iiinova — where your digital self keeps evolving

Brian Marron @brianmarron.bsky.social · 14/10/2026

Concentrated wealth is a global security threat. Sooner or later one of these guys will be our asteroid.

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Brian Marron @brianmarron.bsky.social · 14/10/2026

Concentrated wealth is a global security threat. Sooner or later one of these guys will be our asteroid.

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Brian Marron @brianmarron.bsky.social · 13/10/2026

Concentrated wealth is concentrated power. Decentralizing power is the core principle of the design of our government.

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Brian Marron @brianmarron.bsky.social · 13/10/2026

Space Jellyfish Rocket just a few minutes ago.

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Brian Marron @brianmarron.bsky.social · 08/10/2026

If one was conducting a lawful, bona fide reorganization, one would still carry out the core mission of the agency until the reorganization is complete. The reorg of AHRQ is a sham. The unspent money will be spent on attorney fees for the RIFed workers.

Collectively, the substantial unobligated balance of funds near the close of the fiscal year, the cancellation of grant peer review sessions, the RIF separating key grant personnel from the agency, and admissions by agency management of funding uncertainty suggest a lack of intent to prudently obligate funds. Based on the foregoing, HHS's actions did not constitute the type of unavoidable delays or efforts to comply with statutory requirements that we have previously recognized as programmatic delays. Instead, HHS's actions indicate an intentional withholding of funds in violation of the ICA.

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Brian Marron @brianmarron.bsky.social · 13/08/2026

Much more dangerous than hoarding cats. Musk has killed more than Fat Man and Little Boy combined.

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Brian Marron @brianmarron.bsky.social · 31/07/2026

Playoff Odds Bot, go home, you're drunk. #Orioles

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Brian Marron @brianmarron.bsky.social · 13/05/2026

This doesn't sound like a "bona fide" RIF:

Full quote from House Appropriations Committee hearing:

Secretary: “We are now at 72,000 and we’re hiring 12,000 new employees. We will have made up all the employees that we lost and we’ve replaced them with a better group of people who are actually going to address chronic health.”

Rep. Hoyer: “Your judgment is that the other 20,000 that were reduced not were not capable, were not motivated?”

Secretary: “It’s not my judgment. It’s the record. They presided over the biggest decline in health in the history of the world. We now have the sickest generation in history. We have the sickest population on the face of the earth. That is a failure of government. They weren’t looking at chronic disease. They were focused on other things and they did nothing to prevent the food dyes, the bad food, all of the things that are making us sick. It was their job to protect us and they did not do it. They failed at their jobs and if this was private industry, they would have all been fired. Oh, we did what we had to do to change the culture at these agencies. So, they’re now doing what they can do to pretend that they’re what they were hired to do, which is to protect the health of our country and restore us once again to the healthiest country in the world.”

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Brian Marron @brianmarron.bsky.social · 09/05/2026

The conclusion. Stick a pin in this one if you've got a case with DOGE going after grants, employees, and departments deemed DEI-related.

Conclusion

For the foregoing reasons, Plaintiffs' motion for summary judgment is GRANTED, and

the Government's cross-motion for summary judgment is DENIED.

It is hereby ORDERED, ADJUDGED, AND DECREED as follows:

1. Declaratory Judgment.
unconstitutional, ultra vires, and without legal effect. The termination of National
Endowment for the Humanities grants challenged in this action was unlawful
because it was undertaken in violation of the First Amendment, in violation of the
equal protection component of the Fifth Amendment, and without statutory
authority. The Court further DECLARES that DOGE officials lacked statutory
authority to identify, select, or direct the termination of NEH grants, and that the
resulting terminations were ultra vires.

The Mass Termination is DECLARED unlawful,

2. Injunctive Relief. The Government, along with its officers, agents, servants,
employees, and all persons acting in concert with them, is PERMANENTLY
ENJOINED from enforcing, implementing, or giving any effect to the Mass
Termination. This injunction applies to all termination notices issued as part of the
Mass Termination, including all grants identified in Plaintiffs' Exhibit 12,
NEH AR_0000136. The Government is further PERMANENTLY ENJOINED
from terminating those grants on the same or substantially similar impermissible
bases identified in this Opinion and Order.

3. The Government shall provide written notice of this Opinion and Order to all
affected grant recipients whose awards were terminated as part of the Mass
Termination.

