On Wednesday of last week, I wrote a post about how the Trump administration had quietly given up defending its unconstitutional executive orders targeting law firms. The DOJ was dropping its appeals, the firms that fought had won, and the firms that capitulated—led by Paul Weiss and their nearly $1 billion in groveling pro bono commitments—were left holding a very expensive bag.

What I did not realize, because this administration launches new absurdities faster than any human being can reasonably track them, was that the day before I published that piece (but about the time I was writing it), the DOJ had already filed a motion to take back its voluntary dismissal. And then, by Friday, the DOJ had filed a full appellate brief seeking to overturn all four district court rulings that struck down the executive orders.

So, to recap the timeline here: On Monday, the DOJ told the DC Circuit it was voluntarily dropping its appeals. All four law firms agreed. Done deal. On Tuesday, the DOJ filed a motion to withdraw its own voluntary dismissal. On Wednesday, I published an article mocking the administration for giving up. On Friday, the DOJ filed a 97-page opening brief arguing that the executive orders were “well within the Presidential prerogative.”

My only defense for coming in a day late is that covering this administration in anything close to real time is effectively impossible.

Let’s start with the procedural absurdity before we get to the substance—because the procedural absurdity is really something.

The motion to withdraw the voluntary dismissal is a remarkable document, mostly for how little it says. The entire operative section is barely over a hundred words. After all parties had agreed to the dismissal, the DOJ simply asked to take it back, offering no explanation whatsoever. The law firms’ collective response, included in the filing itself, was about as polite as you’d expect:

“Plaintiffs-Appellees oppose the government’s unexplained request to withdraw yesterday’s voluntary dismissal, to which all parties had agreed. Under no circumstances should the government’s unexplained about-face provide a basis for an extension of its brief.”

“Unexplained.” That word does a lot of heavy lifting. The DOJ’s motion doesn’t even try to explain why it changed course. There’s no “upon further reflection” or “new developments have arisen.” Just: forget what we agreed to yesterday, the court hasn’t formally granted the dismissal yet, so we’d like to un-dismiss please.

As of this writing, the court hasn’t ruled on that motion. But the DOJ apparently decided not to wait around and went ahead and filed its full appellate brief on Friday anyway.

The opening paragraph of the DOJ’s appellate brief is genuinely one of the more audacious things I’ve read in a legal filing, and I say that as someone who reads a lot of legal filings:

Courts cannot tell the President what to say. Courts cannot tell the President what not to say. They cannot tell the President how to handle national security clearances. And they cannot interfere with Presidential directives instructing agencies to investigate racial discrimination that violates federal civil rights laws.

Let’s focus on those first two sentences, because they reveal something important about how the administration is framing this case—and how badly they’re getting the First Amendment backwards.

“Courts cannot tell the President what to say. Courts cannot tell the President what not to say.”

Well, sure. In the most general sense, that’s true. The president can stand at a podium and say whatever he wants. He can say mean things about law firms. He can call them names on social media. He can go on television and express his displeasure with their client choices. That’s all government speech, and it’s all fine.

But that’s… not what happened here. What happened here is that the president issued executive orders imposing concrete sanctions on specific law firms—revoking security clearances, directing the termination of government contracts, restricting access to federal buildings, banning the hiring of their employees—because those firms represented clients the president didn’t like and employed lawyers who had been involved in investigations the president found personally disagreeable.

The brief tries to frame the courts’ injunctions as an attempt to “silence” the president. But nobody is trying to silence the president. The president can talk about these law firms every day from now until the world ends. What the courts said—four separate times—is that the president cannot use the machinery of government to punish law firms for their constitutionally protected legal advocacy. There’s a rather fundamental difference between speech and sanctions, and pretending not to understand that difference is doing a lot of work in this brief.

This gets at something we talk about regularly here at Techdirt: the First Amendment is a restraint on government power. It prevents the government from using its authority to suppress or punish private speech. When the DOJ frames this as courts trying to control the president’s speech, they’ve got the vector of the First Amendment claim pointing in exactly the wrong direction. The law firms aren’t saying the president can’t talk. They’re saying the president can’t retaliate against them for their own protected speech and advocacy. Those are two wildly different things.

The brief actually cites NRA v. Vullo, the 2024 Supreme Court case that we’ve written about a few times. For those unfamiliar, that case involved New York’s former superintendent of financial services, who was accused of using her regulatory power to coerce financial institutions into cutting ties with the NRA because she disagreed with the NRA’s advocacy. The Supreme Court held—unanimously—that government officials using their regulatory authority to punish or suppress disfavored private speech can violate the First Amendment, even if the official frames their actions in terms of legitimate regulatory interests.

