Tag: donald-trump

  • 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 Rejects President Trump’s EO Limiting Birthright Citizenship

    The Supreme Court ruled yesterday that President Trump’s executive order purporting to limit birthright citizenship violated the Citizenship Clause of the Fourteenth Amendment.

    The ruling leaves in place the long- and well-established rule that a person born in the United States is a citizen of the United States, with only limited exceptions–not including those who are unlawfully or temporarily present.

    The case, Trump v. Barbara, tested President Trump’s January 20, 2025, executive order, “Protecting the Meaning and Value of American Citizenship.” The EO said that children of persons who are unlawfully present or temporarily present in the United States do not qualify for birthright citizenship.

    In particular, the EO pointed to the text of the Citizenship Clause–“All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States”–and said that persons who are unlawfully or temporarily present were not “subject to the jurisdiction” of the United States and therefore did not enjoy birthright citizenship. The theory turned on allegiance, which, in turn, turned on domicile: A person is “subject to the jurisdiction” if they owe allegiance; they owe allegiance if they are domiciled in the country. By the President’s reckoning, those who are unlawfully or temporarily present can’t be domiciled here, therefore they can’t owe allegiance to the United States, and therefore they are not “subject to the jurisdiction” of the United States.

    Plaintiffs sued, arguing that the EO violated the Citizenship Clause and federal law that mirrors the Citizenship Clause. (This wasn’t the Court’s first crack at the case. Plaintiffs originally prevailed and won universal, or nationwide, injunctions against the EO early last year. In an emergency-docket ruling last year, the Court held that district courts lacked authority to issue universal injunctions. Plaintiffs then refiled and again prevailed, but with different relief, leading to yesterday’s ruling on the merits.)

    Six Justices agreed that the EO was unlawful. Five Justices held that it violated the Citizenship Clause, and one Justice (Justice Kavanaugh) held that it violated federal law (but not the Citizenship Clause). Three Justices dissented.

    This means that five Justice on the Court held that the Citizenship Clause provides birthright citizenship to children born in the United States to parents who are unlawfully present or temporarily present. (Four Justices disagreed.) Because a majority issued its ruling under the Citizenship Clause (and not just federal law), neither the President nor Congress can act to prohibit citizenship to children born of such parents.

    Chief Justice Roberts wrote the majority opinion, joined by Justices Sotomayor, Kagan, Barrett, and Jackson. He traced the history of birthright citizenship from English common law and concluded that “subject to the jurisdiction” only meant that a person is present in the United States (“referring to the power of the United States to govern those within its territory”), with narrow exceptions for children of foreign ministers and members of certain nineteenth-century Native American tribes (or those who raised “intersovereign concerns”). He wrote that children born of parents who are unlawfully or temporarily present in the United States do not fall within an “intersovereign” exception, and therefore they are citizens.

    Justice Jackson concurred, joined in part by Justice Sotomayor. She filled in with additional history and countered some of the points in Justice Thomas’s dissent.

    Justice Kavanaugh concurred in part and dissented in part. He argued that the EO violated federal law, but not the Constitution. (“I respectfully disagree with the Court’s constitutional holding. In my view, the Executive Order does not violate the Fourteenth Amendment.”) Although the statue and Citizenship Clause contain the same language, he contended that the Citizenship Clause, as “appl[ied] to new circumstances[,] *** support[s] additional exceptions for children born to foreign citizens unlawfully or temporarily in the country.” And despite his reading of the current statute, he also argued that “Congress could–consistent with the Fourteenth Amendment–amend [the law] or otherwise enact new legislation establishing exceptions to birthright citizenship for children born to foreign citizens unlawfully or temporarily in the country.”

    Justice Thomas wrote the principal dissent, joined by Justice Gorsuch. He traced his own history and argued that the Citizenship Clause was designed to provide citizenship for “Blacks . . . because they were Americans,” and that birthright citizenship doesn’t extend to children born to parents who are temporarily or unlawfully present.

    Justice Alito separately dissented with his own textual and historical analysis.