4. This Court shall retain jurisdiction to enforce this Opinion and Order.

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Brian Marron @brianmarron.bsky.social · 09/05/2026

The judge wraps up the Equal Protection section of the decision.

"[W]henever the government treats any person unequally because of his or her race, that

person has suffered an injury that falls squarely within the language and spirit of the Constitution's

guarantee of equal protection." Adarand, 515 U.S. at 229-30. Although the Government is free

to reappraise priorities, administer grant programs, and reduce waste consistent with lawful policy

objectives, it may not do so by making race, ethnicity, religion, sex, or sexual orientation the basis

for terminating public benefits. There is no federal-funding exception to the Equal Protection Clause.

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Brian Marron @brianmarron.bsky.social · 09/05/2026

I love this part. The judge uses SCOTUS recent Callais decision to hammer the DOGE discrimination. 😁 If this case gets to SCOTUS I'm sure they'll make up a new loophole if they want to protect Trump and weasel out of the contradiction.

The Supreme Court's most recent discussion of race-based governmental decisionmaking

makes the Government's position difficult to sustain. In Louisiana v. Callais, No. 24-109, 2026

WL 1153054 (U.S. Apr. 29, 2026), Louisiana invoked compliance with the Voting Rights Act - a

federal civil-rights statute enacted under Congress's Reconstruction Amendment enforcement

authority - as a justification for race-conscious districting. Even then, Justice Alito, writing for

the Court, began from the premise that "the Constitution almost never permits the Federal

Government or a State to discriminate on the basis of race," and that "Such discrimination triggers

strict scrutiny." Id. at *10. The Court further emphasized that "Our acceptance of race-based state

action has been rare for a reason." Id. If strict scrutiny applies with such force to race-conscious

Unlike the asserted VRA-compliance rationale in Callais, DOGE's use of race was not

designed to open public institutions to equal participation. DOGE's use of race was certainly not

remedial. It was punitive. DOGE, relying on ChatGPT and on Fox's and Cavanaugh's

understanding of the Administration's hostility to "DEI," treated race as a criterion for

disqualification. The Government's asserted interests for terminating grants - administrative

convenience, merit, and waste reduction - do not justify making race, ethnicity, national origin,

religion, sex, or sexual orientation the determinative grounds for terminating previously awarded

grants.

The Government does not come close to satisfying strict scrutiny or heightened scrutiny,

and it makes no serious attempt to do so. Unable to explain away its crude "Detection Codes,"

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Brian Marron @brianmarron.bsky.social · 09/05/2026

The judge points out how DOGE made the classifications. Such hamfisted discrimination from the amateur DOGE boys. They wouldn't have been so sloppy if one of Trump's lawyer minions was watching over their shoulders. I don't think Blanche or Bove would have let them do this so blatantly.

The record demonstrates that the Government expressly employed all of the above

classifications to identify grants for placement on the termination list. After being deployed from

DOGE to NEH, Justin Fox used search terms, which he labeled as "Detection Codes," to identify

grants that he dubbed the "Craziest Grants" and "Other Bad Grants." Dkt. No. 248-9, Ex. 9, US-

000016154 ("Detection List" tab). The search terms included, among other terms, "BIPOC (Black,

Indigenous, People of Color)," "Minorities," "Native," "Tribal," "Indigenous," "Immigrant,"

"LGBTQ," "Homosexual," and "Gay." Dkt. No. 248-9, Ex. 9, US-000016154; Dkt. No. 248-1,

Fox Dep., 236:22-237:10. When Fox was asked whether he "r[a]n this list of words through every

grant description" he received from NEH, he confirmed, "yes." Dkt. No. 248-1, Fox Dep., 276:16-

277:2. In this way, Fox constructed and applied explicit classifications based on protected

characteristics and used them as the operative criteria for revoking federal grants.

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Brian Marron @brianmarron.bsky.social · 09/05/2026

The opinion moves on to addressing the 5th Amendment/Equal Protection violation posed by DOGE targeting grants based on DEI.

The Government can violate the Equal Protection Clause in several ways, including by (1)

expressly classifying individuals based on their race, see Parents Involved in Cmty. Sch. v. Seattle

Sch. Dist. No. 1, 551 U.S. 701, 712, 716, 720 (2007); (2) applying facially neutral policies in an

intentionally discriminatory manner, see Yick Wo v. Hopkins, 118 U.S. 356, 373-74 (1886); or

(3) adopting policies that have a disparate impact and are motivated by discriminatory purpose.

