Temporary Protected Status (TPS) is a federal legal designation granted to nationals of certain countries experiencing conditions that make it difficult or unsafe for them to be deported. TPS lasts for 6 to 18 months, after which recipients must undergo vetting and background checks to get it extended.

Although TPS is not a path to citizenship, approximately 1.3 million people with TPS are currently living in the United States and doing so lawfully — many for more than a decade.

So sending them back en masse is an unheard-of undertaking, with devastating implications for lots of people and their families.

On July 8, 2025, the Trump administration began terminating TPS on a country-by-country basis, affecting over 1 million people by the end of the year.

The Supreme Court is reviewing this effort with respect to approximately 350,000 Haitians (Trump v. Miot) and 6,000 Syrians (Mullin v. Doe).

Haiti was added to the program in 2010 after 300,000 people died in an earthquake. Two years later, Syria was added based on former Syrian dictator Bashar al-Assad’s crackdown on dissidents.

Last November, former Homeland Security Secretary Kristi Noem canceled TPS for both countries, stating that the new Syrian government was working to “move the country to a stable institutional governance” and that Haiti is basically safe.

Groups of Haitian and Syrian nationals sued and won temporary injunctions in the lower federal courts. Oral arguments for the cases, which were consolidated under the name Mullin v. Doe, occurred on April 29, 2026. In the interim, the Court left in place lower court rulings blocking the TPS terminations. (With respect to Venezuela, however, the Court did the opposite, overriding a California district court’s stay of Noem’s cancellation of TPS status.)

At its core, the government’s argument is that the courts have no legal authority to review the decisions at all. It’s entirely up to Trump. End of story.

The plaintiffs respond that when Congress created the TPS designation, it included conditions, which would be meaningless if presidents could just ignore them, knowing no judge could review his decisions.

The Haitian plaintiffs also argue that the decision is racist. They have a point.

Let’s not forget that during an ABC News presidential debate in 2024, Trump said in reference to Haitian immigrants: "In Springfield, they are eating the dogs. The people that came in, they are eating the cats. They’re eating – they are eating the pets of the people that live there." There is no evidence supporting this claim. Later, Trump called Haiti a “filthy, dirty, and disgusting S-hole country” and complained that the United States takes people from such countries, instead of people from “Norway, Sweden, or Denmark.”

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That is what unfolded in Chicago last week when federal prosecutors abruptly dropped all remaining charges against protestors known as the “Broadview Six.” It occurred after the judge reviewed grand jury materials and expressed alarm at what she described as extraordinary prosecutorial conduct.

The story deserves attention not because it involves immigration protestors and not because it unfolded during a period of heightened political conflict. It matters because the grand jury is one of the few barriers that remain standing between ordinary citizens and the immense power of the federal government.

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What is the case history?

The temptation is to view this case through the lens of immigration politics. Supporters of aggressive immigration enforcement may see aggressive anti-ICE protestors. Immigration advocates may see political activists rightfully exercising their First Amendment rights.

The big picture lens is that the storied US Department of Justice is in tatters. Worse, it is now a danger to justice itself.

The history of the case is as follows:

On September 26, 2025, outside of an Immigration and Customs Enforcement (ICE) processing and holding facility in Broadview, Illinois, a group of protestors gathered to oppose recent anti-immigration activities in Chicago. The demonstration occurred during “Operation Midway Blitz,” a high-profile mass deportation campaign in which federal agents were directed to fan out and detain anyone they believed was not lawfully in the US.

The protestors allegedly surrounded an ICE agent’s approaching vehicle and began “banging on the windows,” “throwing plushy toys,” and “yelling ‘shame’” at the agents. The protests lasted for two hours, even as agents set off a plethora of pepper balls in the street.

In late October, the Department of Justice (DOJ) announced that a grand jury handed up an indictment of six of the Chicago protestors: Kat Abughazaleh, a 26-year-old former media researcher who was running for the Democratic nomination for the 9th Congressional District of Illinois; Brian Straw, a trustee of the village of Oak Park; Catherine Sharp, chief of staff to Alderman Andre Vasquez and a candidate for a Cook County Board seat; Michael Rabbitt, a Democratic committeeperson in the 45^th ward; Andre Martin, Abughazaleh’s deputy campaign manager; and Joselyn Walsh, a researcher and musician.

The six were charged with conspiracy to injure or impede an officer in violation of 18 U.S.C. § 372 and forcibly impeding, intimidating, and interfering with a federal officer in violation of 18 USC § 111(a)(1). The case had been scheduled to go to trial on a misdemeanor charge — which is rare in federal court — after it had been cut down from six to four defendants in March.

But this past week, the DOJ dropped all remaining charges due to prosecutorial misconduct, and the case was dismissed with prejudice.

What exactly did federal prosecutors do?

The case was assigned to US District Judge April Perry who canceled the trial after calling a closed-door hearing to review of the full grand jury transcripts during which she found alarming amounts of prosecutorial misconduct.

Perry criticized prosecutors not only for their behavior in dealing with the grand jury, but for redacting parts of the transcript that would have revealed their misconduct sooner.

The judge stated: “I have read hundreds — if not thousands — of grand jury transcripts involving prosecutors who are the most junior of prosecutors to several U.S. Attorneys who appeared before the grand jury. I have never seen the types of prosecutorial behavior before a grand jury that I saw in those transcripts.”

The first noted concern, which prompted the hearing, was the prosecution’s decision to redact significant portions of the grand jury transcript. Specifically, the prosecution decided to redact and even leave out portions of the transcript which detailed their ethical and moral misconduct towards the grand jury. The choice to hide the misconduct goes to show the length the prosecution went to taint the jury against the defendants. Judge Perry started off by saying, “I was incredibly shocked by the redactions that were made… Mistakes happen. They happen to all of us. You admit to it. You apologize for it, and you move on. What you do not do is hide it.”

The unredacted transcript then revealed to the judge even more issues.

Judge Perry’s next concern was improper “prosecutorial vouching.” This occurs when prosecutors make improper suggestions, insinuations, and assertions calculated to mislead or inflame the jury’s passions. Specifically, an assistant U.S. attorney put “her personal credibility and trustworthiness on the line in support of the charges.” US Attorney Anthony Boutros, the Trump administration’s highest-ranking official in Chicago, claimed of course that he was completely unaware of the alleged vouching and dropped the remaining charges. Despite this, however, his tone quickly changed in telling the judge he was fully prepared to take the case to trial and that the charges were valid.

Perry’s third concern was the substantiative communications federal prosecutors had with jurors outside of the courtroom. This led to prosecutors excusing several jurors from the trial who disagreed with the government’s case from the outset. Before that, the grand jury had rejected the case entirely, a result known as a “no bill.” However, after Boutros learned of this, he made the decision to abandon the grand jury’s indictment and pursue misdemeanors through a separate charging document. He said he didn’t believe any member of his staff had intentionally misled the judge.

Judge Perry ended the hearing by stating that there may be talks of sanctions for prosecutors in the future. While she believes deeply in the “presumption of regularity” that assumes federal officers are acting in good faith, “that trust has been broken,” she said.

What is the importance of grand jury rules?

The grand jury is not just a procedural speedbump on the way to prosecution. It is a constitutional safeguard against government abuse.

The Fifth Amendment provides that no person shall be held to answer for a serious federal crime "unless on a presentment or indictment of a Grand Jury." The Framers of the Constitution included this protection because they distrusted concentrated government power. The grand jury is designed to act as an independent body that determines whether probable cause exists to charge someone with a crime. This independence is especially important because grand jury proceedings occur in secret; defense attorneys are not present.

If a prosecutor personally vouches for a case, communicates improperly with jurors, conceals information, manipulates the composition of the jury, or interferes with the jury's independent judgment, the prosecutor is essentially replacing the constitutional function of the grand jury with his or her own judgment. To that point, prosecutors are expected to be "scrupulously fair" and must not improperly influence grand jurors.

If grand juries become vehicles of prosecutorial power rather than independent evaluators, the Fifth Amendment’s protection becomes largely symbolic. When grand juries are corrupted, the issue is not merely misconduct. It is the failure of one of the Constitution's oldest protections against governmental overreach.

This is why courts take prosecutorial misconduct before a grand jury so seriously. And why judicial oversight of jury integrity matters greatly.

After the Broadview Six case was quickly dismissed, defense attorneys stated: “These actions only underscore the growing concern that the grand jury is being wielded not as an instrument of justice, but as a tool of unchecked prosecutorial power meant to persecute any perceived enemies of the current White House.”

What to takeaway?

Constitutional rights are most important when federal prosecutors are convinced they have a worthy target. These rights are indicative of how well the government restrains itself and how it conducts itself to the public. When constitutional protections are put aside for the sake of empty justice, however, this is a warning sign for the rule of law.

The Broadview Six case is just one of many recent examples of the federal government using the justice system to fuel the President’s personal vendettas. Working at DOJ used to be one of the most prestigious and revered attorney jobs in the country. Now, when my students ask if they should apply, I tell them to think twice. It’s a tragedy for the country.

The defendants may have won their freedom, but federal prosecutors have lost their trust.

I’m glad you’re here,

KW

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One judge ordered Trump’s name taken off the Kennedy Center.

Another halted his $1.8 billion pillaging of the federal Judgment Fund to pay unnamed claimants who feel “weaponized” by the Biden Administration. (Meanwhile, as I explained last week, Trump’s DOJ opened an investigation into his adjudicated sexual abuse victim, E. Jean Carroll. Now that’s a weaponized DOJ.)

A third judge reopened Trump’s fake “settlement” of his own case against the United States that purportedly prompted the $1.8 billion “fund”—after 35 retired judges filed papers signaling possible fraud on the court.

This is how the system is supposed to work.

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Why does Trump have to remove his name from the Kennedy Center?

Here’s a basic civics lesson. (Forgive me if it’s a snooze, but believe me, lots of students start law school without a functioning understanding of this.)

