In the realm of administration, competence, corruption, and control are significant factors that can hinder the fulfillment of any government’s agenda.
Even during authoritarian regimes, the ability of aspiring authoritarian leaders plays a critical role.
The extent of their corruption is equally impactful, even in times when corruption pervades the system.
Ultimately, to implement authoritarian measures, leaders must either take control of existing institutions or create new ones.
Post-Constitutional Reality?
This situation holds true even in a post-Constitutional reality, such as that of the United States in the fall of 2025.
The term “order” has been omitted for clarity. While I concur with Thomas Neuburger on the notion of a post-Constitutional state, I remain skeptical that the Trump administration and its corporate allies have effectively established a new order.
Several members of the administration, including Stephen Miller, are attempts to create one, as evidenced by their authoritarian ambitions.
This piece will examine the legal and political dimensions of the current climate.
Some readers might contend that the American judicial system has become so politicized that it lacks any non-political authority. While I acknowledge this viewpoint, the distinction between legal and political remains valuable when analyzing the news.
What is Competence, Anyway?
Let’s start with the beleaguered FBI Director Kash Patel.
He does not possess the same level of authority J. Edgar Hoover once had over a nationwide law enforcement network.
A CNN article titled “’It’s unacceptable’: Inside growing concerns about Patel’s FBI leadership” highlights several leaks within the FBI, depicting Patel as an individual lacking competence:
It was merely hours after a shooting at a Utah university that Patel committed a significant error in the investigation. In a social media post, the FBI director claimed that the bureau had identified a “subject for the horrific shooting” in custody.
However, this announcement was made just moments before Utah officials held a press conference to clarify that the shooter was still on the loose.
While the FBI was indeed questioning someone in connection to the shooting, state and federal officials promptly had to correct Patel’s statement to align with accurate information. Soon after, Patel retracted his initial post, stating that the individual had been released.
Justice Department officials viewed his social media activity as embarrassing, privately criticizing Patel for prematurely announcing a breakthrough that had to be walked back within two hours, according to two sources familiar with the situation.
Similarly, Stephen Miller’s ICE raid on two South Korean-owned factories in Georgia has not been commended for its execution, though it was certainly ambitious.
According to The New York Times:
Nearly 500 individuals were detained during a raid on a Georgia battery plant owned by two South Korean firms, marking the largest immigration enforcement operation to occur at a single location in the history of the Department of Homeland Security.
Yet, in at least one case, officials acknowledged that a worker was legally employed but was still forced to leave the country.
The aftermath of this operation exemplifies the overwhelming nature of Mr. Trump’s immigration policy, which often conflicts with stated objectives such as boosting domestic production.
ICE’s planning documents suggest that agents were not specifically targeting temporary South Korean workers during the raid.
The original warrant only outlined four Hispanic individuals. According to Mr. Kuck, agents lacked Korean speakers during the operation and resorted to translation apps.
“It was an accident” that ICE detained South Korean workers, Mr. Kuck argued, stating, “They just transported everyone to jail to sort it out later.”
Texas Attorney General Ken Paxton, a regional MAGA leader and candidate for the U.S. Senate, faces challenges of his own making, as reported by The Texas Tribune:
Texas Attorney General Ken Paxton initiated a sensational lawsuit against Beto O’Rourke, accusing him of bribery, fraud, and campaign finance violations for backing Texas Democrats who left the state to protest new GOP congressional maps.
After six weeks, four courts, and two counties, along with monumental legal expenses, Paxton’s case appears to be near collapse.
Recently, the all-Republican 15th Court of Appeals lifted a temporary restraining order that had barred O’Rourke and his organization from fundraising and distributing donations, deeming it an unconstitutional infringement on free speech rights.
“The question today is not whether such activities can be punished after the fact… but whether they can be inhibited before they occur based on a suspicion that they might,” the justices asserted in their unanimous ruling. “At this stage, where minimal evidence has been provided, the latter would represent an unconstitutional prior restraint of political activity that may or may not prove lawful.”
While the court still needs to rule on the remainder of the appeal, their recent opinion casts doubt on some of Paxton’s key arguments. Paxton decried the ruling as a constitutional crisis, attacking the court’s “activist judges” and the all-Republican Texas Supreme Court for choosing not to interfere.
Corruption Run Amok
Yves Smith’s commentary on Brad Smith’s report about Trump’s monumental crypto fraud deserves closer examination.
Some members within Trump’s administration may be diligently pursuing an authoritarian agenda, yet the President himself appears more preoccupied with personal gain.