Adarand, 515 U.S. at 213. This case implicates the first category of explicit classifications.

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Brian Marron @brianmarron.bsky.social · 09/05/2026

The Barnette quote here is one of my favorites. I used it to lead off one of my law review articles. The judge summarizes the First Amendment issue of DOGE eliminating grants in an effort to eliminate DEI and Biden administration work.

In sum, the perceived relationship of a grant to DEI or to the Biden Administration was the

very raison d'être for the challenged terminations. Taken together, the DEI-based terminations

and the Biden-era terminations reflect the same fundamental constitutional error, though they do

so in distinct ways. The former penalized grants because they were perceived to express or reflect

disfavored viewpoints; the latter penalized grants because they were perceived to be associated

with a disfavored administration. The First Amendment forbids both.

The Government may believe that its policy choices are urgent, prudent, and necessary to

advance the priorities of the Administration. That is its prerogative. See Nat'l Rifle Ass'n of Am.

v. Vullo, 602 U.S. 175, 187-88 (2024). The Court is under no illusion that a new administration

may prefer, on a going-forward basis, to fund certain kinds of scholarly programs over others. But

lawful priority-setting is one thing; depriving someone of a benefit previously conferred based on

viewpoint and perceived political association is something else entirely. Consistent with Regan

and Rust, a new administration may pursue lawful funding priorities within the bounds of the NEH

statute and the Constitution. But it has no license to suppress disfavored ideas. See Rosenberger,

515 U.S. at 830. Nor do Regan or Rust permit the Executive Branch to disregard the statute

Congress enacted and substitute its own funding criteria in its place.

The conclusion follows from first principles. "[I]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics[.]" West Virginia Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943); see also Chiles

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Brian Marron @brianmarron.bsky.social · 09/05/2026

Back to the NEH case. The evidence shows viewpoint discrimination.

In sum, every aspect of the termination process — the NEH DEI ratings, DOGE’s DEI-based ChatGPT filter, and the spreadsheet categorizing grants by “DEI Rationale” — reflects a single unconstitutional objective: to exclude a disfavored viewpoint from the marketplace of humanistic inquiry. *Accord Thakur*, 163 F.4th at 1207 (“[T]he current record suggests that the government aimed at the suppression of speech that views DEI, DEIA, and environmental justice favorably.”).

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Brian Marron @brianmarron.bsky.social · 09/05/2026

Let me interject this mid-thread. The new head of AHRQ wrote this in Newsweek. www.newsweek.com/after-decade... Looks like a future Exhibit to me.

This reset has unsettled many within the health services research community, particularly those whose careers advanced during the equity-first era. But elections have consequences. The discomfort expressed by DEI advocates reflects that AHRQ is implementing the mandate voters conferred upon President Trump.

Historically, AHRQ did not ignore disparities in Americans’ access to, or quality of, health services. Rather, it studied those disparities carefully and critically, without presupposing particular policy outcomes. The agency permitted conclusions that diverged from prevailing progressive policy assumptions, emphasized methodological rigor, and valued measured, evidence-based inquiry.

According to this view, AHRQ’s more recent approach increasingly rewarded ideological alignment over open inquiry and consensus over critique. The Trump-era reforms, by contrast, are framed as a rejection of “woke” advocacy and a return to AHRQ’s traditional role as an independent evaluator of the health care system.

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Brian Marron @brianmarron.bsky.social · 09/05/2026

The government admitted that the grants were terminated because of their DEI viewpoint.

The Government has never claimed that these grants were reviewed for their humanistic merit or terminated for any reason other than DOGE decisionmakers’ perception that they espoused, reflected, or related to the disfavored “DEI” viewpoint. To the contrary, the Government expressly admits that the grants were terminated because they were deemed to promote DEI. See, e.g., Dkt. No. 248-2, Ex. 2, Cavanaugh Dep. 202:18–20 (“Q: [I]f a grant related to DEI, it couldn’t be on the ‘keep’ list, right? A: That’s correct.”).