Congress passes laws under Article I of the U.S. Constitution. Once upon a time, it enacted a law directing how the Kennedy Center must be named: by the U.S. Congress itself.

When it passes laws, Congress sometimes gives the Executive Branch, which is headed by the President, authority. The purest form of that is, of course, the power to enforce the laws. Think: DOJ, the FBI, and the IRS. If regular people violate the law, the government “comes after them”—in the form of law enforcement.

Sometimes, Congress gives the Executive Branch the power to regulate. Regulations are laws. So yes, the Executive Branch makes laws, but only if Congress gives it that precise authority (the Supreme Court has been majorly reworking that authority of late).

Congress also, from time to time, gives the Executive Branch the power to decide cases, i.e., adjudicatory or “judge-like” power. Think: immigration judges. These folks are not confirmed by the Senate like regular federal judges. They don’t have life tenure.

The Supreme Court has held, in a series of cases, that both kinds of power (regulatory and adjudicatory) are constitutional when exercised by the Executive Branch pursuant to an Act of Congress.

The judge in the Kennedy Center matter read the underlying statute and said it gives presidents no authority to rename the Kennedy Center. Only Congress can do that. It was an abject, unlawful power grab. End of story.

If Trump appeals, he will lose.

What happened to the $1.8 billion Trump took from the federal Judgment Fund?

Another judge last week issued a temporary restraining order halting Trump from taking any actions pursuant to his loony “settlement” document creating an “Anti-Weaponization Fund,” which I wrote about last week.

Post about slush fund

The thing to keep in mind about this order is that, although it’s temporary, the judge had to find that Trump would likely lose his case in order to justify this kind of extraordinary relief. The judge also necessarily found that the $1.8 billion slush fund was harming the plaintiffs in ways that could not be remedied. The argument the plaintiffs made, among others, is that the fund is for Trump loyalists alone and therefore violates the First Amendment and Equal Protection rights of everyone else who isn’t ideologically devoted to Trump.

I talked about this ruling on ABC News.

ABC News Clip

Trump cannot appeal this one immediately. He has to let the regular proceedings play out first, which will take months.

What happened to the $10 billion “settlement” in Florida?

Last but not least, a judge reinstated the Trump family’s cynical withdrawal of their $10 billion defamation lawsuit against the Treasury Department and IRS over a contractor’s alleged leaking of tax information years ago — so many years ago that the statute of limitations had already run on that case.

The judge also noted that there might not be a legitimate case to begin with because Trump was essentially suing himself. Federal judges only have power over “cases” and “controversies” under Article III of the Constitution; here, Trump controlled both sides of what amounted to a fake dispute. He bailed on the lawsuit before she could predictably rule on its bogusness.

As I wrote for The Bulwark, 35 federal judges filed a motion essentially saying that this whole thing was a farce and that the judge should put the case back on the docket and get to the bottom of what looks like a fraud on the court.

Bulwark column

What’s the takeaway?

It is frustrating that so much of this is getting normalized.

But last week was a rare one that left me feeling proud to be a lawyer and legal educator. It made me proud of our system of laws and the people who sacrifice lucrative careers to uphold them,—increasingly at risk to themselves.

It left me feeling emboldened to keep speaking my truth. I hope you all are sensing a few sparks of light, too.

I’m glad you’re here,

KW

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Acting Attorney General Todd Blanche has recused himself from the investigation because he represented Trump in connection with the lawsuits. He’s been an absolute nightmare for the rule of law, so perhaps that’s a bit of good news.

The obvious question is whether this is just another one of Donald Trump’s vindictive uses of the power of federal law enforcement to harass and bully people he doesn’t like.

You don’t need to be an expert in vindictive prosecutions to drum up the likely answer to that question. (This is just an investigation, mind you, not an indictment.)

I discussed it on CNN with Brianna Keilar and Boris Sanchez.

Who again is E. Jean Carroll?

Now 82 years old, E. Jean Carroll was a “Dear Abby” columnist for Elle magazine from 1993 to 2020. She also wrote for Saturday Night Live in 1986 and 1987 and was a host and producer of a television series for NBC from 1994 to 1996. She wrote for many publications, including Playboy and The Atlantic.

In 2018, she released a memoir, What Do We Need Men For? In it, she revealed for the first time that in the mid-1990s she randomly encountered Trump in a fancy New York City department store. He reportedly asked her for help while he shopped for “a girl,” then later pushed her into a dressing room and raped her.

In 2023, a jury found Donald Trump liable for sexual abuse and defamation against her. It awarded her $5 million in damages.

U.S. District Judge Lewis Kaplan wrote that, even though the conviction was for sexual abuse rather than technical rape under New York law, based on the trial evidence: “The finding that Ms. Carroll failed to prove that she was ‘raped’ within the meaning of the New York Penal Law does not mean that she failed to prove that Mr. Trump ‘raped’ her as many people commonly understand the word ‘rape.’ Indeed, as the evidence at trial recounted below makes clear, the jury found that Mr. Trump in fact did exactly that.”

In 2024, a separate jury found Trump liable for another claim of defamation against her based on remarks he made regarding the first verdict. Judge Kaplan presided over this case, too. This time, the jury awarded her $83.3 million in damages. Trump appealed both judgments and lost both appeals in state court.

Trump later appealed to a federal court, citing the Supreme Court’s criminal immunity ruling in Trump v. U.S. The U.S. Court of Appeals for the Second Circuit rejected the appeal. He has since asked the Supreme Court to step in. Meanwhile, the judgments in Carroll’s favor remain unpaid, at Trump’s request, while he pursues his appeals.

What is the pretext for DOJ’s criminal investigation of Carroll?

According to ABC News, “[t]he investigation is centered around whether Carroll committed perjury” in connection with the two lawsuits that produced judgments against Trump.

She was reportedly asked in a deposition whether she received outside funding for her lawsuits and said “no.” Later, it came to light that billionaire LinkedIn co-founder Reid Hoffman, a Democratic donor, contributed funding. Her lawyers immediately disclosed that information to Judge Kaplan and Trump’s lawyers who nonetheless accused Carroll of hiding the information. Judge Kaplan considered the claim, but ultimately barred jurors from hearing evidence about it, concluding that it would only prejudice the jury because the contributions had no bearing on Carroll’s allegations.

What is the standard for perjury?

Perjury means knowingly lying under oath. The Federal Rules of Civil Procedure, which govern civil (versus criminal) cases, do not contain any specific sanctions for perjury in depositions. Courts can impose penalties for discovery violations, which in rare instances can include dismissing a case, but those sanctions are never criminal.

The big distinction between criminal and civil cases, of course, is that criminal penalties can include jail time. Another distinction is that only the government can bring criminal cases. It is a huge responsibility; the power to deprive people of life and liberty should only be exercised pursuant to the highest ethical standards. That’s the old DOJ, not this one.

Federal criminal law bans perjury by anyone who has “taken an oath before a competent tribunal, or person, in any case in which a law of the United States authorizes an oath to be administered.” The bar for proving perjury is very high, because prosecutors have to prove that the person knowingly lied rather than made a careless error. Climbing into a third person’s subjective mind is difficult to do with actual evidence beyond a reasonable doubt.

In 1998, Independent Counsel Kenneth W. Starr investigated whether President Bill Clinton lied in a civil deposition about an affair with an intern, Monica Lewinsky. (I worked for Starr as an Associate Independent Counsel, but not on the Lewinsky matter.) At the time, Starr was criticized for the probe, which produced no charges against Clinton, because as the New York Times put it back then, lying is rampant in civil suits but prison for lying is rare. The same holds true today.

Is this a vindictive investigation?

Given how many depositions occur in federal cases every day in America, and given how many lies are told, and given that Judge Kaplan already looked into Carroll’s statement and found her basically credible, this investigation looks like a sham — and a dangerous one.

Since he retook office last year, Trump’s DOJ has targeted a bunch of his perceived enemies, including former FBI Director James Comey, former Federal Reserve Chair Jerome Powell, New York Attorney General Letitia James, and Sen. Adam Schiff (D, Calif.), among others. So there’s a pattern here.

As I wrote for Politico Magazine back in February of 2025, vindictive prosecutions are hard to prove because the law gives prosecutors the benefit of the doubt. The presumption is they act in good faith. That has to change. It’s already happening.

Link to Politico article

What just happened in the Kilmar Abrego Garcia case?

Last week, U.S. District Judge Waverly Crenshaw dismissed the criminal indictment against Kilmar Abrego Garcia, one of the men sent to CECOT prison in El Salvador without due process early in Trump’s second term, calling it a tainted investigation “with a vindictive motive.” It started with a 2022 traffic stop by Tennessee police, which DOJ only became interested in last year — after the Trump Administration reluctantly returned Abrego Garcia to the U.S. That was followed by a civil lawsuit challenging the deportation despite a court order that he remain in the country.

What helps people like Abrego Garcia in vindictive prosecution claims is Trump himself. He doesn’t bother to hide his vindictiveness and weaponization of DOJ so the evidence of bad intent is easy for judges to identify.

What’s the takeaway?

This is all very tragic. DOJ is in ruins. Trump won’t manage to put Carroll behind bars — even assuming his corrupted DOJ can get a grand jury to indict her and then get her before a trial jury to secure a conviction. This is about inflicting pain. Pain on someone who has been through a lot already and deserves some peace.

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I’m glad you’re here,

KW

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The reported deal began with a lawsuit filed by President Trump against the Internal Revenue Service (IRS) and Treasury Department — agencies that ultimately answer to him as president. Then instead of litigating the case to judgement, the administration withdrew the underlying case and announced a massive “Anti-Weaponization Fund” worth roughly $1.776 billion (not the cutely “patriotic” number). This fund is allegedly designed to compensate people who claim they were unfairly targeted by the federal government. But in reality, the fund is completely unaccountable and rife with corruption and abuse.

