On Saturday, the makers of Mifeprex went to the U.S. Supreme Court, asking it to immediately block the Friday ruling from the U.S. Court of Appeals for the Fifth Circuit that would block a U.S. Food and Drug Administration rule nationwide that allows the mailing of the medication abortion drug.

In Saturday’s filing at the Supreme Court, the Hogan Lovells’s lawyers for Danco Laboratories argued that the appeals court ruling by Judge Kyle Duncan “is not an application of neutral principles,” but rather “an abdication of lower courts’ duty to adhere to decisions of th[e Supreme] Court.”

The Fifth Circuit’s ruling, they wrote, “injects immediate confusion and upheaval into highly time-sensitive medical decisions—and it forces Danco, FDA, certified Mifeprex providers, patients, and pharmacies all to guess at what is allowed and what is not.“

[UPDATE, 6:10 p.m.: GenBioPro, the maker of generic mifepristone, is also at the Supreme Court.

GenBioPro asked for the court to vacate the Fifth Circuit’s order, or stay it.

Additionally, as with the Danco application, they alternatively asked for the Supreme Court to immediately take the case up on the merits.]

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The case involves not the original approval of mifepristone — or, not directly, the other recent case challenging mifepristone — but, rather, the 2023 Risk Evaluation and Mitigation Strategies (REMS) that the FDA put in place for the prescription and use of mifepristone. In the 2023 REMS, among other changes, the FDA ended the in-person dispensing requirement for the drug, allowing it to be mailed.

In a lawsuit filed in October 2025, Louisiana claimed that it was facing harm because, “[t]hrough the 2023 REMS, the Biden Administration attempted to undermine Dobbs by facilitating the mailing of mifepristone into every pro-life state.“

The lawsuit came after the U.S. Supreme Court unanimously rejected another lawsuit out of the Fifth Circuit challenging the drug, with the Supreme Court holding that the challengers there — anti-abortion doctors and medical associations — lacked standing to bring the suit. But, within the Fifth Circuit, the appeals court had, earlier in that case, agreed with a lower court that the in-person dispensing requirement should be reinstated. Because the Supreme Court had only ruled on standing, it had not directly addressed — let alone rejected — the Fifth Circuit’s 2023 reasoning.

After finding that Louisiana had standing to bring the challenge, unlike the medical organizations and providers at issue in the prior case, the district court in Louisiana’s challenge found that the state is likely to succeed in its challenge to the 2023 REMS.

Nonetheless, U.S. District Judge David Joseph, a Trump appointee, declined to immediately block the rule under the Administrative Procedure Act (5 U.S.C. 705)1 in large part because of the FDA’s own ongoing review of the mifepristone REMS — itself an action that has altered the federal government’s litigation posture during the Trump administration and raised questions about what the administration is going to do regarding access to the drug.

Here, in part because of that and because of the nationwide effect of blocking the 2023 REMS during litigation, Joseph wrote:

Given the length of time the 2023 REMS has been in effect, reliance interests on that scheme throughout the nation, the sweeping effect any remedy would have across states with differing abortion laws, and most importantly, FDA’s recognition of its own shortcomings in regulating mifepristone and ongoing fulsome review of the mifepristone REMS, the Court will afford the agency a timelimited period of deference to complete its review and carry out the responsibilities assigned to it by Congress.

Louisiana appealed the ruling to the Fifth Circuit, and, on Friday, a three-judge panel of all Republican appointees disagreed with Joseph’s ruling.

The opinion by Duncan, another Trump appointee, joined by Judges Leslie Southwick (George W. Bush) and Kurt Engelhardt (Trump), declared there was no need for such judicial humility.

After holding that Louisiana had shown both “sovereign” and financial injury sufficient to have standing to challenge the 2023 REMS and that the reasoning of the prior appeals court opinion applied here as to the question of Louisiana’s likelihood of success on the merits, the appeals court parted ways with the district court.

First, Duncan — who worked at the Becket Fund for Religious Liberty and on several key cases that expanded religious people’s legal protections under the law before becoming a judge — concluded about the “balance of harms” that courts analyze when considering whether to grant interim relief:

Danco’s potential financial losses pale beside Louisiana’s sovereign interest in its laws protecting the unborn and the public’s interest in not exposing women to unsafe medical procedures.

Then, dismissing the reliance interests that Joseph had carefully assessed, he wrote:

The district court raised various concerns about the equities and public interest. We do not find that any of them tip the balance against Louisiana, however.

Although Duncan mentions three of those “various concerns,” he did not once mention the reliance interests of people across the nation that have developed over the five years since the end of the in-person dispensing requirement. (Although the 2023 REMS is challenged here, the policy actually began in 2021 with an agency pandemic-related notice that it would not be enforcing in-person dispensing requirement.)

The closest Duncan came to acknowledging the effect of the appeals court’s Friday decision is a simple sentence quoting Joseph’s acknowledgement of humility — “It is true, as the district court noted, that a § 705 stay ‘would, as a practical matter, have a nationwide effect.’“ — before wiping it aside and doing just that.

Less than three hours after the Fifth Circuit issued its decision, Danco Laboratories filed a motion at the Fifth Circuit seeking a temporary administrative stay so that it court seek relief from the Supreme Court.

With no word from the Fifth Circuit, Danco went to the Supreme Court on Saturday.

“It bears emphasis how unprecedented the Fifth Circuit’s order is,” the lawyers wrote. “Never before has a federal court purported to immediately enjoin a several years’ old drug approval; restrict a distribution system for that drug that manufacturers, providers, patients, and pharmacies have all been using for years; or reinstate conditions that FDA determined do not meet the mandatory statutory criteria.”

Danco’s lawyers, led by Hogan Lovells partner Jessica Ellsworth, argued that the case should have been dismissed for the same reasons that the Supreme Court unanimously rejected the prior challenge: Louisiana lacks standing.

They wrote:

Like the Alliance plaintiffs, Louisiana is not required to “prescribe or use mifepristone” or to “do anything or to refrain from doing anything” as a result of FDA’s actions. … In fact, Louisiana largely prohibits the termination of pregnancy. The Fifth Circuit nevertheless found that Louisiana has standing to challenge FDA’s 2023 changes to mifepristone’s conditions of use based on “$92,000 it paid in Medicaid costs from two women who needed emergency care in 2025 from complications caused by out-of-state mifepristone.” … But this Court rejected the idea that a plaintiff can claim Article III standing based on an assertion that “FDA’s relaxed regulation of mifepristone may cause downstream economic injuries.”

In explaining the problems created by the Fifth Circuit’s ruling, the application poses three questions in the introduction:

What happens when patients arrive for scheduled appointments this weekend and beyond, or walk into pharmacies in New York, Minnesota, Washington, and many other states today to obtain Mifeprex that was prescribed by a provider yesterday? What should a patient do if she cannot obtain an in-person appointment immediately? And what are Danco’s obligations as Mifeprex’s sponsor?

As such, they wrote, “The resulting chaos for patients, providers, pharmacies, and the drug-regulatory system is a quintessential irreparable harm that underscores the need for emergency relief from this Court.”

The company asked the Supreme Court, in effect, to block the Fifth Circuit from being able to put a ruling in this case into effect until the Supreme Court itself has a chance to issue a ruling — either by staying the effect of any ruling until then or by the Supreme Court taking up the case now.

Law Dork will have more on this litigation as circumstances warrant.

On a day the U.S. Supreme Court was to consider, among other concerns, whether racial animus had infected the Trump administration’s decision to cancel temporary protected status for many countries with non-white majority populations, the court’s conservative majority also used Wednesday to effectively end the use of the Voting Rights Act to help ensure that minority voters in the United States have the opportunity to elect lawmakers of their choosing.

“I don’t like dividing the people of the world into these groups,” Justice Sam Alito proclaimed from the bench during the TPS arguments — Wednesday’s iteration of a claim pressed by the right over the years to diminish civil rights protections through a “color-blind,” and later “race-neutral” prism. It is, however, a freedom that doesn’t exist in reality for those who face deportation following President Donald Trump’s attacks on “shithole countries” or those who have faced a long history of lawmakers seeking to exclude them from the electoral process.

It was a day that highlighted how far the Roberts court has gone to advance the chief justice’s long-term animosity toward the Voting Rights Act, paired with yet another request from the Trump administration to expand executive power.

The decision in Louisiana v. Callais upended the pivotal civil rights era voting law that Congress initially passed in 1965 and reauthorized several times since, leaving the section at issue “all but a dead letter,” as Justice Elena Kagan said with a somber voice, nearly stone faced, as she announced the dissent from the bench.1

In an opinion by Alito, the majority held that Louisiana’s map — which included two majority-minority districts — was an unconstitutional racial gerrymander regarding the second district.

With Kagan sitting silently to Alito’s left as he announced the court’s majority opinion, Alito insisted that the court had merely “updated” the framework for considering vote-dilution claims under Section 2 of the Voting Rights Act.

Under that “updated” framework, he explained, Louisiana’s addition of the second majority-minority district in response to a Section 2 case ruling did not meet the new test and, as such, did not advance any “compelling interest” — which would be necessary to defeat the equal protection challenge to the new map that was before the court.

When Kagan began announcing her dissent for the three Democratic appointees, she was abrupt and direct, with an anger simmering just below the surface as she described the “historic” place of the Voting Rights Act in the history of the United States.

“For more than a decade,” she told the pin-drop silent courtroom, “this court has had the act in its sights,” laying out a series of rulings beginning with 2013’s Shelby County v. Holder decision ending the requirement that certain jurisdictions get preclearance for voting rights changes, including redistricting. Following that, she continued, there were the court’s more recent decisions that partisan gerrymandering claims are nonjusticiable in Rucho v. Common Cause and that limited challenges to “time, place, and manner“ voting restrictions under Section 2 in Brnovich v. Democratic National Committee.

Wednesday’s decision, Kagan continued, is “the last piece” in the effort to “destroy” the voting rights law — making it “nearly impossible“ to succeed in bringing a constitutional vote-dilution claim, the last real task the law was accomplishing.

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The TPS case

More than 30 minutes after the justices took the bench following the long opinion reading from Callais, Chief Justice John Roberts began the arguments in the TPS cases: Mullin v. Doe, relating to Syria, and Trump v. Miot, relating to Haiti.

The humanitarian “thrust” of the TPS statute, as Justice Ketanji Brown Jackson had to remind Solicitor General John Sauer at the end of his arguments, is to provide protections for people in the U.S. from countries where the conditions are such that return would be unsafe. For these cases, the question is about people whose countries had a TPS status — Syria and Haiti — before then-Homeland Security Secretary Kristi Noem purported to end it.

Sauer came to court seeking a maximalist ruling — arguing that the provision in the law barring judicial review of the secretary of Homeland Security’s determination to terminate TPS makes all aspects of how the secretary implements the TPS termination unreviewable, even procedural requirements laid out in the law. (The law was passed before DHS existed, and the law’s references to the attorney general now apply to the DHS secretary.)

The challengers, on the other hand, came to court seeking specific types of review — for procedural claims relating to the TPS law’s requirements, as well as for constitutional claims. Specifically, although there are some different presentation of claims in the two cases, parties are challenging infirmities relating to consultation required about country conditions under the law and improper consideration of national interest, as well as pretext. Constitutionally, the Haiti plaintiffs also raised an equal protection challenge.

After a little less than two hours of arguments, it appeared likely that a narrow decision by a narrow majority would allow at least some of the challenges to proceed — although the scope of review allowed could be quite minimal and any result would be dependent on Roberts and Justice Amy Coney Barrett agreeing on a path forward and finding one that the Democratic appointees would sign on to.

Right out of the gate, Roberts — referencing the court’s 2018 decision regarding the third iteration of Trump’s travel ban — made clear that in his view DOJ’s maximalist position was concerning:

General, you rely on Trump versus Hawaii in your argument, but that involved the President and entry restrictions. Here, we’re concerned with the Secretary and aliens that are already present. Your argument is a significant expansion of Trump versus Hawaii, isn’t it?

Following that, Justice Ketanji Brown Jackson asked, “Is it reviewable for a person to allege that the Secretary made this determination without following the statutory steps?“

Sauer replied, “Certainly not.”

Justice Sonia Sotomayor, looking at Sauer’s claims in light of the statutory requirements, remarked that “what you’re basically saying is Congress wrote a statute for no purpose“ if it’s unreviewable.

Refusing to back off of the consequences of his argument, Sauer told Sotomayor that “baked into the very concept of a judicial review bar is the possibility that the decision that’s not subject to judicial review might be totally baseless, arbitrary, wrongly decided or really crazy.“

At that point, Justice Elena Kagan jumped in. Saying “point taken“ as to a secretary’s “arbitrary understanding of what the country conditions are,“ she then pivoted back to the procedural question: “[T]hat’s a different thing than to say that all the things that the statute says that the Secretary is supposed to do in order to determine country conditions are themselves unreviewable.“

Later, Barrett posed a direct and notable question to Sauer:

I wanted to take you to the procedural objection. Let’s say that you lose on your argument that even the process that the Secretary followed to terminate is not subject to judicial review. Take your best crack at articulating what standards a court would apply when reviewing the sufficiency of the consultation.

Sauer discussed the definition of “consult,“ but the exchange highlighted that — for a narrow majority of the court — it appeared there was a weakness to Sauer’s argument.

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During the challengers’ arguments, however, Barrett asked Ahilan Arulanantham, the lawyer representing the Syria-related challenge and co-director of the Center for Immigration Law and Policy at UCLA School of Law, about the effects of the case:

Is this going to get you very much? I mean, if it’s just kind of a box-checking exercise, why would Congress permit review of the procedural aspect when, really, what everybody cares about much more is the substance?

Arulanantham responded directly — although it was a stretch to take at face value in this moment — telling her, “I think it’s because Congress and us too and the millions of people who live with TPS holders have some faith in government, and they believe that if there is consultation, the decisions will be better.“

Jackson followed up, noting that enforcing such procedural requirements is “really not unusual” in an administrative context. “[I]sn’t that the whole thrust of something like the APA?“ she said of the Administrative Procedure Act. “Congress has always sort of understood that agencies are going to have a lot of discretion at the end of the day to make the determinations, but we still need to police to some extent the inputs — what they’re looking at, whether they give the public notice and comment,” concluding that “all of the things about procedural rules and requirements for decision-making are important even if the ultimate decision is still left to the agency.“

For his part Justice Sam Alito was focused on the potential for a ruling about procedural claims to expand. “[I]t is always going to be possible to raise procedural objections to what’s been done,” he told Arulanantham — although Arulanantham came back by noting that the court need not say anything about the “meaningfulness” of the consultation but could “only say it has to be about the topic” required under the statute.

At other points, the three remaining justices signaled support for a broad understanding of the judicial review bar.

Justice Clarence Thomas argued that the judicial bar was extremely broad. Justice Brett Kavanaugh — a near-constant defender of broad conceptions of executive authority — tossed Sauer a softball, asking him, “Can you explain the reasons why Congress would have barred judicial review as broadly as you assert?“ After that, Kavanuagh got mired down in the facts of conditions on the ground in Syria — which no one else, at this point, was discussing. Finally, for his part, Justice Neil Gorsuch was focused on the interim remedy “postponing“ the secretary’s termination during litigation and questioning why that wasn’t contrary to the judicial review bar.

As to the constitutional equal protection claim in the Haiti TPS case, which Sauer acknowledged the government is not arguing (in this case) is blocked by the judicial review bar, Sotomayor confronted Sauer with Trump’s words and the implications under the Supreme Court’s 1977 decision about judging unconstitutional animus in Village of Arlington Heights v. Metropolitan Housing Development Corp. She said:

Sauer responded that “none of them, not a single one of them, mentions race or relates to race in any way,“ instead insisting, “All those statements in context refer to problems like crime, poverty, welfare dependence, drugs, drug importation.“

After Jackson jumped in, questioning Sauer as to specific comments that he said were presented by the challengers “wrenched from context,” Jackson incredulously questioned Sauer whether “the position of the United States is that we have to have an actual racial epithet“ in order to find animus.

After some back and forth, Sauer ultimately told her, “The Court should conclude that the statements are unilluminating and fail to raise any plausible inference of animus.“

Later, when Bryan Cave partner Geoffrey Pipoly took to the podium regarding the Haiti-related challenge, he addressed the claim forthrightly and directly in his introduction.

“The reasons Secretary Noem gave for the termination were pretextual,” he told the court.