DOGE itself publicly characterized the terminations as targeting “DEI.” In a post from its official X account (formerly Twitter), DOGE stated:

> “During the previous administration, the National Endowment for the Humanities (NEH) awarded the following grants to spend taxpayer dollars, all of which have been cancelled ($163M in overall savings). NEH grants will be merit-based and awarded to non-DEI, pro-America causes.”
> — DOGE (@DOGE), May 20, 2025, 3:45 PM, [https://x.com/doge/status/1924944059153670530](https://x.com/doge/status/1924944059153670530) (emphasis added)

The Government’s own public statements confirm what the record otherwise makes clear: DEI — the disfavored viewpoint — was the reason the majority of Plaintiffs’ grants were terminated. The Government engaged in blatant viewpoint discrimination.

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Brian Marron @brianmarron.bsky.social · 09/05/2026

Same point continued. "ChatGPT made us do it" is an unprofessionally absurd argument for government lawyers to make.

Therefore, ChatGPT and the Government cannot be treated as distinct actors for constitutional purposes. Any argument to the contrary is unworthy of representatives of the Department of Justice.

Every lawyer who has been sanctioned for submitting briefs containing hallucinated case citations generated by AI could have offered the same excuse: “It wasn’t me; it was ChatGPT.” The fact that those attorneys have, for the most part, acknowledged responsibility and accepted sanctions only underscores the absurdity of the Government’s position.

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Brian Marron @brianmarron.bsky.social · 09/05/2026

Unbelievable. The Trump administration's lawyers actually argued that ChatGPT is the one that did the bigotry. The judge's take on this point is *chef's kiss.*

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Brian Marron @brianmarron.bsky.social · 09/05/2026

Back again. My wife is out with the car that has our pickleball gear. Intermission averted. In this next section the judge describes how an effort to hunt down DEI is impermissible viewpoint discrimination. If this principle applies to grants it probably applies to employment.

b) The Terminations Constitute Unconstitutional Viewpoint Discrimination
i. DEI-Based Viewpoint Discrimination

This case presents a textbook example of unconstitutional viewpoint discrimination.

DEI is, of course, a viewpoint. It “inherently convey[s] the viewpoint that the exclusion of historically disadvantaged groups is undesirable.” Thakur, 163 F.4th at 1206; see also diversity, equity and inclusion, Merriam-Webster, https://perma.cc/84ZW-7JSR
(“a set of values and related policies and practices focused on establishing a group culture of equitable and inclusive treatment and on attracting and retaining a diverse group of participants, including people who have historically been excluded or discriminated against”); see also diversity, equity and inclusion, Cambridge English Dictionary, https://perma.cc/M2GS-L4UT

The record establishes that the termination decisions were driven by an expressly ideological method of classification. There can be no genuine dispute on this point. Indeed, the Government has all but admitted as much. *Accord Thakur v. Trump*, 163 F.4th 1198, 1206 (9th Cir. 2025) (“The government does not dispute that it terminated the subject grants because they promoted DEI, DEIA, or environmental justice.”).

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Brian Marron @brianmarron.bsky.social · 09/05/2026

Same point driven home soundly. I will continue the thread later. My son wants to go play pickleball for a while.

But, in the end, McDonald himself admitted the truth:

> “Either way, as you’ve made clear, it’s your decision on whether to discontinue funding any of the projects on this list.”
> — Dkt. No. 248-5, Ex. 5, NEH_AR_000023 (emphasis added)

That admission is incompatible with any claim that DOGE acted merely in an advisory capacity. It reflects an agency head acknowledging that the authority Congress vested exclusively in him had, in practical effect, been taken out of his hands.

The record permits only one conclusion: DOGE was calling the shots. DOGE controlled the lists, rejected McDonald’s recommendations, added additional grants for termination, drafted and sent the notices, and dictated which previously awarded grants would …

live or die. McDonald’s lone act of permitting his name to appear at the bottom of the termination letters changes none of that. His signature did not transform DOGE’s decision into an NEH decision; it served only as a fig leaf designed to create the appearance that the official legally authorized to terminate grants had actually exercised that authority.

If DOGE had truly been limited to an advisory role, Fox and Cavanaugh could not have directed NEH to terminate specific grants over the objections of its Chair. But that is exactly what they did — without any statutory delegation of authority.

The challenged conduct cannot be reconciled with the National Foundation on the Arts and the Humanities Act or with the constitutional requirement that executive action rest on lawful authority. It cannot stand.

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Brian Marron @brianmarron.bsky.social · 09/05/2026

Same point continued. The judge is not fooled: DOGE was in charge, not the agency official.