From the NY Times’ “Anatomy of Two Giant Deals: The U.A.E. Got Chips. The Trump Team Got Crypto Riches.”
This summer, Steve Witkoff, President Trump’s Middle East envoy, visited Sardinia, a location filled with luxurious yachts.
While aboard one of these extravagant vessels, he met Sheikh Tahnoon bin Zayed Al Nahyan, a prominent member of the ultra-wealthy Emirati ruling family.
This marked yet another development in a consequential partnership.
Recently, Witkoff and Sheikh Tahnoon have evolved into both diplomatic allies and business partners, testing the limits of ethical conduct while enriching the President, his family, and his inner circle. Central to their relationship are two multibillion-dollar deals: one involving a crypto company jointly founded by the Witkoff and Trump families, and another concerning the sale of valuable computer chips that economically benefitted the Emirates.
While there is no evidence implying one deal was offered in exchange for the other, the intersection of these agreements is striking. Together, they blur the lines between personal and governmental interests and raise questions about whether U.S. priorities were being upheld.
Robert Reich elaborated on Trump’s crypto operations:
This is only a glimpse of Trump’s extensive crypto corruption.
To grasp its full extent, one must recount the events that unfolded just four days before early voting began in 2024, when Trump and his sons founded the crypto firm, World Liberty Financial.
As soon as Trump won, money began to flow.
Additionally, just a few days prior to his return to office, Trump initiated another crypto venture, selling TRUMP and MELANIA memecoins. Memecoins are a type of cryptocurrency inspired by online jokes.
Within his first six weeks in office, Trump called for a “Crypto Strategic Reserve”—a government-supported reserve of crypto assets, akin to the oil reserve, but without clear rationale. This announcement caused crypto prices to skyrocket.
Thus far, the Trump family has accumulated approximately $3 billion from these ventures, notably from purchases made by foreign entities. Forbes estimates that over half of Trump’s wealth is now crypto-based.
Given Trump’s dual roles as both President and his own crypto brand ambassador, it’s unclear how he prioritizes these responsibilities.
It remains uncertain whether Trump is the ambitious authoritarian aspiring to create a lasting structure from chaos or simply a small-time grifter who has stumbled into an immense opportunity.
Perhaps this video from last weekend’s Yankees game could provide perspective for readers.
DJT-YMCA | BRONX, NYC🕺 pic.twitter.com/qCnCnpeBT3
— Dan Scavino (@Scavino47) September 12, 2025
Judicial Control?
The judicial branch within the U.S. government has become so blatantly corrupt and openly partisan that it no longer issues legal signals that effectively guide lower court decisions.
The U.S. Supreme Court has implemented unconventional methods to expedite Trump’s agenda. An article from The Federalist is particularly revealing, despite its intention to defend the court and blame the matter on “rogue judges”:
No NFL team has had a perfect season in the last 50 years, yet this is Trump’s record in the U.S. Supreme Court: 18-0. His astute solicitor general, John Sauer, has secured 18 victories this year by upholding lower court decisions supporting Trump, thereby allowing the President to exercise full “executive power” as outlined in Article II of the Constitution.
These wins have been on emergency motions to the Supreme Court, where gaining the justices’ attention is challenging, and prevailing is even tougher. Known as the “shadow docket,” these triumphs have come swiftly, often without oral arguments, and typically with significant margins.
Seven of these victories pertain to deporting illegal immigrants, five relate to the dismissal of unnecessary federal workers, and four concern curtailing wasteful federal expenditures. There has also been one ruling involving the dismissal of transgender personnel from the military and one aimed at curtailing district court judges from issuing nationwide injunctions.
On Monday, Chief Justice John Roberts granted Trump a stay, at Sauer’s request, against a D.C. Circuit ruling that had blocked Trump from removing a commissioner from the Federal Trade Commission. Even though the court was traditionally on summer hiatus, Roberts approved Trump’s request just two business days after it was filed.
Justices Neil Gorsuch and Brett Kavanaugh recently admonished lower court justices in a ruling, as reported by CNN:
“While lower court judges may disagree with this court’s decisions, they are never free to defy them,” Justice Neil Gorsuch declared in a recent opinion related to the court’s decision to permit Trump to cancel nearly $800 million in research grants.
This rebuke, joined by Justice Brett Kavanaugh, flips the narrative that Trump is the one pushing legal boundaries with his numerous executive orders and support for impeaching judges who rule against him. Legal conservatives have taken to social media to champion Gorsuch’s warning.