The DOJ cites Vullo in the context of arguing that the district courts went too far in enjoining “future actions” based on Section 1 of the executive orders, quoting the district court’s ruling in favor of one of the law firms (Jenner & Block) favorably:

Significantly, even the district court in Jenner recognized this. That court declined to “enjoin future actions taken pursuant to Section 1,” because “Section 1 does not direct any action.” JA2205–06. But “shorn of its enforcement mechanisms, Section 1 is nothing more than the Executive Branch ‘saying what it wishes.’” Id. (quoting Nat’l Rifle Ass’n of Am. v. Vullo, 602 U.S. 175, 187 (2024)). “Jenner has no more right to silence the Executive Branch than the Executive Branch has to silence Jenner.” Id. That is because Section 1 is “government speech.” Id. Despite Jenner’s repeated request to enjoin Section 1 in the abstract, the district court correctly recognized that “[n]either standing doctrine nor equity generally permits such judicial prophylaxis.” JA2207. Thus, “[w]hether best viewed as a shortcoming of standing, ripeness, or” the lack of any basis in equity, “the guesswork entailed in enjoining all future uses of the sentiments expressed in Section 1 would exceed the Court’s proper role.”

The problem is that Vullo actually undercuts their entire argument. The point of the Vullo framework is that when government speech is coupled with government action designed to punish disfavored private expression, the combination can be unconstitutional coercion. The administration wants to unbundle its speech from its sanctions and defend each in isolation—”Section 1 is just government speech.” That’s precisely the move Vullo says you can’t get away with.

Meanwhile, I have to call out that the same people who argued in the Murthy v. Missouri case that any government speech criticizing private companies constituted a de facto First Amendment violation are now arguing “well, this paragraph was just speech, not retaliatory, so leave it alone.”

The brief also contains a line that should make Paul Weiss and others in the capitulation crowd feel especially great about their choices:

In recognition of those problems, many law firms agreed to address their practices and commit to providing pro bono work in the public interest.

The brief then helpfully lists them in a footnote in case anyone forgot which capitulating law firms to shun:

Allen Overy Shearman Sterling, Cadwalader, Kirkland & Ellis, Latham & Watkins, Milbank, Paul Weiss, Simpson Thacher, Skadden, and Wilkie Farr & Gallagher.

The DOJ is literally using the capitulation of those firms as evidence that the executive orders were reasonable and justified. “See? These firms agreed with us!” The firms that folded bought themselves a supporting role in the government’s brief arguing for the constitutionality of retaliating against law firms. Congratulations! Great job lawyering, guys.

Meanwhile, the four firms named in the brief who fought—Perkins Coie, Jenner & Block, WilmerHale, and Susman Godfrey—are named as parties who “instead filed suit.” See? Capitulating is the only proper move to this DOJ. Standing up for your own constitutional rights deserves punishment.

The heart of the filing is that opening framing. “Courts cannot tell the President what to say.” And the response to that is simple: nobody’s trying to. What courts can do—what they’re required to do under the First Amendment—is tell the president he cannot use executive power to punish private parties for their constitutionally protected advocacy. The fact that the DOJ appears unable or unwilling to understand this distinction tells you everything about the strength of their legal position.

As I noted last week, the administration’s decision to initially drop these appeals suggested that even a DOJ willing to argue almost anything looked at these cases and concluded it couldn’t win. The un-dropping and subsequent brief don’t change that calculus. While the DOJ offered no explanation for its reversal, the timing strongly suggests someone higher up didn’t like the press coverage of them folding and decided the political upside of continuing to threaten the legal profession outweighed the legal downside of losing again. Which, if you think about it, proves exactly what the law firms argued from the start: this was always about intimidation, never about law.

The firms that folded will keep being cited in government briefs as proof that the intimidation campaign was justified.

That’s the tax you pay for cowardice: your surrender becomes someone else’s evidence.

Should parents have a right to monitor and control which sites and apps their kids use? Today, parents do have that legal right under the Children’s Online Privacy Protection Act (COPPA). The 1998 law requires verifiable parental consent before websites or apps can collect, use or share personal information from teens 13 or under. In practice, that means parents must consent for all social media apps. 

The original version of COPPA would have required parental notification whenever teens (ages 14-17) sign up for websites; parents would have had the right to access personal information shared with such sites. Those provisions were dropped after free speech advocates warned that these provisions could “chill protected First Amendment activities and undermine rather than enhance teenagers privacy,” especially when “teenagers may be divulging or seeking information they don’t want their parents to know about.” Thus, the Center for Democracy & Technology warned, while “parents have an important role in protecting their teenager’s privacy, however the bill’s emphasis on parental access may overlook older minors’ interests.”

Now, legislation is moving in Congress that would give parents the right to monitor and control the apps and platforms their teens use. Yesterday, in party-line votes, the House Energy & Commerce Committee sent two bills to the House floor. The “App Store Accountability Act” (ASAA) would require app stores to categorize users by age, associate the minors’ accounts with a parental account, and then obtain consent from the parental account when the minor user creates an account on the app store, or installs any app. This gives parents the right to monitor and control exactly which apps their kids are using. The Committee also approved the KIDS Act, which would require parental consent before any social media “platform” (website or app) could allow teens to use “any direct messaging feature.”

These bills would “make vulnerable kids less safe,” warned the committee’s Ranking Member, Frank Pallone (D-NJ), because they “threaten kids in unsupportive or even abusive households where they can be real-world harms from allowing parents complete access and control over their teens’ online existence.” This is essentially the same concern raised in 1998.