Whatever formal role McDonald now claims to have had, the record shows that he could not — and did not — make authoritative decisions on his own during the grant termination process. See *Woodman v. WWOR-TV, Inc.*, 411 F.3d 69, 84 (2d Cir. 2005) (explaining that district courts may rely on “common sense” and are “not required to operate in an experiential vacuum”).

McDonald could recommend that certain grants be spared, but he lacked authority to overrule DOGE’s contrary determinations.

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Brian Marron @brianmarron.bsky.social · 09/05/2026

Same point, continued. During discovery the plaintiffs discovered who was really in charge.

keyword searches and DOGE-generated categories to identify grants he considered objectionable.

DOGE then used ChatGPT-generated "DEI" rationales, combined those classifications with NEH

staff ratings, and generated the final spreadsheets used to identify grants for termination. See supra

Sections I(E)-(G). Cavanaugh and Fox then "both rejected [the NEH Chair's] recommendation"

to continue funding certain grants, Dkt. No. 276-1, Cavanaugh Dep., 181:3-9, and added still more

grants for termination - grants that NEH staff had identified as "N/A"- on the eve of the April 2,

2025 mass termination, Dkt. No. 248-32, US-000041206. The appearance of Chairperson

McDonald's name on the termination letters does not alter the substance of what occurred. Fox,

not McDonald, drafted and sent the termination notices under McDonald's name.

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Brian Marron @brianmarron.bsky.social · 09/05/2026

In this section the judge dispatches the government's excuse that DOGE was merely advising the agency who retained authority and made the termination decisions.

purely advisory." Id. at 15 (emphasis added). But the record here demonstrates that DOGE's role

was anything but advisory. DOGE made the decisions for NEH.

Any suggestion that DOGE merely advised NEH is belied by the undisputed record. They

did not simply provide policy advice for NEH leadership to accept or reject after their review.

Before ever meeting with NEH leadership, Fox had already begun reviewing NEH grants using

- 77-

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Brian Marron @brianmarron.bsky.social · 09/05/2026

DOGE had no authority to act and even if it did the criteria it applied violated the statute and the Constitution.

The relevant point is not that the Chairperson is appointed by the President, but that neither

the NEH statute nor § 200.340(a) confers on DOGE any authority to terminate NEH grants - least

of all by applying criteria that Congress did not enact, that in significant respects contradict the

authorizing statute, and that, as explained below, violate the Constitution.

This conclusion is reinforced by the statute's text. Congress did not merely omit the anti-

"DEI" criterion DOGE applied; it affirmatively instructed NEH to support programs and research

that "reflect the diversity and richness of our American cultural heritage," including the culture of

"a minority, inner city, rural, or tribal community," and to give "particular regard" to scholars and

institutions "that have traditionally been underrepresented." 20 U.S.C. § 956(c)(4).

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Brian Marron @brianmarron.bsky.social · 09/05/2026

No, the president cannot issue orders that obliterate's an agency's ability to function. Congress passed a law creating the agency and giving it instructions for what it is supposed to do. The president is required to faithfully execute that law and those functions.

It turns on the source of legal authority on which he acts. The President may execute congressional

policy, but he may not replace it with his own. As Youngstown put it, the problem with the

President's seizure order was that it "does not direct that a congressional policy be executed in a

manner prescribed by Congress-it directs that a presidential policy be executed in a manner

prescribed by the President." Id. at 588.

The same reasoning applies here. 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. Congress vested funding authority in the NEH Chairperson.

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.

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Brian Marron @brianmarron.bsky.social · 09/05/2026

The motion for summary judment was granted in favor of plaintiffs.

The matter is before the Court on cross-motions for summary judgment and is resolved on the basis of the full record, including contemporaneous emails, spreadsheets, deposition testimony, and the parties' Local Civil Rule 56.1 statements and counterstatements. For the reasons that follow, the Court concludes that Plaintiffs are entitled to judgment as a matter of law on their claims that the Government's Mass Termination of National Endowment for the Humanities grants

(i) violated the First Amendment,
(ii) violated the equal protection component of the Fifth
Amendment, and
(iii) was ultra vires, because, on the undisputed evidence, DOGE officials exercised decisive authority over the selection and termination of NEH grants without any statutory authority to do so.