“This marks the third instance in recent weeks where this court has had to intervene in a case ‘squarely controlled’ by one of its precedents,” stated Gorsuch, Trump’s first nominee to the high court. (Kavanaugh was the second.) “Each time this court makes a ruling, it establishes a precedent that warrants respect in the lower courts.”
Other conservative justices have similarly criticized this year. Justice Samuel Alito accused a federal judge of committing “an act of judicial hubris” as well as “self-aggrandizing jurisdiction” in another case involving a Trump policy.
The Supreme Court has consistently sided with Trump regarding emergency motions for months, including notable cases on immigration, spending, and leadership in independent agencies. Trump has achieved positive outcomes even in cases where substantial arguments suggest his administration may have defied a lower court, noted Steve Vladeck, CNN Supreme Court analyst and Georgetown University Law Center professor.
“Gorsuch’s opinion in the NIH funding case is perhaps the clearest articulation yet of why — because the justices appear more focused on ensuring lower courts accurately interpret their (often unexplained) rulings than on demanding proper behavior from the executive branch before the rest of the federal judiciary,” Vladeck argued.
Two members of the Federalist Society shared thoughts on “The Judicial Insubordination Crisis” in a Wall Street Journal article:
Several lower-court judges have become openly defiant, not only against the administration’s agenda but also against Supreme Court opinions. Consequently, the justices have had to remind lower courts of their constitutional responsibilities and chastise them for resisting established precedents. This resistance threatens the judiciary’s operational integrity.
…
Certainly, applying the Supreme Court’s precedents isn’t always straightforward, especially when it entails ambiguous balancing tests, flexible doctrines, and conflicting directives between opinions and older rulings. Consider the recent case Students for Fair Admissions v. Harvard (2023), where the justices concluded that race-based admissions violate the Equal Protection Clause but that colleges can still reflect on “an applicant’s discussion of how race affected his or her life.” This concession allows universities to continue evaluating race, leading to further ambiguity and legal disputes.The problem is exacerbated by certain district judges issuing vague and broad rulings that prevent the executive branch from acting. This, in turn, compels the Supreme Court to frequently issue emergency orders. Such orders are often communicated swiftly, lacking thorough justification or debate. Lower courts then bemoan the ambiguity of these orders, leading to flawed rulings that prompt more emergency directives from the justices. To date, the high court has issued 20 emergency orders this year, indicating a marked disconnect between the justices and some lower-court judges.
SCOTUSBlog presents an alternative viewpoint in “The Supreme Court fails to apply its own precedent and continues to sow confusion through its shadow docket”:
One explanation for the Supreme Court’s numerous shadow docket rulings lacking clarity is that the justices themselves are unable to agree on the reasons for their orders. I argue that such discord should discourage granting emergency relief.
The court’s opinion in Trump v. CASA suggested it was employing an unconventional and unjustifiable standard for determining when the government experiences irreparable harm. …a majority may conclude that the government necessarily suffers irreparable harm when a lower court prevents the government from performing a desired action.
In the case related to the National Institutes of Health, Judge William Young, a Reagan appointee, remarked: “I have never seen a record where racial discrimination was so palpable … I’ve sat on this bench for 40 years, and I’ve never seen government racial discrimination like this.” Young also criticized “discrimination against America’s LGBTQ community” reflected in the grant terminations. Eventually, Young issued a preliminary injunction forbidding the government from suspending the grants.
The Supreme Court, however, avoided addressing these points. Instead, with a vague order and a series of divided opinions, it granted the Trump administration’s request to pause the district court’s ruling that mandated the resumption of grant payments. Compounding the confusion, the voting alignment and accompanying opinions were not straightforward.
The court’s rulings split 5-4 in both parts of the order, with only Justice Amy Coney Barrett in the majority for both segments. Ultimately, there were five distinct opinions produced in addition to the order itself, and none were joined by more than four justices. Notably, Justices Clarence Thomas and Samuel Alito did not offer explanations for their votes.
Thus, National Institutes of Health provided no clear guidance for lower courts. The guidance from earlier cases such as Marks v. United States has long been criticized for being unworkable. Applying the principles from Marks to the minimalist explanations in a case like National Institutes of Health poses significant challenges, especially when one must assess how such a case influences distinct facts and legal arguments in future litigation; it might be akin to assembling a puzzle without all the pieces and still being criticized for failing to present a complete picture.