Rep. Diana Harshbarger (R-TN) was more direct than most of her Republican colleagues, insisting that parents need the bills to protect kids “who have access to these online evils.” Which evils? “Kids should not be looking at pornography—this is just common sense, people,” she said. Perhaps so: last year, the Supreme Court upheld age verification mandates for pornography in Free Speech Coalition v. Paxton (2025). But Harshbarger went much further: “We’ve been hearing from a lot of folks who profit off doing harm to kids or have questionable ideological priorities.” 

Her fellow Tennessee Republican, Sen. Marsha Blackburn (R-TN), has been clear about just which “ideologies” need to be stopped. Last year, she was recorded, in remarks to a private meeting of social conservatives, saying the quiet part out loud: Republicans’ top priority should be “protecting minor children from the transgender [sic] in this culture and that influence.” Roughly half of American adults tell pollsters that trans people should be legally required to use public bathrooms that match their sex at birth, rather than the gender they identify with. Many of those parents doubtless think their teens need to be “protected” from sites and apps dedicated to helping LGBTQ teens who feel isolated and alone—apps like TrevorSpace and GiveUsTheFloor. 

These sites aren’t exploiting anyone for profit. They’re both non-profits dedicated to education and building communities of the kids most at risk for mental illness and suicide. Yet ASAA and the KIDS Act would require parents to approve teens’ access to both sites. This isn’t an accident: where COPPA applies only to sites that operate “in commerce” (i.e., for profit), neither bill contains any such limit, and thus both would apply even to pure non-profits. This problem could be fixed with a surgical amendment, but Republicans would surely object and Democrats failed to raise this issue at yesterday’s markup.

Even if this problem were fixed, the larger problem would remain: for-profit apps are overwhelmingly the ones that vulnerable teens use to access perspectives on the world their parents want to block and to find other teens they can relate to. Popular apps like Snapchat and TikTok are especially vital in regions where they face hostility or violence for expressing their sexuality or gender identity. Under ASAA and the KIDS Act, parents could block such apps to “protect” their teens from “online evils” like subversive ideas about gender, sexuality, contraception or religion.

Parents could, under ASAA, also block AI apps. At a Senate hearing last year on “Examining the Harm of AI Chatbots,” one parent complained that a Character.AI chatbot had “turned [her son] against our church by convincing him that Christians are sexist and hypocritical and that God does not exist.” Sen. Josh Hawley (R-MO) told her: “You didn’t know it at the time, but the chatbot was actively indoctrinating your son into questioning your beliefs as a family, your Biblical beliefs.” Questionable “ideological priorities,” indeed.

Both bills pay lip service to the First Amendment. The KIDS Act shall not be interpreted to “[a]llow a governmental entity to enforce this Act based on a viewpoint expressed by or through any speech, expression, or information protected by the First Amendment to the Constitution of the United States.” Likewise, ASAA “shall not be construed … to affect or restrict the expression of political, religious, or other viewpoints.” These rules of construction might well help ensure that courts scrutinize selective enforcement of these bills aimed at suppressing disfavored speech. But these provisions won’t address the core problem with the bills: that parents will block viewpoints they don’t want their teens to access by controlling which apps and platforms they use.

“Constitutional rights do not mature and come into being magically only when one attains the state-defined age of majority,” as the Supreme Court has noted. “[M]inors are entitled to a significant measure of First Amendment protection,” the Court has said, “and only in relatively narrow and well-defined circumstances may government bar public dissemination of protected materials to them.” 

The Court reiterated this point in Brown v. Entertainment Merchants Association (2010), which struck down age verification requirements for video games. Because virtual violence was not obscene to minors, the First Amendment applied—unlike Paxton, which upheld a Texas law requiring age verification for sites whose content was at least one third composed of pornography, which is obscene to minors. In Brown, California argued that its law was “justified in aid of parental authority: By requiring that the purchase of violent video games can be made only by adults, the Act ensures that parents can decide what games are appropriate.” The Supreme Court has long recognized “the liberty of parents and guardians to direct the upbringing and education of children under their control.” But the Brown Court doubted “that punishing third parties for conveying protected speech to children just in case their parents disapprove of that speech is a proper governmental means of aiding parental authority.” Those “doubts” should apply even more strongly to ASAA and the KIDS Act.

Rep. Harshbarger claimed that the KIDS Act hews closely to Paxton. Another member referenced the Eleventh Circuit’s recent decision in CCIA & NetChoice v. Uthmeier, which allowed a Florida law that included an age verification mandate for social media to take effect pending a First Amendment challenge. The appeals court claimed that Paxton “recently clarified that age verification does not automatically trigger strict scrutiny because it does not constitute a ‘ban on speech to adults.’”

