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Articles by Garrett Epps
The Case for a Shadow Court
One dismal morning in January 2001, I strode into a University of Oregon classroom to face 90 fresh-faced first-year law students. I had the unenviable task of explaining the “law” behind Bush v. Gore, decided a month earlier. It was an impossible task. What could I say to these legal novices, beyond “It is not too late to reconsider the life choices that brought you here”? There was no explanation for Bush v.
Can the House Clerk Lead a Midterm Coup?
“The country has never faced anything like this in its 250-year history,” former Judge J. Michael Lutting told CNN Monday morning. He was referring to a new article he wrote for The New Republic, outlining a nightmare scenario: What if Trump and the Republicans lose the House but refuse to concede?
Trump’s Election Subversion Plans?
In May, I logged in to a virtual town hall meeting convened by two of my elected officials in Oregon—Secretary of State Tobias Read and U.S. Senator Jeff Merkley, both Democrats—on election security in the midterm elections. I wasn’t surprised to hear that Read and Merkley were concerned that the Republican Party and President Donald Trump might attempt to disrupt the 2026 midterms.
Roberts Slays Trump’s Ludicrous Birthright Citizenship Order
Perhaps the most surprising thing about the majority opinion in Barbara v. Trump, the “birthright citizenship” case announced Tuesday, is how surprising it isn’t. Chief Justice John Roberts, a history major at Harvard, broke no new ground; his majority opinion offered a summary of the historical and legal literature dealing with citizenship, and then briskly rejected what he called the federal government’s “dramatically revisionist view” of the Fourteenth Amendment.
Alan Dershowitz: Trump Can Serve a Third Term
Let me start by saying, in all seriousness, that my admiration for Alan Dershowitz was one reason I decided, mid-career, to chuck newspaper work and attend law school. He was a legend in my undergraduate years at Harvard in the late 1960s and early 1970s, when (as The Harvard Crimson later put it), he was known as “that angry young professor with the long hair and loud voice.” I was angry, and still had hair, and thus considered him a kindred spirit.
Birthright Citizenship: Supreme Court Could Create an Exploitable Noncitizen Class
On April 1, the Supreme Court will hear Trump v. Barbara,which will test the theory that the president, with the stroke of a pen, can strip millions of American-born children of the birthright citizenship the Constitution grants them. The birthright citizenship case is easily the most important case that will come before the Court this year. I’ll add: Barbara may be the most important case the Court hears in this century. It may be the most important case the Court has heard since the Civil War.
Crabs, A Helicopter, and One Town’s Fight Against ICE
2 hours ago Oregon’s short legislative session ended Sunday after lawmakers pushed through several high-profile bills, including a measure moving a voter referendum to May. For more Local News from KPTV: https://www.kptv.com/ For more YouTube Content: https://www.youtube.com/channel/UCyWF77WR3CfkZ52cc9XK5wQ
Crabs, A Helicopter, and One Town's Fight Against ICE
In recent months, Americans have grown used to seeing armed troops in our metropolises—Immigration and Customs Enforcement seemingly in every city, most notably Minneapolis, and, in addition to ICE, National Guard troops in some of the most prominent urban centers like Los Angeles, Washington, D.C., and Chicago. What startles is the thought of masked and helmeted recruits in paradise, but that may be coming.
Trump’s ICE Problem—and Ours
As the disastrous immigration crackdown on the streets of Minneapolis unravels before the nation’s eyes, Americans should ask themselvesthe question an earlier generation asked about military operations in Vietnam: Why are we in Minneapolis?
How Democrats Lost Rural Voters-and How to Win Them Back
In 2008, President Barack Obama made major inroads with rural voters—a feat that Democratic candidates hadn’t been able to achieve since the 1992 and 1996 victories of Bill Clinton. Obama won 9 million votes from rural America and flipped 179 rural counties that had voted Republican in 2004. He still lost rural voters 45 percent to 53 percent, but his performance was a big improvement over 2004, when President George W.
How the Supreme Court Could End Super PACs-Without Overturning Citizens United
In 2010, the Supreme Court opened the floodgates to money in politics with its decision in Citizens United v. Federal Elections Commission. The Court struck down longstanding federal restrictions on “independent” political spending by corporations and outside groups, ruling that such expenditures were protected “speech” under the First Amendment.
Amnesty Transactional
“Jesus,” Saikrishna Bangalore Prakash notes in The Presidential Pardon, “is the most celebrated person not to receive a pardon.” The Presidential Pardon: The Short Clause with a Long, Troubled History by Saikrishna Bangalore Prakash Harvard University Press, 208 pp. Quite so. But second place must go, I think, to the Prophet Daniel, whose biblical story illustrates why a pardon power is needed.
Troops on the Streets. Democracy in Peril
Early last October, I found myself standing in line to enter a federal courtroom in Portland, Oregon, 100 miles from my home in the college town of Eugene.