Alito told Pipoly of the TPS terminations, “you say they’re all non-white,“ and tried to take the lawyer down a path about who would be considered non-white — starting with Syrians, moving to Turks, and then Greeks.

When Alito then asked, “How about southern Italians?“ to laughter, Pipoly responded clearly — and correctly — that history had the answer there.

“Well, certainly 120 years ago when we had our last wave of European immigration, southern Italians were not considered white. So I think our concept of these things evolves over time.”

Moments later, Alito moved on with his statement about his dislike of “dividing the people of the world into these groups.“

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More on the VRA decision

Two hours earlier, Alito advanced that claimed principle, as Kagan said, by ignoring Congress and its 1982 amendment to the Voting Rights Act.

With that amendment, Congress told the Supreme Court that its earlier decision requiring those challenging redistricting under Section 2 of the VRA to show discriminatory intent was, effectively, wrong — instead requiring the use of a discriminatory effects test to judge such claims.

“This court, for 40 years, has honored Congress’s choice,” she said of the Gingles test the court adopted to apply the law in the wake of the amendment — and reaffirmed just three years ago. With the court’s decision, “It is as if [the amendment] never happened.”

As Law Dork covered in 2023, Roberts, in reaffirming the Gingles test, detailed how it operates:

The minority group at issue has to be “sufficiently large and [geographically] compact to constitute a majority in a reasonably configured district”; “politically cohesive”; and be able to show that “the white majority votes sufficiently as a bloc to enable it . . . to defeat the minority’s preferred candidate.” If those “preconditions” are met, challengers must also then show that, in consideration of the “totality of the circumstances,” the “political process is not ‘equally open’ to minority voters.

Alito — for the court and citing constitutional concerns that “§2 of the Voting Rights Act properly fit within Congress’s Fifteenth Amendment enforcement power“ — held that the amended “§2 imposes liability only when the evidence supports a strong inference that the State intentionally drew its districts to afford minority voters less opportunity because of their race.“

Going on, he insisted, “This interpretation of §2 does not require abandonment of the Gingles framework. We need only update the framework so it aligns with the statutory text and reflects important developments since we decided Gingles 40 years ago.“

The “update,” however, in addition to requiring an alternative map be presented by challengers, also provides what Kagan called an “automatic partisan gerrymandering defense.“

Given Rucho and building on a 2024 decision restricting racial gerrymandering claims, Alito explained that “this is our first occasion to address the implications of Rucho in a vote-dilution case.“ Here, the court held, plaintiffs in a Section 2 case now “must show that voters engage in racial bloc voting that cannot be explained by partisan affiliation.“

That, Alito held for the court, did not happen here, so the new map was unnecessary under Section 2 and, accordingly, is an unconstitutional racial gerrymander.

Referencing the 1980 decision that preceded the 1982 amendment, City of Mobile v. Bolden, Kagan wrote in dissent, “It is Bolden redux, despite Congress’s repudiation of that decision (and this Court’s precedents honoring that rejection). The majority has made its own assessment of current needs … and concluded that preventing racial vote dilution does not count among them.”

Although he wrote nothing on Wednesday, this has been Roberts’s aim since Congress was considering the amendment and he was a young lawyer opposing it in the Reagan administration.

Wednesday’s decision is, Kagan warned, a bleak future for minority representation.

“The Callais requirements have thus laid the groundwork for the largest reduction in minority representation since the era following Reconstruction,” she stated simply.

The most embarrassing 24 hours (yet) of the Justice Department in President Donald Trump’s second administration continued apace on Tuesday, when Acting Attorney General Todd Blanche announced another indictment of James Comey, the former FBI director. This time, Comey — targeted by President Donald Trump as a political enemy — was indicted in North Carolina in connection with his since-deleted Instagram post showing a photo of seashells laid out in the shape of the numbers “8647.”

Flanked by Eastern District of North Carolina U.S. Attorney W. Ellis Boyle and FBI Director Kash Patel, the trio discussed the two-count indictment obtained Tuesday, which charges Comey with making a threat against Trump by way of the Instagram post, which he later deleted once he heard that people aligned with Trump were saying that it was a call for violence.

Trump has said it meant “assassination,” which Comey said he had not known or intended in an interview with then-MSNBC’s Nicole Wallace at the time. In the interview, Comey said he took down the May 15, 2025 post — a picture of the shells that he said he and his wife saw when walking on the beach — because, “Even if I think it’s crazy, I don’t want to be associated with violence of any kind.”

Referencing the use of “86” in restaurants to mean an item is off the menu and his recollection of it being used to mean it was time to leave a place, Comey told Wallace he thought it was “a clever way to express a political viewpoint.”

DOJ — which already unsuccessfully indicted Comey once — instead decided to try again, following what Blanche said was an ongoing investigation that already took 11 months, using this since-deleted Instagram post as the basis for a count alleging that Comey “ma[d]e a threat to take the life of, and to inflict bodily harm upon, the President of the States.“

The second count is that Comey did so via Instagram — “transmit[ting] in interstate and foreign commerce a communication“ containing the alleged threat.

The two primary difficulties with the indictment — which are, essentially, the whole ballgame — are what comes before and after those descriptions of the action:

• Recipient: DOJ alleged and would need to prove under the law that “a reasonable recipient“ of the image of “8647” posted by Comey “who is familiar with the circumstances would interpret” the post “as a serious expression of an intent to do harm” to Trump — which will be difficult to prove given the many meanings of the term “86.”

• Defendant: DOJ alleged and would need to prove under the law that Comey did so “knowingly and willfully” — which will similarly be a difficult standard to prove even if, somehow, they could get over the first hurdle given Comey’s actions and statements in the aftermath of his posting it.

Shortly after the Instagram posting last year, Alan Rozenshtein and Ben Wittes at Lawfare posted an analysis of the legal questions surrounding the post, concluding, “James Comey could have gone a lot stronger than ‘8647’ and still not risked jail.“

In part, they wrote:

Even if this absurdly ungenerous interpretation of a picture of seashells were the correct one, there would still be no justification for, as Tulsi Gabbard put it, Comey to go to jail. If the administration wants to condemn Comey’s post, fine. If we thought there was even a small chance that Comey was encouraging violence, we’d join the condemnation. …

But what’s not remotely plausible is treating this as a criminal matter.

They then cited the two provisions under which Comey was charged on Tuesday. So, what of it? They concluded that, even if the post was “interpreted in the light least favorable to Comey,” it still wouldn’t be a threat — which is the charge. At most, they wrote, it would “arguably” be “a call to violence.”

Here’s where the First Amendment comes in:

In Brandenburg v. Ohio, the Court held “the constitutional guarantees of free speech and free press do not permit [a law] to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” The key point is that even exhortations to violence cannot be criminalized unless they are detailed and the threat of lawlessness is imminent.

But, as to the actual threat statute under which DOJ nonetheless sought Tuesday’s indictment, the First Amendment “true threats” doctrine — most recently explained by the U.S. Supreme Court in 2023’s Counterman v. Colorado — would apply and the statute’s objective (recipient) element and subjective (defendant) element would need to be proved beyond a reasonable doubt.

To that end, and as others have pointed to on Tuesday, the U.S. Court of Appeals for the Ninth Circuit overturned a conviction back in 2011 under a related statute — despite the charged conduct containing far more violent and direct language — when a man posted on a message board that then-candidate Barack Obama “will have a 50 cal in the head soon,“ later posted “shoot the nig,” and posted other racist, offensive language as detailed in Judge Stephen Reinhardt’s opinion for the court:

Reinhardt continued:

Why? This was key:

The majority there found that neither element was met.

That test, of course, is essentially what I referenced above, and, when analyzed under the “true threat” rubric — as the Ninth Circuit’s case did — it is next to impossible to see how the seashells post could be seen as a threat, either as to Comey’s intent or as to any reasonable recipient’s response to it.

The history of Trump’s attacks on Comey, DOJ’s prior efforts to indict Comey, and Tuesday’s politicized news conference all suggest the aim was to please Trump and intimidate Comey and other opposition to Trump — not to enforce the law.

For his part, Comey has already responded.

James Comey

Seashells

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5 days ago · 837 likes · James Comey

“Well, they’re back,” Comey said in a short video, adding, “I’m still innocent, I’m still not afraid, and I still believe in the independent federal judiciary, so let’s go.”

The case has been assigned to U.S. District Judge Louise Flanagan, a George W. Bush appointee.

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Second Circuit blocks Trump admin mandatory detention policy

On Tuesday, the U.S. Court of Appeals for the Second Circuit blocked the Trump administration’s mandatory immigration detention policy in a unanimous panel decision that creates a circuit split, making U.S. Supreme Court review almost certain.

The opinion from Judge Joseph Bianco, a Trump appointee, was joined by both Judge José Cabranes, a Clinton appointee who also wrote separately, and Judge Alison Nathan, a Biden appointee.

As Law Dork has detailed previously:

Prior to now, the understanding of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) has been that people present in the country who were never legally admitted here are subject to a section of law that allows release and requires bond hearings (absent exceptions in the law) if the government seeks to deport them — and not a different section of law that requires mandatory detention. That second section has been applied only to “arriving aliens,” which just so happens to be the language used in that title of the U.S. Code.

Not so, said the Trump administration, which argues that everyone who was never legally admitted to the country is subject to the mandatory detention provision. The bond-hearing section, they argue, essentially only applies to people who overstay their visas.

After detailing all of that, Bianco held for the Second Circuit that on all fronts, the administration’s argument failed:

The government’s attempt to muddy these textually clear waters defies the statute’s context, structure, history, and purpose; contradicts the Supreme Court’s dicta in [an earlier immigration case] and longstanding Executive Branch practice; and its interpretation of the statute raises serious constitutional questions that should be avoided even if the statutory language were ambiguous.

This is, as Cabranes wrote in his concurring opinion, “good news.“

For now and for the Second Circuit — which includes Connecticut, New York, and Vermont — it is. For the swath of nine states from Minnesota all the way down to Louisiana within the U.S. Courts of Appeals for the Fifth Circuit and Eighth Circuit, however, the Trump administration — on two 2-1 appeals court rulings — would be allowed to carry out its mandatory detention policy.

The question on the horizon, though, is what happens when one or more of these cases get to the Supreme Court — but that will not likely come until sometime next term, which begins in October. Given where things stand with the various cases, it’s not likely that a case would even be heard until 2027.

As with most aspects of both the Trump administration and the Supreme Court, however, all of that could change tomorrow.

Just before the end of the day on Monday, Associate Attorney General Stanley Woodward personally filed a deranged motion in federal court asking U.S. District Judge Richard Leon to issue a ruling in the National Trust’s case challenging President Donald Trump’s ballroom plan stating that Leon would dissolve the preliminary injunction he previously issued in the case (twice) if he had jurisdiction to do so.

“The injunction must be dissolved,” the DOJ filing declares in its conclusion — after seven pages of bombast.

It was clear to anyone who looked at the filing that it — particularly the opening and conclusion — more closely resembled a Truth social post from Trump than a legal filing from the Department of Justice.

It was yet another dark, embarrassing moment for DOJ — one that summed up the destruction that Trump and his sycophants have unleashed on the institution.

The opening paragraph of the Monday night filing went on for two pages and clocked in at more than 500 words.

Among other objectionable statements, the opening refers to the National Trust derisively multiple times, including asserting that “they suffer from Trump Derangement Syndrome, commonly referred to as TDS,“ in the first of two mentions of Democratic Sen. John Fetterman’s post on X expressing support for Trump’s White House ballroom plan.

Leon, who previously entered a preliminary injunction in the case (the second), does not have jurisdiction to dismiss the injunction even if he were inclined to do so because the Justice Department appealed that ruling, so jurisdiction over it is currently with the U.S. Court of Appeals for the D.C. Circuit.

As such, DOJ — in the midst of everything else going on in Monday night’s filing — is seeking an “indicative ruling” that he would dissolve the injunction if he could.

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The filing came a day after Assistant Attorney General Brett Shumate, the head of DOJ’s Civil Division, sent a letter to the lawyer for the National Trust, asking them to dismiss their case in the aftermath of this weekend’s shooting at the White House Correspondents’ Dinner. The National Trust’s lead lawyer, Foley Hoag partner Greg Craig, rejected the request early Monday.

The Monday night filing was not submitted by any of the 11 lawyers who filed the notice of appeal in the case on April 16. Instead, shortly before the filing, Woodward entered an appearance in the case.

It is very rare for the associate attorney general — No. 3 at DOJ — to enter an appearance in a case, let alone personally file a brief.

But, on Monday night, that is what happened.

Woodward signed the filing, which was submitted for Acting Attorney General Todd Blanche, Principal Associate Deputy Attorney General Trent McCotter, and Woodward.

In what passes for the legal section of the filing — three numbered sections — the trio from the upper leadership of DOJ argued that Leon can and should issue an indicative ruling; detailed the weekend’s shooting in terms that will undoubtedly be used by the suspect’s defense lawyers in the coming weeks and months; asserted that Trump’s White House ballroom “is required for National Security”; and argued that “the injunction is intolerable and unsustainable as a matter of equity and Law” and “must be dissolved.“

After making those attempts at arguments, Blanche, McCotter, and Woodward beclown themselves once more before closing the short filing.

“If any other President had the ability, foresight, or talents necessary, to build this ballroom, which will be one of the greatest, safest, and most secure structures of its kind anywhere in the World, there would never have been a lawsuit,” they wrote. “But, because it is DONALD J. TRUMP, a highly successful real estate developer, who has abilities that others don’t, especially those who assume the Office of President, this frivolous and meritless lawsuit was filed. Again, it’s called TRUMP DERANGEMENT SYNDROME.”

Here was how they concluded the filing:

As of 1:00 a.m. Tuesday, DOJ had filed nothing relating to the weekend’s developments on Monday’s district court filing with the D.C. Circuit.

This is a developing story. Check back at Law Dork for the latest and subscribe now for independent legal journalism.

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On Monday morning, the U.S. Supreme Court ended the challenge to Texas’s mid-decade redistricting — with all Republican appointees voting to summarily reverse the three-judge district court’s earlier decision finding that the redistricting included likely unconstitutional racial gerrymandering.

A summary action means the court has resolved a case based on the initial briefing asking the Supreme Court to review the case — without receiving full briefing or hearing arguments.

The three Democratic appointees noted their dissent from the court’s action.

No justice wrote anything beyond the order’s one-sentence statement that the majority was acting “[f]or the reasons set forth in” the Supreme Court’s shadow-docket decision granting a stay pending appeal in the same case this past fall.

Yes, the Supreme Court’s Republican appointees on Monday let a five-paragraph shadow-docket ruling from December 2025 serve as the only “reasons” for a summary reversal of a 160-page district court decision.

This hopefully will put an end to Justice Amy Coney Barrett’s ridiculous Fox News defense of the shadow docket in October 2025, where she insisted that “in none of these cases have we finally resolved the issue.”

In that interview, Barrett proclaimed that “[d]eciding a merits case is a painstaking process,“ very different from the “preliminary” review on the shadow docket. In those cases, she said that there are often not “long opinion[s]“ because “it might give the impression that we have finally resolved the issue.”

We wouldn’t want that.

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DOJ struggles with geofence warrants case defense

In its first oral argument on Monday morning, the justices discussed the question — raised in a case brought by Okello Chatrie — of whether geofence warrants are constitutional.

At the end of two hours of arguments, it appeared that the federal government won’t get what it wanted out of the case — appearing potentially to lose both Chief Justice John Roberts and Justice Amy Coney Barrett at key points on Monday as Deputy Solicitor General Eric Feigin repeatedly made expansive arguments that could essentially write the Fourth Amendment out of important aspects of modern policing.

In addition to Roberts and Barrett, the Democratic appointees and Justice Neil Gorsuch were skeptical of the scope of the government’s arguments — although Justice Ketanji Brown Jackson questioned why Chatrie’s lawyer, Jenner & Block partner Adam Unikowsky, was making his own “maximalist” arguments that she thought might not be “necessary to get to the point where you want to go.”

What is a geofence warrant?

From the question presented by Chatrie’s lawyers, the explanation is: “For cell phone users to use certain services, their cell phones must continuously transmit their exact locations to their service providers. A geofence warrant allows law enforcement to obtain, from the service provider, the identities of users who were in the vicinity of a particular location at a particular time.”