  • 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. . . .

  • Supreme Court Green-Lights Trump’s Hasty Termination of Temporary Protected Status

    The Supreme Court allowed the Trump Administration to proceed with its hasty termination of temporary protected status for Haitian and Syrians. The ruling means that hundreds of thousands of Haitians and Syrians may not lawfully remain in the United States. At the same time, they cannot safely return to their home countries, both of which the State Department itself says are too dangerous for travel.

    While the ruling is preliminary–allowing the Administration to terminate TPS while the case moves forward on the merits in the lower courts–the practical effect is to end protection for Haitians and Syrians, and to invite to the Administration to hastily end protection for others, too.

    The case, Mullin v. Doe, tested whether the Trump Administration’s termination of TPS for Haitians and Syrians violated federal law and equal protection. (TPS is a program that offers temporary and lawful refuge in the United States for nationals of countries where the conditions are unsafe. The Secretary of Homeland Security first designated Haiti for TPS in 2010, following a devastating earthquake. The Secretary first designated Syria in 2012 because of the brutal and repressive government there. Secretaries have since redesignated the countries based on their dangerous conditions.)

    Plaintiffs brought two claims. First, the plaintiffs argued that the Secretary failed to “consul[t] with appropriate agencies of the Government” and “determine whether the conditions for [TPS] designation . . . continue to be met,” as required by 8 U.S.C. Sec. 1254a(b)(3)(A). The plaintiffs said that a single cursory and perfunctory e-mail exchange between DHS and the State Department–in which State replied simply that there were no foreign policy concerns with terminating TPS for Haiti and Syria–didn’t cut it.

    Next, the Haitian plaintiffs argued that the Administration’s termination was motivated at least in part by race, in violation of equal protection.

    As to the lack-of-consultation claim, the Court ruled that a statutory bar on judicial review prevented the Court from weighing in. 8 U.S.C. Sec. 1254a(b)(5)(A) bars “judicial review of any determination of the [Secretary of Homeland Security] with respect to the designation, or termination or extension of a designation, of a foreign state.” The Court said that “determination” includes not just the final decision to terminate, but also any decision to consult (or not) under Section 1254a(b)(3)(A). As a result, the Court said that courts lack jurisdiction to review the Secretary’s compliance with the consultation requirement (and, by extension, any other procedural requirement leading to the final decision).

    As to the equal protection claim, the Court held that the many racially-tinged statements by the President and the Secretary–the plaintiffs’ principal evidence of racial discrimination–weren’t “overtly racial” and could have merely reflected President Trump’s general opposition to immigration and his particular antipathy to the TPS program. Because these statements didn’t reflect a racial motivation to end protection, the decision didn’t violate equal protection.

    Justice Thomas concurred, arguing that the statutory ban on judicial review covered the plaintiffs’ equal-protection claim (in addition to their statutory failure-to-consult claim) and that in any event “aliens have no equal protection rights against the Federal Government.”

    Justice Kagan wrote a scathing dissent, joined by Justices Sotomayor and Jackson. She argued that the statutory ban on judicial review only applied to the Secretary’s final decision, and not to procedural steps leading to the decision, including the consultation requirement. She noted that the majority’s reasoning effectively strips the statute of its procedural requirements and invites the Administration to ignore them: “the majority’s holding makes everything in the statute precatory, including procedural requisites whose enforcement would seem to fall smack in the middle of the judicial wheelhouse.”

    As to equal protection, Justice Kagan argued that the President’s statements about Haitians reflect a clear racial motivation behind the decision to terminate:

    the Haitian plaintiffs have carried their burden. The evidence they have offered includes statements by the President so repellent and racially inflected that the majority declines to put them in print. [She recounts them, page 11.] The statements fairly shout, in their racial undertones and overtones alike, that race entered into the President’s resolve to remove Haitians from this country.

  • Court Halts Key Portions of Trump’s Elections Executive Order

    Judge Indira Talwani (D. Mass.) ordered the government to halt implementation of key portions of President Trump’s executive order on elections.

