley has visited my farm, and Senator Ron Wyden and I have discussed the economics of grapes and melons multiple times. I may not get the tariff policy that pleases me -- indeed, I expect I would not under any circumstance -- but at least I have representation and a voice.

The worst fears of the authors of the Constitution are being played out today, with Trump exercising his personal agenda supporting a fellow election-denying incumbent president, who, like Trump, encouraged rioters to attempt to stop the vote count. In a formal White House letter to Brazil, Trump openly linked Brazil's tariff with Trump's support for their disgraced president. This letter, dated yesterday, embeds an open presumption that the American public would tolerate its president using U.S. tariff policy in flagrant service of Trump's personal political agenda:

Political columnist Paul Krugman said this letter alone should be the basis for impeachment. If impeachment would lead to conviction, I would agree. But it wouldn't. Trump has already moved the norms so far that there isn't a two-thirds majority to convict him, even for this flagrant misuse of his office.

The amicus brief with my name on it argues that a version of the "domino theory" is underway. One overreach leads to an even greater one. It is out there in the open for all to see: Trump dangling, taking away, then dangling again a tariff to extract a political benefit is one domino. Hold the line. 

[Note, in future blog posts I will summarize the arguments made by other amicus filers. Each focuses on different reasons to oppose Trump's overreach. Coming soon, the brief by The Goldwater Institute, a conservative legal advocacy group.]

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Amicus curiae: I am a friend of the court

Attorney Thad Guyer filed on my behalf an amicus curiae brief to the Court of Appeals for the Federal Circuit.

The brief, submitted yesterday, argues that Trump is acting unconstitutionally in claiming power to set tariffs. 

Congress, not the president, has the power to establish tariffs.

Normal practice is for a "friend of the court" to be a high-profile, high-prestige organization or person, perhaps the ACLU,  NAACP, The Heritage Foundation, or The New York Times. I am very much the opposite, a relative nobody, making my claim from the perspective of an individual citizen, a retiree, and a small farmer. 

Thad Guyer wrote the brief, cited the cases, made the legal and historical arguments. As we all learned in school, there are branches of government. Each has a role. The checks and balances protect us against tyranny.

A "friend of the court" filing begins with a statement of interest. I have an interest in tariffs being set by Congress, as the Constitution directs, where I have access to representatives who know the problems of vineyard owners in Southern Oregon. The tariff issue is just one of the places President Trump has overstepped, and it establishes a pattern that is metastasizing.  He ignores Congress' power of the purse. He attacks judges and ignores their rulings. He freezes funds and closes departments authorized by Congress. He uses federal agencies to extort money and to punish critics. If we can enforce the law on tariffs, it may reaffirm that the checks and balances that protect the republic are still in place. We are drawing a line.

I wrote one section of the brief, the statement of interest. Under the rules of the court, these statements are expressed in the third person, voiced by my attorney on my behalf. Here is what I wrote:

STATEMENT OF INTEREST OF AMICUS CURIAE

Peter W. Sage, age 75, is a retired professional who operates a small farm and vineyard in Southern Oregon. He lives primarily on Social Security and modest personal investments, along with the hope of future income from his vineyard. He is financially vulnerable to costs imposed by tariffs affecting the equipment and supplies necessary to develop and operate his vineyard, as well as the risk of losing access to foreign markets for his wine in the event of retaliatory tariffs. 

Mr. Sage depends on a competent, merit-based federal civil service to safeguard his well-being and that of his community. He relies on the National Weather Service for accurate forecasts to protect his crops from frost damage and to provide critical data for managing and responding to regional forest fires, which at times leave his region immersed in hazardous smoke for weeks. He depends on career professionals at the Department of Health and Human Services to administer his Social Security and Medicare benefits fairly and accurately. He also relies on the integrity of financial regulators, including the SEC and the Treasury Department, to protect his investments from fraud, bank failures, and market instability. Political interference in these agencies and the courts threatens Mr. Sage’s livelihood and erodes public trust in essential governmental functions.

 

Mr. Sage relies on the constitutional structure of the United States, specifically on the separation of powers and Congress’s exclusive authority to impose tariffs, to protect his financial interests. He depends on the stability of congressional action, rather than the unilateral deal-making of an executive, to ensure a reliable supply chain and stable markets for his vineyard’s products. Congressional authority over tariffs provides him with practical access to decision makers in the House and Senate who understand and represent the needs of small agricultural producers in Southern Oregon like himself.

 

In addition to these concrete economic concerns, Mr. Sage has, for almost a decade, written about executive overreach in his political blog, Up Close with Peter Sage,* where he reports on in-person interactions with presidential candidates in New Hampshire and Iowa. Until recently, Mr. Sage’s warnings about unchecked executive power were largely theoretical. However, he now fears targeted retaliation by the President of the United States, including politically motivated IRS audits, placement on a no-fly list, interference with the naturalization status of family members, and harassment of lawfully present Hispanic workers at his vineyard. These are no longer abstract possibilities; they

have become tangible concerns in light of recent examples of executive retaliation against critics.

 

Mr. Sage notes with alarm that the Executive Department recently filed lawsuits against every District Court judge in the state of Maryland — an act that is unprecedented and demonstrates a shocking lack of respect for judicial review of executive actions. He is concerned about the erosion of boundaries and the dismantling of checks and balances. These threats are manifesting now, in real time. Each breach of constitutional boundaries, including, in this case, the circumvention of Congress’s authority over tariffs, normalizes further encroachments and weakens the framework of limited government.

Mr. Sage’s experience underscores the broader constitutional principle at stake: no individual, including the President, is above the law. When executive power is exercised without accountability, it jeopardizes not only national governance but also the personal freedoms, safety, and economic stability of ordinary Americans. For these reasons, Mr. Sage respectfully urges the Court to reaffirm the separation of powers and the foundational principle that the President is subject to the law.

* https://peterwsage.blogspot.com 

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