Both misread Paxton. Here’s what the Court actually said: “the First Amendment leaves undisturbed States’ power to impose age limits on speech that is obscene to minors.” That’s irrelevant here. Like the age verification requirement for violent video games in Brown, the KIDS Act and ASAA both clearly require age verification for content that is not obscene to minors—and both bills clearly do burden the First Amendment speech of adults to access entirely lawful speech anonymously. True, ASAA tries to reduce this burden by applying the age verification mandate only to the category of users that are found likely to be minors (presumably excluding much older adults), but such a category will necessarily include many adults, who will have to identify themselves to exercise their First Amendment rights—exactly what made age verification unlawful in Brown. 

TechFreedom prebutted the Eleventh Circuit’s confusion in Uthmeier. As our amicus brief explained, Paxton essentially said two things. First, for content obscene to minors, age-verification laws are (now—due to Paxton’s contortions) akin to regulations on expressive conduct. When content obscene to minors is at issue, the state’s regulatory power “necessarily includes the power to require proof of age.” In the context of adult content (pornography), in other words, an age-verification “statute can readily be understood as an effort to restrict minors’ access” to speech unprotected as to them. In the context of social media, by contrast, no such assumption applies. Restrictions in that realm remain, as they have always been, presumptively unconstitutional direct regulations on speech—as Brown held. The Eleventh Circuit simply misunderstood this, and buried its misreading of Paxton in a flimsily reasoned footnote.

So, what can lawmakers do, consistent with the First Amendment? Congress might start by creating a more privacy-protective national standard for age verification for pornography. Notably, Texas’s law does nothing to address the data security concerns raised by collecting user information for age verification. 

For social media services, lawmakers should focus on what has always been the clearest harm: sexual exploitation by adults. Legislation could start by empowering parents to control who their teens can communicate with. In this sense, the KIDS Act is better than ASAA: it focuses on parents’ access to direct messaging controls rather than approving the installation of each app. Democrats’ alternative bill, the “Safe Messaging for Kids Act,” is still more focused: it would require only that platforms “shall provide a parental tool to allow a parent of a covered user to view the covered user’s direct messaging control settings.” But both bills would require some form of age verification for some adults for lawful content. Paxton doesn’t make that constitutional. 

But maybe that’s OK. Do parents really need the government to require platforms and app stores to age-verify users to determine who’s a minor? ASAA requires that a minor’s account “be affiliated with a parental account” but it doesn’t require any effort to prove that the parental account actually belongs to the minor’s parent, because there is no easy or reliable way of doing so. Instead, it’s enough that this account “be established by an individual who the app store provider has determined is an adult.” If we can reasonably assume that person is the parent, why can’t we trust parents to manage the settings on devices they purchase for their teens? After all, mobile carriers allow only adults to set up accounts. 

If the existing parental controls in operating systems and app stores are inadequate or too hard to use, that’s where regulation should focus. That would be “less restrictive” of speech, in First Amendment terms, than forcing adults to identify themselves. Perhaps parents do need better controls over direct messaging. Apple iOS currently allows parents to control direct messaging but only for built-in apps. But if any controls required by law should be content and viewpoint-neutral, which means that they should work across all apps, lest they become an indirect way for parents to veto teens’ use of particular apps, like TrevorSpace or GiveUsTheFloor.

Whatever the government might require, it has no business protecting teens from “questionable ideological priorities,” even through the indirect means of requiring parental controls. “Whatever the power of the state to control public dissemination of ideas inimical to the public morality, said the Supreme Court long ago, “it cannot constitutionally premise legislation on the desirability of controlling a person’s private thoughts.” That’s true even if that person is a teenager.

Berin Szóka is President of TechFreedom.

Say what you will about cops — even the federal ones — but they have nothing on the people charged with guarding people who have been detained or imprisoned. The cruelty of cops is slightly tempered by the fact that anyone with a cell phone, dash cam, or doorbell surveillance device might catch them in the act. It’s not much a deterrent (and it’s a far better deterrent than police body cameras, ironically enough) but it’s better than the absolute nothing that’s in place in detainment centers, jails, and prisons.

Cops can control their own cameras. Prison guards can control an entire network of cameras. And they’re far more used to dehumanizing people than law enforcement officers on the outside.

So, it’s hardly surprising that the people keeping an eye on the thousands of migrants being imprisoned indefinitely by this administration would be the most inhumane. If citizens stuck in prisons are treated like (diseased) cattle at best, the people dumped into ICE detention centers are treated like something even worse: vermin. That’s a loaded term. And I’m using it correctly when speaking about this administration.

The Associated Press has obtained some evidence of the day-to-day oppressive indignities ICE detainees suffer through each day. And from an unlikely source: 911 calls placed by detainment center staff. Things have to be particularly horrific for guards to consider calling 911 for help.

And they are:

The calls to 911 poured in from staff at Camp East Montana in Texas, the nation’s largest U.S. Immigration and Customs Enforcement detention facility, at a rate of nearly one a day for five months, each its own tale of pain and despair.

A man sobs after being assaulted by another detainee. Another bangs his head against the wall after expressing suicidal thoughts. A pregnant woman complained of severe back pain and also had coronavirus.

