Tag: donald-trump

  • Federal Court Orders Gerrymandered Map in Missouri

    Soon after Justice Kavanaugh declined to stay a Missouri Supreme Court ruling that ordered the state to use its 2022 congressional map, a federal district court ordered the state to use its 2025 gerrymandered map. (Opponents of the 2025 gerrymandered map filed an emergency motion for a stay in the Eighth Circuit. No word yet from that court.) In response, the secretary of state announced that the state would comply with the federal district court and use its 2025 gerrymandered map. (The deadline for finalizing the ballot was yesterday.) And in response to that, the Missouri Supreme Court ordered the secretary of state to appear tomorrow for a contempt hearing.

    The federal district court ruling seems in tension, at least, with Justice Kavanaugh’s decision not to stay the Missouri Supreme Court ruling. If the Eighth Circuit and, ultimate, the Supreme Court think so, too, they’ll probably stay this district court ruling and reinstate the 2022 map for the general election.

    The district court held that the Missouri Supreme Court’s order to use the state’s earlier 2022 congressional map violated Article I, Section 2 of the Constitution and the Equal Protection Clause.

    As to Article I, Section 2, which says that the people elect House members every two years, the court held that primary elections are an integral part of general elections. And because the state used its 2025 gerrymandered map in the primary election, it had to use that same map in the general election. The court said it didn’t matter that the state’s use of the 2025 map in the primary election was illegal (as the state supreme court held), because voters voted in the primaries based on the 2025 map and “based on the parameters set by Missouri’s highest election authority, the Secretary of State.” (Pause for a moment to consider the implications of that holding. It would apparently allow the secretary of state to use any map they wanted in the primary (or potentially to take any other election-related measure), irrespective of its legality, and then force that map (or even that measure) on the electorate in the general.)

    As to equal protection, the court held that the state supreme court order would classify voters into two groups–“those who happen to stay in their [2025-map] congressional district, and those who do not.” The court held that “[s]witching maps now would deprive many Missourians of their equal vote in the primaries . . . .” (This theory could also have sweeping implications.)

    We expect the Eighth Circuit and Supreme Court to move quickly, though no word yet.

  • Missouri Must Use its 2022 Congressional Map in the Midterms

    Justice Kavanaugh today denied the Missouri secretary of state’s application for a stay of a state supreme court ruling that ordered the state to use its 2022 congressional map (and not its 2025 newly gerrymandered map) in the upcoming midterm elections.

    The upshot is that Missouri cannot use its 2025 newly gerrymandered map, which was designed to net Republicans one House seat in the state. Instead, it has to use its earlier 2022 map.

    The case started on September 12, 2025, when the state legislature enacted a new, aggressively gerrymandered map, “HB1,” as part of the mid-census redistricting wave set off by red states. Opponents of the measure quickly submitted a referendum petition to override HB1 to the secretary of state, who approved it for circulation. On December 9, two days before HB1 was set to take effect, organizers submitted over 300,000 signatures in opposition to HB1. Under state law, the secretary then had to determine whether the submission complied with state law and to issue a certificate of sufficiency or insufficiency by August 4, 2026.

    At 4:00 p.m. on August 4, just before the deadline and the same day the state used HB1 in the primaries, the secretary issued a certificate of insufficiency on the ground that “the Missouri Constitution does not authorize a referendum on congressional redistricting plans passed by the General Assembly.”

    One of the referendum’s supporters, Richard von Glahn, immediately sued, seeking reversal of the secretary’s certification decision and an injunction preventing the secretary from using HB1.

    The Missouri Supreme Court ruled for von Glahn. The court held that under the Missouri Constitution HB1 was never the law. According to the court, that’s because von Glahn filed a legal, sufficient, and timely referendum petition before HB1 was set to take effect. In such a circumstance, the state constitution provides that HB1 would not become law unless and until voters approved it.

    The state high court then ordered the state to use the earlier, 2022 congressional map in the upcoming midterm elections and to put the referendum on HB1 on the ballot.

    The secretary of state, through the state attorney general, sought a stay at the Supreme Court. They argued that the state had already used HB1 in the primaries, and that using the earlier map in the general election would violate the Elections Clause and deprive some voters of their right to vote.

    Justice Kavanaugh rejected their application. Notably, he rejected it without explanation and without referring it to the entire Court.

  • 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 Halt’s Trump Mail-In Ballot EO, Again

    The same federal district court that earlier enjoined the Trump Administration from enforcing President Trump’s EO on mail-in balloting again halted the Administration.

    The move came yesterday, after the Supreme Court stayed the district court’s original injunction and after the plaintiffs renewed their motions in light of the now-issued USPS regulations.

    The upshot is that the USPS is barred from enforcing its new regulations on mail-in voting. The government already appealed, however, and will almost certainly seek an emergency stay. Ultimately, the case seems destined to return to the Supreme Court, this time probably on the merits.

    Here’s the backstory:

    President Trump issued an executive order that, among other things, directed the Postal Service to issue regulations that specify the design of mail-in-ballot envelopes, require states to report eligible voters to USPS, and refuse to deliver ballots to individuals if the ballots don’t conform to the new design rules or if the individual isn’t on the state-provided list. (The EO also directed DHS to generate a list of eligible voters in each state and to provide that list to the states. That part of the EO isn’t directly at issue in the ruling and filings in the last couple days.)