Essentially, the president sued agencies under his own executive authority, dropped the lawsuit, and emerged with a multibillion dollar compensation structure overseen by political appointees loyal to him who presumably will dole out money to people and companies loyal to him. Money that you and I worked hard for and paid to the IRS.

Critics across the political spectrum have called it a “slush fund.” The details only get worse from here.

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I wrote about this in my article for Zeteo.

Zeteo

Is this lawsuit and subsequent “settlement” even legal?

The lawsuit itself was absurd. It claimed that Trump, his sons, and his businesses were effectively entitled to $10 billion from the federal government because a former IRS contractor allegedly disclosed the plaintiffs’ tax returns (and the returns of lots of other people) to the press in 2020. The statute of limitations on that suit already expired.

But how can the sitting president sue the departments he actively heads?

The judge immediately took notice to this issue and wrote that the parties are not “sufficiently adverse” to one another. In other words, they were not really independent from one another. This is a requirement for a valid case and controversy under Article III of the Constitution and acts to prevent collusive lawsuits manufactured to secure specific legal rulings. In essence, the lawsuit itself was headed for the legal trash bin.

However, in a blatant legal manipulation, Trump moved to dismiss the case before it could reach litigation. No settlement documents were ever filed. The “case” thus reached a “settlement” whether there was ever a true controversy or not.

To make matters worse, the settlement itself is astounding.

The “agreement” purports to transfer $1,776,000,000 of taxpayer money “to an account for the sole use by the Anti-Weaponization Fund,” which acting Attorney General Todd Blanche is “directed” to establish.

As the judge emphasized, Blanche “has a statutory obligation to defend the IRS when it is hailed into court.” He did not. One day, he should be held to account.

The corruption doesn’t end there, though. The DOJ then later announced that the IRS is “forever barred and precluded” from prosecuting or pursuing pending tax claims against Trump, his sons, or the Trump Organization. A range of legal experts have called this agreement an illegal act of self-dealing by the administration that screams of corruption.

Even some Republicans have even expressed discomfort with the settlement. Meanwhile, January 6th law enforcement filed a lawsuit arguing the arrangement is unconstitutional and potentially illegal and Rep. Jamie Raskin (D-Md.) proposed legislation stopping it. Overall, this isn’t about executing valid judgments under the law. This is about taking taxpayer dollars and pretending to call it “justice” for Jan6ers.

What is the “Anti-Weaponization Fund”?

According to the self-“agreement,” the fund could potentially distribute money to people claiming they were victims of “weaponized” investigations. This category is broad enough to include January 6th defendants, political operatives, and Trump allies who spent years attacking the legitimacy of the law. The cash for now is vaguely earmarked for future unnamed claimants. Although it purports to disavow payments to any of the named plaintiffs, it’s entirely possible that Trump-aligned entities could get payouts, too. There is no oversight, after all.

Despite this artificially “noble” cause, there is no valid law backing any of this either.

Blanche purportedly plans to raid the federal “Judgement Fund” in order to bankroll this objective. However, Congress is the branch of government tasked with appropriating spending under Article I of the Constitution, and it has not authorized this new “fund.”

Further, many federal and state laws ban conspiracy and stealing. Trump has no authority to take nearly $1.8 billion of hard-earned tax payer money, let alone do so in such collusive ways. This intentional taking of money from the federal treasury with no legal authority raises serious alarm bells.

Not to mention that there is nothing stopping how these funds are used. The agreement is enforceable and changeable only by the plaintiffs and defendants, both of which are Trump or controlled by Trump. That means the fund can be used for any and all matters he deems appropriate. In other words, Trump can use the fund to vindicate whatever is bothering him in any given moment on any given day.

Isn’t this just an extension of presidential immunity?

The one-pager added to the settlement essentially bans the federal government from enforcing federal laws against Trump, his sons, his companies, and “affiliated entities” regarding “any matters” that “could be pending” (specifically including their tax returns) before any federal agency.

This effectively purports to grant Trump extraordinary protection from future scrutiny.

Legal scholars and organizations immediately raised alarm bells, arguing that no president should be able to negotiate practical immunity from federal tax enforcement with officials serving under his own administration. But that’s exactly what this tries to do.

This not only suggests that Trump and his family have things to hide, but it is an attempt to extend immunity beyond the Oval Office.

What the takeaway?

This wasn’t just a normal settlement. Trump sued agencies that ultimately answer to him and not only walked out with immunity, but $1.8 billion in taxpayer dollars.

While this money is presumably earmarked for those unfairly targeted by the government, the commission overseeing the fund is controlled by Trump and Trump-appointed loyalists with limited oversight and broad discretion.

This arrangement blurs the line between public governance and personal political power. The government is being repurposed as a tool of personal and political protection and self-dealing right in front of our eyes.

Not long ago, a president negotiating a settlement with his own administration while securing protections for himself and his associates would have been treated as an extraordinary constitutional scandal. I know we are all exhausted, but this is an abuse of power that cannot be normalized. I will have more on this topic, so stay tuned.

Happy Memorial Day!

I’m glad you’re here,

KW

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As some of you may recall, last Spring I had the honor of serving as a Fulbright Scholar at Leiden University in the Netherlands speaking and studying on the state of the American Constitution — and what people around the world understand democracy to mean.

That experience connected me with thinkers and policymakers in Europe who are watching closely what is happening in the U.S. They understand that the implications are serious for the rest of the world and want to take steps to stop U.S. democracy’s “illness” from spreading.

That led to a wonderful opportunity to work in Amsterdam next year building a framework with other scholars for understanding how democracy got to this precarious place and what we might collectively do about it.

I have been in the business of civic education around the Constitution and the rule of law for about a decade now. I stumbled upon this work when Trump first took office. One Sunday morning, I read a column in the New York Times containing a line pronouncing the President’s pardon power as “absolute.”

Absolute? That can’t be right, I said to myself. Every line of the Constitution is checked and balanced by other parts of the foundational document that rejected an unlimited monarchy. If a President pardoned only white people because they are white, that would bump up against the Equal Protection Clause, right?

After all, School House Rock (a 1970’s Saturday morning cartoon, for the young ones out there) and the musical Hamilton taught generations of Americans that we don't have kings. All exercises of the people’s power is accountable to the people. Or so we all assumed.

After reading the New York Times piece, I wrote my first op-ed for The Baltimore Sun to set the record straight. I then started writing more columns for the general public explaining legal stuff in plain language. Media outlets read my pieces. One day, the radio station WTOP in Washington, D.C., booked me to talk about one of my articles. Then someone at CBS News heard me talk on WTOP and booked me. CNN saw me on CBS and called. MSNBC saw me on CNN — and called. Then CBS News officially hired me to cover the Trump impeachment.

What followed were many hundreds of TV interviews, radio and podcast hits, op-eds in outlets like the Atlantic and the Bulwark, speeches, expert panels, four books, and this newsletter. I’ve been with ABC News for a few years now as part of my ongoing quest to demystify the law and the Constitution for non-lawyers. I write regular columns in The Hill and Zeteo.

Back in 2015, only a third of Americans surveyed could name all three branches of government. That number has risen over the last ten years, but a working understanding of why we are a democracy rather than something else — like a dictatorship, where decision-making is swift, absolute, and less messy than pluralistic electoral politics — is still way too rare among the American public.

I have no idea how my car’s engine works, so if it breaks down, I cannot possibly fix it. How can people be expected to protect the system of American government if they don’t even know how it works? Addressing that gap has become a personal passion.

It led me to NIAS.

The Netherlands Institute for Advanced Study in the Humanities and Social Sciences (NIAS) in Amsterdam, Netherlands, is an independent research institute in the field of the humanities and social and behavioral sciences founded in 1970. The group I will be coordinating is brand new. The focus is on academic freedom, but we will also be looking at multiple pillars of democracy, including an independent judiciary and a free press. As you all know, democracy is under pressure around the world. Illiberal and authoritarian leaders, parties, and movements — often labelled "populist" — are on the rise, and the institutions that have historically lent democratic systems their legitimacy are increasingly under threat.

I have spent years sound the alarm that democracy could fail in the United States if people didn’t step up and protect it. That entails facing the truth, finding deep courage, and taking risks. Across all my years doing this work, I have found that most people considered it virtually impossible that American democracy could one day fail. Or they found it too stressful to think about.

And here we are.

I have also taught thousands of law students in my 20 years as a law professor. As some of them might tell you, I am very passionate about my students and their futures. Our youth understand where things are better than older generations do. They know things are dire. That U.S. democracy isn’t working. They are anxious about their futures. Will there be jobs? Will there be freedoms for LGBTQ+ people? People of color? Women? Poverty and desperation are on the rise. Unaccountable billionaires and corporations have captured our government in the quest for more and more money and power. Gun violence is a way of life in America now. The warming planet — and AI — pose existential threats to humanity.

Meanwhile, our political and corporate elite are unwilling to do anything about it. Corruption at the highest levels of government is rampant. The list of horribles goes on and on. It wasn’t like this when many of us were in our 20’s.

What, you may ask, do I say when people wonder what we can do about this now?

My answer has both stayed the same and shifted over the years. What’s the same is that we must look the hard stuff in the eye. That means education, connection, conversation. Increasingly, there is work to be done in making sure that we are getting a complete and accurate picture of the truth. Algorithms, a repressive government, a culture of cruelty and lies, and AI delusion are blurring the line between reality and fiction. So we must be vigilant in our own education.

What’s different is what we can realistically do now.

(Besides vote. That goes without saying.)

One day, when this horror show shifts (and it will, that’s just how the world turns), those of use who care about liberty and equality and freedom and fairness will have a shot at building something new. I want to be ready. Our youth needs to be ready. When it’s their turn, they must be fully prepared to rebuild — something better, more modern, more sustainable. Now is the time to get them ready. You can be a part of that. Starting today.