The question presented by the case is straightforward:

Feigin repeatedly insisted that the decision by users to “opt in” to the Google location tracking with a cloud-based history at issue in the warrant was key. “I do think that what really matters here is that people have affirmatively opted in,“ he told Roberts at one point.

At that point, it was an attempt to blunt the harm that has already come to his position. Although Roberts had asked Unikowsky about the opt-in aspect of the case, the mirror questions from Roberts to Feigin were more aggressive and got a worse response.

Far from assuaging those concerns, Feigin first tried to talk around them, then tried to say the “opt-in” aspect made all the difference.

Within a short time, Roberts had moved to a far more aggressive position:

It went substantially downhill from there when Feigin soon responded:

Roberts soon shot back, “So, to prevent surveillance of sensitive locations, you have to rely on the fact that people are going to turn off something that many if not most people find is an important service?“

When Feigin tried to push back, Gorsuch — who had been skeptical of the government’s position all morning — stepped in.

After Justice Elena Kagan asked if the government’s position would be “the same if [they] had picked up Mr. Chatrie in his home,” that became Barrett’s skepticism cue.

After Feigin initially tried to get away from the question by saying that the government “couldn’t locate which of the houses was his,“ Barrett jumped in.

After a few unsuccessful efforts to blunt her question, Barrett summed things up:

And Feigin was left acknowledging that the government wanted to be able to argue in the future that the government could track you into your home and it wouldn’t be a search so long as you opted in to that tracking.

Meanwhile, Justice Sam Alito — perhaps appearing ready for [an extended?] vacation — asked Unikowsky why the court was even hearing the case.

He went on to explain to Unikowsky that, in his view, it seemed that, given the posture of the case and lower court ruling, “what you’re asking for is an advisory opinion.“

Despite that, it did appear that the other justices, perhaps with the exception of Justice Clarence Thomas, were planning to resolve the case as granted.

In the aftermath of Saturday night’s shooting by a man who was stopped one floor away from where the White House Correspondents’ Dinner was taking place, President Donald Trump said in his news conference later that night that the shooting reinforced the need for his East Wing ballroom.

In a letter posted online by Acting Attorney General Todd Blanche on Sunday, the administration doubled down — and apparently envisions and hopes for a United States where Trump and future presidents “no longer need to venture beyond the safety of the White House perimeter to attend large gatherings.“

Yes, it is reported that the suspected shooter, “in a missive sent to family members moments before the attack,“ per The Washington Post, described an aim of killing members of the Trump administration. Yes, it is also true that, outside of the same hotel in 1981, then-President Reagan was shot by John Hinkley. But to say that the answer is building a White House from which the president never needs to leave does not inspire confidence either in the future of American democracy or the plans of this administration, given their track record.

Per the Sunday letter, it was sent by Assistant Attorney General Brett Shumate, the head of DOJ’s Civil Division, to Greg Craig, the Foley Hoag partner and former Obama White House counsel who is representing the National Trust for Historic Preservation in the organization’s challenge to Trump’s ballroom plans.

Shumate’s letter is a political diatribe, not a legal document, that claims the shooting “proves” Trump’s White House ballroom construction “is essential for the safety and security of the President, his family, his cabinet, and his staff.“

In it, Shumate — who has never, it appears, worked at the White House — wrote to Craig — who worked in the White House for two presidents — that the “lawsuit puts the lives of the President, his family, and his staff at grave risk.“

He then told Craig that if the National Trust does not dismiss its “frivolous lawsuit” — that has already led to a preliminary injunction being issued, so, no, it’s not frivolous — by 9 a.m. Monday, “the government will move to dissolve the injunction and dismiss the case in light of last night’s extraordinary events.”

In the offensive letter, Shumate conflates history with current dangers, the reality of violent mass shootings in the U.S. with dangers Trump faces, the dangers a president faces whenever outside of a federal facility with the dangers faced on Saturday night, the security of a president when within a presidential facility with the need for Trump’s ballroom, non-White House events like the one that Trump was attending on Saturday with White House events, and then mixes and matches among all of these justifications to conclude that the National Trust’s lawsuit is “dangerous.”

Violence is not the answer, and the shooting was unambiguously bad. Trump’s proposed ballroom would not fix the problem, however, and the lawsuit challenging the ballroom effort is neither frivolous nor dangerous.

What is dangerous is DOJ’s Civil Division chief sending a letter like this to a private plaintiff’s counsel — especially when it’s almost certainly being done and shared publicly by the acting attorney general because it’s what Trump wants.

[Update, 1:35 p.m. April 27: As of 1:30 p.m. Monday, DOJ had filed nothing in the case at either the U.S. Court of Appeals for the D.C. Circuit or the district court.

Additionally, Law Dork was provided a copy of the response sent by the National Trust’s lawyer, Foley Hoag partner Greg Craig. He told DOJ’s Brett Shumate that “[t]he National Trust respectfully declines the invitation to dismiss.”

In the letter, he further told Shumate:

Your assertion that this lawsuit puts the President’s life at “grave risk” is incorrect and irresponsible. Simply put, this case does not jeopardize the President’s safety in any way. And nothing prevents you from asking Congress at any time for the necessary authorization required by the Constitution and federal law.

Finally, in a statement from the National Trust provided to Law Dork, Carol Quillen, president and CEO of the National Trust said:

We’re grateful to the Secret Service and DC law enforcement officers for keeping the President and all guests safe at this weekend’s White House Correspondents’ Association Dinner.

We are not planning to voluntarily dismiss our lawsuit, which endangers no one and which respectfully asks the Administration to follow the law. Ballroom construction is continuing unabated until June 5th at the earliest because the injunction is on hold.

We have always acknowledged the utility of a larger meeting space at the White House. Building it lawfully requires the approval of Congress, which the Administration could seek at any time.

Law Dork will have more as appropriate.]

Closing my tabs

This Sunday, these are the tabs I am closing:

For those who don’t know what this is, it’s my effort to give a little thank you to paid subscribers. “Closing my tabs” is, literally, me looking through the stories and cases open — the tabs open — on my computer and sharing with you all some of those I was unable to cover during the week but that I nonetheless want to let you know that I have on my radar. Oftentimes, they are issues that will eventually find their way back into the newsletter as a case discussed moves forward or something new happens that provides me with a reason to cover the story more in depth.

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Acting Attorney General Todd Blanche announced on Friday that the Justice Department was reinstating the lethal injection death penalty protocol adopted during the first Trump administration and that he was directing the Bureau of Prisons to take steps to expand the protocol to include other methods of execution “such as the firing squad.“

In an accompanying report, the Justice Department’s Office of Legal Policy, in addition to the firing squad, also recommended the inclusion of electrocution and “lethal gas" (i.e., nitrogen suffocation) in the expanded protocol.

Referencing lethal injection drug access problems and related lethal injection drug litigation, the report stated:

A DOJ spokesperson did not respond to a request for comment about whether Blanche was, in accordance with the OLP report, directing BOP to include all three alternative methods or the timeline for when the expanded protocol was to be prepared and adopted.

Among other plans cited in the news release accompanying the report, Blanche also relatedly “[d]irected BOP to examine relocating or expanding federal death row or constructing an additional execution facility to permit additional manners of execution.“

The effort to beef up the death penalty is in accord with President Donald Trump’s longtime aggressive support for the death penalty, the 13 executions carried out in the last six months of his first term, and his day-one executive order in his second term “restoring the death penalty.”

And though Trump, Blanche, and others can take actions to make the federal government “more pro-death penalty,” there is always the underlying reality that former President Joe Biden commuted the death sentences of all but three people on federal death row. (In addition to federal death row at Terre Haute, Indiana, four people currently have been sentenced to death by the U.S. military under the Uniform Code of Military Justice and are imprisoned in Fort Leavenworth, Kansas. Thanks to Matt Montazzoli for the note.1)

In fact, much of the “report” is actually more of a political document — containing, as it does, a section going after Merrick Garland’s tenure as attorney general: “The Department Abandoned Its Obligation to Seek and Implement Capital Sentences.“

Notably, the report completely ignores the fact that the Justice Department during the Obama administration did not carry out any executions. This happened, primarily, because there was a de facto moratorium due to the lack of access to the execution drugs allowed under the federal execution protocol in place at the time. In addition to that, though, then-President Barack Obama also called for a death penalty review during his second term that, while ultimately coming to nothing, did have the effect of ending the possibility of DOJ carrying out any executions while Obama remained in office.2

But, the point of the report was, like most things during Trump’s second term, to present a picture that opposes Biden and those who worked in his administration.

The three people left on the federal death row are Dzhokhar Tsarnaev, sentenced to death for murders committed in the Boston Marathon bombing; Dylann Roof, sentenced to death for murders committed at Emanuel African Methodist Episcopal Church in South Carolina; and Robert Bowers, sentenced to death for murders committed at the Tree of Life Synagogue.

Although there are others facing death penalty charges, the bottom line is that there will be very few executions in the second Trump administration, regardless of how much Blanche and whoever might come after him do to try and “strengthen” the federal death penalty.

And yet, Trump’s first term serves as a reminder that when whatever comes after Trump eventually comes, strong action must be taken to reverse whatever dangerous inhumanity Trump, Blanche, and others put in place now.

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Fifth Circuit tosses challenge to Texas’s criminal immigration law

At the end of the day Friday, the U.S. Court of Appeals for the Fifth Circuit issued a 10-7 en banc ruling that would allow Texas to enforce S.B. 4, its criminal immigration law.

In the ruling from Judge Jerry Smith, a Reagan appointee, on behalf of 10 Republican appointees on the appeals court, he held that the organizations and county left suing over the law — after the United States dropped its lawsuit following President Donald Trump’s return to office — lacked standing to challenge the law. As such, the court held that the preliminary injunction blocking the law is to be vacated.

Smith highlighted that, because of the majority’s standing decision, the court was ruling “without addressing the merits of the preemption claim” that had formed the basis of earlier decisions blocking the law in light of Arizona v. United States, a 2012 U.S. Supreme Court decision that had blocked portions of an Arizona immigration law as being preempted by federal law.

Judge James Ho, a Trump appointee desperately waving his hands so that Trump will see that he would really like a seat on the U.S. Supreme Court, wrote a solo concurring opinion — meaning none of the 17 judges on the far-right court joined him — defending Texas’s “war power defense“ and spilling ink on wildly racist claims.

“There is broad consensus among national security scholars and experts that countries deliberately weaponize mass migration to harm other countries just as much as conventional arms,“ Ho wrote.

Luckily, again, even on the Fifth Circuit, no one joined him.

However, six judges joined another Trump appointee, Judge Andrew Oldham, in addressing the preemption claim that Smith sidestepped (mostly). Oldham found that the Texas law is not facially preempted, and also wrote about “the many ways Arizona is not to the contrary.“

As Aaron Reichlin-Melnick noted, it is key that Oldham’s ruling on preemption was not supported by a majority of the Fifth Circuit on Friday (although, as the dissenters noted, there was language in the majority opinion skeptical of the preemption argument). In addition to Smith, however, Judges Catharina Haynes, a George W. Bush appointee, and Cory Wilson, a Trump appointee, did not join Oldham’s ruling. (Both Haynes and Wilson have differentiated themselves from the furthest-right members of the court at times, including in an earlier Texas versus U.S. immigration-related case.)

Seven judges dissented from Smith’s ruling, including two Republican appointees: Judges Priscilla Richman and Leslie Southwick, both George W. Bush appointees.

Richman wrote the lead dissent for all seven, including the five Democratic appointees on the court, finding that “[a]t least one of the plaintiffs“ have standing and, on the merits, “The Arizona decision remains controlling, and the immigration laws Texas has enacted are preempted by federal law.“

The majority and two concurring opinions took up 36 pages. Richman’s opinion runs 103 pages.

Judge James Graves, an Obama appointee, wrote a second dissenting opinion on behalf of all of the dissenters except Southwick, focused on the standing issues — and his concerns about the majority’s treatment of the plaintiffs in the case.

“We should not oversimplify a party’s injury, nor should we oversimplify controlling caselaw,” he wrote. “The majority does both here, with troubling consequences.”

Finally, Judge Stephen Higginson wrote a dissent joined by all of the dissenters except Graves, focused on how the standing question merges with the preemption questions.

“I write separately to highlight that Texas’s Supremacy Clause violation is indivisible from plaintiffs’ injury,“ he explained.

With Friday’s decision, however, the Texas law will be able to be enforced absent further court action — Arizona notwithstanding — and the harm would befall these organizations, many immigrants and others who could get caught up in S.B. 4 enforcement efforts, and more.

Trump’s self-dealing IRS suit hits a snag

President Donald Trump has apparently pushed the Justice Department and Drug Enforcement Administration another step closer to marijuana legalization. Although the Trump administration deserves credit for the move, peeking under the surface, it is clear that several key steps leading to Thursday’s developments were actions taken by the Biden administration.

Legalization itself would have to come through Congress, but the executive-side effort has been to reschedule marijuana from a Schedule I to Schedule III drug. Schedule I drugs are defined by the DEA as having “no currently accepted medical use and a high potential for abuse,“ whereas Schedule III drugs “with a moderate to low potential for physical and psychological dependence“ that do have accepted medical uses.

On Thursday, DOJ issued two documents from Acting Attorney General Todd Blanche moving that process forward: an order, effective immediately, rescheduling state-licensed medical marijuana and medical marijuana products as a Schedule III drug and a notice that a hearing regarding rescheduling marijuana more broadly would be held beginning June 29.

Here’s the key paragraph from Blanche’s 33-page order:

Noted in that paragraph are two key underlying pieces of Thursday’s move: a 2023 U.S. Department of Health and Human Services recommendation supporting rescheduling and report providing the basis for that recommendation and a subsequent 2024 Justice Department Office of Legal Counsel opinion addressing issues involved in the potential rescheduling.

The efforts were spearheaded and signed by two Biden appointees. The HHS recommendation was from Dr. Rachel Levine, the assistant secretary of health.

As Blanche wrote in Tuesday’s order, after spending five pages detailing and citing to the HHS report, he decided to “exercise [his] discretion in determining the most appropriate schedule by choosing the option that most closely aligns to HHS’s findings.“

Levine’s expertise, deferred to on Thursday, has regularly been the topic of criticism from the right. A trans woman, Levine had acted in her role to advance and support the provision of gender-affirming medical care, including for minors.

Nonetheless, her opinion was the basis for Blanche’s choice on Thursday, backed up as it was by the OLC opinion, which was from another Biden appointee, Christopher Fonzone, assistant attorney general for OLC.

Those moves, in turn, had been prompted by actions from then-president Joe Biden in 2022 — specifically asking DOJ and HHS “to initiate the administrative process to review expeditiously how marijuana is scheduled under federal law.“

Trump continued those efforts with his own executive order this past December, which he followed up on in the Oval Office just last week.

Given Trump’s repeated focus on this, one sentence stood out in the hearing notice: “DEA is committed to accelerating the rulemaking process from this point forward.“

One of the biggest consequences of the medical marijuana rescheduling order outside of the rescheduling itself is the “tax implications” for affected businesses:

Additionally, it should be noted that Thursday’s order — even within medicinal marijuana use — does not change the scheduling of synthetic THC. That “remains in schedule I.”

As for the broader rescheduling question, it will be subject to a multi-day hearing that will begin on June 29 in Arlington, Virginia and could continue through July 15, per the notice.

Among the items of note: There will be a recess on July 4 and 5 “[t]o allow all parties to celebrate 250 years of American independence,“ and the hearing can be moved elsewhere “without notice” aside from the administrative law judge announcing the move at the hearing itself.

This will, of course, lead to a still-longer process before any broad rescheduling happens. And that is not legalization. But it is a notable step and a rare area where the government has moved in the same direction consistently over the past five years.

While Trump is eager to avoid crediting — and often aimed at obliterating — Biden’s accomplishments, this is one area where what is happening now is a continuation of and next step in an action that Biden’s administration began.

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Virginia: What’s next?

Virginia voters sided with a Democratic-advanced mid-decade redistricting on Tuesday, leading to Republican apoplexy. Steve Morris covered what issues the results raise for Democrats in his The Long Run newsletter:

The legal efforts from Republicans to stop the redistricting — which began before the vote — are continuing, leading to a Wednesday order from Tazewell County Circuit Court Judge Jack Hurley blocking certification of Tuesday’s election for now.

This week’s order out of Tazewell County — population 40,000 and located in northwest Virginia — is one of several lawsuits challenging the referendum that is pending, including some already at the Virginia Supreme Court.