    The ruling prevents federal government agencies from compiling a list of eligible voters; it prevents the Postal Service from initiating rulemaking on mail-in ballots; and it halts the government from enforcing certain provisions against states.

    While the ruling is a sharp rebuke, the Trump Administration will surely appeal.

    The case, State of California v. Trump, tests the constitutionality of three portions of President Trump’s EO on “Ensuring Citizenship Verification and Integrity in Federal Elections.” Twenty-three states sued to halt these provisions:

    (1) Section 2 of the EO, which directs the Director of the U.S. Citizenship and Immigration Services, in coordination with the Commissioner of the Social Security Administration, to compile lists of citizens eligible to vote in a specific state, and directs the Department of Homeland Security to transmit these “Confirmed Citizen Lists” to each state at least 60 days before a scheduled federal election;

    Section 3, which directs the Postmaster General to initiate rulemaking regarding “election mail design,” to provide each state with a list of individuals “enrolled with the USPS,” and not to transmit a ballot of any voter who hasn’t been “enrolled”;

    Sections 2 and 5, which describe certain federal criminal offenses and require the Attorney General to prioritize the prosecution of state and local officials who issue ballots to individuals who are not eligible to voter; and

    Section 5, which strongly suggests that states retain voting records for five years.

    The court ruled that the President lacked authority to issue the EO in each of these areas.

    The court started by noting that the Voter Qualifications Clause (for members of the House), the Seventeenth Amendment (for members of the Senate), the Elections Clause, and the Electors Clause all say that states, not the federal government, have default power over federal elections. At the same time, the court acknowledged that Congress has authority to “make or alter” state election laws under the Elections Clause, and that it has done so through several acts, including the Help America Vote Act.

    But the court said that nothing in the Constitution or federal law gave the President the power to issue these orders.

    As to compiling the lists, the court simply held that the President has no power to order this.

    As to USPS regulations, the court said that USPS lacks statutory authority to issue regulations on mail-in voting, and that in any event the EO requires USPS to act on a timeline that’s inconsistent with federal law.

    As to enforcement, the court held that to the extent that the EO attempts to intimidate state and local election officials to use the federally created eligible-voter lists, it’s invalid.

    Finally, as to voting-record retention, the court said that Congress set a twenty-two-month retention requirement, and that the President has no authority to extend it.

  • The House Passed a War Powers Resolution. What’s the Constitutional Effect?

    The House yesterday passed a concurrent resolution directing President Trump to remove U.S. armed forces from hostilities with Iran. The measure was introduced by Representative Gregory Meeks (NY) and passed by a 215-208 vote.

    So what does the Constitution have to say about this?

    The action was a concurrent resolution pursuant to Section 5(c) of the War Powers Resolution, at 50 U.S.C. Sec. 1544(c). This provision says that when U.S. forces are engaged outside the United States “without a declaration of war or specific statutory authorization, such forces shall be removed by the President if the Congress so directs by concurrent resolution.”

    But a concurrent resolution passes with only the affirmative votes of the House and the Senate. It need not get the signature (or veto override) of the President, like ordinary legislation.

    As a result, there’s a broad understanding that Section 5(c) amounts to an unconstitutional legislative veto. This goes back to a 1983 Supreme Court case, INS v. Chadha, which held that legislative acts must pass both houses of Congress (bicameralism) and be signed by (or passed over the veto of) the President (presentment). (The Court in Chadha struck a law that allowed either house of Congress to override certain immigration decisions of the Attorney General. Because the override amounted to a legislative act, the Court said that it required bicameralism and presentment. And because it authorized one house of Congress to act alone, it violated those requirements.) Under Chadha, because Section 5(c) is a legislative act, and because it authorizes Congress to act without the President’s signature (or a veto override), it lacks presentment, and it is unconstitutional.

    In the wake of Chahda, Congress added a provision to the War Powers Resolution, 50 U.S.C. Sec. 1546a, that fast-tracks a congressional joint resolution to require the President to remove forces (that is, to do the same thing that Section 5(c) authorizes). The joint resolution, in contrast to the concurrent resolution, requires both houses to pass (bicameralism) and a signature (or veto override) of the President (presentment). A joint resolution therefore satisfies Chadha.