That’s why I accepted the tremendous honor of a fellowship at NIAS. To think deeply about how we got here — an autopsy of American democracy, if you will, and what it means for other democracies that are still functioning across the globe. And then to think even more deeply about what a better society might look like for the next phase of human life.

I will still be teaching (remotely) at my beloved University of Baltimore. I will still be speaking here on Substack, and in my monthly column for Zeteo, and my twice-monthly column for The Hill, and as a legal contributor for ABC News, NPR, and C-SPAN.

I hope you keep reading and listening. It’s been a tremendous privilege to have this voice.

So thank you for your support. Thank you for believing in humanity — and the future for our children. Stay tuned and keep fighting, my friends!

NIAS website

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KW

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Or imagine two parents who tragically die in a car crash, orphaning their two kids — who later find themselves in litigation with representatives of frozen “sibling” embryos with a legal interest in the deceased parents’ estate and life insurance policies.

Would the embryos have a “right” to incubation in a uterus? Whose uterus?

Thanks to Justice Samuel Alito’s majority opinion in Dobbs, the concept of legal fetal rights is gaining traction. That case effectively downgraded — if not obliterated— women’s right to autonomy in the abortion context while elevating the government’s interest in protecting fetuses.

Consider a Louisiana law at the center of the latest mifepristone controversy out of the Fifth Circuit Court of Appeals, Louisiana v. FDA. The law states that “every unborn child is a human being from the moment of conception and is, therefore, a legal person.” Similar laws exist in ten other states.

In the wake of the Dobbs decision that destroyed constitutional protections for abortion access, a zygote—one-fifth of the size of the period at the end of this sentence—may one day have the same, or even more rights, than the woman who carries it.

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I wrote about this topic for The Hill.

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Today’s post contains the next installment in my series on the Supreme Court cases that could impact lives this term.

The foregoing question underlies a case decided on March 31, 2026 called Chiles v. Salazar. In an 8-1 decision, the Supreme Court permitted so-called “conversion therapy” for minors who are questioning their sexual orientation or gender identity.

In 2019, Colorado joined 25 states in passing laws that ban conversion therapy for minors. The law prompted a federal suit by Chiles, a Catholic therapist who felt that her rights to freedom of speech in counseling LGBTQ+ minors were infringed upon by Colorado (Salazar being the representative for the state of Colorado). Chiles sought to stop enforcement of the law through an injunction. Justice Ketanji Brown Jackson penned the dissent, standing alone on an issue that affects countless numbers of LGBTQ+ children.

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What exactly is conversion therapy?

According to the Colorado law, conversion therapy is “[a]ny effort to change behaviors or gender expressions or to eliminate or reduce sexual or romantic attractions toward individuals of the same sex.”

Writing for the majority in the Chiles opinion, Justice Neil Gorsuch explained that conversion therapy efforts have historically included “aversive” approaches ranging from inducing nausea, vomiting, or paralysis in patients, or subjecting patients to severe electric shocks. Aversive therapies are no longer the norm, but “non-aversive treatments”—primarily, talk therapy—are currently the predominant form of conversion therapy. All such therapies seek to encourage patients to change their behavior in an attempt to “change” their identity.

While both aversive and non-aversive talk therapy were banned under Colorado’s law, the law also explicitly allows counselors to “provide acceptance, support, and understanding for identity exploration and development,” and to assist persons “undergoing gender transition.”

What were the arguments presented by the majority?

Eight of the 9 justices on the Supreme Court sided with Chiles in ruling that her First Amendment rights were violated by the law’s preventing her from conducting non-aversive conversion therapy through talk therapy.

Chiles claimed that she was never coercive in her therapy sessions but rather worked toward “predetermined goals” that the minors established from the beginning of their sessions through talk therapy. She noted that some of these minors were content with their sexual orientation and gender identity and simply wanted help with social issues or family relationships, but admitted that others hoped to reduce or eliminate unwanted sexual attractions, or change sexual behaviors. Chiles felt that she should be permitted to assist with these more person-centered objectives of “changing” their LGBTQ+ identities, often occurring because of an internal conflict with religious doctrine.

The Court concluded that Colorado’s law was flawed because it engaged in “viewpoint discrimination” by suppressing one viewpoint on an issue while allowing others; the Colorado law “banned conversion therapy, but permitted affirming care.”

The Court did not determine that professional conduct warranted exemption from significant First Amendment protections, emphasizing that “the First Amendment protects the right of all to speak their minds,” particularly because “[h]istory is littered with examples of governments that have sought to manipulate professional speech to increase state power, suppress minorities, and censor unpopular ideas.” Conversion therapy is unquestionably an unpopular idea in the medical field, per the profession’s “broad consensus.”

How did Justice Ketanji Brown Jackson respond?

Justice Ketanji Brown Jackson asserted that therapists, like all medical professionals, are inherently subject to the police power of the states to ensure the provision of our “history and tradition” of quality healthcare. Preserving our standards of healthcare in this country mandates that therapists and other healthcare professionals cannot simply say whatever they want, due to the right to freedom of speech, to the detriment of the patient. In her words: “There is no right to practice medicine which is not subordinate to the police power of the States.” Colorado adopted the law “in response to a growing mental health crisis among Colorado teenagers.” Jackson focused on protecting minors from medical practices that are not only “ineffective,” but “harmful,” based on the medical profession’s broad consensus that conversion therapy is associated with “increased depression, anxiety, suicidal thoughts, and suicide attempts.”

Justice Jackson cited instances such as prohibiting a dietician from encouraging an anorexic patient to starve themself, a lung doctor encouraging a patient to stop smoking tobacco, or a doctor discouraging suicide as examples of medical scenarios that inherently necessitate viewpoint discrimination but would presumably be widely considered unacceptable despite the First Amendment..

What’s the takeaway?

In Brown v. Board of Education (1954), the Supreme Court ruled that segregated schools cause irreparable harm by creating a sense of inferiority in Black children that is “unlikely ever to be undone.“ The Supreme Court considered damage to the psyche of young children compelling enough to effect change; arguably that is similar to what Colorado sought to do in protecting minors from the potential damage that aversive and non-aversive therapy presents.

That being said, the question remains about what we as a society should do to help a child who is distressed by their sexual or gender identity, and whether there are health alternatives to non-aversive conversion therapy of minors desire it. A reported 1,300 professionals practice conversion therapy, which reflects the potential scope of suicidal thoughts among minors struggling to reconcile a core part of their identity. The issue is not going away with this ruling.

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KW

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The Trump Administration in February 2025 lifted the Biden era moratorium on federal executions. In one of his final acts as president, Joe Biden commuted the sentences of 37 individuals on federal death row. In rescinding the moratorium, Trump resentenced and pushed for more death sentences for those on federal death row. But the current administration didn’t stop there. In late April, DOJ announced plans to expand execution methods beyond lethal injection, making firing squads and electric chairs available in federal cases.

Trump officials argued that the Biden administration “failed in its duty to protect the American people by refusing to pursue and carry out the ultimate punishment against the most dangerous criminals, including terrorists, child murderers, and cop killers.” While the current administration frames it as more efficiently restoring justice, many argue that restoring such alternative methods is barbaric.

Currently, the most common form of execution is lethal injection. Pentobarbital, a powerful barbiturate, is the drug typically used in such cases. Despite purportedly being more “humane” than older forms of execution, autopsies still show that executed individuals who received the drug experienced “tortuous drowning.” This had led to pharmaceutical companies refusing to sell the drug to prisons and prisons seeking out alternative forms of execution.

As a result, alternative forms of execution are becoming more common. A number of states allow other methods of execution such as electrocution or inhalation of nitrogen gas. However, only five states currently allow for death by firing squad for those convicted of death penalty.

Beneath the bureaucratic language of “streamlining protocols” and “expediting capital” cases lies an unmistakable dark truth. The government is becoming increasingly comfortable with making a spectacle out of state power and increasingly impatient with morals that once restrained it.

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What is the history of the federal death penalty?

Beginning in 1789, the government openly utilized the federal death penalty to implement capital sentences. In the early days of America, the death penalty was disproportionately used against Black and Native American populations. Such disparities continued into the 20th century. For example, from 1900 to 1963, 73% of federally executed individuals were Black men.

Methods during this era included the electrocution, firing squad, and lethal gas. After botched executions became more and more prevalent, these methods were slowly deemed too egregious to sustain. In 1879, defendant Wallace Wilkerson, who had been sentenced to die by firing squad, bled to death for nearly 30 minutes when the executioners missed his heart.

Things changed between 1963 and 2001. For almost four decades, the federal government conducted no executions. While the federal government did break the trend by executing three people in the early 2000’s, thereafter it entered another long period of inactivity.

The tides shifted again during the first Trump administration when the federal government in 2020 conducted 13 executions. Shortly after, federal executions essentially ended when Biden took office and implemented the moratorium referenced above. Overall, the DOJ reported a visible decline in the number of capital prosecutions and death sentences over the past two decades.

Currently under the second Trump administration, the federal government is seeking capital punishment against 44 defendants. Having now rescinded the Biden-era moratorium while opening the door again to old methods of execution, there is no telling how far this administration will go to flex federal power under the guise of “streamlining” death sentences.

Why would the DOJ need to reinstate old execution methods?

The DOJ cites several problems with the justice system and the federal death penalty as it currently stands:

• There are flaws in the Biden-era assertion that the existing federal practice of execution by lethal injection with pentobarbital could not be carried out without risking “unnecessary pain and suffering.”

• Horrific cases involving racially-motivated mass murder and child rape are being denied the death penalty as punishment.

• Capital prosecutions are being abandoned against the wishes of victims’ families and career prosecutors.

• The DOJ is effectively emptying federal death row based on former Attorney General Garland’s opposition to the death penalty.

In other words, the problem, according to the DOJ, is not that the state possesses the power to kill, it’s that too many people inside the system have shown too much hesitation in using it. Restraint itself has become the problem.