Even worse is what’s been said by the detainees. Welcome to the Trump’s brave new world, where bigoted anti-migrant enforcement is now coupled with the potentially deadly effects of this administration’s anti-vax healthcare stance:

The detainees describe a camp where an average of about 3,000 people have lived per day in loud and unsanitary quarters, diseases spread easily and sleep is a luxury. The center will be closed to visitors until at least March 19 because of a measles outbreak, according to U.S. Rep. Veronica Escobar.

That’s mass inhumanity, aided and abetted by an administration that doesn’t care how many people die so long as it can claim some sort of revenge over COVID-19 policies put in place in the last year of Trump’s previous presidential term.

Here’s the more selective inhumanity, which isn’t any better:

At one point [detainee Owen Ramsingh] said he overheard a security guard talking about bets made among the staff over which detainee would be next to die by suicide. The guard said he had paid $500 into a pool, with the total pot riding on the outcome. The talk was particularly jarring, he said, because he had contemplated suicide himself.

Some of you might be saying to yourselves “Well, that’s just something one guy said.” And that’s true, it’s just one guy saying this. But this is also just one guy saying this:

The DHS spokesperson said Ramsingh’s account was false, though provided no indication of how the agency had sought to verify that.

True or not, these are the facts on the ground in Camp East Montana:

Ramsingh said he heard of the betting pool after Jan. 3, when ICE said security guards responded after a 55-year-old Cuban man tried to harm himself and then used handcuffs and force to restrain him. A medical examiner ruled that Geraldo Lunas Campos’s death was a homicide caused by asphyxia.

On Jan. 14, staff reported that a 36-year-old Nicaraguan man died by suicide days after he was detained while working in Minnesota.

Given what we know about what’s happening in this detainment center, coupled with what we know about the historical sadism of “screws,” this doesn’t seem that far-fetched. Then there are the 911 calls — placed by the guards themselves — that made it clear at least six other detainees had attempted or considered attempting suicide during that same time period.

So, while it could just be some guy saying something, consider this: the DHS has more to gain from denying this than Ramsingh — who has already been deported — has to gain from making this allegation.

I don’t find this allegation unbelievable. It seems like exactly the sort of thing people trained and encouraged to treat detainees as less than human would do, especially when suicides and suicidal ideation are a daily occurrence. The government contractors employing them are profiting from human misery. Why shouldn’t they?

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When companies sued to block Trump’s IEEPA tariffs last year, one of the key arguments they made was obvious: if these tariffs turn out to be illegal, we’ll never get our money back. We need an injunction now. The government had an equally confident response: relax, if the tariffs are struck down, we’ll just issue refunds. No big deal. No injunction needed.

Multiple courts bought it. And now, with the Supreme Court having ruled the tariffs unlawful and a judge ordering the refunds, CBP is telling the court that it actually can’t comply with the order. The promises that defeated all those injunctions? Turns out nobody bothered to check whether they were actually true.

Once again, courts trusted what the government told them. Once again, it turns out they were wrong.

Let’s rewind to see how we got here.

Back in April 2025, when importers like V.O.S. Selections were seeking a preliminary injunction to stop the tariffs from being collected, the Department of Justice told the Court of International Trade there was simply no need for such drastic relief. In its brief opposing the injunction, the DOJ was explicit:

And, even if future entries are liquidated, defendants do not intend to oppose the Court’s authority to order reliquidation of entries of merchandise subject to the challenged tariffs if the tariffs are found in a final and unappealable decision to have been unlawfully collected. Such reliquidation would result in a refund of all duties determined to be unlawfully assessed, with interest.

No injunction needed! Refunds would flow. With interest, even. The government repeated this refund promise in case after case after case. In the Learning Resources stay motion, the government told the D.C. district court that there was no risk at all that the government wouldn’t repay:

For any plaintiff who is an importer, even if a stay is entered and defendants do not prevail on appeal, plaintiffs will assuredly receive payment on their refund with interest. “[T]here is virtually no risk” to any importer that they “would not be made whole” should they prevail on appeal. See Sunpreme v. United States, 2017 WL 65421, at *5 (Ct. Int’l Trade Jan. 5, 2017). The most “harm” that could incur would be a delay in collecting on deposits. This harm is, by definition, not irreparable.

In the Axle case, same thing.

In any event, were Axle to ultimately prevail, it could receive a refund of duties paid that would otherwise be eligible for duty-free treatment under the de minimis exemption on any unliquidated entries. 28 U.S.C. §§ 2643-44. To the extent any future entries are liquidated, the Court may order reliquidation of entries subject to the challenged de minimis exemption if the duties paid by Axle are, in a final and unappealable decision, found to have been unlawfully collected. Such reliquidation would result in a refund of all duties determined to be unlawfully assessed, with interest.