    But President Trump would surely veto a joint resolution. And Congress doesn’t have the votes to override. So a joint resolution compelling the President to remove forces stands no chance of becoming law.

    As a result, neither a concurrent resolution nor a joint resolution compelling the President to remove forces would become law. (Even if they could, there’s probably no legal enforcement mechanism. The courts almost certainly wouldn’t get involved, because such challenges are almost surely a non-justiciable “political question.”)

    But that doesn’t mean that yesterday’s action is meaningless.

    The House’s move to use a concurrent resolution sends a strong political signal to the President. Senate passage would make that signal even stronger.

    In addition to passing War Powers Resolutions (concurrent or joint), Congress has other ways to compel or pressure the President to remove forces. For one, it could withhold funding for the war, or for the military more generally, or for some other, unrelated presidential priority. (Like other legislation, however, this would require the President to sign the measure, or Congress to override a veto.) For another, it could refuse to confirm presidential nominees or refuse to pass legislation on presidential priorities, even in areas unrelated to the war. And for a third, it could engage in meaningful oversight. Among other things.

  • Supreme Court Upholds Alabama Congressional Map, Further Erodes Protections Against Racial Gerrymandering

    The Supreme Court late yesterday allowed Alabama to use a congressional district map that was based on intentional race discrimination, according to an earlier three-judge court decision.

    The ruling almost certainly means that Alabama will have one less Black representative in Congress, and one less Democrat.

    It also means that plaintiffs will have an even tougher time proving illegal racial discrimination in legislative districting going forward–that is, even more difficult than after the Court’s recent ruling in Louisiana v. Calais. In other words, yesterday’s ruling, as a practical matter, all but eliminates racial discrimination claims in legislative districting. That’s because the Court made it yet easier (again, easier even than Calais) for states to evade claims of racial discrimination by simply providing political reasons for their maps, even political reasons that overlap with race. And if states can’t even manage that, they can evade claims by playing the courts.

    To see all this, here’s a brief history of this up-and-down case:

    In 2021, Alabama adopted a new congressional map with just one majority-Black congressional district. A three-judge court ruled that the map violated Section 2 of the Voting Rights Act, because it had a racially discriminatory effect and diluted Black voters’ voting strength. The court ordered the state to adopt a map that included a second district where Black voters could elect a candidate of their choice.

    Alabama appealed to the Supreme Court, arguing that it didn’t have time to implement the lower court’s ruling. (The lower court issued its ruling in January 2022, and Alabama’s primary election was slated for May 2022.) The Court stayed the lower court ruling and allowed Alabama to use the 2021 map (the one with just one majority-Black district).

    The Supreme Court later affirmed the lower court’s ruling (that the 2021 map violated Section 2 of the VRA) and its remedy (to draw a second district where Black voters could elect a candidate of their choice). The Court said that the lower court faithfully applied Court precedent in its ruling and remedy.

    In response, in 2023 Alabama adopted another map, also with just one district where Black voters could elect a candidate of their choice. (In other words, the state thumbed its nose at the Supreme Court ruling.)

    Plaintiffs then challenged the 2023 map, arguing that it violated both Section 2 of the VRA and the Equal Protection Clause of the Fourteenth Amendment. (Although those are related, they are two different, distinct claims.) The district court ruled that the new map violated the VRA. The court instituted a remedial map, drawn without reference to race. This map governed the 2024 election.

    Alabama again appealed to the Supreme Court. While the appeal was pending, the Court decided Callais. Callais revised the test for Section 2 claims under the VRA and made it substantially harder (maybe impossible) for racial minority voters to prove a Section 2 violation. (That’s because Callais now requires plaintiffs to dis-aggregate and account for any state political objective in redistricting–a near impossible feat in the racially-polarized political environments where Section 2 does its work. In other words, after Callais, states can insulate themselves from a Section 2 claim simply by providing political objectives for their gerrymander.)