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Brian Marron @brianmarron.bsky.social · 09/05/2026

Reading through the NEH case decision this week, I'm going to save some snippets that might be of interest to folks fighting back against grant and job cuts from the DOGE times. #RIF #MSPB Here's the full pdf of the decision, snippets to follow. assets.bwbx.io/documents/us... 🧵

A judge looking fellow with a silly wig and a pouty face sitting at a desk with a gavele and an open book.

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Brian Marron @brianmarron.bsky.social · 09/04/2026

We can do more than beg CONGRESS to IMPEACH and wait for them to move. If you want to bring intense pressure on Congress to act, give them a legal finding to use. A person with the right kind of standing can initiate the quo warranto process. That statute is still on the books.

§ 16–3501. Persons against whom issued; civil action.
A quo warranto may be issued from the United States District Court for the District of Columbia in the name of the United States against a person who within the District of Columbia usurps, intrudes into, or unlawfully holds or exercises, a franchise conferred by the United States or a public office of the United States, civil or military. The proceedings shall be deemed a civil action.

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Brian Marron @brianmarron.bsky.social · 09/04/2026

If you want to bring intense pressure on Congress to impeach and remove, you don't need to just lobby them and wait for them to do something. A person with the right kind of standing can use the quo warranto process. That statute is still on the books.

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Brian Marron @brianmarron.bsky.social · 01/04/2026

Yes. My current favorite protest sign:

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Brian Marron @brianmarron.bsky.social · 20/03/2026

Sometimes invisible things get shot. RIP Invisible Swordsman.

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Brian Marron @brianmarron.bsky.social · 18/03/2026

Hey, Robert, along these lines ... I wrote a memo on a legal strategy some plaintiffs should be raising. It could be a powerful tool. I would like to get some scholarly feedback before publishing it more widely. Would you be willing to take a look? I think you would enjoy this one.

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Brian Marron @brianmarron.bsky.social · 11/03/2026

I've got something creative people should do to push back. I just need the right someone to listen.

Excerpt from "THEY TOOK YOUR JOB AND GAVE YOU STANDING.
ASK YOURSELF: “WHAT WOULD JOHN LEWIS DO?”"

You've been given power to act, so what do you do? In addition to the regulatory defects that are being challenged in the haphazard RIF process, there's an overarching issue that's been left out of
these cases (as far as I've heard). There is a fundamental Appointments Clause violation that prevents the agencies from implementing the RIFs even if the RIF was bona fide and followed the properprocedures.

Note: You do have the ability to file your case using a pseudonym (J. Doe) to protect yourself. Dozensof Does have already sued Musk and DOGE.

Consider Raising the Appointments Clause Issue When You Fight Back

Drop it right on top of your other arguments. Announcing, "How do you like them apples?" is optional.

What's an Appointments Clause claim about? A few famous judges can help me explain.

Justice Clarence Thomas wrote: "[The Appointments Clause] cases also ask whether an officer can lawfully exercise the statutory power of his office at all in light of the rule that an officer must be properly appointed before he can legally act as an officer." Collins v. Yellen, 594 U.S. 220, 266 (2021) (Thomas, J., concurring) (emphasis added)

Justice Neil Gorsuch wrote: "[G]overnmental action is taken by someone erroneously claiming the mantle of executive power-and thus taken with no authority at all." Id at 266 (Gorsuch, J., concurring in part).

And, one more for now ...

Judge Aileen Cannon wrote: "[O]ne who makes a timely challenge to the constitutional validity of the appointment of an officer ... ' is entitled to relief." In such cases, which necessarily involve a "[g]overnment actor's exercise of power that the actor did not lawfully possess," the proper remedy is invalidation of the ultra vires action. Invalidation "follows directly from the government actor's lack of authority to take the challenged action in the first place. That is, winning the merits of the...

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Brian Marron @brianmarron.bsky.social · 11/03/2026

A shiny new penny to the first person who can guess the name of the man who said this:

"But to return to your position: Allow the President to invade a neighboring nation, whenever he shall deem it necessary to repel an invasion, is to -- and you allow him to do so, whenever he may
choose to say he deems it necessary for such purpose- and you allow him to make war at pleasure.
Study to see if you can fix any limit to his power in this respect, after you have given him so much as you propose.
If, today, he should choose to say he thinks it necessary to invade Canada, to prevent the British from invading us, how could you stop him? You may say to him, "I see no probability of the British
invading us" but he will say to you "be silent; I see it, if you dont."
The provision of the Constitution giving the war-making power to Congress, was dictated, as I understand it, by the following reasons-Kings had always been involving and impoverishing their
people in wars, pretending generally, if not always, that the good of the people was the object.

