Morning Report

November 18, 2025 — Morning Report

Nov 18, 2025

1118 AM TT

It took from April to November for one of the first major challenges to the administration's funding freezes to make it to a federal appeals court — and Bryan used the timing to explain why he wasn't panicking about the pace of court challenges.

Back in January 2025, when the administration began broadly cutting off congressionally appropriated funding to states on the grounds of "woke ideology," 22 states joined New York in suing. This case focused on the blocking of FEMA funding — direct congressional appropriations to states, not discretionary grants or contracts. The case had traveled through initial TRO and preliminary injunction phases since spring. By November 18, it was finally being heard on appeal by the First Circuit Court of Appeals. Bryan flagged this timing explicitly for his audience: people kept asking why courts hadn't stopped anything yet, and this was his answer. The wheels of litigation move slowly. Getting from April district court filings to November appellate arguments is not unusual — it's the system working. The First Circuit's treatment of the case as involving direct congressional appropriations (not Tucker Act contract matters) was the key legal distinction keeping it in the district court/appellate track rather than being routed to the Court of Federal Claims.

Constitutional question: Separation of powers: Congress appropriates money; the executive branch spends it. The core question is whether the executive may refuse to disburse congressionally appropriated funds to states on the grounds of ideological disagreement with how those funds will be used.

Cambridge v. FHSAA 24-1261 · 24-1261

The Supreme Court declined to hear a case where Christian schools wanted to pray over the public address system before a state athletic association's football game — leaving in place an 11th Circuit ruling that the loudspeaker was state speech, not student speech.

Cambridge Christian School and another private Christian school wanted to pray over the public address system before a championship football game organized by the Florida High School Athletic Association — a state body. The FHSAA said no: anything broadcast over that loudspeaker is the state speaking, and the state can't endorse religion. The 11th Circuit sided with the FHSAA under what Bryan called the "state speech" theory — inserting an extra analytical layer between the prayer and the Establishment Clause. Rather than asking directly whether the prayer established a religion, courts ask: who is speaking? If the entity controlling the PA system is a state actor, then whatever comes through it is state speech, and the Establishment Clause bars the state from delivering religious content. The Supreme Court denied cert without opinion. Bryan noted the 11th Circuit theory was interesting and would continue to develop — the court didn't necessarily endorse or reject the theory, it just didn't take the case.

Constitutional question: Establishment Clause: the state cannot endorse religion. The state speech theory reframes the question from "is this a religious practice the state is endorsing?" to "is the state the speaker?" — a threshold inquiry that may block religious expression even where the underlying activity (student prayer) would be constitutionally protected if conducted independently.

Hutson v. US 24-1022 · 24-1022

New Orleans had agreed in 2013 to build a prison with mental health beds — and when it tried to get out of the deal, the Supreme Court declined to hear the case, though Alito and Thomas signaled the underlying cause of action never should have existed.

In a 2013 consent decree, New Orleans agreed to build a prison with dedicated space for mental health patients. Years later, New Orleans tried to modify or escape the agreement, arguing circumstances had changed. Bryan's reading was that the "changed circumstances" appeared to be new elected officials who simply disagreed with the commitment. The Supreme Court denied the petition for certiorari — the case would not be heard. But Justice Alito, joined by Thomas, wrote in dissent that the original cause of action enabling that consent decree was legally improper and should never have been allowed to proceed. Alito's position: the underlying legal authority for a federal court to impose and enforce such a decree on a local government is itself questionable, and if he'd had his way, the whole case would have been dismissed years earlier. With cert denied and no opinion on the merits, New Orleans had to keep building the mental health facility.

Constitutional question: Federalism and the limits of federal judicial power over local government: Justice Alito's position raises the question of whether federal courts have constitutional authority to bind state and local governments to consent decrees in perpetuity — and whether subsequent changes in local political leadership constitute changed circumstances that entitle a party to modification.

US v. Comey 25-cr-00272 · 1:25-cr-00272

A judge appointed specifically to review the Comey prosecution found the government used privileged attorney-client communications as evidence and that the prosecutor may have swapped the indictment after the grand jury voted — calling it a "disturbing pattern of profound investigative missteps."

Bryan gave a comprehensive breakdown of a new filing from a separately-appointed judge reviewing the case. The origin: in 2020, the FBI searched the records of Daniel Richman, Comey's attorney, pursuant to a warrant focused on whether Richman had leaked classified documents. The warrant included a judicial order to seal everything beyond its scope. In 2025, the FBI pulled those records back out without court authorization and searched them for evidence against Comey. The filing judge identified two immediate Fourth Amendment problems: the FBI violated the warrant's particularity requirement (searching for different crimes than listed) and used Comey's attorney-client privileged communications without notice to Comey (attorney-client privilege belongs to the client, not the attorney — Richman's waiver of his own privilege didn't waive Comey's). The grand jury proceeding itself had three additional fatal defects: the prosecutor told the grand jury Comey bore the burden of proving his innocence (wrong); told them the government had more evidence coming at trial so they didn't need the whole record (not allowed); and when the grand jury voted to reject one of three counts — handwriting the rejection on the charging document — the prosecutor printed a new document with only the two accepted counts and told the foreperson to sign it, apparently without presenting the new document to the full grand jury. The judge ordered the transcript turned over to Comey and suggested he file a motion to dismiss.

Constitutional question: Fifth Amendment grand jury clause and Fourth Amendment: whether the government may build a criminal case on evidence obtained through a sealed search warrant from a different case, using privileged communications never cleared with the client — and whether grand jury irregularities of this magnitude invalidate the resulting indictment.

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