    But Callais did not change the test for equal protection claims.

    After it issued Callais, the Court vacated the lower-court ruling and remanded the case for reconsideration in light of Callais. Alabama announced that it would use the 2023 map (which, recall, the district court struck as a racial gerrymander) for the upcoming 2026 election. (The governor called a special primary election for August 11 (months later than the regularly scheduled primary) in four of the districts that were affected by all this.)

    On remand, the three-judge district court ruled again that the map violated the VRA. It also ruled that the map was based on intentional racial discrimination in violation of the Equal Protection Clause. (The court said that its earlier decision on intentional racial discrimination was “undisturbed by Callais.” That’s not surprising, because, remember, Callais changed the Section 2 test (for discriminatory effect), not the equal protection test (for discriminatory intent).) It wrote, “[D]espite our searching review of all the evidence before us–much of it directly from the Legislators and Legislature, none of it in dispute–try as we might, we cannot understand the 2023 Plan as anything other than an intentional effort to dilute Black Alabamians’ voting strength and evade the unambiguous requirements of court orders standing in the way.” (Just a quick note on that: Under Supreme Court precedent, without direct evidence of racial discrimination, it’s tough–really tough–to prove that a racial gerrymander is based on intentional racial discrimination.)

    Yesterday, the Supreme Court stayed that ruling. In a brief, shadow-docket opinion, the Court wrote that the district court failed to apply a presumption of good faith to the state’s behavior and failed to apply the new Callais standard.

    Significantly, the Court extended the new Callais standard to the equal protection claim, writing, “And, as to both claims, the District Court’s analysis departed from Callais.” (Recall that Callais revised the standard for Section 2 claims under the VRA. Callais said nothing about equal protection claims like the one at issue in this case.) This shoehorns the new Callais standard into equal protection claims and makes it equally difficult (or impossible) for plaintiffs to challenge a racial gerrymander under the Equal Protection Clause as it now is to challenge a racial gerrymander under the VRA.

    The ruling also validated the state’s efforts to manipulate the courts. Recall that the state previously told the Court that it couldn’t comply with the first district court ruling, because it didn’t have enough time before its scheduled election (from January 2022 to May 2022). Yet the state now says that it can switch from the district court’s earlier remedial map (which the state used in the 2024 elections) to the 2023 map for the 2026 primary elections–on a much tighter timeline. Moreover, recall that the state ignored the Court’s earlier ruling that affirmed the district court’s holding that the 2023 map likely violated the VRA and the district court’s order requiring the state to draw a second majority Black district. The Court’s ruling yesterday validates all this behavior.

    Justice Sotomayor dissented, joined by Justices Kagan and Jackson. She concluded, “Because I choose to defend the rule of law and the right of all Alabamians to participate equally in democracy, I respectfully dissent.”

  • D.C. Circuit Says Ban on Transgender Military Service Likely Violates Equal Protection

    A divided three-judge panel of the D.C. Circuit ruled yesterday that the Trump Administration ban on transgender individuals serving in the military likely violated equal protection.

    The ruling, while only preliminary (thus holding the plaintiffs were likely to succeed) and while applicable only to the plaintiffs in the case, nevertheless deals a significant blow to the Trump Administration efforts to ban transgender individuals from military service. It also offers a scathing assessment of those efforts, concluding that they were arbitrary and based on sheer animus.

    The ruling says that the government can’t base policy, even military policy, on animus alone; instead, the government has to have legitimate reasons.

    The case, Talbott v. United States, challenges the Administration’s ban on transgender individuals serving in the military. That ban arose out of President Trump’s January 27, 2025, Executive Order proclaiming that persons “expressing a false ‘gender identity’ divergent from an individual’s sex cannot satisfy the rigorous standards necessary for military service.” President Trump, and later Secretary Hegseth, also declared that persons afflicted with gender dysphoria are unfit for military service because, among other things, their character is “inconsistent” with the “high standards . . . [of] honesty, humility, . . . and integrity.” The “Hegseth Policy” deems transgender applicants for military service unqualified; and it mandates that currently serving transgender individuals go through the administrative separation process, a process usually reserved for personnel accused of misconduct. (The Policy specifically disqualifies anyone with a history of gender dysphoria. But its broad language effectively disqualifies any transgender person, whether they have a history of gender dysphoria or not.)