In the Princess Awesome joint stipulation, the government formally agreed that there was nothing to fear about getting repaid:

Defendants stipulate that they will not oppose the Court’s authority to order reliquidation of entries of merchandise subject to the challenged IEEPA duties and that they will refund any IEEPA duties found to have been unlawfully collected, after a final and unappealable decision has been issued finding the duties to have been unlawfully collected

And the courts relied on these representations. In December 2025, when AGS Company Automotive Solutions sought a preliminary injunction to stay the liquidation of its entries, the three-judge panel denied the motion specifically because of the government’s refund promises:

For the reasons stated above, we conclude that the Government has taken the “unequivocal position” that “liquidation will not affect the availability of refunds after a final decision” in V.O.S. Gov’t Resp. at 2–3. The Government would be judicially estopped from “assum[ing] a contrary position” in the future.

Note the court’s foresight here. The panel explicitly invoked judicial estoppel—basically saying “okay, now that you’ve said this to a court, you’re bound by it going forward.” You get the sense that the court had a sense of where all this was going.

Then the Supreme Court ruled 6-3 in Learning Resources, Inc. v. Trump that the IEEPA tariffs were unlawful. Judge Eaton at the Court of International Trade—designated as the sole judge to handle IEEPA refund cases—last week ordered CBP basically pay back everyone who paid an IEEPA tariff. Everyone. Not just those who sued.

In court, when the DOJ pushed back a bit, Eaton was blunt:

“Customs knows how to do this,” Eaton said during a court hearing on Wednesday. “They do it every day. They liquidate entries and make refunds.”

Enter the declaration of Brandon Lord, CBP’s Executive Director of the Trade Programs Directorate, filed the day after Judge Eaton’s order. He points out that, actually, there are a TON of tariffs to repay.

As of March 4, 2026, over 330,000 importers have made a total of over 53 million entries in which they have deposited or paid duties imposed pursuant to the International Emergency Economic Powers Act (“IEEPA”), 50 U.S.C. § 1701 et seq. (the “subject entries”). As of March 4, 2026, the total amount of IEEPA duties and estimated duty deposits collected pursuant to IEEPA is approximately $166 billion. Approximately 20.1 million entries remain unliquidated as of March 4, 2026.

And, apparently, it turns out that CBP is not at all prepared to repay what it owes:

In light of the Court’s March 5, 2026 amended order, CBP is now facing an unprecedented volume of refunds. Its existing administrative procedures and technology are not well suited to a task of this scale and will require manual work that will prevent personnel from fully carrying out the agency’s trade enforcement mission. Personnel would be redirected from responsibilities that serve to mitigate imminent threats to national security and economic security.

Lord’s declaration lays out a big list of technical and logistical obstacles. CBP’s Automated Commercial Environment (ACE) system can apparently only batch-process 10,000 entry summary lines at a time, and there are over 1.6 billion entry summary lines that need updating. Importers frequently lumped their IEEPA duties together with other duties on the same line, meaning CBP personnel would have to manually untangle the amounts. Processing each individual refund takes about 5 minutes, which across 53 million entries works out to over 4.4 million hours.

There’s also a mess involving different entry types and automatic liquidation timelines—Lord’s declaration goes into a bunch of technical details about “formal” vs. “informal” entries, claiming that 4 million entries will automatically process next week and “CBP does not have a process to prevent” it. Even if the legal details are deep in the weeds, the message is clear: even with the Supreme Court ruling in hand, CBP claims parts of this train are still moving and they can’t stop it.

CBP says it can build new ACE functionality in 45 days that would streamline the process. The proposed system actually sounds reasonable. Which makes it worse: if you spent the better part of a year telling every court that would listen that refunds were totally manageable, that there was “virtually no risk” importers wouldn’t be made whole, that “such reliquidation would result in a refund of all duties determined to be unlawfully assessed, with interest”—then maybe, just maybe, you should have spent some of that year building the system to actually do it? Send over a DOGE bro or two to vibe code up a solution?

The Supreme Court case wasn’t a surprise. The government was a party to it. They knew the ruling was coming. They knew that if they lost, refunds would be necessary on a massive scale. And even just based on how the oral arguments went, they should have known how this would turn out.

Instead, CBP appears to have done absolutely nothing to prepare. The government used the promise of easy refunds as a sword to defeat injunction after injunction, convincing courts that importers would suffer no irreparable harm because the money could always be returned. Having successfully avoided those injunctions—allowing the tariffs to keep being collected for months on end, swelling that $166 billion pot—the government now tells the court that returning the money is an operational nightmare that requires new technology it hasn’t built yet.

This is exactly the scenario the AGS panel warned about. And if the government tries to argue that it can’t provide refunds—rather than that it just needs more time—it will run headlong into the judicial estoppel doctrine that the court already set up like a tripwire. As the AGS panel put it, quoting the Supreme Court: “where a party assumes a certain position in a legal proceeding, and succeeds in maintaining that position, he may not thereafter, simply because his interests have changed, assume a contrary position.”

Every month the government successfully avoided an injunction was another month it kept collecting tariffs. That $166 billion didn’t accumulate by accident. The government had every incentive to promise easy refunds and zero incentive to actually prepare for them. The longer importers waited for relief, the bigger the pot grew.