US-Canada Relations Have Hit Rock Bottom
A month after President Donald Trump abruptly ended trade talks with Canada over an anti-tariff ad featuring former President Ronald Reagan, the two countries have yet to resume negotiations.
How the Supreme Court Could Turbocharge Gerrymandering
4 hours ago New York — President Donald Trump has promised to deliver $2,000 tariff rebate checks next year, raising hopes of a lifeline for millions of Americans struggling to make ends meet. “We’ve taken in hundreds of billions of dollars in tariff money. We’re going to be issuing dividends…probably the middle …
How the Supreme Court Could Turbocharge Gerrymandering
As if the gerrymandering arms race weren’t already approaching DEFCON 1, a pending Supreme Court ruling this year could tempt more states to join the fray. Last month, the Court heard oral arguments in Louisiana v. Callais—a case that could spell the end of Section 2 of the Voting Rights Act, the bedrock federal law that bars racial discrimination in voting.
Constitution in Progress
“On a chilly Saturday, December 13, 1952,” the historian Jill Lepore recounts in her new book, We the People, “the nine justices gathered in the first-floor conference room of the Supreme Court Building to begin their deliberations in Brown v.
Trump is a Wartime President
Last week, Donald Trump dropped virtual “bombs” on American citizens, demolished a prized symbol of American democracy and leadership, and demanded $230 million in reparations from taxpayers for what he calls unlawful attacks on him. Contrary to conventional wisdom, Trump does not wish to rule as a king or impose an authoritarian regime. People around him very much want the latter. He may think that this is his aim. But it is not.
Ignoring Case Law and the Constitution, Court Greenlights Trump’s Portland Troop Surge
On the night of June 21, 1942, a Japanese submarine surfaced near the mouth of the Columbia River at the border between Oregon and Washington. The vessel, I-25, fired 17 shells from its 5.5-inch deck gun at Fort Stevens, an Army artillery post, then slunk away, having done no damage to its target. The following month, I-25 returned to the attack, launching its floatplane, flown by Warrant Flying Officer Nobuo Fujita, on September 9 and September 29.
The New Deal Treasures Slated for Demolition
Few Americans are aware of the Wilbur J. Cohen Federal Building, two blocks from the U.S. Capitol on Independence Avenue. Fewer still know of the masterpieces housed inside. The building, opened in 1940, features grand New Deal-era murals by Ben Shahn, Philip Guston, Seymour Fogel and other esteemed 20th-century artists—all of which could be lost forever.
The Judge Standing up to Trump’s Portland Invasion
“Freedom,” wrote George Orwell in Nineteen Eighty-Four, “is the freedom to say two plus two make four. Once that is granted, all else follows.” But what if the test is whether a president can add two and two and get in the neighborhood of four? What if the president says 2+2=10,000? Is that close enough for government work? Federal Judge Karin J.
Brett Kavanaugh Hits the Street!
This summer, the Supreme Court issued an order in Noem v. Vasquez Perdomo, an “emergency docket” decision permitting Immigration and Customs Enforcement (ICE) agents to continue detaining individuals in Los Angeles, based on their race or ethnicity, proficiency in Spanish, and suspicious presence near Home Depot, Beverly Hills lawns, and other hotbeds of criminal activity. Judge Maame Ewusi-Mensah Frimpong, of the federal District of Central California, had enjoined the practice on July 11.
The Supreme Court Greenlights Racial Profiling
In what’s become an increasingly common practice in recent months, the Supreme Court recently used its “emergency docket” to lift a lower court injunction barring the use of racial profiling by federal immigration officials. The Court’s order allows ICE officers in Los Angeles to continue aggressive “roving patrols” and detention practices based on a person’s appearance.
The Kirk Assassination and the MAGA Threat to Free Speech
A memory from before the Charlie Kirk assassination. On March 30, 1981, President Ronald Reagan was shot as he exited the Washington Hilton Hotel in Washington, D.C. Secret Service Agents rushed him into a limousine and took off for the White House.
Trump’s Assault On Vote-By-Mail
Donald Trump recently declared on Truth Social that he plans to “lead a movement to get rid of mail-in ballots.” He claimed that “ELECTIONS CAN NEVER BE HONEST WITH MAIL IN BALLOTS/VOTING, and everybody, IN PARTICULAR THE DEMOCRATS, KNOWS THIS.” In truth, vote-by-mail is a bulwark of American democracy. In 2024, roughly of voters voted by mail, and in 2020—at the height of the pandemic—43 percent of voters mailed in their ballots.
Fear and Loathing in Washington D.C.
Washington Monthly Fear and Loathing in Washington D.C. 00:00 / Apple Podcasts Spotify YouTube Subscribe: Apple Podcasts | Spotify | YouTube President Donald Trump has condemned the District of Columbia as a crime-ridden hellhole.