As WJLA ABC7 reported, “The Virginia Supreme Court overruled two previous orders from the circuit court to block the referendum vote. The state’s highest court is still expected to hear those cases.“

Ultimately, the Virginia Supreme Court is expected to consider these disputes and issue a final ruling (or rulings) in short order — although Republicans have suggested they might take that ruling to the U.S. Supreme Court.

I think it’s an extremely uphill battle — tossing out clear election results sounds exceptionally unlikely — but nothing should be ruled out until it’s a done deal in 2026.

Forty-five years ago, a nonprofit organization’s program aimed at “placing sympathizers into Klan groups for the purpose of gathering information” was decried as “extremely dangerous to American freedom.“

On Tuesday, Acting Attorney General Todd Blanche announced that a later iteration of that program was the source of an 11-count indictment secured by the Department of Justice against the Southern Poverty Law Center — which he accused of “paying sources to stoke racial hatred” within white supremacist organizations, including the Ku Klux Klan.

FBI Director Kash Patel, under whose direction the FBI cut ties with the SPLC last year, was at Blanche’s side on Tuesday.

Bryan Fair, the interim president and chief executive officer of SPLC, said in a video statement released before the indictment was out, “We are … unsurprised to be the latest organization targeted by this administration. They have made no secret of who they want to protect and who they want to destroy.”

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The indictment

The indictment alleged that through its prior use of paid informants within extremist organizations — called field sources (or “Fs”) by the SPLC — the organization committed wire fraud (six counts) because donors weren’t aware of a program that the indictment itself acknowledges “[s]tart[ed] in the 1980s.”

It’s important to understand how ridiculous a claim that is — and how absurd it is in context. First of all, this is a discontinued program, as Fair noted in the video.

Additionally, the indictment stated: “Between 2014 and 2023, the SPLC secretly funneled more than $3 million in SPLC funds to Fs who were associated with various violent extremist groups.” In 2023, SPLC’s total revenue was $123 million — and that’s one year. The idea that donors were defrauded by the existence of one program that’s been known about for 45 years and that had cost the organization just a minuscule portion of its budget in any given year is an unbelievable stretch.

Notably, these counts include a forfeiture allegation later in the indictment that could be an extreme attempt — given the charge — to seek forfeiture of all donations to the organization if a conviction is secured on these counts.

The second charge alleged in the indictment is that the organization, in carrying out the field program, made false statements to a federally insured bank (four counts) when SPLC set up bank accounts with dummy company names for use in paying the informants.

When Patel announced the ending of the FBI’s relationship with the SPLC, the Associated Press characterized it as “a dramatic rethinking of longstanding FBI partnerships with prominent civil rights groups.“ As Fair noted in the video, SPLC at times shared information gathered through its field sources program with law enforcement, including the FBI.

Tuesday went around the bend, as Blanche tried to claim that SPLC, through this informant program, was helping white supremacist organizations. DOJ’s own indictment belies the claim. Here is the indictment’s description of one of the informants (two, really):

DOJ, a dozen years after that document episode, obtained an indictment that — on its face — explained exactly why F-9 couldn’t be getting a paycheck from the Southern Poverty Law Center. Instead, F-9 was apparently paid from an account like “Fox Photography,” “North West Tech,” or “Tech Writers.”

DOJ was investigating the SPLC over those sorts of actions — and two lawyers in the U.S. Attorney’s Office for the Middle District of Alabama, including Acting U.S. Attorney Kevin Davidson, took the case to a grand jury.

Ignoring the facts laid out in the indictment, Blanche nonetheless said on Tuesday that while SPLC “purports to fight white supremacy and racial hatred by reporting on extremist groups … with the goal of dismantling these groups,” it “was not dismantling these groups, it was instead manufacturing the extremism it purports to oppose.”

The final charge in the indictment built off of the second set of charges, alleging that the organization was engaged in a conspiracy to commit concealment money laundering because of its efforts to protect its field sources from discovery. This count also includes a forfeiture allegation.

“It was the objective of this conspiracy to conduct financial transactions designed to conceal the true nature, source, ownership, and control of fraudulently obtained donated money the SPLC paid to Fs,“ the indictment states — again linking it to the alleged “fraudulently obtained” money from donors.

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A look back

Forty-five years ago, the program to track the Klan started by Morris Dees, the founder of SPLC, was called Klanwatch.

The quotes decrying that program that led tonight’s newsletter came from Fiery Cross, the “Official Publication of the United Klans of America,” a copy of which was provided to Law Dork.

It was published in Tuscaloosa, Alabama in 1981.

As SPLC itself has explained, the United Klans was “the same group that had beaten the Freedom Riders in 1961, murdered civil rights worker Viola Liuzzo in 1965 and bombed Birmingham’s 16th Street Baptist Church in 1963.“

In that 1981 issue of Fiery Cross, “The Legal Staff of the UKA“ described the new Klanwatch effort in the extremely racist terms one would expect of a Klan publication:

There was no lack of understanding of Klanwatch’s purpose 45 years ago. The Legal Staff of the United Klans of America understood it perfectly:

Forty-five years later, the question isn’t why Blanche doesn’t understand. Of course he does. The question is what it says about Blanche and the Department of Justice that he is pretending not to know the purpose of the SPLC’s prior use of field sources — and is using the criminal law to advance his contorted purpose.

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A final thought

Nearly 40 years ago, the United Klans of America was bankrupted by the judgment in a lawsuit brought by Beulah Mae Donald, the mother of Michael Donald, a 19-year-old lynched by two members of the United Klans.

On Tuesday, Blanche was left attacking the people looking to find out “everything there is to know about every single Klan group” and related white supremacist groups.

SPLC is not done, though.

“We stood in the vanguard then, and we stand in the vanguard today,” Fair said in the video statement. “We will not be intimidated into silence or contrition, and we will not abandon our mission.”

DOJ and the employees of that agency, however, would do well to remember its mission.

A trio of court rulings over the past week — one state court decision and two federal court decisions — show the breadth of attacks that transgender people are facing in the United States and the strong way trans people and lawyers supporting them are fighting back in courts.

On April 14, the Montana Supreme Court upheld a preliminary injunction blocking Montana’s enforcement of a policy — implementing a state law — “that it would not amend birth certificates based on ‘gender transition, gender identity, or change of gender.’”

One of the plaintiffs in the case, identified by the pseudonym of Jane Doe, is a 25-year-old transgender woman who lives in Montana.

As the court’s opinion, by Justice Laurie McKinnon, explained, “Ms. Doe’s appearance has changed significantly and no longer matches the photo or sex designation on her Montana driver’s license.“ Because of the policies, she has been unable to change her birth certificate and, accordingly, her license.

Ms. Doe had a prolonged interaction with law enforcement during a traffic stop because the officer could not verify her identity based on her pre-transition driver’s license photo and sex designation. …

As she continues her transition, Ms. Doe fears that not having a driver’s license that accurately portrays how she holds herself out to the public will put her at risk of criminal prosecution because her driver’s license will no longer be effective to verify her identity should she be required to do so.

This is the reality for many trans people now, and McKinnon’s opinion, as well as a concurring opinion by Justice Beth Baker, make clear how attuned some judges are to the harms of that reality — a sharp split from the U.S. Supreme Court’s majority.

After detailing how Montana’s Constitution “allow[s] for even more individual protection than the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution” in its Individual Dignity Clause, including explicit sex discrimination protection, McKinnon explained in this context what Chief Justice John Roberts and the majority refused to see in last year’s decision upholding Tennessee’s ban on gender-affirming medical care for trans minors:

With that understanding, the court easily concluded that “the State’s position ignores that only transgender persons are discriminated against when they are not allowed to have identification documents that match their gender identity and that this constitutes discrimination based on sex, a category specifically identified in Montana’s Nondiscrimination Clause.”

The five justices in the majority — and their language of understanding — was offset somewhat harshly by Justice Jim Rice’s 20-page fever-swamp dissent, which Chief Justice Cory Swanson joined.

His first sentence was literally: “Today’s decision forces the State to issue falsified legal documents.“

I’m not going to detail much of the dissent, but I will give you one example that really shows you what we’re dealing with here. Upset that McKinnon discussed how the policy treated cisgender and transgender Montanans differently, Rice wrote:

[T]his use of “cisgender”—a term that is not only inaccurate but potentially offensive, as explained below—mistakenly theorizes that all people living consistent with their birth sex have made a deliberate “gender identity” decision to adopt such a lifestyle. … There is no evidence whatsoever that every such person [living consistent with their biological birth sex] has made a “gender identity” decision, as it is completely unnecessary. The need to “gender identify” arises only when people want to live a lifestyle inconsistent with their biological origin.

Later, in a footnote, Rice provided his explanation of the alleged offensiveness of the term:

[W]hile it may be appropriate to label people as belonging to a gender identity category who have expressly chosen and embraced such label, including “cisgender,” it is highly inappropriate to label people as belonging to a gender identity category who have made no such choice, particularly, those people who do not believe in or who object to such choices. For those people, the “cisgender” label is false, as well as offensive to some, and the Court’s use of it is factually incorrect.

The entire time I read it, I’ll be honest, I just kept imagining Rice saying he’s not “straight,” he’s just “normal.”

That — and far worse — language is finding its way into court decisions, but also into governmental policies targeting trans people for worse treatment under the law.

But, as we saw in two cases in the federal courts, people are fighting back — as tough as it might be in this environment.

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Trans women in prison

On Friday, April 17, the U.S. Court of Appeals for the D.C. Circuit issued a difficult ruling in the challenges to President Donald Trump’s executive order requiring federal prisons not to allow transgender women to be housed in women’s prisons.

The 18 transgender women in women’s facilities had their transfers reversed or stopped with a series of preliminary injunctions issued by U.S. District Judge Royce Lamberth, a Reagan appointee. On Friday, though, the D.C. Circuit, in a 2-1 decision, vacated the injunctions and sent the case back to Lamberth for further proceedings.

However, what happened was — it appears — likely the best scenario for the 18 women.

The majority opinion by Judge Cornelia Pillard, an Obama appointee, was joined by Chief Judge Sri Srinivasan, another Obama appointee. Judge A. Raymond Randolph, a senior status George H.W. Bush appointee, dissented.

First addressing restrictions under the Prison Litigation Reform Act of 1995, Pillard held that the plaintiffs could bring their claim over the effort to transfer them to men’s prisons despite a PLRA provision blocking review of “a designation of a place of imprisonment“ by the courts. She also rejected the arguments of the Trump administration and Randolph that the plaintiffs failed to meet the PLRA’s “exhaustion” requirement — a rule that plaintiffs must pursue and exhaust any administrative remedies available to them. Here, Pillard concluded they were not “available” to the plaintiffs because Trump executive controlled what the Bureau of Prisons could do.

As to the merits, though, Pillard explained that the preliminary injunctions were all based on a generalized Eighth Amendment claim finding that “transgender persons are at a significantly elevated risk of physical and sexual violence relative to other inmates when housed in a facility corresponding to their biological sex.”

On appeal, the plaintiffs disclaimed the broader theory (likely, at least in part, due to how the U.S. Supreme Court continues to take steps signaling how skeptically it is viewing broad-based trans claims). Arguing instead for “a narrower ground for upholding the injunctions—namely, that they are entitled to relief based on their specific characteristics,” the appeals court held that it couldn’t uphold the injunctions on those grounds because “the district court did not identify each individual plaintiffs’ risk-elevating characteristics, such as their having undergone sex reassignment treatment or their experiences of assault or self-harm in men’s prisons.“

Because of that, Pillard wrote, the court had to vacate the preliminary injunctions and send the case back to the district court:

Randolph dissented, writing that the PLRA “compels an end to these consolidated cases, not a remand that encourages the district court to repackage relief under alternative theories.“

Specifically, he wrote that the plaintiffs’ case should have been dismissed for failure to exhaust their administrative remedies and, additionally, argued that a PLRA rule that limits preliminary injunctions to 90 days meant that Lamberth could not renew them — a position contrary to most courts to have considered it (which he acknowledged was so).

While the trans plaintiffs in this case now go back to the district court in D.C., a final decision came across the country on Saturday, April 18.

RFK Jr. declaration

In the third case, a federal judge in Oregon found that Health and Human Services Secretary Robert F. Kennedy Jr. “unlawfully issued a declaration threatening to cut federal funding to medical providers who provided gender-affirming care to minors.”

U.S. District Judge Mustafa Kasubhai minced no words in his opinion:

Secretary Kennedy’s utter failure to promulgate rules in accordance with statutory authority, but instead threaten to cease federal funding to medical providers almost immediately after the declaration, caused chaos and terror for all those people and institutions of our great nation. Secretary Kennedy’s unlawful declaration harmed children. This case illustrates that when a leader acts without authority and in the absence of the rule of law, he acts with cruelty.

It was a good reminder that — in the midst of it all — their are clear-eyed judges willing to call out Trump administration anti-trans attacks for what they are.

In his final judgment, in addition to vacating the declaration, he blocked enforcement of similar action with a permanent injunction as well:

As Kasubhai, a Biden appointee, explained in his opinion, “Considering Defendants’ arguments in this case and this administration’s repeated flouting of court orders and the rule of law, the Court finds that declaratory relief alone is insufficient; injunctive relief is warranted here because, unlike declaratory relief, it is ‘backed by the power of contempt.’“

Each day presents the possibility of a ruling that effects the lives of trans people in a state, in a circumstance, or across the nation due to the vast amount of anti-trans lawmaking and policymaking in recent years.

While it can be difficult to keep up, I hope this look into three decisions over the past week show how steadfastly people are pushing back.

On Saturday, The New York Times published a story about the U.S. Supreme Court’s actions a decade ago blocking the Obama administration’s Clean Power Plan on what has become known as the shadow docket.

Though most of the general facts were known previously, the Times story made a big splash by revealing and publishing a handful of internal memos from the justices to one another (including as a PDF) — beginning with Chief Justice John Roberts’s February 5, 2016 memo bringing five applications for a stay of the Clean Power Plan to the full court with a brief explanation of his vote that the stay requests be granted.

The scoop highlights the conservative justices’ brazen disregard for their own rules — both then and now — and the ways in which they are now ignoring the concerns that allegedly animated their action a decade ago.

As the Times detailed, Justice Stephen Breyer responded to Roberts the same day — proposing a different solution and stating his lack of understanding for the rush. The next day, Justice Elena Kagan noted that this was new.

“As far as I can tell, it would be unprecedented for us to second-guess the D. C. Circuit’s decision that a stay is not warranted, without the benefit of full briefing or a prior judicial decision,“ she wrote.

Ultimately, Justice Anthony Kennedy cast the tie-breaking vote for a stay on February 9, and the Supreme Court issued its order that evening.

After Breyer simply wrote that it would be “unusual” for the court to issue a stay in this posture, Roberts responded that he “recognize[d] that the posture of this stay request is not typical, but review is sought of what has been described as the most expensive regulation ever imposed on the power sector.” The Times understandably focused in on this, later noting that “in the entire chain of correspondence obtained by The Times, not a single justice, conservative or liberal, mentioned the dangers of a warming planet as one of the possible harms the court should consider.“

Outside of that, the Times story is framed around “[t]he birth of the Supreme Court’s shadow docket.” And I get that, too, specifically when understood as the modern use of the court’s emergency docket.

In light of the past 15 months, however, I’d like to look at two statements from those 2016 memos — one from Roberts and one from Justice Sam Alito — compared to the court’s orders made in the second Trump administration.

In Roberts’s second memo, responding to Breyer, he doubles down and at one point explains away taking action before the appeals court had ruled because “it is highly doubtful that this Court will bless the EPA’s expansive definition ….“

On January 26, 2016, the court received an application from states challenging the Clean Power Plan. The next day, Roberts requested a response by February 4 — just eight days later. On February 5, the states submitted their reply. That same day, Roberts sent his first memo.

By February 6 — 11 days after the matter got to the Supreme Court on the emergency docket — Roberts had decided it was “highly doubtful” the Clean Power Plan would be upheld.