If lethal injection is bogged down by litigation, drug shortages, medial ethics obligations, and constitutional scrutiny over pain and suffering, then older methods (like firing squads and electrocution) offer the administration something they value more: speed and symbolism.

Essentially, if modern execution protocols like lethal injection make America uncomfortable with killing prisoners, then the solution, in the DOJ’s view, is not less killing. It is more straightforward methods about getting it done.

What about “cruel and unusual” punishment?

The Eighth Amendment of the Constitution prohibits the government from imposing “cruel and unusual punishments.” However, over the last few decades, several forms of execution have been criticized by academics and attorneys for meeting such Constitutional standards.

The Supreme Court’s evaluation of “cruel and unusual punishment” has constantly evolved. Depending on society’s moral views and scientific knowledge on the matter, there have been “evolving standards of decency” as it relates to capital punishment. In cases like Baze v. Rees and Glossip v. Gross, the Supreme Court concluded that prisoners challenging an execution method must prove two things. First, that the method of execution is likely to cause serious pain. Second, that there is another practical execution method available that would clearly reduce suffering.

Despite these precedents, several methods of punishment still remain under-evaluated by the court.

One method, electrocution, has historically been associated with severe burning and prolonged suffering. In the case of William Kemmler, for example, aca­d­e­mics and scientists who observed exe­cu­tions ​“almost unan­i­mous­ly said that this sin­gle exper­i­ment war­rants the prompt repeal of the law.” Despite this, courts have generally not declared it unconstitutional.

Another method, gas asphyxiation, is also still not analyzed or upheld by the Supreme Court. In fact, the DOJ admits that the Supreme Court has said little regarding execution by lethal gas. A newer and largely constitutionally untested method under this category is nitrogen asphyxiation. Alabama, having pioneered it first in 2024, used this method despite there being insufficient evidence that it avoids severe suffering.

Firing squads, some argue, may cause quicker death and fewer botched executions than other methods. Despite this, it is argued that they are still intentionally violent and psychologically brutal. To support this method, the DOJ relies partly on old Supreme Court precedents that upheld firing squads in the 19th century. Regardless, the Supreme Court has never truly evaluated the firing squad under the robust “evolving standards of decency” standards.

In attempting to move towards more “humane” methods under the Eighth Amendment, lethal injection has allowed for a “calmer” version of execution. The Supreme Court did rule in Glossip v. Gross that lethal injection was an acceptable method of execution under the Eighth Amendment. Notwithstanding that ruling, recent studies of autopsies provide that internal drowning was inevitable when given the lethal drug.

Ultimately, the debate over what qualifies as “cruel an unusual punishment” remains unsettled. While the Supreme Court upholds certain methods of execution, many raise serious constitutional and moral concerns.

Can the government now carry out the death penalty under these reinstated methods without inflicting unnecessary pain and suffering? The Supreme Court might experience renewed pressure to determine whether the Constitution permits such punishments that many view as incompatible with modern human dignity.

What’s the takeaway?

The DOJ’s decision to revive firing squads, electrocution, and gas executions marks a major shift in the federal government’s approach to capital punishment. With the Trump administration officially reinstating these forms of execution, the debate over “cruel and unusual punishment” is no longer theoretical.

Bear in mind that the U.S. came in third in the number of executions in 2023—behind only Iran and Saudi Arabia.

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KW

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I know this sounds illogical, and it is.

But as I explained in that post, in the wake of Students for Fair Admissions v. Harva…

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The scrutiny has been especially heightened because Donald Trump was in attendance. The White House is blaming Democrats f…

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Plessy’s separate-but-equal workaround to the 14th Amendment’s mandate of “Equal Protection” under the law was famously overruled in Brown v. Board of Education, in which the Court held in 1954 that the creation of separate educational facilities for students based on race is inherently unequal and unconstitutional.

Harlan’s words were clearly intended to condemn the unequal treatment of people of color.

But in Students for Fair Admission v. Harvard, the right-wing Supreme Court majority construed Harlan’s words to mean “color-blindness,” i.e., that any consideration of race—even to remedy systemic racism stemming from hundreds of years of enslaving people based on being non-white—is unconstitutional. It’s hard not to tie a direct line from that ruling to the Trump Administration’s cruel “DEI” purges of the federal government and anything it touches.

Now, in Louisiana v. Callais, these same considerations of racial neutrality came to the forefront in the context of racial gerrymandering, or the drawing of political districts in a way that unfairly disadvantages a particular race. The Court on Wednesday applied this “color-blindedness” mantra to strike down Louisiana’s congressional map—one which was designed to ensure fair access to the ballot for voters of color.

Justice Alito wrote the majority opinion, which the other right-wing justices joined. Justice Kagan dissented, joined by Justices Sotomayor and Jackson.

Instead of accepting that people of color face discrimination and making an effort to remedy discrimination in all of its forms, this Supreme Court has turned its back on the Equal Protection Clause by taking Harlan’s words out of context and construing “color-blind” to mean a lack of regard for racial differences, despite the extent to which these racial differences impact people of color. Tragically, that will likely continue.

Yet as we fight for equality, subtle racism continues to remain pervasive in every capacity, including our most important civic function, voting.

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What is gerrymandering, anyway?

Justice Kagan explained it with the following hypothetical:

Consider the story of a hypothetical congressional district in a hypothetical State, subjected to a redistricting scheme. The example is admittedly stylized, but in its essence, it simulates the dispute before us and clarifies the immense issues at stake. The district, let’s say, is a single county, in the shape of a near-perfect circle, sitting in the middle of a rectangular State. The State is one with a long history of virulent racial discrimination, and its many effects, including in residential segregation and political division, remain significant even today. The population of the circle district is 90% Black; the rest of the State, divided into five surrounding districts, is 90% White. And voting throughout all those districts is racially polarized: Black residents vote heavily for Democratic candidates, while White residents vote heavily for Republicans. The circle district thus enables the State’s Black community to elect a representative of its choice, whom no neighboring community would be able to put in office.

But that arrangement, in this not-so-hypothetical, is not to last. The state legislature decides to eliminate the circle district, slicing it into six pie pieces and allocating one each to six new, still solidly White congressional districts. The State’s Black voters are now widely dispersed, and (unlike the State’s White voters) lack any ability to elect a representative of their choice. Election after election, Black citizens’ votes are, by every practical measure, wasted.

That is racial vote dilution in its most classic form. A minority community that is cohesive in its geography and politics alike, and that faces continued adversity from racial division, is split—“cracked” is the usual term—so that it loses all its electoral influence. Members of the racial minority can still go to the polls and cast a ballot. But given the State’s racially polarized voting, they cannot hope—in the way the State’s White citizens can—to elect a person whom they think will well represent their interests. Their votes matter less than others’ do; they translate into less political voice.

What did the 6-3 Supreme Court majority do?

The Supreme Court majority declared that the Louisiana legislature’s effort to remedy such racial vote dilution was itself unconstitutional. In doing so, it basically gutted Section 2 of the Voting Rights Act, in which Congress separately made systematic dilution of minority voters’ power illegal.

The justices in the majority are, once again, acting like the bosses of everyone in the United States. Congress. The state legislatures. The Fourteenth Amendment itself.

Not one person voted for any of them.

What is Louisiana v. Callais about?

The dispute underlying the case involves Louisiana’s Senate Bill 8, in which the state legislature redrew the mapping of voting districts after the 2020 Census to create one majority-minority district out of the six congressional districts apportioned to the state—even though 30% of the voters in the state are Black. Black voters sued, arguing for the creation of an additional majority-minority district for elections. (A majority-minority district is a congressional district in the United States where racial or ethnic minorities make up more than half of the population, allowing these groups a better chance to elect representatives who reflect their interests.) The Black voters won in the lower court under Section 2 of the Voting Rights Act.

The Louisiana legislature then redrew the congressional redistricting map, creating a second majority-minority district.

A group of “self-described non-Black voters“ in Louisiana then sued, arguing that the newly redrawn map was an unconstitutional racial gerrymander because it took race into consideration in creating a second district.

While the Court has held that gerrymandering along political party lines cannot be challenged in court, it has also held that it is unconstitutional to draw election maps by concentrating or spreading out voters of color under the Fourteenth Amendment’s Equal Protection Clause, as well as under the Voting Rights Act (VRA).

Under the Court’s latest ruling, the latter part is now okay.

What were the main arguments presented?

Callais and other non-black voters argued:

• Section 2 of the Voting Rights Act prohibits political processes that are not “equally open” to participation by a class of citizens.

• Not “equally open” referred to the fact that “non-blacks” had less opportunity than other members of the electorate to participate in the political process by losing another district to a “majority-minority” usurpation.

• Finally, by compelling the state of Louisiana to draw lines where race predominates over neutral districting principles in an attempt to fix unequal access to votes, the act was remedying one issue by creating another issue, which was the unconstitutional violation of the Fourteenth Amendment.

At oral arguments, opposing counsel of the Legal Defense Fund, Janai Nelson, relied heavily on precedent, or past Supreme Court cases, to argue his points. He compared Callais to Allen v. Milligan, an Alabama case with similar facts. Nelson argued that in Allen, the Court had found that the state properly created an additional majority-minority district under three requirements set forth in another case called Thornburg v. Gingles:

(1) Geographic Compactness - the minority group must be sufficiently large and [geographically] compact to constitute a majority in a reasonably configured district

(2) Political Cohesion - the minority group must be able to show that it is politically cohesive

(3) Majority Bloc Voting - the minority group must be able to prove that the majority group votes sufficiently as a bloc

Nelson argued that, like in the Alabama case, Allen v. Milligan, all three of these preconditions of the Gingles criteria were evident in the Louisiana case, making a second majority-minority district permissible in Louisiana.

In his majority opinion, Justice Alito pretty much abandoned the Gingles test, writing that Section 2 actually “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.” Proving a legislature’s subjective purpose is difficult to do, however.