Pulling the Plug on Public Broadcasting
Washington Monthly Pulling the Plug on Public Broadcasting 00:00 / Apple Podcasts Spotify YouTube Subscribe: Apple Podcasts | Spotify | YouTube In early July, at the behest of President Donald Trump, Congress approved a $9 billion rescission package that canceled $1.1 billion in federal funding for public broadcasting.
Amy Coney Barrett and the Supreme Court Give Birth to a Disaster | Washington Monthly
Begin by looking at the stakes in Trump v. Casa, the “nationwide injunction” case decided Friday, as laid out in oral argument by Donald Trump’s administration. In his argument before the justices last May, Solicitor General D.
LGBTQ Rights Are More Precarious Than Ever
Washington Monthly LGBTQ Rights Are More Precarious Than Ever 00:00 / Apple Podcasts Spotify YouTube Subscribe: Apple Podcasts | Spotify | YouTube Ten years ago this week, the Supreme Court upheld the constitutional right to same-sex marriage in its landmark ruling, Obergefell v. Hodges. Since then, marriage equality and LGBTQ rights have been increasingly under threat. Conservative activists are successfully weaponizing trans rights issues as a wedge to undermine LGBTQ progress more broadly.
Trump’s Deportation Frenzy Echoes the Fugitive Slave Hunts of the 1850s
The first five months of Donald Trump’s administration have flashed by like one of those educational time-lapse films that show the growth of a cactus in 30 seconds. Trump’s experiment in rapid national disassembly echoes America’s near-death experiment in the years before the Civil War. In the past few days, we have passed what might be called the Fugitive Slave Act of 1850 mark.
In Birthright Citizenship Case, Trump DOJ Asks Supreme Court Justices to Make Themselves Irrelevant | Washington Monthly
At the very outset of oral argument in Trump v. CASA, the “birthright citizenship” case, Justice Sonia Sotomayor proposed a hypothetical aimed at scaring conservatives. What if the president were to proclaim a new interpretation of the Second Amendment, and add that the military would confiscate all firearms held by private citizens?
The Easy Way to Uphold Birthright Citizenship
I recently wrote that the Supreme Court likes to decide seemingly consequential constitutional cases by finding problems with the court in which they were brought, the kind of claim they represent, the kind of order the plaintiffs are seeking, or some other mechanism for ducking the constitutional issue. It’s a defensible ploy, as some who study the court argue. The power of judicial review is so potentially divisive that it should be used only when necessary.
Is the Supreme Court Standing Up to Trump?
Law professors earn their pay by brain-teasing their students, supposedly for the pupils’ benefit.
Ep. 16: A citizen's guide to resisting Trump w/ Timothy Noah
Washington Monthly Ep. 16: A citizen's guide to resisting Trump w/ Timothy Noah 00:00 / Apple Podcasts Spotify YouTube Subscribe: Apple Podcasts | Spotify | YouTube There’s plenty that ordinary citizens can do to push back on the Trump regime. They can protest, they can support legal action, they can lobby elected officials, and, above all, they can stay informed.
Donald Trump's Third-Term Enablers
One of the mysteries of American life is why lawyers make so much money. My brother Gus, a veteran bankruptcy warrior, once told me it was because, as a class, we are willing to be so much more bored than most people. That explanation has a lot to say for itself. Lawyers spend many hours (billable, to be sure) poring over incomprehensibly verbose jargon printed in indecipherably tiny text.
Trump's Latest Word Salad Isn't Just Wrong. It's Insane
Teaching Constitutional Law in the Pacific Northwest over three decades, I made the acquaintance of many buckaroos who would wander down from the hills and explain to me that the Fourteenth Amendment isn’t a real Amendment; that Federal Reserve notes aren’t real money; and that federal courts aren’t real courts (because in most courtrooms there’s a fringe on the American flag).
Trump’s Latest Word Salad Isn’t Just Wrong. It’s Insane
11 hours ago DOGE Reverses Move That Made Its Claims Nearly Impossible to Check Elon Musk’s Department of Government Efficiency on Tuesday reversed a change that had made some of its claims far more difficult to fact-check.
Ep. 10: Trump takes a wrecking ball to separation of powers
Washington Monthly Ep. 10: Trump takes a wrecking ball to separation of powers 00:00 / Apple Podcasts Spotify YouTube Subscribe: Apple Podcasts | Spotify | YouTube Anne Kim and Garrett Epps discuss the foundational concepts of U.S. democracy, focusing on the separation of powers and the emerging threat of the “unitary executive” theory. They also discuss the implications of Trump’s power grab, including threats to public health, safety and the rule of law.