    The district court ruled that plaintiffs were likely to succeed in their challenge to the Policy and entered a preliminary injunction halting the Policy’s implementation as to the plaintiffs.

    The divided three-judge panel of the D.C. Circuit affirmed in part and vacated in part.

    Two judges agreed that the Policy likely violated equal protection. Judges Wilkins and Rogers concluded that the the Policy was based only on animus and therefore failed at any level of review. In short, they said that the Administration failed to provide a legitimate reason for the Policy, and that President Trump’s and Secretary Hegseth’s stated justifications amounted only to “a bare . . . desire to harm a politically unpopular group.” USDA v. Moreno (1973). They said that neither United States v. Skrmetti (2025) (upholding state bans on certain medical treatments for transgender minors) nor Trump v. Hawaii (2018) (upholding President Trump’s first-term travel ban) changed this.

    Judge Walker, in dissent, argued that the court should give greater deference to the Administration’s military judgment. “We have neither the expertise nor the authority to decide whether the military can exclude the plaintiffs from its ranks. The Constitution assigns that authority to Congress and the Commander in Chief.”

    Ultimately, the court only affirmed the district court injunction as to those plaintiffs already in the military, and not to the plaintiffs who are seeking accession into the military.

  • A History of President Trump’s “Anti-Weaponization Fund” and Why it Matters

    Late last week, two federal courts dealt separate blows to President Trump’s efforts to establish an “Anti-Weaponization Fund,” a pot of federal money that President Trump could effectively pay out to his supporters with no meaningful oversight or check.

    In one case, the court temporarily halted the Fund’s implementation while the court considers a motion for a temporary restraining order. In the other case, the original case brought by President Trump, the court ordered the plaintiffs to brief whether the case was collusive from the get-go, justifying dismissal and potential sanctions against the attorneys. Those cases, and others challenging the Fund, are pending; we don’t have any definitive rulings yet.

    The episode is a case study in the attempted aggrandizement of presidential power at the expense of Congress and the courts. It comes in two steps. First, President Trump tried to play the courts by filing and “settling” a collusive lawsuit against an agency he supervises. Next, he tried to bypass Congress by unilaterally establishing a nearly $1.8 billion fund, with his own five-member board to control it.

    But federal courts don’t hear collusive lawsuits. Instead, Article III requires that parties be adverse. And in our system, the president can’t just establish a fund and a board to control it. Article I says that those powers belong to Congress.

    The courts and Congress, if they play their institutional roles in our checks-and-balances system, can reassert their powers by pushing back against this effort. The courts can reopen the original collusive case and scrutinize the parties’ behavior, and they can rule that the Fund violates the separation of powers, among other things. Congress, for its part, can enact legislation restricting the Fund or even eliminating it (subject, of course, to an admittedly unlikely presidential signature or a similarly unlikely veto override). It could also hold up other presidential priorities and even engage in meaningful oversight. But again: only if it’s willing to play its institutional role.

    In the meantime, to see how this unfolded, here’s a short history:

    The Lawsuit: January 2026

    In January 2026, President Trump, his sons, and the Trump organization sued the IRS and Treasury Department on the ground that a former government contractor improperly released Trump tax documents. The plaintiffs sought $10 billion in damages.

    The lawsuit was, er, unusual. For one, presidents don’t typically sue agencies that they supervise. President Trump acknowledged this himself shortly after he filed suit when he said, “I’m supposed to work out a settlement with myself.” For another, the $10 billion claim for damages seemed on the high side. For a third, the plaintiffs filed the suit outside the two-year statute of limitations for lawsuits challenging the unauthorized disclosure of tax returns.