Steve Vladeck responds to Gorsuch’s critique of lower courts:
The key highlight among the five separate opinions issued by the justices recently was the opinion “concurring in part and dissenting in part” penned by Justice Gorsuch, supported in full by Justice Kavanaugh. Gorsuch charged that the lower courts in this case—and in two additional cases—had openly defied earlier Supreme Court rulings concerning emergency applications. He argued that the Court’s interventions in numerous Trump cases had become “unnecessary” due to the misconduct of lower courts.
This argument is not only fallacious; it is also dangerously misleading—especially during a time when an increasing number of President Trump and his supporters assert that any lower court ruling unfavorable to the administration is illegitimate. One could understand Gorsuch’s perspective if he had incontrovertible proof of lower court defiance. However, I demonstrate below that the reality is quite the opposite. The primary issue lies with the Supreme Court’s own majority that continues to issue obscure (or outright unintelligible) rulings in these situations, while expecting lower-court judges to interpret their intentions amid reasonable arguments to delineate from previous rulings.
LawDork Chris Geidner also weighed in in his article “Trump’s SCOTUS appointees each shared alarming views in allowing NIH grant cuts”:
President Donald Trump’s three appointments to the U.S. Supreme Court made concerning declarations in a recent case involving federal health research grants. These remarks, particularly when considered against the broader context of the Trump administration’s assault on the rule of law in America, highlight how education about the Supreme Court will need to shift in the near future.
This evolution has unmistakably been evident since Justice Amy Coney Barrett assumed her position on the bench. Still, the August 21 order concerning the legality of NIH directives—ultimately hinging on Barrett’s vote—exemplifies how Trump’s appointees are enabling the administration’s efforts to undermine the rule of law.
Meanwhile, former Supreme Court Justice Stephen G. Breyer commended a judge recently:
Justice Stephen G. Breyer publicly praised a judge criticized for allegedly defying a Supreme Court ruling, asserting that he knows the judge to be a model of honesty and respect for higher court authority. Breyer, who stepped down from the bench in 2022, has generally refrained from criticizing his former peers. However, he made an exception last Saturday in support of Judge William G. Young, whose integrity he had often observed during his 14 years as an appeals court judge in Boston.
“I never witnessed any situation where he would intentionally contravene a controlling opinion or legal directive from either our court or the Supreme Court,” stated Breyer. “I never had an inkling that he was acting in such a manner.”
The dynamics of the judiciary are shifting as courts contend with an influx of lawsuits arising from the Trump administration’s sweeping attempts to reshape governance, while trial judges grapple with interpreting the Supreme Court’s emergency rulings.
Judge William G. Young himself issued an apology and attempted to take responsibility:
During a court session, Judge Young expressed regret for any misinterpretation of his actions, stating he would strive to align his rulings with the expectations of the Supreme Court.
His remarks underscored the precarious position lower courts find themselves in as they navigate a growing number of unsigned orders the Supreme Court has generated through its emergency docket.
“Before proceeding, I feel it is my duty to formally apologize to Justices Gorsuch and Kavanaugh if they believe that this court has acted defyingly towards the precedents set by the Supreme Court,” said Judge Young, who has served on the bench since his appointment by President Ronald Reagan in 1985.
“I must clarify sincerely: that was never my intention, and it stands in stark contrast to my approach as a judicial officer,” he added.
Successfully navigating the transition from a now-defunct Constitutional order to a new system will involve establishing clear communication of directives to subordinates.
While Trump’s Supreme Court may have succeeded in discarding precedent and law in favor of supporting him, they seem to struggle to convey how lower courts should properly rule.
This lack of clarity might explain some of Trump’s recent impatience with the media, as illustrated by the (possibly overly optimistic) New Republic:
President Trump appears to be exhibiting increased frustration with the press. His legal team has just filed a lawsuit against The New York Times, which First Amendment lawyers dismiss as frivolous. The lawsuit is rife with agitated sentiments that seem dictated by Trump himself, and its announcement was accompanied by a furious tirade on Truth Social. Moreover, Trump has recently confrontationally engaged with reporters, even issuing threats and demonstrating bizarrely domineering behavior. This comes as a new poll from The Economist reveals shockingly low support for Trump among independents, a key indicator of political strength—or weakness.
It is one thing to dismantle a decrepit old system; it poses a much greater challenge to establish a new one.
Let us hope that Trump resembles the American Marius rather than the American Sulla, let alone the American Julius Caesar or Augustus.