In this challenge to the Obama administration’s environmental plan, Roberts wrote of the ordinary rule for a stay, noting that “the applicable standard for a stay is simply a ‘fair prospect’ of success on the merits.“

In addressing “irreparable harm,” he went on discuss his concern about how long a final decision could come under Breyer’s proposal, “long after the real-world impacts of the rule would have been felt in the absence of a stay.“

In 2025, the Republican appointees — almost certainly including Roberts — wrote in a per curiam, unsigned order last May that a 90-year-old precedent could be sidestepped on the shadow docket to give Trump his way based on “our judgment that the Government faces greater risk of harm from an order allowing a removed officer to continue exercising the executive power than a wrongfully removed officer faces from being unable to perform her statutory duty.”

When Trump was trying to tear down regulatory agencies by firing Democratic members of those agencies for no reason even though Congress had specifically directed that there had to be cause for the president to do so, the conservatives ignored the ordinary rules and created a new rule.

When Obama was trying to create regulations, the conservatives ignored the ordinary rules of the emergency docket and created a new rule.

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As to those “real-world impacts” that Roberts was concerned about when business interests were at stake, I’d like to highlight Justice Ketanji Brown Jackson’s dissent from this past May, in which the Supreme Court allowed then-Homeland Security Secretary Kristi Noem’s effort to end immigration parole status for about 500,000 people to go into effect by blocking a lower court’s order.

Jackson wrote:

While it is apparent that the Government seeks a stay to enable it to inflict maximum predecision damage, court-ordered stays exist to minimize—not maximize—harm to litigating parties. …

No one disputes that social and economic chaos will ensue if that many noncitizen parolees are suddenly and summarily remanded. …

At a minimum, granting the stay would facilitate needless human suffering before the courts have reached a final judgment regarding the legal arguments at issue, while denying the Government’s application would not have anything close to that kind of practical impact.

Despite those “real-world impacts,“ Roberts did not appear to vote against the stay.

Then there’s Alito.

In his February 7, 2016 memo, Alito closed on an aggressive note, insisting that “failure to stay this rule threatens to render our ability to provide meaningful judicial review — and by extension, our institutional legitimacy — a nullity.”

“If we fail to stay the rule … our resolution of the merits will not matter1,” he wrote — ignoring the fact that the Supreme Court had never taken such a step at that point in litigation.

To return to Jackson’s May 2025 dissent, she explained the impact of granting a stay in the immigration parole case:

[Those whose parole Noem is seeking to cancel] now face two unbearable options. On the one hand, they could elect to leave the United States and, thereby, confront “dangers in their native countries,” experience destructive “family separation,” and possibly “forfei[t] any opportunity to obtain a remedy based on their ... claims,” as the District Court found. App. 18a. On the other, they could remain in the United States after parole termination and risk imminent removal at the hands of Government agents, along with its serious attendant consequences. …

Either choice creates significant problems for respondents that far exceed any harm to the Government, should this Court decline the stay request. Both options might also deprive this Court of jurisdiction to decide respondents’ pending claims.

Here, the Supreme Court’s decision to allow government action — where it blocked it in 2016 — would have the very effect of which Alito warned.

That is not the only shadow docket ruling that illustrates this point.

This past October, when Justice Amy Coney Barrett went on Fox News to defend the Supreme Court’s September shadow docket order allowing racial profiling in certain immigration enforcement efforts by the Trump administration — yes, the Kavanaugh stops ruling — I called bullshit because Barrett tried to talk away the decision as “preliminary” and “not cases in which the court has had full briefing and made a final judgment.”

What I wrote than bears repeating now in light of Alito’s 2016 comments:

Barrett’s academic insistence that a shadow docket ruling needs no explanation because “in none of these cases have we finally resolved the issue,“ requires a response.

Tell that to the fired Education Department employees — and elsewhere across the federal government.

Tell that to the men sent to South Sudan and to others sent to countries where they had no prior association.

Tell that to Mary Boyle, Alexander Hoehn-Saric, and Richard Trumka Jr. — fired members of the Consumer Product Safety Commission — not to mention the Americans who believed that a bipartisan CPSC would be there, as established by Congress, to protect their kids.

Tell that to the health researchers whose funding has been canceled — sometimes midway through years-long research.

Tell that to the people protected by the Federal Trade Commission’s bipartisan stability for the past 90 years.

Tell that to the Venezuelan immigrants whose legal status in America was stripped from them.

Tell that to the people who would have benefited from the foreign aid funding that Trump unilaterally cut.

In other words, given his 2016 concerns, Alito must be extremely concerned now about how his votes have “render[ed]” the court’s “ability to provide meaningful judicial review — and by extension, our institutional legitimacy — a nullity.”

The Supreme Court returns on Monday for its final two-week oral argument sitting of this term.

On Wednesday, the U.S. Supreme Court’s Public Information Office released the rarest of rare statements: An apology from a justice to another justice.

In the statement, Justice Sonia Sotomayor said, “At a recent appearance at the University of Kansas School of Law, I referred to a disagreement with one of my colleagues in a prior case, but I made remarks that were inappropriate. I regret my hurtful comments. I have apologized to my colleague.

In the comments made last week, Sotomayor had addressed — without naming him — Justice Brett Kavanuagh’s opinion from this past September in the case that allowed racial profiling in immigration enforcement. It was the opinion that led to the stops being referred to as “Kavanaugh stops,” and the consequences have been stark.

Sotomayor said as much.

“I had a colleague in that case who wrote, you know, these are only temporary stops. This is from a man whose parents were professionals. And probably doesn’t really know any person who works by the hour,” she said in an event at the University of Kansas, as reported by Bloomberg Law’s Jordan Fischer. “Those hours that they took you away, nobody’s paying that person. And that makes a difference between a meal for him and his kids that night and maybe just cold supper.”

The comments were, understandably, a hit with those who have criticized Kavanaugh’s opinion and the court’s order. I thought they were spot on.

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It was a big deal. As Jay Willis wrote at Balls & Strikes, “[S]ingling out a colleague for having no idea what life is like for people who are not double Yalies is as close as a Supreme Court justice gets to publicly suggesting that another Supreme Court justice is full of shit.“

Sotomayor initially said nothing as stories were written and the message spread.

By Wednesday, though, Sotomayor announced that she had apologized to Kavanaugh for the “hurtful comments.”

This — understandably — didn’t sit well with some people (as I’ve seen in my mentions after sharing Sotomayor’s statement).

There certainly is a legitimate discussion to be had about whether this public apology was necessary — especially given that, for the most part, there is no doubting that she was correct in her assessment, as she was in her dissent back in September.

That said, I’d like to point to a different comment Sotomayor made in Kansas last week that helps to provide a good basis for understanding why she may have done so.

When asked about her role as the first Latina on the court, she said the following:

Life experiences teach you to think more broadly and to see things others may not. And when I have a moment where I can express that on behalf of people who have no other voice, then I’m being given a very rare privilege.

Sotomayor is one of three Democratic appointees on the Supreme Court. In order to stop rulings that she and Justices Elena Kagan and Ketanji Brown Jackson think are wrong under the law, they need to find at least two Republican appointees who will vote the same way. Even when they can’t win a case, the justices are often working to prevent what they see as worse outcomes.

It is difficult to be a Democratic appointee on the court right now, and if you agree with their legal aims, I think it’s important to see their job as a fundamentally different one from a member of Congress — or anyone outside of government. There are nine votes, and each time they cast those votes they’re setting the rules that all of us need to live under for now.

Re-reading her comment from last week with that reality in mind, it’s easy to see her apology as a selfless move — outside of any personal beliefs — aimed at maintaining her relationship with Kavanaugh for “people who have no other voice.“

The apology came as the justices are working on opinions in key cases addressing birthright citizenship, voting rights, transgender rights, presidential powers, and much more — and as the final arguments of the term are set to begin next week, including the arguments over the Trump administration’s efforts to cancel temporary protected status for immigrants from Haiti and Syria.

Kavanaugh could be key to any of the decisions in any of those cases.

I believe we all benefit from honest, public assessments from the justices about what’s going on at the Supreme Court.

We got that from Sotomayor last week. The comments were made, the stories were published, and we know what she thinks.

I also understand why Sotomayor decided to issue this statement on Wednesday — and think those who support Sotomayor’s legal goals for the nation should as well.

On Tuesday, two Trump appointees to the U.S. Court of Appeals for the D.C. Circuit blocked U.S. District Judge James Boasberg from proceeding with his effort to decide whether to hold any members of the Trump administration in criminal contempt for their March 15, 2025 actions relating to President Donald Trump’s invocation of the Alien Enemies Act of 1798.

In all, it was the fourth time in the past year that two Trump appointees on the 11-judge appeals court have stopped the district court judge’s efforts to determine whether criminal contempt is appropriate in the case.

“The district court’s improper and unnecessary investigation, with its shifting scope and justification, intrudes upon the Executive in a manner for which mandamus is the only adequate remedy,“ Judge Neomi Rao wrote for the court.

Tuesday’s ruling from Rao, joined by Judge Justin Walker, came 13 months after Trump on March 14, 2025 secretly signed an order invoking the 1798 law — which had previously only been invoked in wartime — to try and quickly deport Venezuelans the administration had decided belonged to Tren de Aragua (TdA), a Venezuelan gang.

In an 80-page dissent, Judge J. Michelle Childs made clear her view that mandamus was inappropriate here: This was not the time to take such drastic action, and the Trump administration hadn’t shown it should get mandamus under the law.

“Mandamus … should only issue on days where it is needed to restore, and not upset, the balance of power in our government,” Childs wrote. “But today is not one of those days.“

She also warned that letting this ruling stand as a precedent would have consequences both for district courts’ contempt powers and for executive branch authority.

A request for en banc review by the full D.C. Circuit is expected.

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The long path to Tuesday

On March 15, 2025, as preparations appeared to be underway to start deportations under the powers of the Alien Enemies Act, a lawsuit was filed before Boasberg. After initially granting a temporary restraining order blocking the removal of the named plaintiffs, Boasberg scheduled a 5:00 p.m. hearing to consider whether to grant classwide relief. After Justice Department lawyer Drew Ensign could provide no clear answers at the hearing about whether there would be AEA deportations over the weekend, the plaintiffs’ lawyers told the court that — during a break where Ensign was to get an answer to that question — two flights had taken off. Boasberg granted a classwide TRO during the hearing, which was followed up by a written order.

Despite that — and despite discussion from Boasberg about turning around the flights if needed to comply with the order — the Trump administration decided to continue with the flights that had already left the U.S., ultimately sending those people to El Salvador’s CECOT prison. A little more than month later, on April 17, 2025, Boasberg issued an order finding “probable cause” that the Trump administration was in criminal contempt over those actions regarding the March 15 AEA flights.

The next day, on Friday, April 18, 2025, the first of four orders from Trump appointees stopping Boasberg’s effort came down. That 2-1 “administrative stay” remained in effect until nearly four months later, when that 2-1 panel granted mandamus and vacated the “probable cause“ order on August 8 — a decision that the full D.C. Circuit let stand on November 14 (with a majority of the court, however, making clear that Boasberg could proceed to consider contempt). The case returned to Boasberg, who did proceed with the contempt inquiry on November 19. After more back and forth, including admissions that then-Homeland Security Secretary Kristi Noem made the decision not to return the flights, Boasberg issued an order on December 8 requiring testimony the next week from one former DOJ lawyer (now, whistleblower) and one current DOJ lawyer (Ensign) about what happened. On December 12, however, DOJ returned to the D.C. Circuit to stop the testimony. That day, a new 2-1 panel issued a new “administrative stay” blocking the testimony order.

On Tuesday, more than four months later, the 2-1 panel issued a new mandamus order — vacating Boasberg’s December 8 order and “direct[ing]” the district court “to terminate its criminal contempt proceedings.”

The majority opinion

Rao, one of the most extreme judicial appointees from Trump’s first term, had been on the first panel as well so has granted the Trump administration relief from this contempt inquiry four times. On Tuesday, she wrote for the court, “Mandamus is appropriate again to forestall unwarranted judicial intrusion into Executive Branch decisionmaking regarding matters of national security.“

In addition to holding that the government had no other way to “attain the relief it seeks“ and that mandamus is appropriate here, Rao held in key part that “the government has a clear and indisputable right to termination of this judicial investigation because it is premised on an order that is insufficiently clear and specific to sustain a charge of criminal contempt.“

Rao then wrote for the court:

She then wrote, “Criminal contempt cannot lie for transferring custody when the TRO was entirely ‘silent’ as to that requirement,” adding that context made no difference to her: “An objective interpretation of the TRO’s text and surrounding circumstances … fails to provide a clear directive not to transfer custody of the plaintiffs.”

Rao did acknowledge Boasberg’s statements at the March 15 evening hearing about turning the planes around.

Rao then noted, however, that “oral statements” at the hearing “were of limited value in light of the district court’s assurance that it would ‘issue a minute order memorializing this so you don’t have to race to write it down.’”

Walker wrote a concurring opinion all about that. Seriously

Because of that, Walker wrote that “the written order superseded the oral order.“ With that in hand, he continued:

What did the Government do to people covered by the written order once that order was issued?

The answer appears to be: Nothing. As the majority opinion explains, the written order covered only people who had not already been removed from the United States.

As such, he concluded, “That is enough to resolve this case.“

The dissent’s warning

Childs was incredulous on several grounds.

First, procedurally, she noted that the majority relied on the vacated “probable cause” order both for the majority’s conclusions and to assert what Boasberg already had concluded, despite the fact that vacating the order means it should no longer be relied on by any court for any purpose. As to Boasberg, she explained:

In obedience to that earlier panel’s writ of mandamus—which vacated its probable cause order and factual findings—the district court dutifully and carefully started on a clean slate, calling a hearing for testimony about the actions of the alleged contemnors.

In short: Of course he was engaging in factfinding. The appeals court tossed out his earlier order.

Then, as to the timing, she noted, “We have never reviewed an interlocutory order in an indirect criminal contempt proceeding like the one before us, where no referral has been made and no contempt trial has even begun.”

In short: Why are we doing this now?

Substantively, Childs wrote that the government met none of the conditions for mandamus:

The Government has failed to show that it has no other form of relief available to it. The Government has not shown that it has a clear and indisputable right to relief under controlling law, despite advancing several theories. Nor has the Government shown that mandamus is the appropriate relief for this court to provide under the circumstances before us.

As to other possible relief, Childs concluded that “adequate alternative means for relief plainly exists, the appeal of a contempt judgment,“ and, as such, “the Government’s showing here is inadequate because it merely reflects an interest in being free from the normal procedures of litigation.“

As to the “clear and indisputable right,“ she noted that “[t]he Government presented us with a smörgåsbord of bases to determine it has a clear and indisputable right to relief,” but that “[t]he majority takes up none of these arguments,“ instead — per Childs — basing its ruling on a position that “the Government has a clear and indisputable right to mandamus because, on the merits, contempt cannot be found for the disobedience of an order that is not clear and specific.“

Not so, Childs responded.

“There is … no authority to support that this court may short-circuit a criminal case that only the district court has the authority to initiate,“ she wrote — just winding up.

She continued:

The majority emphatically proclaims [mandamus] is necessary because the district court is a runaway train for investigating contempt. This is a distraction. At its core, the majority’s analysis declares today that there can be no crime if an order violated was not one perfectly written, rather than determine if one was perfectly understood. Such an approach is unsound.

Diving into the dispute over the March 15 orders, she wrote, “I reject the contention that only the written minute order constitutes the injunction. The context of the hearing supports that the court’s order comprises of what it stated on the record and the language of its written minute order.“

In addition to discussions at the hearing, Childs also pointed to the order itself:

[L]ook to the first line of the district court’s minute order: “As discussed in today’s hearing, the Court ORDERS . . . .” Min. Order 4, Mar. 15, 2025 (emphasis added). The district court incorporated by reference the hearing discussion about the details of the injunction, the class, and the basis for the new briefing schedule.

She went on to show — grammatically and in the context of what was happening inside and outside of the hearing — “just one of the many ways in which to analyze the district court’s order that leads to a different result than the majority.”

After doing so, she concluded:

This was not, she wrote, just about Tuesday’s decision, either. In looking outward, Childs warned of the precedent the majority set in doing so.

“Now, any litigant can argue, based on their preferred interpretation of a court’s order, that they did not commit contempt before contempt findings are even made,” she wrote. “And now, in any challenge where one may wave the wand of separation of powers, the Government knows it can petition this court for mandamus to relieve it from such proceedings.“

On Sunday, Victor Orbán conceded that he had lost re-election in Hungary — a seismic result not only for the people of Hungary but for the global community that has been faced with a number of would-be strongmen in Orbán’s mold in recent years, including in the United States.