And now, with the Supreme Court having ruled those tariffs illegal, and with courts having explicitly warned that the government would be judicially estopped from changing its position, CBP says it needs 45 days to build new software before it can start writing checks.

“Customs knows how to do this,” Judge Eaton said. “They do it every day.”

Maybe. But apparently nobody in the entire federal government thought to ask whether CBP could actually deliver on the promises DOJ was making to court after court after court. Either that, or they just didn’t care what the answer was.

I think this recent post by AI industry CEO Matt Shumer is worth a read. In it, he basically explains how quickly LLMs (large language models) are evolving to supplant many developers and programmers, and how that disruption is coming to other industries quickly. He also warns critics of AI to adjust their priors and realize the AI tools you mocked just six months ago, aren’t the ones in use today:

“I am no longer needed for the actual technical work of my job. I describe what I want built, in plain English, and it just… appears. Not a rough draft I need to fix. The finished thing. I tell the AI what I want, walk away from my computer for four hours, and come back to find the work done. Done well, done better than I would have done it myself, with no corrections needed. A couple of months ago, I was going back and forth with the AI, guiding it, making edits. Now I just describe the outcome and leave.”

While the post is interesting (with the understanding this is somebody making and selling automation software), you might notice something: absolutely nowhere in the blog post does he meaningfully acknowledge the widespread problems with existing AI use. Either because his financial self-interest doesn’t allow for honest acknowledgment of them, or because he simply doesn’t find those aspects all that interesting.

Maybe both.

There’s no mention of how these tools are causing corporations to blow past their already tepid climate goal; no mention of how the affluent, surveillance-obsessed exec dictating its trajectory enthusiastically cozied up to fascists; no mention of how Elon Musk and Mark Zuckerberg’s data centers are funneling pollution directly into black neighborhoods; zero mention of the technofascist plan to leverage AI to decimate unions; no mention of the weird and precarious financial shell games powering the sector.

This New York Times article from a couple weeks ago is probably a better example of this art form. It’s an article, ostensibly about why the public has been so hostile to AI, that takes until the THIRTY-EIGHTH paragraph to actually try and explain some of the reasons. And even then it’s kind of a throwaway paragraph that doesn’t wrestle seriously with any of the criticism:

“The tech executives who are betting their companies’ futures on the triumph of A.I. have many resources to make sure it happens. They can spend even more money to build even more data centers. On the other hand, data centers around the country are increasingly a target of opposition for local residents who dislike the noise, the disruption, the secrecy and the lack of community benefits like jobs.”

Distilling the animosity against AI as just some random grumbling about “noise” and ambiguous “disruption” is a very weird and conscious choice, and I’d argue that this minimization, a reflection of the establishment press’ need to appease and protect access to corporate power, is itself a major contributor to growing hostility toward AI.

The fact that much of the public animosity to AI may be linked to the fact that its salesmen have overtly and enthusiastically enabled fascism just isn’t mentioned. The Times doesn’t think that’s relevant.

The fact that many U.S. billionaires see AI largely as a way to lazily cut corners and obliterate unions (see: its rushed adoption in journalism outlets like the LA Times or Politico) isn’t mentioned either. That the goal for most AI executives is to power this latest technological revolution completely free of any corporate oversight whatsoever? Again, somehow not deemed relevant.

Stories like this cling to a narrative that vaguely imply people are generally angry about AI due to some ambiguous flaw in their “perception,” likely caused by the way AI is being portrayed to the public on the tee vee:

“The A.I. companies seem increasingly alert to a perception problem. This year’s Super Bowl featured A.I.-themed ads that were defensive or just odd. Amazon’s ad showed A.I. proposing ways to kill Chris Hemsworth. The twist at the end: A.I. disarms him with a promised massage.”

And while there certainly are people who are intractably hostile to all aspects of automation and simply refuse to engage with it on any level (including understanding it), a huge swath of the animosity is being driven by historic and justified anger at the extraction class.

That anger and energy is good, and just, and will likely serve us well in the months and years to come. I’d argue it deserves a wide berth; including by tech industry insiders and AI advocates who don’t want to live under permanent kakistocracy staffed by weird zealots who operate at a third-grade reading level, openly enthusiastic about their grand visions for a permanent mass-surveillance murder autocracy.

Stories like this Times piece will often fixate on the AI “doomer narrative” (SkyNet will kill us all), but downplay that this specific strain of doomerism (very often pushed by wealthy industry insiders), often exists to both misrepresent what LLMs are capable of, but also to direct attention away from more realism-based criticism the industry doesn’t really want to talk about.

That’s not to say people can’t or shouldn’t be excited by evolutions in automation. But it is to say if you’re an AI advocate and you’re not also talking seriously about the very valid reasons so many people are pissed off, you’re not really talking seriously about the subject at all. You’re in marketing.

For many years now we’ve had two regular posts that come out on the weekends: our This Week In Techdirt History posts on Saturdays, and our Funniest/Most Insightful Comments Of The Week posts on Sundays. Sometimes we switch it up a little bit, replacing the history post with a special promotion or (as will be happening again soon!) with our Winner Spotlight posts for our annual public domain game jam.

