Category: Presidential Power

  • District Court Halts Trump’s Latest EO on Birthright Citizenship

    A federal district court today issued a preliminary injunction preventing the Administration from enforcing President Trump’s latest effort to restrict birthright citizenship.

    The ruling means that the Administration can’t enforce President Trump’s post-Barbara executive order on birthright citizenship.

    We expected this result, given that President Trump’s latest EO plainly flies in the face of Barbara (and the Fourteenth Amendment and federal law). The only surprising thing about this whole episode is that President Trump issued a post-Barbara EO at all. (But maybe that’s not even all that surprising.)

    Some background may help:

    Recall that President Trump issued an EO on his first day of his second term that purported to deprive birthright citizenship to individuals born to parents who were in the country temporarily or unlawfully. The Supreme Court this summer ruled in Trump v. Barbara that this violated the Fourteenth Amendment and federal law. (The Court split 5-4–the slimmest of margins–on the constitutional question. Still, a Court ruling is a Court ruling, no matter the head-count.)

    Only a month after the Court ruled, President Trump issued a second EO purporting to limit birthright citizenship. This time, the EO says that individuals born to a parent who is an “enemy alien” or a “foreign government employee,” or who “engage[d] in a commercial transaction” to ensure that the individual was born in the United States do not qualify for birthright citizenship.

    Plaintiffs sued again, with a class that’s identical to the one in Barbara, and argued that the new EO runs directly contrary to Barbara.

    The district court agreed. In short, the court said that Barbara dictated the outcome here, and that the Administration’s claims that the second EO worked within the Barbara parameters simply misread Barbara.

    The court enjoined the Administration from enforcing the EO against the class “and from taking any other action to interfere with, deny, or fail to recognize the citizenship of any member of the certified class until further order of this Court . . . .”

  • Whistleblower Details Problems with USPS Portal

    A whistleblower described the many problems with the USPS portal for states to upload voter information under USPS regs adopted pursuant to President Trump’s EO on mail-in voting.

    The disclosure comes as the Administration seeks a stay at the First Circuit of the district court’s temporary restraining order halting the new USPS regs. (The district court’s TRO expires on September 10. The district court is moving quickly to decide on a motion for a preliminary injunction.)

    We posted most recently here.

    The Supreme Court previously allowed implementation of President Trump’s EO to move forward, on the ground that state plaintiffs couldn’t then yet show how it would harm them.

    But state plaintiffs quickly refiled to challenge USPS’s actually implemented regulations. (USPS adopted the regs on a Friday before the Court ruled on the following Monday.) It’s this new case that’s now in the district court (considering a preliminary injunction) and at the First Circuit (on the Administration’s request for a stay of the TRO).

  • Supreme Court Allows Construction on Trump’s Ballroom to Proceed

    The Supreme Court today lifted a lower-court injunction against continued construction of a ballroom at the White House.

    The ruling allows construction of the ballroom to continue while the case moves forward in the courts on the merits.

    The preliminary ruling says only that the plaintiff lacked standing to challenge construction of the ballroom; it doesn’t say anything about the underlying merits–whether construction is lawful.

    The Court ruled that the National Trust for Historic Preservation in the United States lacked standing to sue on the ground that one of its members, Alison Hoagland, a Trust member and academic expert on historic American architecture, suffered an aesthetic harm in seeing the construction. The Court said that it hasn’t previously recognized standing in a case like this, where a person asserts “mere offense, disagreement, or distaste” with a defendant’s behavior. The Court said that recognizing standing in a case like this would destroy the “concrete-and-particularized injury requirement” for Article III standing.

    The Court distinguished a line of environmental-protection cases where it recognized standing based on harm to aesthetic interests. It said despite those rulings a plaintiff must nevertheless “show that its claimed injury is ‘concrete and particularized.’” According to the Court, “a plaintiff’s ‘distress at or disagreement with’ a defendant’s actions does not clear that bar.”

