We are writing America’s history in the streets.

September 4, 2025

It was a bad day to be Donald Trump.

Conversely, it was a good day for those who continue to fight to preserve the rule of law, American democracy, and the pursuit of justice.

One day after a federal judge ruled that Trump's use of the National Guard to occupy Los Angeles violated the Posse Comitatus Act, two other federal judges handed Trump significant losses:

• A three-judge panel of the Fifth Circuit Court of Appeals ruled that Trump's deportation of Venezuelan migrants to El Salvador was unlawful and not authorized by the Alien Enemies Act.

• US District Judge Allison Burroughs ruled that Trump unlawfully withheld $2 billion in grants from Harvard University.

Collectively, the decisions invalidate significant portions of Trump's attempts to overturn the Constitution and usurp Congress’s power over immigration, appropriations, and the peacetime use of the military on US soil.

Trump invoked the Alien Enemies Act to circumvent existing law regulating applications for asylum and due process for determining whether a migrant is subject to deportation. See PBS News, Trump cannot use Alien Enemies Act to deport members of Venezuelan gang, appeals court rules. (I note that the PBS headline should refer to “alleged” members of the Venezuelan gang.)

Trump claimed that Venezuela was sending members of the Tren de Aragua gang to “invade” the United States. In its core holding, the Fifth Circuit panel rejected Trump's claim that the Venezuelan gang members were an “invading” force:

A country’s encouraging its residents and citizens to enter this country illegally is not the modern-day equivalent of sending an armed, organized force to occupy, to disrupt, or to otherwise harm the United States.

The full opinion is here: W.M.M v. Trump | 5th Cir. | Sep. 2, 2025.

The opinion in W.M.M. v. Trump turns on numerous difficult issues of interpretation of a statute enacted less than a decade after the United States was created. The case presents difficult issues of reviewability of presidential findings and justiciability, any one of which could lead to a reversal in the Supreme Court.

The Fifth Circuit three-judge panel reached the right result, which should be affirmed by the Supreme Court. At bottom, the Alien Enemies Act was designed to empower the president to respond to an invasion or incursion sponsored by a foreign state or organized military force. Those conditions do not apply to alleged gang members trafficking in illegal drugs.

In a second significant setback for Trump, US District Judge Allison Burroughs ruled that Trump unlawfully withheld more than $2 billion in grants from Harvard University. See CNN Politics, Judge says Trump administration unlawfully blocked $2 billion from Harvard.

The Trump administration argued that Judge Burroughs lacked jurisdiction to hear the case, arguing that the contractual disputes must be brought in the US Court of Claims. Judge Burroughs rejected that argument, writing:

The First Amendment claims here are about speech and whether the federal government is improperly infringing on the free speech rights of an academic institution and its employees. The resolution of these claims might result in money changing hands, but what is fundamentally at issue is a bedrock constitutional principle rather than the interpretation of contract terms.

Judge Burroughs found that the dispute between Harvard and Trump was motivated by Trump's desire to punish the University for exercising its First Amendment rights:

A review of the administrative record makes it difficult to conclude anything other than that Defendants used antisemitism as a smokescreen for a targeted, ideologically-motivated assault on this country’s premier universities.

“The idea that fighting antisemitism is Defendants’ true aim is belied by the fact that the majority of the demands they are making of Harvard to restore its research funding are directed, on their face, at Harvard’s governance, staffing and hiring practices, and admissions policies—all of which have little to do with antisemitism and everything to do with Defendants’ power and political views.

See Politico, Harvard secures win in fight with Trump over federal research funding.

Again, the decision turns on technical issues relating to the jurisdiction of federal district courts to hear cases involving disputes over money between a private party and the US government. However, the correct outcome is for the Supreme Court to rule that Trump's use of ideological purity tests to block federal grants is a ruse that violates the Constitution.

Trump's three losses in federal court over the last two days prove an important point: We must not obey an advance, we must not surrender in advance, and we must not quit. Every institution that has challenged Trump’s illegal withholding of grants has won, as has every law firm that challenged Trump's sanctions for promoting diversity in hiring and retention.

The institutions and individuals who refuse to capitulate to Trump do so at great risk. We owe them a debt of gratitude and support. By refusing to bend the knee to Trump, they are making it more difficult for Trump to victimize others.

For example, Trump's attack on major law firms ceased as soon as two firms obtained court rulings that held his actions to be illegal. Notably, Trump has not appealed those rulings—indicating that he knew he was engaged in political and financial extortion and, like all bullies, was going to continue until someone called his bluff.