So in effect, Section 2 is likely dead as a vehicle to combat gerrymandering that silences minority voters. The ruling in Callais has accordingly given permission to state legislatures to draw blatantly racially discriminatory districts, sidelining the voice of minority voters and undermining democracy writ large—when it’s already hanging by a precarious thread.

What’s the takeaway?

Interestingly, as Nelson brought up in his oral arguments, the Supreme Court agreed in Bush v. Vera, another racial gerrymandering case from Texas, that the decision to create a majority-minority district was not objectionable in and of itself. Nelson also argued that “[t]here’s always an awareness of race,” citing Shaw v. Reno (1993), the Supreme Court case recognizing that when state legislatures draw district lines, they are often explicitly conscious of race.

So why all the noise?

The Callais plaintiffs feared that Section 2 of the Voting Rights Act was too often deployed as a form of electoral-based affirmative action. This fear is really that minorities are taking over. As mentioned above, the Court struck down affirmative action criteria in college admissions in 2023 because of the notion that implementing a policy that benefits a racial minority invariably disfavors the majority or other minorities.

But as Justices Sotomayor and Jackson noted in their dissents to the Harvard affirmative action case, the 14th Amendment was not about color-blindness. It was about remedying systemic racism against people of color. Here’s Sotomayor:

Today, this Court stands in the way and rolls back decades of precedent and momentous progress... In so holding, the Court cements a superficial rule of colorblindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter. The Court subverts the constitutional guarantee of equal protection by further entrenching racial inequality in education, the very foundation of our democratic government and pluralistic society.

Wednesday’s decision marks another step down that tragic, wrong-headed road.

I’m glad you’re here,

KW

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This protection extends beyond the right to publish. It encompasses the ability to investigate, to ask questions, and to access information necessary for meaningful reporting. While the government may impose certain restrictions in the interests of national security, those restrictions must be narrowly tailored and cannot serve as a pretext for suppressing disfavored viewpoints or insulating officials from scrutiny.

When access is conditioned on compliance with government-approved narratives, as has been the case with the Trump administration, the line between legitimate regulation and unconstitutional censorship begins to blur. The First Amendment does not permit the government to favor reporting that it finds agreeable over reporting that is critical. To do so would undermine the very purpose of a free press: to act not as an extension of authority, but as a check upon it.

What, then, are the consequences when the press is herded into silence? Why should it concern us when journalists are no longer free to question the people in power?

This President doesn’t care much about what the Constitution permits and does not permit. He acts as if he is the Constitution. Which is why it’s incumbent on the courts and the (mostly feckless) Congress to enforce the limits placed by the First Amendment on anyone in the Oval Office.

These questions lie at the heart of The New York Times’ lawsuit against the Department of Defense (DOD), a case that challenges the limits of governmental authority over access and expression. Once again, a federal judge has stepped up to uphold the Constitution in the face of this President’s authoritarian-like tendencies. Another example of why judges need the public’s vigorous support right now.

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What brought the parties to court?

The dispute arose after the DOD revoked journalists’ “Pentagon Facilities Alternate Credentials” (PFACs), which grant them physical access to the Pentagon. The Trump administration also introduced new restrictions governing where and how reporters could operate within the Pentagon facility.

The New York Times brought a lawsuit to prevent the enforcement of these measures, arguing that they were both unlawful and unconstitutional. The Times was not alone in its exclusion; other major news outlets—including CBS News, ABC News, NBC News, CNN, Fox News, and BBC News—were also affected. The lawsuit ultimately asked a federal court to restore the revoked credentials and halt the implementation of the new policies.

What did the Pentagon restrictions do?

At the center of the controversy were three principal policies advanced by the DOD:

• Pre-publication approval: Journalists were required to obtain pre-authorization before releasing any information related to the department. The DOD justified this requirement as a safeguard against inadvertent or unauthorized disclosures. The First Amendment has long been understood to strongly disfavor prior restraints—that is, government actions that prevent speech before it occurs—precisely because they pose a heightened risk of censorship. By conditioning access on reporters’ willingness to submit their reporting for pre-approval, the policy blurred the line between legitimate security oversight and impermissible control over the content of the press. Moreover, reporters were incentivized to avoid aggressive or critical inquiry altogether lest their work be characterized as a violation.

• Acknowledgment of risk: Reporters were also asked to sign a statement recognizing that any conduct deemed to pose a “security or safety risk” could result in discretionary sanctions. The ambiguity of what constituted a “security or safety risk” effectively meant that ordinary reporting activities could be retroactively deemed violations depending on how the department chose to interpret them. A number of journalists refused, leading directly to the revocation of their credentials. This was an unequivocal strike at the heart of the First Amendment.

• Discretionary enforcement: DOD maintained that the unauthorized disclosure of classified information only may result in denial or revocation of access, leaving enforcement largely to its own judgment on a case-by-case basis. This created a two-tiered press system: those willing to operate within the government’s constraints retained access while those who resisted were excluded.

Taken together, these restrictions did more than regulate logistics or security; they altered the fundamental relationship between the press and the government, transforming the nation’s history of a free press into a mechanism of control.

What constitutional claims did the New York Times raise?

The case involves challenges under the Fifth and First Amendments to the Constitution.

Under the Fifth Amendment’s due process clause, government policies must define prohibited conduct with sufficient clarity to provide fair notice. The Times argued that terms such as “security or safety risk” were so vague that journalists could not reasonably predict what behavior might lead to punishment. Compounding this problem was the Trump administration’s treatment of so-called “solicitation”—that is, the act of seeking information—as impermissible. But it’s, of course, a core function of journalism. Another brazen assault on the First Amendment’s central protections against government censorship and control.

The Times also contended that the policy violated the First Amendment because journalists who declined to accept the restrictions were effectively penalized while those who acquiesced were rewarded with continued access.

How did the court rule?

On the Fifth Amendment claim, Judge Paul Friedman, who sits in Washington, D.C., ruled that the plaintiffs had been deprived of a protected interest in “liberty” through the revocation of their PFACs. Moreover, he found unlawful the DOD’s failure to detail which routine, lawful journalistic practices would result in denial of a PFAC, as it denied journalists fair notice of the conduct that the policy intended to prohibit.

On the First Amendment claim, Judge Friedman ruled that the DOD policy violated the First Amendment on two fronts. First, the policies were “viewpoint discriminatory,” meaning that journalists were only allowed to report on policies that the DOD found favorable. Restrictions based on viewpoint are clearly prohibited under the First Amendment. The government cannot selectively neutralize journalism. Secondly, Judge Friedman ruled that the policy was “unreasonable” because it was not guided by “objective, workable standards.” The rule was so broad that it provided “no meaningful constraint of government power.”

Here is the judge’s ruling in full:

New York Times v. Department of Defense

What happened next?

The Pentagon imposed an “Interim Policy” in an attempt to sidestep the Judge’s ruling on the unconstitutionality of the previous Pentagon policy. The second time around, the Pentagon did the following:

• Replaced the word “solicitation,” which the court ruled to be ambiguous, with the words: “encouraging, inducing, or requesting” classified national security information.

• Purported to punish journalists with “knowledge” that the information they are seeking to obtain is forbidden from being disclosed by law.

• Provided examples of behavior that would not pose a security risk, which DOD called “safe harbors.“

• Restricted access of all PFAC holders to only those “escorted by authorized personnel at all times.”

How did the court respond to the Pentagon’s attempt to outmaneuver its first decision?

Judge Friedman issued a second opinion condemning the Pentagon’s “reform” of its policies, finding that they circumvented his order under the “guise of taking new action.”

All that DOD did to reform its policy, Judge Friedman ruled, was to replace its prohibition on “solicitation” of information from Pentagon officials with prohibitions on “encouraging, inducing, or requesting” the disclosure of unauthorized information. This, in essence, is just another definition of solicitation. The department essentially “invoked slightly different language” to “proscribe the same lawful journalistic practice.” The new policy, Friedman wrote, had the same “constitutional infirmities.”

Similarly, introducing the “knowledge” requirement presumed knowledge without any clear path to rebut that presumption, and the presentation of “safe harbor” behavior did not make it clear what behavior will not trigger the revocation of a PFAC. Both of these parts of the Interim Policy still violate the Fifth Amendment’s requirement of fair notice and specificity as to what type of action is punishable, he ruled.

Judge Friedman also condemned the department’s self-defeating logic of rectifying restrictions on freedom of the press by imposing further restrictions on the press.

Finally, he found that the expulsion of PFAC holders from the Pentagon in response to the first order disregarded the constitutional principles at the heart of his opinion, as the policy of expulsion is even more damaging in abridging the freedoms of the press than the original three policies that the court denounced. Friedman noted that the purpose of his injunction to PFAC revocation was to afford journalists more access to the Pentagon, not less.

Here’s the judge’s second ruling in full:

New York Times v. DOD II

What’s the takeaway?

When the government seeks to curtail a constitutionally protected right, it must ordinarily demonstrate a compelling reason for doing so. Historically, access to the Pentagon—even in the name of national security—has not been restricted in a manner that undermines press freedom or inhibits public scrutiny of government officials.

For decades, The New York Times and its peers have reported from within the Pentagon without being treated as adversaries. The abrupt shift reflected in these policies raises a more troubling question: whether the government may limit critical coverage precisely when such scrutiny is most necessary—particularly in matters involving military action and national security?

A free press is not intended to serve power, but to question it. Its role is not to reassure, but to inform—especially when the stakes involve public safety, the use of military force, and the expenditure of taxpayer resources. When that role is constrained, the consequences extend far beyond the press itself; they reach the very public whose right to know is placed in jeopardy.

Judge Friedman gets it.

I’m glad you’re here,

KW

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Trump has already egregiously abused the pardon power by handing them out for political loyalty, pay-to-play corruption, and even state prosecutions, over which he has no pardon authority. He has also used pardons to reward those who violently rioted in his name — an unprecedented maneuver that has since unleashed a range of disturbing criminal behavior on the public.