    The Court went on to say that the balance of stay factors favored the Administration. (The Court’s deference to the Administration’s asserted national-security interest is notable, especially because, as the dissent points out in a footnote, “the Government informed the District Court that its construction work on below-ground secure facilities was ‘driven by national security concerns independent of the above-grade construction’ of the ballroom.”)

    Chief Justice Roberts dissented, joined by Justices Kagan, Sotomayor, and Jackson. He started by noting that the ballroom was likely unlawful, because Congress didn’t authorize it. He then argued that Hoagland had standing on the basis of her aesthetic harm under the Court’s environmental-protection cases.

    Hoagland’s injury suffices for standing. A historic preservationist such as Hoagland can be aesthetically injured in a concrete, particularized way by the transformation of a historic building that she frequently enjoys, just as an environmentalist can sustain a concrete, particularized aesthetic injury from the extinction of a particular animal or the transformation of a particular forest or river that he regularly enjoys. With the Court’s rejection of Hoagland’s standing today, however, it now is the case that “I want to look at a crocodile” can adequately answer the ever critical “what’s it to you?” question of Article III standing, while “I want to look at the White House” cannot–no matter how distinctive the particular viewer’s interest in looking at it may be.

    So if the Trust and Hoagland don’t have standing, who does? Congress may be able to assert standing to sue on the ground that the Administration is acting contrary to validly enacted law (by Congress). Don’t look for that to happen with this, Congress, though. Maybe the next one . . . .

  • District Court Halts Trump EO on Mail-In Voting

    Judge Indira Talwani (D. Mass.) issued a preliminary injunction halting the Postal Service from “implementing, giving effect to, or enforcing” a key portion of President Trump’s executive order on mail-in voting in the upcoming elections. The ruling means that the Postal Service can’t move forward with its regulations that specify the design of mail-in ballots and restrict mail-in voting to voters on a USPS-approved list.

    We previously covered the issue here. Recall that circuits split on standing and ripeness, and the Administration asked the Supreme Court to intervene. (The Court hasn’t yet ruled.)

    The Massachusetts district court previously ruled (in denying a portion of the Administration’s motion to dismiss) that the plaintiffs plausibly alleged that the EO violated the Constitution. Its analysis in the PI ruling was curt and direct:

    The court has already answered and will again resolve the question clearly and affirmatively. The executive branch has no authority to regulate elections. U.S. Const., art. I, sec. 4, cl. 1; id., art. II.

    The ruling deals a sharp blow to the Administration and its efforts to regulate mail-in voting. Even if the Supreme Court intervenes and rules for the Administration in its pending application, the Administration will now have to reckon with this ruling–most likely by seeking a separate stay. As the court says, though: the Administration’s merits arguments are (extraordinarily) weak, and the other PI factors lean (strongly) in the plaintiffs’ favor.

  • DOJ/OLC Says Executive Privilege Covers Communication with Private Individuals

    The Department of Justice Office of Legal Counsel issued an opinion this week that the President’s executive privilege covers communications with private individuals, and not just certain government employees.

    The opinion represents an effort to expand the privilege beyond what any court has specifically held. I say “an effort” because the OLC memo itself doesn’t have any mandatory legal authority; it’s just the opinion of the office that advises the Executive Branch on legal questions. Still, OLC opinions can be persuasive in court.

    The opinion comes at an opportune time for President Trump: the Administration is in the middle of a dispute over the American Bar Association’s subpoenas for documents and testimony from Boris Epshteyn, a private individual, in the ABA’s case challenging the Administration on its crack-down on law firms. The Administration seeks to quash the subpoenas based on executive privilege. Moreover, the Administration may be laying groundwork for defenses against anticipated congressional inquiries and subpoenas, should the House (or Senate, or both) flip in the midterms.