This has been rolling along smoothly and we don’t plan any major changes, but we occasionally discuss whether there are tweaks we should make, and since I’m on vacation this week (and thus not around to write today’s comments post) we thought it would be a good time to check in with our readers and find out what you think.

In general, the weekend posts don’t get a lot of traffic, though that’s never been our reason for doing them anyway: they are for our community of commenters and long-time readers who we know appreciate them. Nevertheless, the relatively small audience for these posts is why we try not to expend too much time and effort creating them every week, as we’re all very busy around here and there are always a lot of projects on the go!

So with that in mind, we want to know: do folks like these posts? Is there stuff we can do to improve or refresh them going forward? Is there something else entirely you’d like to see as a weekly feature? Sound off in the comments, and we’ll be discussing the possibilities over the coming weeks.

There’s one change that we’ve already talked about and will likely be rolling out after the upcoming run of game jam winner spotlight posts: since Techdirt’s history has grown so long, and since frankly nobody wants to be repeatedly confronted with the fact that 2021 is already five years behind us, we’re going to ditch the “five years ago” section in the history round-ups and instead look at posts from ten, fifteen, and twenty years ago. Next year when we celebrate our 30th birthday, we might even change that up again to ten, twenty, and thirty year sections. Reaching further back just seems more fun and interesting than reminiscing on the recent past.

Also on the history posts, there’s a question I’d love some reader feedback on: is the “paragraph format” with a brief summary of some posts from the week worth keeping? Or would it be just as good (perhaps better) to go with just a bullet-list of selected headlines? Or something else?

As for the comments posts, these are our longest-running and most important tradition, as we’ve always valued our community of commenters and we want to highlight your contributions. However, as you know if you read them every week, lately it’s often been a struggle to populate the “funny” side of the list, and admittedly the quality of the Editor’s Choice selections can vary a lot, as it depends on how much time we (and especially I) have had to follow and engage in the comments on a given week.

So again we want your feedback: should anything change about the comment posts? Should we pivot away from Editor’s Choice and instead feature the top three winners-by-vote in each section (maybe retaining a single Editor’s Choice comment on each side, or just one for the week?) And how should we handle it when it’s a slow commenting week and there just aren’t enough highly-voted comments to make a post? (On especially slow weeks on the funny side, sometimes the “winners” are really just the chance recipients of a trickle of idle votes, and not really comments that make any sense to feature).

There’s also a similar question about the comments posts as there was about the history posts: is the brief written summary (in which I try to explain the context of a comment if and when it’s absolutely necessary to understand the comment itself) worthwhile? Or would a more dry bullet list that simply quotes and links to the winning comments and their authors suffice, leaving readers to go check out the full context as they wish?

Beyond these specific questions, we’re open to any and all thoughts on how the weekend posts should change (if they should change at all) and suggestions about anything else you might like to see. We’re not in a rush to make any changes, but it’s worth getting the conversation started. Let us know in the comments. (And if any suggestions are especially popular and get lots of votes, maybe they’ll turn up in next week’s winning comments post!)

Five Years Ago

This week in 2021, while AT&T was apparently committed to being comically hypocritical about Section 230, Utah was prematurely trying to dance on 230’s grave with a new and extremely horrible “free speech” bill that was a disaster in the making, and we had Ron Wyden and Chris Cox on the Techdirt Podcast to talk about why 230 matters so much. Washington State was also spitting on Section 230 by going after Google for political ads, while Arizona was moving forward with a law that would force Google and Apple to open up payments in app stores. Meanwhile, Parler dropped one lawsuit against Amazon then filed an equally dumb new one, a reporter sued the DOJ to find out if it was helping Devin Nunes try to unmask the @DevinCow Twitter account, and the FBI director was using January 6th to once again ask for encryption backdoors.

Ten Years Ago

This week in 2016, it was the CIA and NSA directors talking about encryption, specifically blaming the media for terrorists using it. Congress actually seemed pretty angry about the FBI’s belief that the courts could force Apple to help it get into iPhones, and we read all 20 court filings in support of Apple in the fight, as well as the rather problematic filings from law enforcement groups on the side of the FBI, though nothing was as insane as the brief from the San Bernardino District Attorney. Meanwhile, Brazil arrested a Facebook executive because the company refused to reveal info on WhatsApp users, but a different judge quickly ordered his release. And, in a post that seems almost quaint in its obviousness now, we wrote about how Donald Trump could definitely cause problems for free speech and the First Amendment.

Fifteen Years Ago

This week in 2011, ICE’s boss was insisting it was okay to ignore the constitution and seize domain names to help companies, Senator Al Franken was defending censoring the internet for the sake of Hollywood’s business model, and Rep. Darrell Issa was insisting that the IP Czar should be able to pin liability for file sharing on third parties (not unlike what Rosetta Stone was demanding while writing in support of COICA). Meanwhile, UK publishers were speaking out against fair use, the BSA was fearmongering about open standards, and new proposed legislation to protect the IP of farmers would make it a felony to photograph farms.