He recently signaled he intends to go even further.

“Pardon everyone who comes within 200 feet of the White House,” President Trump allegedly “joked” last week, according to a report by the Wall Street Journal and White House Press Secretary Karoline Leavitt’s spin.

The notion of “preemptive pardons,” or pardons that precede an actual indictment for a criminal act, might theoretically protect individuals who committed crimes in the past from facing charges in the future. Gerald Ford issued a preemptive pardon to Richard Nixon for any crimes associated with Watergate before an indictment was issued. Joe Biden did the same thing for his family in anticipation that Trump would use the DOJ for vindictive prosecutions. But the Supreme Court has never ruled that preemptive pardons are valid. It’s an open question of law.

Coupled with the presidential immunity that the modern Supreme Court majority gifted to Donald Trump in Trump v. U.S., an unchecked power to preemptively pardon would not only allow presidents to commit crimes with impunity, but it would theoretically expand the president’s immunity to a full cadre of potentially criminal associates.

A legally-sanctioned crime spree in the White House is obviously anti-democratic and thoroughly undermines the rule of law. The question is . . . what to do about that possibility?

The options are slim.

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My name is Julius Bowditch and I am a 3L at the University of Baltimore School of Law. I have spent nearly two years as one of Professor Wehle’s research assistants helping her with a variety of projects primarily related to constitutional law. I was also a student in a number of her classes.

(Pajama is the best cat ever!)

I am a huge Supreme Court nerd, which has made working for Professor Wehle (given her expertise and public presence) so exciting.

This semester, my last semester of law school, I have had the pleasure of taking Professor Wehle’s “Recent Supreme Court Decisions” seminar. This class is incredibly important right now. The Roberts Court has exhibited a willingness to challenge precedent and has utilized the emergency “shadow” docket at an unprecedented rate. As a result, the Court has faced unusually intense scrutiny from the public and legal scholars.

This is as it should be. But most people don’t really get what is going on in the Supreme Court.

In this pivotal moment in United States history, I have found that only through a deep, critical analysis of recent Supreme Court decisions has it been possible to understand the rationale, however flawed, behind the Court’s most controversial rulings.

At Professor Wehle’s invitation, I write today to share a few thoughts about what I have learned about what is really happening to our Constitution at the hands of 5 (sometimes 6) unelected judges with life tenure on the U.S. Supreme Court.

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On Thursday, the co-founder and primary reporter for SCOTUSblog, Amy Howe,* visited Professor Wehle’s Supreme Court seminar at UB to talk with students and faculty, as well as Dean LaVonda Reed, about the Supreme Court and her work.

(Prof. Wehle, Amy Howe, Dean Reed)

The discussion with Amy Howe was primarily conducted in a Q&A style, with Professor Wehle, faculty, and students all asking about Howe’s experience as a Supreme Court insider. The conversation ranged from questions about shifts she’s witnessed in Court procedure to what cases have been the most exciting to experience firsthand. There was so much discussed. All of it was fascinating. Here are my highlights from our conversation.

Birthright citizenship — and Trump’s stunning attendance at oral arguments

Professor Wehle asked Amy Howe about the highlights she expects from this term.

Her discussion began with Trump v. Barbara, the “birthright citizenship” case (oral arguments for were held on April 1, 2026) and President Donald Trump’s decision to become the first sitting president to attend oral arguments at the Supreme Court.

Howe explained that when President Trump first announced that he would be attending oral arguments, journalists were skeptical that he would actually come given that he had made similar statements in the past. The date was on Trump’s daily calendar, meaning it seemed likely he would actually attend.

When Amy Howe arrived at the Supreme Court the morning of oral arguments, she asked the clerk whether Trump had a specific reserved chair; the staff did not know. Then, at 9:47 am, Trump entered the courtroom. She said she watched Trump sit and saw him get up to leave, about 10 minutes into the presentation by Cecillia Wong, the National Legal Director of the American Civil Liberties Union, who was arguing against Trump.

While there is no certainty as to why Trump made the decision to attend oral arguments, and while Howe emphasized that she did not want to put “words in his mouth,” she surmised that his presence reflected Trump’s concern about the case. She also noted that he may have thought his presence would make a difference, particularly after expressing his frustration about the rulings of the justices he placed on the bench (in particular, in the tariff case, which he lost).

Having the opportunity to hear her discuss this historic moment that she witnessed first hand really blew my mind!

Losing sight of the “Rule of Law”

Conversations about the rule of law have been rich at UB this year. There has been a whole speaker series this year on the rule of law put on by a collaborative group of students and faculty.

When Professor Wehle asked whether the Court appeared concerned about perceptions of the rule of law, Howe responded that the answer to the question was contingent on how someone defines “Rule of Law.” For instance, Justice Brett Kavanaugh’s concurrence in Noem v. Perdomo appeared to defy the established rule of law (in particular, the Fourth Amendment) by permitting what seemed to amount to racially discriminatory stops by ICE. However, the liberal justices (especially Justices Ketanji Brown Jackson and Sonia Sotomayor) have been rather vocal in criticizing the majority’s decisions as contrary to foundational concepts of justice and the rule of law.

Amy Howe did note that, this past term, the only time that the Court overall has appeared to be concerned about the rule of law was when the Justice Department defied their direct orders. This did not surprise me, but it definitely disturbed me! While I am certainly glad the Court would be bothered by the Trump administration’s blatant disregard for its rulings, the fact that it would take such extreme behavior to get the justices to react to this administration’s disregard of the rule of law more broadly is disturbing.

The “Shadow Docket”: making sweeping rulings without a full record or explanation

Over the past year, I have done extensive research for Professor Wehle into the so-called “Shadow Docket.” So I was excited to hear Professor Wehle ask about Amy Howe’s thoughts on the shadow docket. Howe explained how before the First Trump administration, in the Summer 2016, she began to cover the emergency docket (which we now call the shadow docket based on Professor Steve Vladeck’s book). Initially Howe did not find the experience particularly riveting, given that there were not that many emergency rulings. Typically, they were used in cases of involving capital punishment. This all shifted during the first Trump administration.

From the beginning of this presidency, Trump has been using the emergency docket as a tool for getting swift adjudication of issues that his administration lost on in the courts below. During his first term, the Trump administration came to the Supreme Court on the emergency docket more often than the Bush and Obama administrations combined. I’ll say that again: COMBINED! I have conducted extensive research into the shadow docket yet this statistic shocked me.

Since this shift, the Biden administration and second Trump administration continued the trend of utilizing the emergency docket with extreme frequency. Trump has taken it to another level.

Amy Howe and Professor Wehle discussed the harm that emergency rulings can cause. Howe discussed how the justices like to think of these decisions as “temporary” and miss how they have major real life implications. In order for Trump to win, the justices must essentially rule that irreparable harm would befall the government if it’s forced to abide by the lower court decision during a normal appeal process. In the meantime,, the Court’s vigorous use of the emergency docket to help trump actually causes irreparable harm to the people who are impacted by the Trump administration’s actions — such as those who have been deported without due process of law.

Amy Howe expressed her belief that the Court should either use the docket more sparingly, or at the very least offer opinions after the fact. It’s not just the Trump administration that is using it these days — lots of litigants are. It’s becoming a problem. She explained how previously, Justice Breyer one wrote an entire opinion after the Court issued an emergency ruling. This was by no means standard practice — but at least it gives the public a sense of why the Court ruled as it did.

I had never considered the possibility that the Court could offer opinions after the fact. Hearing this left me feeling even more frustrated that the majority has chosen not to clue us into its thinking in the many emergency rulings favoring the government since Trump took office in January 2025.

Amy Howe’s most exciting eases and the experience of being at the Court

When a student asked Amy Howe what cases were the most fascinating to see argued in front of the Court, she responded with two, both of which I have read for class during law school. Attending these cases, she added, felt like she was “watching history be made.”

The first case was Bush v. Gore, a case I read in my Election Law class that fundamentally changed my understanding of U.S. elections and the right to vote. Howe said that she was a “baby lawyer” when she attended Bush v. Gore as part of Al Gore’s team. Although she sat way in the back during the arguments as a young attorney, she understood the significance of the case in that very moment.

The second case, which our class with Professor Wehle spent extensive time discussing, was Dobbs v. Jackson Women’s Health Organization, the infamous case that overturned Roe v. Wade. Howe said the experience attending the Dobbs arguments was drastically different from attending arguments for Bush v. Gore. Unlike during Bush v. Gore, the public was not allowed to attend because of the COVID pandemic. But there was still the sense of witnessing history in the making.

Having the opportunity to hear what it was like in the actual courtroom when these cases were argued was a special experience for me. The justices are like celebrities to us law students!

Amy Howe’s tips for effective lawyering

As a last semester 3L student, having Amy Howe give advice on how to be an effective lawyer was so exciting. Her key piece of advice? It is difficult to overprepare!

She discussed how there is not actually a big difference in preparation for arguing in front of the Supreme Court and preparation in any other court. While the experience of arguing in front the Supreme Court may be different, and more conversational, preparation is always key since oral arguments are a chance to respond to the justices.

In many ways, as oral arguments have gotten increasingly long, having preparation and endurance are increasingly key to effective lawyering. Professor Wehle remarked on how Solicitor General Saur struggled to respond to the justices about the implications of children born to native Americans during oral arguments on the birthright citizenship case, which she was surprised by. Being ready to pivot is key, and being prepared to pivot is necessary. The justices may be interested in something different that what you may think they will be interested in.

Howe encouraged students to keep the arguments conversational with justices. Respond to their arguments while making sure to advance the affirmative case.

Overall Amy Howe’s visit was a significant moment in my law school career. As one of Professor Wehle’s research assistants, I was ecstatic to have the opportunity to meet and hear from her. I frequently use SCOTUSblog as a starting point for my research for Professor Wehle. It is a phenomenal resource that I recommend anyone who is interested in the Supreme Court check out!