Victims of Epstein-Maxwell sex trafficking ring speak out.

Eight victims of the Epstein Maxwell sex trafficking ring held a news conference on the steps of the Capitol on Wednesday morning. They were joined by representatives Thomas Massie (R), Ro Khanna (D), and Marjorie Taylor Greene, as well as an attorney representing many of the victims.

The three members of the House urged their colleagues to join them in signing the discharge petition, which would force a floor vote on legislation requiring the Department of Justice to release the Epstein–Maxwell files. According to Rep. Massie, he needs only two more signatures to force the floor vote.

Trump is sweating tanning lotion as he pressures GOP members of the House to reject the discharge petition. See ABC News, Trump calls Epstein files 'irrelevant' as Massie petition picks up steam.

Most importantly, the victims of the Epstein-Maxwell sex trafficking ring spoke eloquently and emotionally about the trauma inflicted on them—not only by Epstein and Maxwell but also by every corrupt and complicit politician, attorney, and law-enforcement officer who has aided and abetted the continued cover-up of the Epstein-Maxwell crimes.

The video of statements by the survivors are included below, with time-stamped links to the statements by each of the eight survivors (and the family of Virginia Giuffre) who spoke at the press conference:

Anushka di Giorgio

Annie Farmer

Marina Lacerda

Courtney Wild

Family members of Virginia Giuffre

Jenna Lisa Jones

Haley Robson

Lisa Phillips

Shante Davies

Take a moment to view any (or all) of the statements. The survivors of Epstein and Maxwell’s crimes deserve to be heard.

I also recommend the moving interview by Jen Psaki of family members of Virginia Giuffre. See the video of the interview here, MSNBC, Family of Epstein survivor Virginia Giuffre speaks out.

In the face of powerful testimony by the victims and survivors, Trump labeled the entire scandal a “hoax,” thereby branding the victims of the crime as liars. See CNN Politics, Epstein files push hits a ‘boiling point’ in Congress as Trump dismisses it as a hoax.

Trump's attack on the survivors of the crime by claiming they are part of a hoax will not work. Unlike other issues that Trump was able to circumvent by labeling them as a hoax, he spent nearly 2 years demanding the release of the Epstein files in order to bring the perpetrators to justice.

Now that he has the power to release those files, he is desperately seeking to conceal them. The only logical inference is that he fears what is in those files, which means that we must work tirelessly to ensure that they are disclosed.

Trump is frightened and cornered by the Epstein scandal. All the more reason for us to be relentless in calling for the disclosure of the files—and for the defeat of every complicit Republican who protects Trump by refusing to demand the release of the files.

Florida abolishes all vaccine mandates, while California, Oregon, and Washington agree to provide their own vaccination guidance.

Among the many despicable things that Trump has accomplished during his second term, perhaps the most despicable is threatening the health and lives of children by undermining confidence in vaccines. Robert Kennedy has effectively destroyed confidence in the CDC, and by extension, its vaccination guidance.

Kennedy accomplished that result with breathtaking speed by terminating the entire membership of the Advisory Committee on Immunization Practices (ACIP) and replacing those members with vaccine skeptics and ideologues who lack the training and judgment to serve on such an important committee.

As a result, Kennedy is endangering the health of every American, especially children, who are exposed to childhood diseases that are making a comeback. See op-ed in NYTimes, Opinion | We Ran the CDC: RFK Jr. Is Endangering Every American’s Health.

The state of Florida has used Kennedy’s chaos to terminate all mandatory vaccine requirements.

The surgeon general of the state of Florida, Dr. Joseph A. Ladapo, compared mandatory vaccines to “slavery.” See ABC News, Florida surgeon general says state is moving to 'end all vaccine mandates'. Apparently, Ladapo has never heard of the germ theory of disease in which infectious diseases spread rapidly through populations—unless the population has a relatively high level of immunity to the disease. Vaccines provide immunity (or lessen the severity of infection), thereby providing “herd immunity.”

Florida Governor DeSantis and Dr. Ladapo are effectively thrusting Florida back to the Dark Ages, where the art of “medicine” was indistinguishable from sorcery. There is a high likelihood that children across America will suffer needlessly and die because of the ignorance of DeSantis and Ladapo. Florida is home to approximately 7% of the US population, a reservoir large enough to give a new infectious disease a head start in infecting people across the country.

Fortunately, three states—California, Oregon, and Washington—are collaborating to develop their own vaccination schedule recommendations, as they no longer trust the CDC. See NYTimes, Snubbing RFK Jr., States Announce Plans to Coordinate on Vaccines. I

t is likely that others will join the consortium of states combining medical expertise to fill the vacuum that will exist until the CDC can rehabilitate itself under the next president.