Ep. 9: Protecting Voters' Rights in the Era of Trump
Washington Monthly Ep. 9: Protecting Voters' Rights in the Era of Trump 00:00 / Apple Podcasts Spotify YouTube Subscribe: Apple Podcasts | Spotify | YouTube President Donald Trump has promised drastic changes to election laws, such as requiring proof of citizenship and paper ballots, that could disenfranchise thousands, if not millions, of voters. How serious are these threats? Co-hosts Anne Kim and Garrett Epps speak with Joshua A. Douglas, a law professor at the University of Kentucky J.
Ep. 8 - Trump's War on Federal Workers w/ Don Kettl
Washington Monthly Ep. 8 - Trump's War on Federal Workers w/ Don Kettl 00:00 / Apple Podcasts Spotify YouTube Subscribe: Apple Podcasts | Spotify | YouTube Federal workers are the latest target of Donald Trump, who vowed in his campaign to shrink the size of government and purge anyone he perceives to be disloyal. Can the civil service be saved? Co-hosts Anne Kim and Garrett Epp speak with Donald F.
Ep. 7: Ukraine's Survival on the Brink w/ Tamar Jacoby
Washington Monthly Ep. 7: Ukraine's Survival on the Brink w/ Tamar Jacoby 00:00 / Apple Podcasts Spotify YouTube Subscribe: Apple Podcasts | Spotify | YouTube Co-hosts Anne Kim and Garrett Epps speak with Tamar Jacoby, Director of the Progressive Policy Institute’s New Ukraine Project, on the future of Ukraine, the changing face of warfare, and Vladimir Putin’s potential ambitions in Europe.
Washington Monthly Ep. 6: Is a Trump Recession Coming? 00:00 / Apple Podcasts Spotify YouTube Subscribe: Apple Podcasts | Spotify | YouTube Massive tariffs. Mass deportations. A looming budget crisis. Economist Rob Shapiro speaks with co-hosts Anne Kim and Garrett Epps about what’s ahead for the Trump economy.
Trump’s Flaming Turd of an Argument for Ending Birthright Citizenship
My late father, an old-school seersucker-and-bow-tie Virginia lawyer, had his good days in court and his other days. After one particularly fraught session in another city, he called my mother to report. “I did just fine,” he said. “They’re going to let me leave town.” Brett Shumate, a U.S. Department of Justice lawyer, might have made that phone call Thursday night.
Ep. 5: Winning Working Class Americans – Part II (w/ Paul Glastris) | Washington Monthly
Washington Monthly Ep. 5: Winning Working Class Americans – Part II (w/ Paul Glastris) 00:00 / Apple Podcasts Spotify YouTube Subscribe: Apple Podcasts | Spotify | YouTube In Part II of this interview with Washington Monthly Editor-in-Chief Paul Glastris, Paul speaks with co-hosts Anne Kim and Garrett Epps about the shape of “Resistance 2.0” to Donald Trump and the legacy of Monthly founder Charlie Peters.
Ep. 4: A New Agenda for the Working Class - Part I
Washington Monthly Editor-in-Chief Paul Glastris speaks with co-hosts Anne Kim and Garrett Epps about the Monthly’s latest issue, which features 10 ideas for reviving the fortunes of America’s working class – and the Democratic Party. Washington Monthly Ep. 4: A New Agenda for the Working Class - Part I 00:00 / Apple Podcasts Spotify YouTube Subscribe: Apple Podcasts | Spotify | YouTube
Protecting the Constitution the Washington Monthly Way
For the past 30 years, I have taught constitutional law, and I have come to realize that America’s best days are those when my phone doesn’t ring. In ordinary times, constitutional scholars are dull company—when we find ourselves in demand as speakers and party guests, the Republic is in trouble.
Will Conservative Judges Abide Trump’s Ending Birthright Citizenship?
I confess to a certain sneaking fondness for Judge Jim Ho of the Fifth Circuit. True, Ho is one of the most extreme judges Donald Trump jammed onto the federal bench.
Why They Reign Supreme
The Supreme Court,” Frederick Douglass told a civil rights meeting in 1883, “is the autocratic point in our national government.
The Chaos of the Supreme Court’s Last Term—and What May Be Coming This Time | Washington Monthly
Every Autumn, Supreme Court analysts provide the public with cogent summaries of the last term and astute prophecies about what will happen after the First Monday in October when the nine justices gather for the new term. I am as pompous as the next pundit, but in 2024, writing that kind of piece would feel wrong. Understanding the last term (if that is possible) is not a matter of extracting doctrine from jurisprudence but of sifting through rubble.
The Origin of Specious
Originalism, the school of constitutional interpretation currently modish among conservative lawyers and judges, is not so much an idea as a legal-industrial complex divided into three parts—the academic, the jurisprudential, and the political. In its first part, originalism is an academic pursuit, one that a large number of law scholars have embraced with gusto.
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