    OLC wrote that the privilege applies to communications with private individuals for exactly the reason why it applies to certain government-employee presidential advisors: to allow the President to receive frank, open, and honest advice, without fear of later public disclosure, in order to “ensure that presidential decision-making is of the highest caliber, informed by honest advice and full knowledge.”

    OLC gave three qualifiers. First, the privilege only covers communications around official actions (but at the same time recognizing that those actions are quite broad and often entwined with apparently unofficial actions). Next, the privilege only applies “to communications with the President, or communications solicited and received by the President or his direct advisers.” Third, “the communication [must be] confidential at the time of its creation and . . . the President [must] continue to treat it as such.”

    Though the OLC memo doesn’t say much about how the privilege operates, remember that it’s a qualified privilege, not an absolute one. That means that a person or entity requesting information can overcome the privilege by demonstrating a sufficiently important need for the information. The OLC memo doesn’t attempt to change this, but it does say that invocation of the privilege “is rightly difficult to overcome.”

  • Trump Tries to Limit Birthright Citizenship . . . again

    President Trump issued an executive order last week that again tried to limit birthright citizenship, even after the Supreme Court struck his first effort just over a month ago, in Trump v. Barbara. (Our analysis of that case is here.)

    Under the new EO, the following individuals (among other) do not qualify for birthright citizenship:

    (c) either parent of that person engaged in a commercial transaction to purchase or access birthright citizenship for the person, or engaged in fraudulent activity to obtain citizenship, to include:

    (i) when the parent(s) of the person engage in a commercial transaction to ensure that the person’s mother is present in the United States, or a territory of the United States, to give birth; or

    (ii) when the parent(s) engage in a commercial transaction with a surrogate present in the United States, or a territory of the United States, to give birth . . . .

    The new EO targets “birth tourism,” when a person pays for help to get to the United States for the purpose of birthing a child (who then becomes a citizen).

    But Trump v. Barbara didn’t contain an exception to birthright citizenship for “birth tourism.” In fact, the decision said nothing about it. It didn’t even hint at such an exception.

    So it’s not clear how the Trump Administration thinks this new EO can skirt Trump v. Barbara. Or if that’s even its end-game.

    As of yet, nobody’s sued to block this new EO. Stay tuned . . . .

  • D.C. Circuit Declines to Halt Trump EO on Mail-In Voting

    The D.C. Circuit today affirmed a lower court’s refusal to halt the implementation of President Trump’s EO on mail-in voting. The ruling would allow the Administration to move forward with its implementation of the EO.

    But at the same time, the decision comes just days after the Second Circuit declined to stay a different lower court opinion that halted the implementation. The Administration asked the Supreme Court to intervene in that case just yesterday.

    Both cases test whether the issue is ripe for judicial review, given that the Administration hasn’t yet implemented the EO.

    The two cases leave the EO in limbo, at least in the plaintiff states in the Second Circuit.

    The cases test President Trump’s March 31, 2026, EO on mail-in voting. The plaintiffs in the cases argued that the EO’s Sections 2, 3, and 5 exceeded the President’s authority, violated the Elections and Electors Clauses, and violated the Tenth Amendment’s anti-commandeering principle.

    Section 2 of the EO directs DHS to compile a list of U.S. citizens and transmit the list to the states. It also provides for investigation and prosecution of state officials who issue or distribute ballots to individuals not eligible to vote. Section 3 directs the U.S. Postal Service to issue regulations governing the design of envelopes for mail-in voting and requiring all ballot mail to be mailed in such envelopes. Section 5 orders the Attorney General and department heads “to deter and address noncompliance” by “state and local election officials” and “public or private entities engaged in” ballot printing or distribution.

    The problem with the challenges, according to the Administration and the D.C. Circuit, is that the Administration hasn’t yet implemented the EO, and so we don’t know exactly how the Administration will implement it and exactly what harms it might cause. Without better information about implementation and harms, the reasoning goes, courts can’t judge its lawfulness.