    Outside parties raised these issues and others with the court. Department of Justice attorneys, who represent the government in court, did not even file an appearance in the case.

    The court, concerned that the lawsuit may have been collusive (and that it therefore might have lacked jurisdiction), ordered the parties to file briefs on the issue by May 20, 2026.

    Plaintiffs Voluntarily Dismiss the Case: May 18, 2026

    On May 18, two days before the court’s deadline to file briefs on the jurisdictional issue, the plaintiffs voluntarily dismissed the case. (Federal rules allow a plaintiff to voluntarily dismiss their case; and when they do, the case goes away.) The plaintiffs did not file a brief on the jurisdictional issue, and they did not attach a settlement agreement. As a result, the court did not rule on the jurisdictional issue, and it did not approve any settlement. Instead, it simply dismissed the case.

    DOJ Announces an Agreement: May 18, 2026

    Later that same day, DOJ announced that the parties reached an agreement: DOJ would establish a $1.776 billion “Anti-Weaponization Fund” “[t]o provide a systematic process to hear and redress claims” of “individuals, groups, and entities” who were “target[ed]” “by Democrat elected officials, political and career federal employees, contractors, and agents . . . for improper and unlawful political, personal, and/or ideological reasons.” Under the agreement, the Attorney General appoints five members to operate the fund. President Trump has authority to remove the members at will.

    Money for the fund comes from the DOJ Judgment Fund, a fund authorized by Congress that allows DOJ to settle lawsuits against the government under certain conditions and subject to certain restraints. It does not allow DOJ to siphon funds off to an “Anti-Weaponization Fund.”

    By design, the “Anti-Weaponization Fund” effectively allows President Trump to pay certain political supporters out of the government’s coffers, without meaningful checks or oversight. As many have pointed out, potential beneficiaries almost certainly include January 6 protestors.

    More Agreements: May 19, 2026

    DOJ later announced that the agreement also provides President Trump and the other plaintiffs with permanent protection against tax audits and prosecutions “before Defendants or other agencies and departments” that are “currently pending or that could be pending.”

    According to wide reporting, this could protect President Trump from a federal tax liability of $100 million or more. It’s also a highly unusual “settlement” term.

    Lawsuits: May 2026

    Various plaintiffs sued in several lawsuits to stop the Fund. Among other things, they argued that the Fund

    • violates the separation of powers, because Congress (the branch that has the powers to pass laws, create government agencies, and appropriate federal funds) did not authorize it;
    • conflicts with federal law and regulations, including DOJ’s regulations on the Judgment Fund and DOJ’s policy of prohibiting settlements that involve payments to third parties;
    • lacks connection to the alleged claims and damages in the original lawsuit;
    • violates the First and Fourteenth Amendments by discriminating among beneficiaries by viewpoint.

    Others have pointed out that the Fund violates Section 4 of the Fourteenth Amendment, insofar as it could pay January 6 protestors or others involved in the effort to overturn the 2020 presidential election. That section prohibits the United States from “assum[ing] or pay[ing] any debt or obligation incurred in aid of insurrection or rebellion against the United States . . . .”

    District Court Halts Fund: May 29, 2026

    Judge Leonie M. Brinkema (E.D. Va.) temporarily halted implementation of the Fund while the court considers a motion for a temporary restraining order in one of the cases challenging the Fund. Judge Brinkeman ordered the defendants to file a response to the plaintiffs’ motion by June 5, with any reply due by June 10. The hearing on the motion is set for June 12.

    Court Reopens Trump Case: May 29, 2026

    On the same day, Judge Kathleen M. Williams (S.D. Fl.), the judge in President Trump’s original case against the IRS and Treasury, ordered the case reopened in order to assess whether the case was collusive, whether “dismissal in [the] case was premised on deception by the Parties,” and whether “the Court was the ‘victim of a fraud.’” Judge Williams ordered the plaintiffs to file their briefs by June 12, 2026, and allowed a response brief by June 19.

    The order came in response to a friend-of-the-court motion to reopen the case filed by thirty-five former federal judges.