Law Dork is not where you come for global reporting — or even, broadly speaking, foreign affairs reporting. Read those reporters and check out those experts in the coming days for a better understanding of what this means for Hungary, the region, and the world.

And yet, I would be remiss — in this moment in the U.S. — not to highlight how Orbán’s loss comes not only despite support from President Donald Trump generally but also in the aftermath of Vice President J.D. Vance’s in-person support for the now-defeated (weak)man.

It comes as Trump has overstepped — at home and globally — and as more and more people are realizing it. It comes as Vance also failed in his negotiations to end the war the Trump administration started with Iran.

It also comes with daily reminders that, even with Trump’s extreme unpopularity, Vance is nowhere near Trump’s level. He is even weaker, less charismatic a leader, and just a guy you know you don’t want around.

In the aftermath of Orbán’s loss, it was clear that Trump is aware of his precarious position.

After a 60 Minutes story about cardinals speaking out in the wake of Pope Leo’s statements critical of actions backed by the Trump administration, Trump lashed out at Pope Leo — the first pope born in the United States — with a deranged Truth social post declaring, “Pope Leo is WEAK on Crime, and terrible for Foreign Policy.” It went downhill from there.

It was not the response of a man with any confidence in his standing.

The coming weeks and months and even years are going to be difficult, but it is essential to realize what the people of Hungary made clear on Sunday: It can end if the people stand together.

Ballroom case goes back to Leon for action this week

On Saturday, the U.S. Court of Appeals for the D.C. Circuit, on a 2-1 vote, sent the challenge to President Trump’s ballroom plans back to U.S. District Judge Richard Leon to resolve questions about White House safety and security and about the relationship between “below-ground and above-ground stages“ of construction.

When Leon, a George W. Bush appointee, issued his opinion and preliminary injunction on March 31, he barred further construction of the ballroom with an exception for “actions strictly necessary to ensure the safety and security of the White House and its grounds, including the ballroom construction site, and [to] provide for the personal safety of the President and his staff.“ He also stated at the time that the injunction would not take effect for 14 days.

Under Saturday’s order from the D.C. Circuit, the stay of the injunction taking effect was extended to Friday (April 17) and Leon is now to “promptly address” a motion pending before his court “to clarify how the injunction and its exception will ensure safety and security pending litigation.“

Although initial reporting framed the decision as a win for Trump by allowing construction to continue for now, the ruling from Judges Patricia Millett (Obama) and Brad Garcia (Biden) was largely a loss for Trump because it did not grant the government a stay pending appeal — instead allowing Leon to clarify the scope of the injunction while only extending the current stay on the injunction for a few more days.

In the dissent from Judge Neomi Rao (Trump), she made clear why this ruling was — in her view — a loss for Trump: “Because my colleagues’ remand for further factfinding constructively denies the government the stay to which it is entitled, I respectfully dissent.“

Expect Leon to act quickly this week — and expect another appeal from the Justice Department and another stay request whenever he does issue his ruling on the clarification questions.

[Update, 6:00 p.m. April 13: Judge Richard Leon ordered DOJ to respond to the motion to clarify — “if [they] intend to respond“ — by 4:00 p.m. Tuesday, April 14.

As I wrote, quickly.]

Closing my tabs

For those who don’t know what this is, it’s my effort to give a little thank you to paid subscribers. “Closing my tabs” is, literally, me looking through the stories and cases open — the tabs open — on my computer and sharing with you all some of those I was unable to cover during the week but that I nonetheless want to let you know that I have on my radar. Oftentimes, they are issues that will eventually find their way back into the newsletter as a case discussed moves forward or something new happens that provides me with a reason to cover the story more in depth.

This Sunday, these are the tabs I am closing:

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Seth Harp, a journalist who published a book about the Special Military Unit called The Fort Bragg Cartel, had — in it — covered Williams’s story of sexual harassment. Politico published an excerpt from the part of the book that focused on Williams in August 2025.

Among the people who noted the new prosecution was Heidi Kitrosser, a law professor at Northwestern University’s Pritzker School of Law. She has written at length about the concerns that prosecutions of media sources under the Espionage Act raise — and raised particular concerns about that happening under the Trump administration.

On Friday, Kitrosser joined Law Dork to talk about the law, its history and uses, and why she was concerned about this week’s news.

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Here is a lightly edited transcript of our conversation.

LAW DORK: We are lucky to have Heidi Kitrosser here today with us from Northwestern. She’s the William W. Gurley Professor of Law, and we are here today to talk about something that certainly didn’t begin with the Trump administration, and we’ll get a little into that as well. But this idea that there have been an increasing number of efforts by the Trump administration to go after journalist’s sources with criminal criminal prosecutions, and we’ll look a little more broadly at that at some points, but that was sort of our starting place, because earlier this week, separately, Heidi and I both got wind of this announcement that there was a new media source prosecution in North Carolina. And so I guess to start off, Heidi, I mean, first of all, just thanks for being here. But what is this new prosecution?

HEIDI KITROSSER: Yeah, so, and thank you for having me. So this was announced, I think, just two days ago by the Justice Department. And I have, I’ve looked for the indictment, I haven’t seen it yet, so I’m guessing it’s —

LAW DORK: I just saw the information with the affidavit.

KITROSSER: Yeah, exactly. I think it’s probably still sealed, is my guess. But yeah, I just saw the Justice Department’s announcement and did a little bit of reading to try to add a little more context. And it looks like, from what I can kind of pull together, that this is this prosecution originated with — the idea for it originated with a story that was published some months ago by a journalist named Seth Harp, who writes for Rolling Stone and also has a bunch of bylines in other places. And he wrote a book, as well as an excerpt from the book published in Politico, that, among other things, was a bit of an expose about Fort Bragg and about one woman’s experience, one officer’s experience with alleged sexual harassment and various other types of wrongdoing that she, you know, reported to be blowing the whistle about and the Trump administration has indicted her, arguing that the story revealed classified information, and that she therefore revealed classified information to the reporter, and so they’re indicting her under the Espionage Act of 1917 and depending on how you count, it’s either the second or the third such prosecution in the second Trump administration.

LAW DORK: I dropped the link to the Politico story in chat for anybody who wants to look at that. Yeah, and he then published, Seth Harp, published this book that’s the The Fort Bragg Cartel: Drug Trafficking and Murder in the Special Forces. That appears to have been the genesis of this, and the Politico story was a chapter or an excerpt. Obviously, the Justice Department puts out their press release. They say, “Former Army employee and top secret clearance holder, arrested and charged with leaking classified national defense information.” Obviously, sounds pretty bad. They say that she was indicted, as you mentioned, and I mentioned, we haven’t been able to find the indictment, although I admit I did not look today to see if something had been unsealed, but had looked yesterday and it had not been unsealed. We’ve read — there’s an affidavit that was submitted for the criminal complaint that allowed for for her arrest. And I guess, before we go big picture, the one thing that I noted is that she is in jail right now, Courtney Williams, and she won’t even have her detention hearing until the 13th, the government is seeking to keep her detained during trial until this case is resolved. What should people be thinking about when they’re looking at this case over the next week?

KITROSSER: From my perspective, I would say one of the most important things. I mean, there are so many different elements and aspects to think about, because I’ve thought so much over the years about the Espionage Act and its relationship to the media and free speech. From my perspective, I would say it’s important to sort of step back and understand what an Espionage Act prosecution of a media source is about, what the statutory basis is, as well as what the implications are for free speech. And I sort of say that with awareness of the fact that I think to any average person, even your average lawyer, who may not have thought in depth about, if at all, about the Espionage Act. It does, as you said, it sounds just really damning when you say so-and-so might have provided classified information to a reporter, or when you say so-and-so has been indicted for violating the Espionage Act. But I submit it’s much more complicated, and I’ll give the very short, like two-sentence version why, and then can elaborate from there.

Sort of the two-sentence version why is because, despite the name the Espionage Act, the act and the relevant provisions in this case and other cases about media sources actually cover so much more than what we think of as espionage and spying. The language is broad enough. It could cover sources who try to shed light on important events and bring them to the media. It could cover journalists, and so I think that should concern us, and particularly when you combine the breadth of the act with the breadth of the classification system and the breadth of the secrecy system more broadly, because — for reasons I can get into, if you’d like — the Espionage Act actually isn’t necessarily limited to just classified information, it covers any closely held information. So this is why I think it’s all very, very worrying from a free speech perspective.

LAW DORK: I mean, and that’s also important, because that sort of then dovetails with a lot of the disputes that they’re having over the Pentagon Press policy, and the things that they’re trying to get them to agree to that have now been been blocked, sort of multiple iterations of this policy. Most recently, last night, Judge Friedman issued an order essentially, I mean, not essentially, but saying that the Pentagon, with their interim policy, had violated his first order. And one of the big elements of his original ruling and Thursday night’s ruling is this idea that so much of what they’re trying to control the dissemination of is not classified information.

KITROSSER: Yeah, absolutely. And actually, there’s a terrific piece in Just Security co-authored by my friend Dave Schultz, who runs Yale’s Media Freedom Information Access Clinic, and Brian O’Neill, I believe, is his co-author. It’s from a few months ago, but they talked about that Pentagon policy, as well as sort of myriad other ways that the Trump administration is seeking to crack down on conveying information by the press or by the public, including, but well beyond classified information, essentially trying to clamp down so that only communications that they want people to see can be released to the public, even if it doesn’t involve classified information. And they actually talked about how that intersects with the Espionage Act, essentially making the argument that because the Espionage Act is actually not limited to classified information, it covers — essentially the way the courts have interpreted its coverage — they’ve interpreted to include anything that’s closely held. They argue that by clamping down more and more and making more and more things closely held, even if they’re not classified, that they’re broadening the scope of what could be the subject of an Espionage Act prosecution.

LAW DORK: And now I mean, sort of stepping back, you, you, you mentioned David Schultz, your co author of your 2021 article, that that really dives into this. And I mean it right from the start, A House Built on Sand: The Constitutional Infirmity of Espionage Act Prosecutions for Leaking to the Press. You don’t hide your conclusion there. What is this? I had sort of been aware through following it in the Obama administration, sort of how this has developed, but I thought it was so succinctly and clearly described that, like, how did we get here, in terms of this sort of broad understanding that that this is not something that the Trump administration can’t do.

KITROSSER: So let me start with the text of the act, because I’ve sort of alluded to it, but, and to its breadth, but, but I haven’t really talked about the important parts. So the act is, as I mentioned, it’s kind of stunningly broad in terms of what it covers and the relevant parts that usually come up in cases involving media sources are 18 USC Section 793(d) and 793(e). They’re very similar provisions. The difference is that (d) covers leaks by people who had authorized access to the information. So that would be a classic case of someone who is within a department, within an agency, had security clearance and then leaked it; (e) covers could cover anyone, whether you had authorized access or not, and that’s the provision, by the way, that many consider kind of a smoking gun that could be used potentially against the media. But they’re very similar. And essentially what they both say, it’s very, very simple. The main thing they both say is that, and I’m going to look over here, because I always forget the exact wording. I have some of the key wording here, but really the key provision is that the law criminalizes taking information, “relating to the national defense,” and either retaining it in some unauthorized way or conveying it to someone who’s not entitled to receive it, and you must do so willfully, which courts have said, basically means you have to do it knowing that you’re not supposed to do it under the law. That is, I mean, there’s some elaboration on the different ways it may be communicated, the types of documents or information that’s covered, but for the most part, that is really the thrust of it. The operative words are “relating to the national defense.”

That’s really the only statutory requirement in terms of what the information has to convey. There are a few more words that I can talk about if you want, if you’re talking about information that’s conveyed orally, if you’re talking about, although they don’t add much elaboration, if you’re talking about conveying documents, that’s it. All it says is information “relating to the national defense.” The way courts have broadened that over the years is they said, “Okay, well, we’re going to interpret that to mean —” And here I’m looking at the language again, so I get it exactly right. They’re saying, well, we can add two requirements to that. We think information relates to the national defense, if it’s disclosure, would be “potentially damaging to the United States or potentially useful to an enemy of the United States.” And if it’s closely held. In my view, the problem there is, again, the breath. In particular, the kind of damage requirement is that you need nothing more than to show it could be potentially damaging to the US, potentially useful to an enemy. In my view, that could cover virtually anything.

LAW DORK: Yeah.

KITROSSER: And, so that really is the crux of the problem. Effectively, I think the only real limitation here is the fact that it has to be closely held. But given how broad the classification system is and how broad also the scope of unclassified but closely held information — and growing — is that’s very problematic. And if I could just add one more thing, I have noticed. I’m certainly not looking closely at the comments, but I did notice one or two comments that said something to the effect of, you know, that they think in the Courtney Williams case that we were just talking about, that they read some things suggesting that maybe what she released really was damaging. I haven’t gotten enough into that case. I don’t even know that there’s enough publicly out there to really reach an informed judgment about about the particular information she provided. But I would say what I find disturbing in any case, every case that’s brought with respect to a media source, is that under the Espionage Act, you don’t even need particularly compelling facts, right? The only harm requirement is the one I mentioned. There’s no public interest aspect. There’s no potential public interest defense. So that’s what’s troubling. Even if somebody reads about this case, or in other cases as well, you know, “I think that person did the wrong thing.” The problem is, you really don’t need to reach that conclusion in order to be culpable under the act.

LAW DORK: And now, I mean, I thought it was really interesting in the article, like, when you talk about how this was built, and this idea that — and why, even at the start, you talked about, “well, you hear the Espionage Act and you think, ‘Oh, this is, this is espionage. This is, this is bad stuff.’” But then, what happened is that, essentially, you started getting cases here and there, that built one on one, and all of a sudden, then it’s the situation where it’s now precedent. “We we have this, and that makes it a obvious fact that this is going to be something that you can prosecute somebody for, because we have these three cases in the past.”

KITROSSER: Yeah, absolutely. And so let me say a little bit about that. First. I just can’t resist noting that when Donald Trump himself was prosecuted under the Espionage Act for those buckets and buckets or boxes and boxes of classified information that he had in a bathroom in Mar-a-Lago and in other places. I always find it kind of darkly humorous to think back to something he said to disparage his own prosecution under the Espionage Act. He said, “Can you believe it? The Espionage Act? Oh, they’re going after me with this obscure act that nobody’s even heard of from 1917. It’s meant for spies, for traitors, for leakers.” I always like to keep that in mind, but in terms of the history that Chris was referencing, the act, it does go back to 1917. It was passed on the eve of World War One.

There was a pretty exhaustive historical analysis that was published in the early 1970s — prompted, by the way, by the leak of the Pentagon Papers, which was briefly the subject of an espionage prosecution that maybe I’ll get to it a second. But that prompted a couple of scholars to do a pretty in-depth analysis of the legislative history. And what they concluded, basically, was that Congress, both in 1917 and, interestingly, again, in 1950 when they made a few important revisions to the act, but not really to the provisions we’re talking about, that they didn’t really think all that much about these particular provisions. About 793(d) and (e), and to the extent that they did think about it and that it did occur to them, or that the point was raised that, “Gosh, this is kind of broad. It could include people who give information to the media. It might include the press,” that they actually expressed some worry about that, and, in fact, rejected one or two provisions that would have made it more likely that the law could be used that way. For the most part, though, they seemed somewhere between confused to not really focused on these provisions.

You might say, “Well, how could that possibly be?” One reason for it is because at the time, there were much higher profile provisions elsewhere in the act that actually directly attacked the expression of opinion — language that talked about doing things that might deter military recruitment and things like that. So the upshot being, these provisions that we’re talking about didn’t seem to be very much on their mind. I think another very good reason for why they might not have been that focused on it — it’s very easy to imagine that everything at the time was sort of similar to our world, right? And that they had a classification system. They understood that secret information could include millions and millions of documents. But actually the other difference was that there certainly wasn’t anything approaching the modern classification system at the time. There were military secrecy regulations. There was not government-wide classification. A government-wide Executive Order-created classification system didn’t exist until Franklin Roosevelt introduced one during World War Two. We didn’t have a peacetime classification system until 1951. So I think that was another thing that was going on. If you’re going to imagine that the act could only be applied to sort of closely held military information, there just wasn’t a lot that fell into that category at the time. So it really didn’t seem to be on almost anyone’s mind.