    That said, the D.C. Circuit expressed some mixed feelings on the merits. On the one hand, it wrote that the “Plaintiffs have identified a number of serious questions concerning the lawfulness of proposed actions if implemented on the threshold of the upcoming federal election.” (Emphasis in original.) On the other, it said,

    Given the Executive Order’s repeated commands for agency action to conform to the law, this court cannot assume that the agencies will impose such late-breaking disruption on the States’ conduct of the 2026 election.

  • Trump Administration Seeks Supreme Court Intervention in Election EO

    The Trump Administration asked the Supreme Court to stay a lower court ruling that enjoined the Administration from enforcing portions of President Trump’s executive order on elections.

    If the Court grants a stay, the Administration could move forward in implementing President Trump’s EO. If it doesn’t, the Administration can only enforce the EO in states that weren’t a party to the lawsuit.

    The case arose when 23 states and the District of Columbia challenged President Trump’s March 31, 2026, EO on elections. The plaintiffs argued that the EO’s Sections 2, 3, and 5 exceeded the President’s authority, violated the Elections and Electors Clauses, and violated the Tenth Amendment’s anti-commandeering principle.

    Section 2 of the EO directs DHS to compile a list of U.S. citizens and transmit the list to the states. It also provides for investigation and prosecution of state officials who issue or distribute ballots to individuals not eligible to vote. Section 3 directs the U.S. Postal Service to issue regulations governing the design of envelopes for mail-in voting and requiring all ballot mail to be mailed in such envelopes. Section 5 orders the Attorney General and department heads “to deter and address noncompliance” by “state and local election officials” and “public or private entities engaged in” ballot printing or distribution.

    The district court ruled for the plaintiffs. The court held that the plaintiffs had standing, that their case was ripe for review, and that Sections 2 and 3 are “ultra vires and violate the separation of powers.” The court issued an injunction, halting enforcement for the upcoming primaries and general election (though not later elections) in the plaintiff states (though not in non-plaintiff states).

    The Trump Administration sought a stay of the injunction pending appeal with the Second Circuit, arguing that the plaintiff states lacked standing and that the case wasn’t ripe for judicial review. The Second Circuit on Friday denied a stay.

    Then today the Administration sought a stay in the Supreme Court, again arguing that the plaintiff states lack standing and that the case isn’t ripe for judicial review.

    If the Court grants a stay, the Administration can go ahead with its plans to generate a list of U.S. citizens and to impose Postal Service requirements on mail-in voting in the plaintiff states. If the Court denies a stay, the Administration can’t.

    Either way, the merits aren’t going before the Court, at least as the Administration has briefed the case so far. (The Administration didn’t appeal the merits to the Second Circuit, either, and that court didn’t rule on the merits.) That’s probably because the Administration understands the weaknesses in its positions on the merits: The President has no statutory authority for his EO; the Elections Clause and the Electors Clause give initial responsibility to the states to govern elections for federal office, subject to congressional action (which hasn’t happened in this area); and the EO may impose requirements on the states in violation of the anti-commandeering principle.

    The Administration’s theories on standing and ripeness, if accepted, could make it hard or impossible for plaintiffs to challenge the EO until close to or even after the upcoming elections, at which point even a successful challenge would come too late.

  • Supreme Court Says FTC Can’t Be Independent

    The Supreme Court ruled today that Federal Trade Commissioners’ statutory independence violates the separation of powers.

    The ruling was not unexpected. It builds on a string of decisions out of the Roberts Court over the last couple decades or so.

    Still, the ruling will likely have dramatic impacts. The logic of the Court’s ruling likely means that dozens of independent federal agencies and offices, touching on all aspects of our daily lives, are unconstitutional, and that the President can remove incumbents at will (meaning: for purely political reasons). In other words: These agencies, designed by Congress to be politically independent, are now fully politicized.