[As a side note, many readers have sent emails about the states staging a “soft secession” by beginning to operate independently of the federal government. Please don’t spread that theory or terminology. It is dangerous and wrong. What California, Oregon, and Washington are doing is legal and permissible under the Constitution. They are members of a federal republic. Don’t turn that exercise of rights reserved under the Constitution into a “soft secession.” The last thing we need is 50 states each claiming that its constitutional exercise of powers reserved under the 10^th Amendment is a “secession.” It is not. We are a union of states, and we should remain so. Don’t normalize talk of “secession.”]

Opportunities for Reader Engagement

Markers for Democracy hosts Joyce Vance!

Tuesday, September 9th, 8:00 pm to 9:00 pm ET

Join the Markers For Democracy Giving Circle for a virtual conversation with law professor, podcaster, and Substack author Joyce Vance in advance of the release of her new book: Giving Up Is Unforgivable: A Manual for Keeping a Democracy.

Also hear from Daniel Squadron, Co-founder and President of The States Project, about the importance of state legislatures and how The States Project is helping in Virginia this year. Register here.

Come be inspired and uplifted by Molly Jong-Fast (MSNBC & Vanity Fair contributor) as she leads a conversation with the founders of two outstanding organizations:

--Jason Berlin, Founder of Field Team 6, the only national organization focused on registering non-voters who are likely to register and vote as Democratics. Their mission: Register Democrats. Save the world. They are accomplishing this goal at the largest scale and for the lowest cost ever, and they have the metrics to prove it.

--Lyzz Schwegler, Co-Founder of Sister District, the only Democratic grassroots organization in the country focused exclusively on state legislatures (where all the voting rights are controlled, among other crucial ways to fight back against the federal government).

You will learn about their work and how they focus on races with the most impact that are competitive and winnable! There will be a specific focus on Virginia, the only state in the country that has statewide elections this November-- the last state in the south without an abortion ban, a state on the cusp of approving a constitutional amendment to protect marriage equality, and a bellwether for the upcoming national midterm elections.

RSVP and donate here! The event is in downtown NYC on September 17th at 6pm; tickets start at $25 and any donation amount helps. If you would like to learn more click here for info on Field Team 6 and here for Sister District.

Concluding Thoughts

I have run out of time and exceeded my (self-imposed) space limitations, so I will defer an important story for tomorrow: The US attack on a private vessel on the high seas, purportedly from Venezuela. See BBC, US strike on 'Venezuela drug boat': What do we know, and was it legal?

I have seen a spike in stories forwarded by readers that effectively say, “We have already lost. Democracy is dead.” It is not. Just ask Joyce Vance, who has gone to the trouble of writing a book entitled “Giving Up is Unforgivable.” (See Opportunities for Reader Engagement, above.)

Many of the “all is lost” articles originate from professors and historians who specialize in the study of fascism. They see the world through their lens (fascism). They do not see it through the lens of the everyday patriots, the grassroots volunteers who are in the streets nearly every day.

So, too, with political consultants and pollsters who are fixated on modeling and re-litigating the last election, claiming that we are doomed to repeat 2024 until the end of time.

Don’t believe them.

While they are busy writing the epitaph of American democracy, we are writing the true history of America in the streets. When we look back at Lexington and Concord, Gettysburg, the Civil Rights movement, the Vietnam War protests, the feminist movement, and the gay rights movement, what we remember is what people did in the streets.

No one points to the New York Times' horrifyingly incorrect contemporaneous reporting on major events and movements during its 174 years of existence.

Rather, what we remember is what people did in the streets. I use “in the streets” broadly to include the polling both, the post office, telephones, shoe leather, church basements, town squares, and living rooms.

What matters is not what scholars, researchers, consultants, and pollsters say “will happen” or even “what has happened.” What matters is what people do in the streets.

While we should listen and learn from scholars, historians, researchers, and informed political commentators, what they say does not determine the future. We have agency. We are not potted plants. We can affect the outcome the future.

We can’t live in a cocoon, insulated from the news and commentary. But we must recognize that we are the ones who are writing America’s history in the streets.

With every pro-democracy rally, boisterous town hall, march down Main Street, or demonstration on a roadside or freeway overpass, we are imperceptibly bending the moral arc of the universe to our desired outcome.

You are writing America’s history by being a participant in the fight to preserve democracy. Don’t let anyone convince you otherwise!

Keep up the good work! Stay strong! I will talk to you tomorrow!

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