So not surprisingly, it wasn’t until about 40 years later that the Justice Department first brought a prosecution to someone for leaking information to the press. The prosecution had mixed success. It resulted in a plea bargain to a lesser charge. It was actually quite a controversial prosecution. Members of the press were alarmed. Ultimately, the person who had leaked information was kind of widely considered to be vindicated in light of subsequent developments. They didn’t try another prosecution like that until the Pentagon Papers, when they prosecuted Daniel Ellsberg, his friend Anthony Russo, for leaking the papers to the New York Times and elsewhere. And that ultimately resulted in a mistrial because of what today seem like the quaint shenanigans of the Nixon administration. My favorite thing they did is they tried to bribe the judge by offering him the directorship of the FBI. They famously bugged Daniel Ellsberg’s psychiatrist’s office.

They didn’t try again until the late 80s, and then they kind of struck gold. They got a prosecution of a guy for leaking some photos to a kind of military-oriented magazine about military ships and things of that nature, called Jane’s Fighting Ships. And the really important thing that came out of it was they got this precedent that still remains the only federal appellate court decision weighing in on the constitutionality of the Espionage Act as it’s applied to media sources. If you want, I can sort of get into the three different opinions, but for now, I’ll just say that the majority in the case was extremely dismissive of First Amendment considerations. And then that’s kind of snowballed.

Despite this success, there was not actually another prosecution under the Act until the post 9/11, years. There was one arguably related prosecution in the George W. Bush administration, but it really wasn’t until the Obama administration, in part because a bunch of these prosecutions that began to be investigated in the George W. Bush administration kind of grew up and matured by the Obama administration. I think there are other reasons for why we saw this huge wave of cases in Obama, but suffice it to say, the Obama administration really did break sort of unfortunate ground. They prosecuted, I believe it was eight media sources under the Act, and that really got the ball rolling. And subsequent district court cases where people have challenged these prosecutions have just cited the Fourth Circuit case, the case I mentioned, it’s called Morrison. And the one other thing I’ll add, and then I’ll stop, is that the other thing that I think helps to explain the Fourth Circuit’s decision in the Morrison case in the late 1980s that I mentioned —

LAW DORK: And I should say, the Fourth Circuit — for people who aren’t focused on this — the Fourth Circuit of the 80s was how we think about the Fifth Circuit today.

KITROSSER: Yeah.

LAW DORK: It was where the most far right opinions sort of were evolved and sort of manufactured.

KITROSSER: Yeah, that’s a great point. And then the one other thing I would add to what might have sort of aided the Fourth Circuit in drawing the conclusion they did, is that this gets us back to the fact that the Act had a bunch of different components, and also even the provisions that we’re talking about, they have another more obvious application, which is you can also apply these provisions to spies. And so even though you didn’t have a media leak prosecution until 1957, you had a couple of earlier uses of these provisions to go after spies. So there had been a couple of cases, including one Supreme Court case, actually the only one on this issue to this day, called U.S. versus Gorin. I believe it’s called from, I think the early 1940s, I’m forgetting the exact date. But in that case, and in a couple of appellate court cases, courts had looked at the provisions we’re talking about, but only as applied to spies, and they had basically said, yeah, these are fine. They’re not too vague, they’re not too broad. I think that’s — for various reasons we can talk about, if you’d like — I think that’s an easier conclusion to reach when you’re talking about a spying prosecution. And so that also led to a snowball effect, I think, where the the Fourth Circuit then, when we’re talking about a press source, borrowed from those and said, “Well, there wasn’t a problem there. We’re talking about similar language, or the same language. So, we don’t see a constitutional problem.”

LAW DORK: And so some of what you talked about the that I noticed on on Bluesky, and what you are working on with an article that you let me look at is this idea of how this — specifically, this precedent, this sort of building on sand, this snowball effect — how this is particularly concerning in this second Trump era and administration. I mean, I was on the train home from New York on Tuesday, writing about, whether he was going to destroy a civilization that night. Everything is amped up and to a degree that powers of the executive haven’t been used before. In one sense, I think it’s obvious why it’s concerning, but you’ve actually thought about how this works with the Espionage Act, and why it’s so concerning. And so I’d really love to hear what you’re thinking about on that front.

KITROSSER: I guess you could say there are sort of multiple historical stages of like level and type of concern, ever since the Espionage Act was created. So for a long time, I think the best way to put the basis for concern, starting in 1917, would be the potential for harm — sort of the Chekhov’s Gun thing that, “Oh, my god, they’ve, like, introduced this gun, and at some point it’s going to go off.” But it was just potential, for many years. Once we started seeing a slow trickle of prosecutions, obviously we saw the potential realized to some degree.

So the 1957, the prosecution of someone named Nickerson that I mentioned, the first prosecution. I mentioned that was controversial. Nickerson was largely understood to have been vindicated. That’s because Nickerson was basically spilling the beans about sort of cost overruns and possible corruption — I think today we might consider it very light corruption — in terms of choosing government contractors. He was arguing for a particular program that they were making a bad choice because they wanted to award it to a company that had friends in the administration. And he was largely seen as sort of having been vindicated in his thoughts. I think that sort of was the beginning of seeing the potential of the Act’s breadth realized.

One big fear of the Act is that it’s so broad and there’s so much classified and closely held information, especially over time that’s been true, that a prosecutor, that the government just sort of has their pick of targets. And so one fear is that they’re going to go after people who say things they don’t like — not necessarily because it’s the most dangerous thing for someone to say, but because it embarrasses them or somehow makes the government look bad. I think that’s the judgment of history. I think most would suggest that’s very much what was going on with the Ellsberg prosecution as well. In the Obama administration, I think we saw a couple of examples of that as well, where people who I think could fairly be considered whistleblowers, and who actually had, in a couple of cases, revelations that resulted in really important journalism, who were prosecuted.

I think the Trump administration just ratcheted up to just like crazy, high levels. So my anxiety is off the charts, if we’re talking about different levels of concern. Now, it’s just unprecedented. I always like to point out that Trump loves the turn of phrase, “It’s like no one has ever seen before.” I feel like the reason for anxiety is “it’s like no one has ever seen before now.” And the reason for that is because you take all the old issues with the act right, which is the potential for abuse; some bases to think that, in fact, government might really be targeting people who are not necessarily saying the most dangerous or irresponsible things, but who are embarrassing government or revealing incompetence, abuse, etc.; and then you add to it the personal vindictiveness of this administration, and there’s reason to fear this is an administration that is going to start using the act to go after just people that Trump doesn’t like.

Maybe the most obvious example of that — so far, there have been three Espionage Act prosecutions I mentioned in this administration. There’s some quibbling about whether one of them would count as a media leak prosecution, and that’s the John Bolton prosecution. The reason for that is because the nature of the charges are that he emailed documents to family members who were helping him compile his book, but not that the information actually ended up in the book. I actually think it’s fair to consider that a media leak prosecution for reasons I explained in the paper that I’m working on. But in any event, I think that, more than anything else, just exemplifies the risk that this statute will become just another tool that gives the president huge discretion to go after people that he just doesn’t like because he considers some political enemies.

LAW DORK: You’re essentially saying this is a blunt tool that can be used in virtually any way, and it has very, ultimately very low thresholds for being used. The one thing that I was thinking about this when reading your piece is that he can use it as “They are harming America.” It gives him that rhetorical, like just the prosecution itself gives him a rhetorical weapon that he can use on Truth social and in speeches and stuff like that.

KITROSSER: I think that’s exactly right. The very title that he mocked when he was prosecuted under it — the Espionage Act, right? It enables you to say, “I’m going after people who are conducting espionage, people who are leakers and traitors and hate our country, and they’re sharing our darkest secrets.” All of that said, the flip side, if you have to look for a silver lining here — and there’s something wrong with me, where I always try to do that and try to look for “Is there a ray of hope?” — and I do think one is that the obvious vindictiveness of this administration and the weaponization of the Justice Department under this administration might open people’s eyes to the need for reform of this act, that it’s a very dangerous tool to place in the hands of the government. And we have seen, by the way, Representative Tlaib, I’m not sure I’m pronouncing her name correctly, about four weeks ago, I think, she introduced an act, the name is the Daniel Ellsberg Act, that would make some really important reforms to the Espionage Act. It’s not going to happen with the current Congress, but maybe it’s the beginning of an important conversation.

LAW DORK: Is there any sort of last — we’ve noted in chat, I don’t know if you had seen it, that the indictment was placed on the docket. There is now a criminal docket today. It’s four counts and a forfeiture count, and they’re all Section D. I’ll certainly be watching that. I know you’ll be reading it. Is there any sort of last comment that you want people to leave this conversation thinking about?

KITROSSER: I guess I would say two things real quickly. One is, I’m largely reiterating something I said earlier, but to the extent that you’re looking at particular cases and saying, “Oh, but what they did seems really bad.” I would say that might, in any given case, well, be true, right? I’m not weighing in on the facts of any particular prosecutions right now, certainly not the latest one, that just we haven’t seen a lot of information yet come to light. But I think what’s really important is to keep in mind the breadth of the Act, and the fact that it doesn’t have to be a dangerous leak. It could be a leak that any danger is far outweighed by public interest, and, under the Act, those factors are irrelevant. Second, I would say, if this is something that concerns you, maybe look up the Daniel Ellsberg Act that I just mentioned. Think about contacting your congresspeople and telling them that you support it.

LAW DORK: Thank you so much. Thank you to everybody for joining us. Thank you for all of your expertise that you shared with me and all of our fellow listeners here on this Friday afternoon. And have a great weekend.

KITROSSER: Yeah, thanks. Thanks everyone. Thank you so much, Chris. I love your show. Big fan. So thank you for including me. Bye, everybody.

A federal judge on Thursday found that the Pentagon had violated his earlier court order blocking key parts of the Defense Department’s new, restrictive press policy.

The Defense Department’s effort to sidestep U.S. District Judge Paul Friedman’s March 20 order was rebuffed by Friedman, a senior status Clinton appointee, in an opinion that accused Defense Secretary Pete Hegseth’s department of “a blatant attempt to circumvent a lawful order of the Court.”

After Friedman issued his March order, the Pentagon announced an “interim policy” on March 23, which The New York Times challenged as violating the order through the filing of a motion to compel compliance with the March order.

Summarizing the motion, Friedman wrote, “The plaintiffs challenge two aspects of the Interim Policy: the prohibition on the ‘inducement of unauthorized disclosure’ and the closure of the Correspondents’ Corridor coupled with the escort requirement.“

Friedman did not mince words in his 20-page opinion. Calling the department’s characterization of his March 20 ruling “[n]onsense,” the judge went through the evidence and arguments presented by both sides and concluded that “the Department’s abrupt closure of the Correspondents’ Corridor and its ban on credentialed journalists traveling unescorted through the Pentagon are not security measures or efforts to make good on prior commitments but rather transparent attempts to negate the impact of this Court’s Order.“

As to the the “inducement of unauthorized disclosure” provision, Friedman wrote, “the Interim Policy amounts to—in the Department’s words—a ‘clarification[]’ of the prohibitions contained in the original Policy that this Court held to be unconstitutional.“

However, he continued, “The Department cannot simply reinstate an unlawful policy under the guise of taking ‘new’ action and expect the Court to look the other way.”

As to the corridor closure, Friedman explained:

Nor can the Department take steps to circumvent the Court’s injunction and expect the Court to turn a blind eye. But that is exactly what the defendants have done by closing the Correspondents’ Corridor and imposing an escort requirement. The Court’s Order requires the Department to restore the plaintiffs’ access to the Pentagon. Rather than comply with that Order, the Department has cut off all PFAC holders’ meaningful access to the Pentagon.

In summing up the problems with the interim policy, Friedman wrote:

As such, Friedman wrote, “[T]he Court concludes that the defendants have failed to comply with its Order.“

Reminding all that this case is about more than press passes, Friedman returned to what he said this case is “really about” at the end of his opinion:

The Court cannot conclude this Opinion without noting once again what this case is really about: the attempt by the Secretary of Defense to dictate the information received by the American people, to control the message so that the public hears and sees only what the Secretary and the Trump Administration want them to hear and see. The Constitution demands better. The American public demands better, too.

He concluded it as thus:

Friedman’s order filed with the opinion found the defendants “in violation of” the March 20 order, detailed the provisions in the interim policy that violate the March 20 order, bars any further similar efforts to restrict Pentagon access against The New York Times plaintiffs, and required the government to submit a status report detailing compliance steps by April 16.

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Fifth Circuit passes on further review of mandatory detention policy, setting up Supreme Court review

On Thursday afternoon, the U.S. Court of Appeals for the Fifth Circuit announced that it had denied the request for en banc review by the full court of the February 2-1 decision by a panel of the court allowing the Trump administration to implement a mandatory detention policy that could apply to millions of people.

As Law Dork has covered previously, the Trump administration unilaterally decided in 2025 to reinterpret federal immigration law to allow mass and mandatory detention under a 1996 law that has always been interpreted to allow bond hearings for undocumented immigrants within the country as part of any removal proceedings.

Thurssday’s ruling means the only option to stop the mandatory detention policy in Texas, Mississippi, and Louisiana is to seek Supreme Court review.

Todd Schulte, the president of FWD.us tweeted how these circumstances are “massive and shocking and outrageous” as a result of the policy and the ruling, adding that he assumes the case “will go to the Supreme Court.“

Aaron Reichlin-Melnick, who spoke with Law Dork recently about this and other immigration disputes arising out of the Trump administration’s policies, similarly posted, “This case will be heard by the Supreme Court next term, mark my words.”

Explaining how extreme the Trump administration’s position is, he added, “The Trump admin’s claim, endorsed by the 5th Circuit, that everyone had been reading a 1996 law wrong and most undocumented immigrants are actually ineligible to seek bond, has caused massive chaos in federal courts.“

Law Dork all over

I am thrilled to moderate the Constitutional Accountability Center’s “Home Stretch” panel at the end of the month, the day after the U.S. Supreme Court hears its final oral arguments of the term.

The panelists are set to be:

Kelsi Brown Corkran, Supreme Court Director at the Institute for Constitutional Advocacy & Protection and Senior Lecturer at Georgetown University Law Center; Easha Anand, Assistant Professor of Law and Co-Director of the Supreme Court Litigation Clinic at Stanford Law School; Melissa Murray, Frederick I. and Grace Stokes Professor of Law at New York University School of Law, co-host of the Strict Scrutiny podcast, and author of The U.S. Constitution: A Comprehensive and Annotated Guide for the Modern Reader; Jennifer Bennett, Principal of Gupta Wessler LLP; and CAC’s … Chief Counsel Brianne Gorod.

It’s an incredible panel, and it’s virtual, so be sure to sign up and join us on April 30!

Also, earlier this week, I joined the Bay Area’s KALW for Your Call to discuss this week in the Trump administration, including the Twenty-Fifth Amendment, impeachment, and more.

I also joined Chicago’s WCPT 820 for Driving It Home with Patti Vasquez to discuss Trump, the Supreme Court, the midterms, and more.

Check them out, and be in touch — especially as June approaches, with the many Supreme Court opinions and Pride Month — if you want to book me for your panel, another speaking engagement, or for a TV, radio, or podcast appearance.

President Donald Trump must be removed from office.

He is manifestly unfit for office, and his continued presence in office is an existential danger to the United States of America and the world.

His Tuesday morning threat that “[a] whole civilization will die tonight,” is not the first unacceptable statement from this man — but it must be his last as president.

Vice President J.D. Vance has a moral, ethical, and constitutional obligation to invoke Section 4 of the Twenty-Fifth Amendment by securing the support from a majority of the cabinet to “immediately assume the powers and duties of the office as Acting President.”

This would be the first time that such a step has been taken, but it is needed and it is needed now.

Great complications would doubtless follow, as the amendment allows further pushback from Trump if, as expected, he would seek to hold on to power.

As I wrote when I covered the history of this amendment at BuzzFeed News back during Trump’s first administration:

The fourth section — never used in the 50 years since it was adopted — gives the vice president and cabinet the power to declare that the president is “unable to discharge the powers and duties of his office.” It is heavily weighted in favor of the president’s ability to serve, enabling the president to force a congressional vote on the issue — a vote that would take two-thirds of both houses of Congress to keep the president out of power. In short, it’s a complicated and rigorous process that would require many elected and appointed officials to agree the president was unfit.

As such, Vance, the cabinet, and Congress must be ready, and must react accordingly — taking the only step that their oaths of office would faithfully allow. If impeachment — which requires only a majority vote of the House — needs to follow this initial, immediate step, then Congress must follow in lock step.