    States and voting-rights organizations filed two separate lawsuits that landed before the same judge. The court issued preliminary injunctions in both cases, holding, in short, that the EO likely exceeded the President’s authority. (Under the Constitution’s Elections Clause, states, not the federal government, have responsibility in the first instance for running federal elections. If the federal government gets involved, as it can under the Elections Clause, the Constitution gives the authority to Congress, not the President. Because Congress hasn’t authorized anything like the provisions in President Trump’s EO, President Trump and the implementing agencies lack authority.)

    The First Circuit declined to stay the states’ injunction, but the Supreme Court on Monday granted a stay. The Court didn’t rule on the merits, though; instead, it ruled that the states likely lacked standing and that their claims likely weren’t ripe, because they couldn’t demonstrate how the not-yet-finalized USPS regulations would harm them. (The USPS did, in fact, finalize the regulations last Friday, three days before the Court ruled. But the Court assessed standing (and apparently ripeness) at the time of the states’ complaint, not at the time of its ruling.) The district court then lifted its injunction in the organizations’ case.

    In response to the Supreme Court ruling, the states filed a new lawsuit, and the organizations supplemented their complaint to allege cognizable harms and ripeness in light of the now-issued USPS regulations.

    The regulations require states to get USPS approval for their mail-in-ballot envelope design, then, upon approval, to load their voter data into a USPS portal. Under the regs, USPS won’t mail ballots sent in a non-conforming envelope, and it won’t mail ballots to individuals not on the state-uploaded list.

    But there’s no timeline for any of this, and there are a lot of opportunities for mistakes. And because jurisdictions have already printed their envelopes and will start mailing them out shortly, any delay by USPS or any ordered re-design will cost states time and money and interfere with their elections. The regs also create confusion for voting organizations (that seek to educate voters) and voters themselves.

    With those harms now in hand, the court late yesterday issued a temporary restraining order, halting USPS from enforcing its regulations. On the merits, the court said exactly what it said before: the states have authority to regulate federal elections unless preempted by Congress, and Congress hasn’t enacted legislation that authorizes USPS’s regulations.

    The Administration appealed, and will surely seek an emergency stay from the First Circuit and, in all likelihood, the Supreme Court.

    Stay tuned . . . .

  • Supreme Court Green-Lights Trump’s EO on Mail-In Ballots, for now

    The Supreme Court today stayed a lower-court ruling that halted implementation of President Trump’s executive order on mail-in voting.

    The ruling means that the Administration can move to implement the EO. This could have a significant impact on mail-in voting in the upcoming mid-term elections.

    But the ruling was limited to jurisdictional issues and the stay factors; it did not address the EO’s lawfulness. The ruling thus allows state-plaintiffs to sue again if and when the EO harms them. But that potentially raises a different jurisdictional problem: the Court has ruled that courts should not intervene in a way that alters election rules too close to an election, lest they create confusion. Given the timing, this principle–the Purcell principle–could limit the ability of states to sue the closer we come to the election, even if they suffer harm.

    (In a separate case brought by the League of Women Voters, the court earlier this month entered a preliminary halting USPS from initiating rule-making under the EO for the upcoming mid-terms. The Administration filed a motion to reconsider in light of the Supreme Court’s ruling today. The court hasn’t yet ruled.)

    President Trump’s EO comes in three parts. First, it requires the Department of Homeland Security to create a list of citizens over the age of 18 in each state and to send that list to the states. Next, it requires the Attorney General to prioritize prosecution of those who issue federal ballots to ineligible voters. Finally, it requires the Postal Service to initiate rule-making that would require outbound ballot envelopes to contain a unique barcode and not to deliver the ballots of anyone not enrolled by a state with USPS.

    A group of states and D.C. sued, and a district court entered final judgment prohibiting the Administration from implementing those portions of the EO.

    The Supreme Court today granted a stay. On the likelihood of success on the merits, the Court ruled that the states lacked standing, because they haven’t yet demonstrated a concrete and particularized, actual or imminent harm. It also held for similar reasons that the case wasn’t ripe for judicial review. It held that other stay factors also favored the government.

    Justice Sotomayor wrote a dissent, joined by Justice Kagan. Justice Jackson wrote her own dissent.

    It’s not clear what happens next. The Administration may not have time to implement and enforce the EO before the mid-terms. If it does, however, it’s not entirely clear what would happen, that is, how the Administration would actually implement it, including how many mistakes DHS’s list may contain. And if the states can demonstrate harm, it’s not clear whether they could sue to block Administration actions, given the Purcell principle.

    On the merits, the Constitution gives the states in the first instance–not the federal government, and certainly not the President alone–the authority to run and regulate federal elections. According to the lower court (and the law), the President has no legal authority to issue much of the EO. Still, the Court didn’t seem too concerned about overreach, at least not yet, because, according to the Court, the EO limited DHS, the Attorney General, and USPS to act only “[t]o the extent feasible and consistent with applicable law.”

  • 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 . . . .