This, our convention understood to be the most oppressive of all Kingly oppressions; and they resolved to so frame the Constitution that no one man should hold the power of bringing this oppression upon us. But your view destroys the whole matter, and places our President where Kings have always stood."

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Brian Marron @brianmarron.bsky.social · 10/03/2026

There are even more actions that can be unwound. Kari Lake is not the only one unlawfully appointed. She & others were appointed by a person that the Constitution forbids from holding the power to make appointments. Their appointments were unlawful; their actions voidable.

Screenshot of pages from "They Took Your Job and Gave You Standing: Ask Yourself: 'What Would John Lewis Do?' A Memorandum of Law for the Livid."

The text begins "You've been given power to act, so what do you do? In addition to the regulatory defects that are being challenged in the haphazard RIF process, there's an overarching issue that's been left out of these cases (as far as I've heard). There is a fundamental Appointments Clause violation that prevents the agencies from implementing the RIFs even if the RIF was bona fide and followed the proper procedures.

Note: You do have the ability to file your case using a pseudonym (J. Doe) to protect yourself. Dozens of Does have already sued Musk and DOGE.

Consider Raising the Appointments Clause Issue When You Fight Back

Drop it right on top of your other arguments. Announcing, "How do you like them apples?" is optional.

What's an Appointments Clause claim about? A few famous judges can help me explain.

Justice Clarence Thomas wrote: "[The Appointments Clause] cases also ask whether an officer can lawfully exercise the statutory power of his office at all in light of the rule that an officer must be properly appointed before he can legally act as an officer." Collins v. Yellen, 594 U.S. 220, 266 (2021) (Thomas, J., concurring) (emphasis added)

Justice Neil Gorsuch wrote: "[G]overnmental action is taken by someone erroneously claiming the mantle of executive power-and thus taken with no authority at all." Id at 266 (Gorsuch, J., concurring in part).

And, one more for now ...

Judge Aileen Cannon wrote: "[O]ne who makes a timely challenge to the constitutional validity of the appointment of an officer ... ' is entitled to relief." In such cases, which necessarily involve a "[g]overnment actor's exercise of power that the actor did not lawfully possess," the proper remedy is invalidation of the ultra vires action. Invalidation "follows directly from the government actor's lack of authority to take the ...

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Brian Marron @brianmarron.bsky.social · 10/03/2026

I like the steel in your spine, @cdelawalla.bsky.social. I've got an idea you might like to help pass along into the movement. Here's a tiny sample. What is the best way to send you the full 17 page memo?

Screenshot of one page from "They Took Your Job and Gave You Standing: Ask Yourself: 'What Would John Lewis Do?' A Memorandum of Law for the Livid."

The text begins "You've been given power to act, so what do you do? In addition to the regulatory defects that are being challenged in the haphazard RIF process, there's an overarching issue that's been left out of these cases (as far as I've heard). There is a fundamental Appointments Clause violation that prevents the agencies from implementing the RIFs even if the RIF was bona fide and followed the proper procedures.

Note: You do have the ability to file your case using a pseudonym (J. Doe) to protect yourself. Dozens of Does have already sued Musk and DOGE.

Consider Raising the Appointments Clause Issue When You Fight Back

Drop it right on top of your other arguments. Announcing, "How do you like them apples?" is optional.

What's an Appointments Clause claim about? A few famous judges can help me explain.

Justice Clarence Thomas wrote: "[The Appointments Clause] cases also ask whether an officer can lawfully exercise the statutory power of his office at all in light of the rule that an officer must be properly appointed before he can legally act as an officer." Collins v. Yellen, 594 U.S. 220, 266 (2021) (Thomas, J., concurring) (emphasis added)

Justice Neil Gorsuch wrote: "[G]overnmental action is taken by someone erroneously claiming the mantle of executive power-and thus taken with no authority at all." Id at 266 (Gorsuch, J., concurring in part).

And, one more for now ...

Judge Aileen Cannon wrote: "[O]ne who makes a timely challenge to the constitutional validity of the appointment of an officer ... ' is entitled to relief." In such cases, which necessarily involve a "[g]overnment actor's exercise of power that the actor did not lawfully possess," the proper remedy is invalidation of the ultra vires action. Invalidation "follows directly from the government actor's lack of authority to take the ...

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