    This is likely even more so under the current President, who has already endorsed and applied an extremely robust version of the unitary executive theory. UET says that the President, as unitary head of the Executive Branch, enjoys plenary authority over its officers, notwithstanding congressionally-designed independence in congressionally-created agencies. (Remember: Congress creates agencies through legislation; it vests them with authority; it funds them; and it oversees them.) Today’s ruling endorses a just-slightly-less robust version of UET. But we can expect that President Trump will use today’s ruling not only to politicize officers within the Executive Branch, but also to politicize civil-service employees, to restructure and dismantle federal agencies, and even to ignore law, including appropriations law, that applies to the Executive Branch. (We can reasonably anticipate this, because this is what he’s already done.)

    In other words, today’s ruling massively increases the President’s power, and massively reduces Congress’s. (It also increases the Court’s power, because, after all, it’s the one that issued the decision).

    But even as today’s ruling allows and invites President Trump to politicize offices and agencies, remember that it will also invite the next Democratic President to do the same. The net effect of the ruling, therefore, could be wild and economically-destabilizing swings in agencies’ enforcement priorities as different Presidents come in and out of office.

    The case, Trump v. Slaughter, arose when President Trump removed FTC Commissioner Rebecca Slaughter without providing a cause or reason. Slaughter claimed that this violated federal law, which says that the President can remove an FTC commissioner only “for inefficiency, neglect of duty, or malfeasance in office.” 15 U.S.C. Sec. 41. That statutory “for cause” removal protection is key to ensuring FTC independence, because it prohibits the President from removing an FTC commissioner at will, or for purely political reasons.

    The Court ruled that the “for cause” removal protection violated the separation of powers. In short, it said that by granting FTC commissioners for-cause removal protection, Congress impermissibly encroached on the power of the President, as unitary head of the Executive Branch, to direct the operations of the Executive Branch and, ultimately, to execute the law.

    The Court said that its ruling was narrow, applying only to the FTC, given the FTC’s significant executive authority under law. But the logic of the opinion almost surely sweeps in other independent agencies and offices, allowing the President to remove officers for purely political reasons. It will also invite the President to extend its reasoning to civil-service employees (who are protected by statutory civil-service laws), agencies themselves, and even the law of the Executive Branch.

    Along the way, the Court also overruled Humphrey’s Executor v. United States, the 1935 case that upheld the independence of the FTC against a similar separation-of-powers argument. That’s significant, because Humphrey’s Executor provided the precedent for multi-member agency independence. It (obviously) no longer does.

    Justice Gorsuch concurred, raising a concern that today’s ruling gives the President all the legislative and judicial powers that Congress has delegated to agencies over time. Justice Gorsuch’s concern is that Congress delegated those powers in the first place, not that the Court’s ruling gives the President sweeping power over previously independent agencies in their law-enforcement capacities.

    Justice Sotomayor dissented, joined by Justices Kagan and Jackson. In short:

    Today, this Court undoes centuries of political practice and concludes that all three branches of Government have been acting in open defiance of the Constitution all this time. Its conclusion is wrong. The text of the Constitution, along with its history, the longstanding practices of the political branches, and the precedents of this Court, make clear that Congress may limit the causes for which the heads of Commissions like the FTC can be removed by the President. In holding otherwise, the Court gives the President a power unknown even to the English Crown against which the Founders revolted, elevating him above his once-coequal branches by transforming a duty to take care that the laws be faithfully executed into a license to act in defiance of those very laws. . . .

    Perhaps worst of all . . . [t]oday’s majority . . . decides that it knows better: better than members of the founding generation who created agencies like the Sinking Fund Commission and the Bank of the United States, free from unfettered Presidential control; better than a century and a half of Congresses and Presidents, starting with Grover Cleveland and continuing into the 21st century, who created agencies in the FTC’s mold; better than even Hamilton, Story, Webster, Holmes, Brandeis, Frankfurter, and Rehnquist. . . .