The presidency of Donald Trump — and the horrifying likelihood of what is to come if he is allowed to remain in office — must be stopped.

Now.

Any federal official who does not respond to Tuesday’s threat in a manner befitting their own constitutional obligations in light of Trump’s past actions will bear a part of the responsibility for what follows.

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How we got here and what needs to happen

Donald Trump should have been impeached and removed from office on January 6, 2021, or in the days the followed. That would have stopped all of this.

In the absence of that, he should have been impeached and convicted once he left office, again, preventing all of this.

Had that failed, the Department of Justice in the Biden administration should have acted more quickly to prosecute Trump for his effort to overturn the 2020 presidential election — one of the most fundamental domestic failings a president could engage in. His conviction likely would have stopped this.

The Supreme Court should have, quite simply, gotten the case over the Insurrection Clause of the Fourteenth Amendment right, and Trump’s removal from the ballot should have been allowed.

The Supreme Court should have resolved the immunity case in a way that reflected what lower courts and most scholars believed: Trump, as a former president, could have — and should have — faced accountability for his lawless actions.

But, none of that turned out that way, and a majority voted for Trump in 2024.

An overwhelming majority, however, now disapproves of the way Trump is abusing his office.

The people understand that what Trump is doing is wrong. This is not only shown in polls. It also has been shown in special elections across the country, and it has been shown in the streets — as millions upon millions have gone out to protest this man who abuses this office for his own gain, often seemingly only out of vengeance, or even simply because he believes he can.

His domestic abuses of the nation and its people have included efforts to turn troops on the American public and his extremist immigration enforcement policies have led to the killings of Americans and others in our nation. His administration’s demeaning of Congress by ignoring the laws, including appropriations, that it had passed and the growing number of violated court orders show an abuse of the balance of powers. His global lawlessness — from boat-strike murders to kidnapping presidents to threatening to destroy a “whole civilization” — is without justification, continual, and getting worse by the day.

Trump may believe that he set a red line on Tuesday morning, but the red line is one that was set for those officials who can — and must — stop this.

Invoke the Twenty-Fifth Amendment now, for it could not be more clear that “the President is unable to discharge the powers and duties of his office.”

Attorney General Pam Bondi is gone, and that is a good thing.

From her first day in office on February 5, 2025, she made clear that her goal at the Justice Department was not justice, it was advancing Donald Trump’s policy aims. Taking the unitary executive theory out for a ride, she told DOJ’s lawyers that they were “his lawyers,” and spent the past 421 days acting on that principle.

She has caused incalculable harm to the Department, the rule of law, and the nation. All in service of Trump. That is, and will always be, her legacy.

Bondi sparked outrage over her treatment of the Epstein files — leading to the passage of the Epstein Files Transparency Act last fall — and then oversaw the delayed rollout of the files.

She oversaw U.S. Attorney appointments and political prosecutions — almost all of which have been strongly questioned if not outright rejected by courts and grand juries across the country.

Throughout her nearly 14-month tenure, Bondi — a former Florida attorney general who was working at the America First Policy Institute before joining Trump’s second administration — continually acted to advance Trump’s policy choices, often despite the Constitution, federal laws, or what would be best for the Justice Department itself.

In her first months in office, she reversed the Justice Department policy against subpoenaing journalists. Within a year, the FBI was raiding a journalist’s home and serving a subpoena on The Washington Post.

Bondi also aggressively moved to implement Trump’s anti-trans policies — a move that led to the over-aggressive subpoenas, quashed in whole or in part by courts across the country, issued against providers of gender-affirming medical care for minors.

In the fall, again advancing Trump’s policies, Bondi lashed out against opposition to ICE. Bondi’s Justice Department failed to convince the Supreme Court to allow Trump’s National Guard deployment in Illinois, however, and there is now a well-worn pattern of district court judges — appointed by presidents of both parties — questioning, and even holding in contempt, Justice Department lawyers regarding their defense of ICE and other Department of Homeland Security officials.

That, of course, is to say nothing of the Department of Justice’s actions on and surrounding March 15, 2025 as Trump and DHS began trying to use the Alien Enemies Act of 1798 to quickly deport people without any process to El Salvador’s CECOT prison. All of that eventually led Judge James Boasberg to find “probable cause” that someone in the Trump administration was in contempt of his March 15, 2025 order in the case — a process he sought to continue in November 2025 after delay from the U.S. Court of Appeals for the D.C. Circuit. (That effort remains on hold by the same appeals court as of this writing.)

Bondi has also overseen Assistant Attorney General Harmeet Dhillon’s destruction of DOJ’s storied Civil Rights Division. Just this past month, Law Dork reported on how one of the “senior counsel” in the Civil Rights Division now was a man who resigned from his then-longtime Alabama law firm over a Facebook post following George Floyd’s murder in 2020.

Those who support the rule of law will not miss Bondi at the helm of Justice.

And yet. Trump’s face remains plastered on the outside of the DOJ building, and Trump’s former criminal defense lawyer — Deputy Attorney General Todd Blanche — is now the acting attorney general. It’s not good news that Blanche is running things for now — his first day in office was similarly aggressive and Trump-focused, as have been many days since. And, doubtless, Trump’s next nominee will be a bad choice, too.

At the same time, though, it is good when people who show a disregard, or even disdain, for the rule of law leave this government — our government — and it’s OK to take a moment to appreciate that.

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Florida is not going to kill James Duckett this week

Earlier this week, the Florida Supreme Court stayed the execution of James Duckett, who Florida had planned to kill on March 31, over ongoing DNA testing questions in light of Duckett’s continued claim of actual innocence.

After further developments at the lower court denying additional requests by Duckett, Florida officials asked on Thursday for the Florida Supreme Court to lift the stay of execution.

Instead, in a new appeal by Duckett’s lawyers, also filed on Thursday, relating to those recent lower court developments, the Florida Supreme Court issued a briefing schedule that is to go through April 8.

The current death warrant, as covered at , expires on April 7, so — unless something changes — it appears that Florida not only will not kill Duckett this week, but it would need to set a new death warrant before it could proceed after this warrant expires.

In a statement provided to Law Dork, Duckett’s lawyers said:

We are relieved that the court has intervened to halt this execution and allow time to consider Mr. Duckett’s request for the necessary analysis of the DNA results.

Let’s be clear: the delay occurred because the State chose to oppose efforts to allow the full analysis of the data that could provide conclusive evidence on the question of innocence or guilt. At a time when irreversible punishment was imminent, the State argued against taking steps to ensure the accuracy of the conviction. That position is deeply troubling.

Law Dork will have more on this case as it proceeds.

What’s next after the SCOTUS conversion therapy ruling?

I talked with Steve Morris about that question for his newsletter, The Long Run.

First, as to the Colorado law itself, because the court solely set a standard for how challenges to conversion therapy bans, as applied to talk therapy, are to be reviewed under the First Amendment, they didn’t “strike down” the Colorado law.

The case will go back down to lower courts, where its application to Kaley Chiles (and, more generally, to talk therapy) will almost certainly be found to be unconstitutional.

In any ongoing lawsuits related to other states’ laws, supplemental briefing will likely be ordered — with courts asking parties how Chiles v. Salazar affects their case.

Then, here’s what I told Steve about what will happen elsewhere:

As to the bigger picture, Steve had a warning: “Where I feel the ruling could have the most impact is in eroding the social stigmatization of conversion therapy that the state bans had helped establish — an effect not easily remedied.“

Check out his whole newsletter for more about this — and much more.

Law Dork in the media

I spoke with Ken Schneck of The Buckeye Flame for their This News is So Gay podcast about the Buckeye state, Law Dork, covering the Supreme Court, and much more.

I was thrilled to join Ken and urge you to check it out!

The U.S. Supreme Court appeared poised to rule against President Donald Trump’s effort to end birthright citizenship in the United States, a likelihood that became increasingly clear as Trump himself sat in the front row of the public-seating section of the courtroom on Wednesday.

After Solicitor General John Sauer tried to argue that “birth tourism“ — one of Trump’s regular refrains about the need for his executive order — didn’t exist at the time the Fourteenth Amendment’s Citizenship Clause was written but is a relevant concern now, Chief Justice John Roberts said bluntly, “It’s a new world; it’s the same Constitution.“

In addition to skepticism from Roberts and the Democratic appointees, Trump appeared unlikely to get support from any of the three justices he appointed to the court in his effort to end citizenship going forward for children born in the U.S. to parents who aren’t citizens or don’t have lawful permanent status.

Justice Neil Gorsuch wondered how the administration’s argument could succeed “even if we were to apply your own test,“ Justice Brett Kavanaugh questioned the “relevance” of the administration’s reliance on other countries’ policies, and Justice Amy Coney Barrett told Sauer that she found part of his argument “puzzling.”

Even Justice Clarence Thomas asked questions that did not betray solid alignment with the Trump administration, leaving Justice Sam Alito alone pushing the administration’s position — and even that lagged at points during the more than two hours of arguments.

After Trump, seated next to White House Counsel David Warrington, watched Sauer’s arguments, the president left the courtroom less than 10 minutes into ACLU Legal Director Cecillia Wang’s arguments for the class-action plaintiffs who successfully challenged Trump’s order below.

It was an argument that appeared likely to hand a lopsided loss to Trump and a win to the Constitution. There is even a path, as narrow as it might be, for a 9-0 win for the challengers and birthright citizenship. Despite that, though, the debate itself caused its own harms — both to the law and to the nation — as Trump’s anti-immigrant project was given room to breathe and grow.

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The constitutional provision involved states: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.“

In 1898, the U.S. Supreme Court held in the case of U.S. v. Wong Kim Ark that an effort to refuse him admission to the U.S. as a result of the Chinese Exclusion Act could not stand because he was a U.S. citizen, having been born to parents who, despite being citizens of China, were living in the United States at the time of his birth.

Sauer was, ultimately, asking the justices to reverse lower court rulings blocking the Trump administration from implementing Trump’s January 20, 2025 executive order. No court has sided with the Trump administration, although the Supreme Court used the cases to limit “universal injunctions” in June 2025, and Sauer fought an uphill battle the whole morning as the president for whom Sauer served as a private lawyer before joining the Justice Department looked on.

Sauer focused extensively on the fact that, 20 times in the court’s Wong Kim Ark ruling — including the question presented in the case — the court referenced the fact that his parents were “domiciled” in the U.S. at the time of his birth for a limitation on the holding of Wong Kim Ark.

At one point, however, Gorsuch shot back, “I’m not sure how much you want to rely on Wong Kim Ark.“

In later responding to Sauer, Wang noted in discussion with Roberts that domicile was referenced in the case’s decision repeatedly because it was a stipulated fact, but that the “controlling rule of the decision“ contained no such limit. In further discussion with Justice Elena Kagan, she said that the use of the domicile was simply because the court was applying the “controlling rule” — that comes from English common law — to the case before it.

That controlling rule, as applied in the Fourteenth Amendment, was that anyone born in the country becomes a citizen at birth — with a “closed” set of exceptions based on the common law, children born to diplomats and born to enemies during invasion, and a U.S.-specific “exception for children of members of Indian tribes,“ as Wang explained.

Sauer started the arguments on his heels. After a pair of questions from Thomas — including one relating to the Dred Scott decision — Roberts questioned Sauer’s effort to turn the “quirky” exceptions into a general rule covering “a whole class of illegal aliens.” He continued, “I’m not quite sure how you can get to that big group from such tiny and sort of idiosyncratic examples.“

Of Sauer’s argument that the purpose of the amendment was, as Barrett characterized it, “to put … newly freed slaves on equal footing, and so they would be citizens,“ she said, “But that’s not textual, so how do you get there?”

Although Sauer attempted an answer, Barrett kept pressing on how the purpose argument conflicted with or, at the least, set up complications with the government’s “domicile” arguments.

For his part, Kavanaugh noted that — despite the widespread and governmental understanding of Wong Kim Ark — the Immigration and Nationality Act (INA) “repeats ‘subject to the jurisdiction thereof.“ In light of the understanding, he asked Sauer, “one might have expected Congress to use a different phrase if it wanted to try to disagree with Wong Kim Ark on what the scope of birthright citizenship or the scope of citizenship should be. And yet Congress repeats that same language, knowing what the interpretation had been. So how are we to think about that?“

Sauer tried to argue that “the history” actually favors the Trump administration’s view — a part of the fringe academic effort to back up Trump’s order after the fact with new history — but Kavanaugh kept pushing him, “[I]f you’re in Congress in 1940 and 1952 and you want to limit the scope of Wong Kim Ark or to eliminate ambiguity, why do you repeat the same language rather than choosing something different?“

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As noted, Alito did attempt at times to buttress Sauer’s argument, asking early on why “subject to the jurisdiction thereof“ wouldn’t have set up a “general rule” that could “apply to later applications that might come up,“ and continuing with other administration-backing questions at points in the morning’s arguments.

Despite that, one request for an answer from Sauer stood out for its acknowledgment of real-world implications — albeit still done in an Alito way. Noting the “unusual situation here,” in which “immigration laws have been ineffectively and, in some instances, unenthusiastically enforced by federal officials,“ Alito said that “people who are subject to removal at any time … have in their minds made a permanent home here and have established roots.” To Sauer, Alito then said, “[T]hat raises a humanitarian problem, and I wonder if you could address that.“

When Sauer responded, he initially made a “legal argument” about “the legal capacity … to create a domicile,” suggesting undocumented immigrants can never create a domicile here — a similar argument to one that Wang mentioned was raised by the United States in Wong Kim Ark.

In directly responding to the humanitarian question, however, Sauer’s only responses were that the U.S. birthright citizenship rule is “an outlier among modern nations“ and that the order “applies only prospectively.“

Even as to that latter part of that limited answer, however, Justice Sonia Sotomayor noted that, if the Trump’s administration’s argument succeeds here, “[t]here would be nothing” that limits “this president or the next president or a Congress“ from deciding to apply the rule retroactively, which could lead the government to “unnaturalize” people, as was done previously after a case holding that Indians could not be naturalized.

Although Sauer insisted that was not the government’s position, the point was one of several sharp moments illustrating not just the scope of the Trump administration’s attacks on immigrants but also the many times in U.S. history when the government sought to denigrate those deemed “others” through immigration and citizenship laws.

On Wednesday, though, the Trump administration did appear clearly to be headed for a loss in this “othering” effort — although the reasoning that would be used to do so was not clear. There were moments, for example, where some justices focused on the INA as possibly forming a basis for blocking the order — without addressing the Fourteenth Amendment at all.

When Kavanuagh asked “why would we address the constitutional issue given your argument on the statutory“ grounds, Wang acknowledged, “We’re happy to win on either or both of them.”

Then, however, she added, “I do think it would be prudent for the Court to reaffirm its decision in Wong Kim Ark where it’s a landmark decision about the definition of national citizenship in this country. I just think it would be prudent for the Court to go ahead and reaffirm that.“

A decision in the case is expected by the end of June.

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A key moment

One exchange highlighted the damage done just by President Donald Trump having forced this debate. After Justice Amy Coney Barrett mentioned the “messy” process that could be involved in implementing the executive order, Justice Ketanji Brown Jackson pressed Solicitor General John Sauer.

I want to reprint this to show where even having this argument took things.

JACKSON: “Is this happening in the delivery room? How are we determining when or whether a newborn child is a citizen of the United States under your rule?

SAUER: I think that’s directly addressed in the SSA guidance that’s cited in our brief. What SSA says is there’s currently a system where, for example, Social Security numbers are generated based on the birth certificate. …

JACKSON: I’m just talking about the particulars because now you say your rule turns on whether the person intended to stay in the United States. And I think Justice Barrett brought this up. So are we bringing pregnant women in for depositions? …

SAUER: No. As I pointed out earlier, the Executive Order turns on lawfulness of status. So, if you give birth to a baby in the hospital right now, it gets the birth certificate in the system.

JACKSON: So there’s apparently no opportunity then for the person to prove or to say that they actually intended to stay in the United States?

SAUER: Absolutely not. The opposite is true. Their opportunity to dispute if they think they were wrongly denied, which would only happen in a minority of cases --

JACKSON: After the fact.

SAUER: -- is directly addressed in that guidance.

JACKSON: After the fact —

SAUER: Yes, yes.

JACKSON: — after their baby has been denied citizenship, then we can go through the process?

SAUER: Yes.

That is the discussion that Trump unleashed.