(I am in the red shirt!)

* Amy Howe is the co-founder of SCOTUSblog and its primary reporter. She was part of the blog team that won a Peabody Award in 2013, as well as a National Press Club Journalism Award for Breaking News.

Before turning to full-time journalism, she served as counsel in over two dozen merits cases at the Supreme Court and argued two cases there. From 2004 until 2011, she co-taught Supreme Court litigation at Stanford Law School; from 2005 until 2013, she co-taught a similar class at Harvard Law School. She has also served as an adjunct professor at American University’s Washington College of Law and Vanderbilt Law School. Amy is a graduate of the University of North Carolina at Chapel Hill and holds a master’s degree in Arab Studies and a law degree from Georgetown University.

Hey friends!

This is Kim Wehle here. My deepest gratitude to Julius — and to all of my students at UB and elsewhere — for their work learning about, and defending, the rule of law.

We need you!

I’m glad you’re here,

KW

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Trump watched as his administration’s lawyer, Solicitor General John Sauer, failed to convince the Supreme Court that “All persons born or naturalized in the United States,” did not actually mean all persons born in the United States, as the plain language of the 14th Amendment of the Constitution states. With the possible exception of Justice Samuel Alito (and maybe Justice Clarence Thomas), none of the justices seemed swayed by Trump’s presence or Sauer’s attempt to redefine the 14th Amendment in a way that could negatively affect the lives of millions of Americans born in this country—past and future.

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I wrote about it for The Bulwark. I also spoke on NPR’s Here & Now, Midday with Tom Hall, and ABC News Live.

ABC News TV Contribution

Bulwark article

Midday With Tom Appearance

Here and Now Feature

What exactly is the case about?

The case before the Court, Trump v. Barbara, is a challenge to Trump’s Executive Order No. 14,160, which declared on January 20, 2025 that individuals born in the United States can only be citizens if their parents have sufficient legal status, thus denying an untold number of people the Constitution’s guarantee of citizenship as a matter of birth. Multiple federal court judges declared the Executive Order unconstitutional. The Supreme Court had an opportunity on one of Trump’s “emergency” petitions to put the entire thing to rest and enforce the 14th Amendment as it reads, but instead gave Trump a gift of declaring unlawful so-called “universal injunctions” stopping presidents from doing illegal things across the country. The issue then came back before the Court on full briefing and oral argument, where it stands now.

The Constitution states more fully that “all persons born or naturalized in the United States and subject to the jurisdiction thereof.” In general, “jurisdiction” under the law means authority or power. So, for example, federal courts only have jurisdiction to hear cases involving federal law, or cases in which the parties reside in different states and the amount of money involved is over $75,000. That’s the limit of federal courts’ (versus state courts’) power or authority (i.e., jurisdiction) to hear cases.

Under the 14th Amendment, “jurisdiction” has thus been understood to mean that people born here are only citizens if they are subject to the authority or laws of the United States. Someone born to a diplomat in an embassy, for example, would be subject to the laws of that foreign country—not the U.S. Although the Supreme Court has long recognized only a handful of such exceptions to birthright citizenship, it’s a natural and logical reading of that language to make clear that people who because of some technical reason are born under the laws of another country don’t count. Everyone else born here does.

Rejecting this obvious interpretation, Sauer tortured the meaning of “jurisdiction” beyond recognition, claiming that the simple reading has always been wrong, in a bald effort to contort the language to fit Trump’s anti-immigration agenda. He made the following layered argument to erect his alternative definition:

• “jurisdiction” actually means “allegiance” (even though the Constitution says nothing about allegiance);

• but allegiance doesn’t mean “loyalty,” because that gets into subjective intent, and newborns of course have none of that yet;

• Sauer would instead define “allegiance” to mean “domicile”;

• domicile, according to Sauer, means (a) lawful residence in the U.S. (b) with an intent to remain;

• but because newborns have no subjective intent yet, one must look elsewhere for a person whose intent to remain matters;

• Sauer thus suggested that it must be the parents’ domicile (and intent to remain) that matters, but not both parents because they could be citizens of different countries so that would be unworkable;

• the lawfulness of someone’s presence in the U.S. and intent to remain instead boils down the mom’s;

• when asked where the “mom test” came from, Sauer cited Trump in his Executive Order.

Of course this all is head-spinning and ridiculous, a reality that the justices very cordially made clear during their questioning. At the end of the day, Sauer was forced to admit that his argument amounts to submitting that Trump gets to redefine the Constitution, a suggestion that is itself unconstitutional, because the Constitution can only be amended through ratification by supermajorities in the U.S. Congress and the state legislatures. Moreover, under Marbury v. Madison, it’s the Supreme Court—not the President—that interprets ambiguities.

As Cecilia Wang, opposing counsel for the ACLU, also brought up, the Court rejected the exact same argument raised by Sauer in a case called Wong Kim Ark v. U.S. (1898). In that case, the Court ruled that a man born in the U.S. could not be denied citizenship because of his parents’ allegiance to the Chinese emperor.

In short, Trump’s arguments have already been rejected for 128 years.

What’s especially troubling from the standpoint of ethical lawyering was that, when pressed by Justice Sonia Sotomayor as to whether the government was seeking to overrule Wong Kim Ark given its plethora of language directly contrary to Trump’s position, Sauer answered “no.” Worse, he represented that the case actually supports Trump because the Court randomly used the word “domicile” a bunch of times in the opinion, despite overall rejecting Trump’s arguments in no uncertain terms.

Sauer is obviously a brilliant lawyer, but telling the Supreme Court that a case doesn’t say what it actually says smacks of potentially sanctionable misconduct. It was really an astonishing moment for the legal profession.

What would happen if the “lawful residence plus intent to remain” of a newborn’s mother dictated birthright citizenship ?

Approximately 3.6 million babies are born in the U.S. every year, so many of those future Americans would be out of luck.

The justices asked Sauer if it was possible that this new test would be retroactive—that is, if it could be used to strip the citizenship of millions of existing Americans whose parents didn’t pass Trump’s new test. He responded that it wasn’t Trump’s plan to go back in time, but he could not guarantee it would be a “no.” After all, the Constitution is binding—if birthright citizenship is unconstitutional, it’s unconstitutional. A future president (or Trump himself) could choose to take that ball and run with it—backwards.

Even short of that, how would this test operate? Would lawyers and judges have to be involved to make a call at the moment of birth? Would there be “depositions” (or interviews of the mother under oath) in the delivery room? Sauer took the position that the default presumption would be no citizenship—it would be up to the family to prove citizenship, leaving infants stateless at least for a time. It would also leave parents having to scramble for lawyers to file lawsuits just to get their kids’ existence recognized, which is cumbersome, expensive and impossible for many people.

At the end of the day, it was obvious that this hullabaloo has nothing to do with the proper reading of the Constitution. It’s about Trump’s reckless and cruel assault on immigrants. But not all, mind you. Presumably, his own children would be spared.

What’s the takeaway?

As Chief Justice Roberts said in response to Sauer’s proposition that the Constitution must morph to address the modern problem of mass illegal immigration: “It’s a new world, but it’s the same Constitution.”

Meanwhile, let’s not forget that it’s not up to the Supreme Court, composed of unelected judges who are not electorally accountable to the public, to decide whether to change the language of the Constitution. The justices’ job is simply to apply the law as it exists and if there is ambiguity, to resolve that ambiguity. There is none here.

I’m glad you’re here,

KW

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This topic is complex—too big of a monster to try to unpack in one Substack post. But we have a potentially pivotal midterm election coming up, so it’s important to make some sense of what’s going on to be ready come November. For a refresher on the basics, check out my book What You Need to Know About Voting—and Why.

Link to Book Here

What are some of the basics on campaign finance law?

Much of it comes down to the difference between money paid into a campaign, and money paid out of a campaign.

The Supreme Court has said that Congress can limit money paid into a campaign. Individual people can only pay a limited amount of money into a campaign. Corporations, unions, and foreigners can’t contribute directly into a campaign at all (that’s why PACs and Super PACs formed, but that’s a topic for another day). Congress is the source of these laws. Without the laws, a candidate might quietly agree as follows: “Dear donor, if you give me money so I can win this election, then once I’m in office, I’ll use my power to do favors for you or your political causes, regardless of what’s best for the voters.”

Candidates will always want money and donors will always want influence. That much is for certain. So they’ve figured out ways to get around the limits. Instead of donating a bunch of money to the campaign, why not just run your own ads totally separate from the campaign? That’s free speech, right? In other words, instead of you giving candidate Joe money to run an ad saying, “Vote for Joe,” just run the ad all by yourself saying, “Vote for Joe.” Imagine that Congress bans this kind of express advocacy on behalf of a candidate (which it did). Instead of running an ad saying “Vote for Joe,” you run an ad saying “Joe’s opponent is horrible,” or “Joe will fix your health care.” (These kinds of ads are called issue ads.)

Either way, so long as Joe-­the-­candidate has nothing to do with your decision to run an ad favoring his candidacy, and so long as you run an ad that’s about issues and not an ad that contains express advocacy for or against electing Joe, there’s no quid pro quo problem, right? He can’t do you favors in exchange for something he wasn’t party to.

However, the Supreme Court has said that Congress can’t regulate or limit how politicians and their campaigns (and outside groups not connected to candidates) spend money out of a campaign to get their messages out. The law allows candidates for office to spend whatever they want. That’s because spending money to get yourself elected is considered speech that is protected by the First Amendment.

In the case currently before the Supreme Court, the justices will decide whether the spending limitations that apply to political parties specifically violate the First Amendment. Put another way, do the Democratic and Republican Parties—in addition to the humans that populate them—have their very own constitutional right to free speech that is violated under current campaign spending limits?

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How did this case come about?

In 2022, the National Republican Senatorial Committee and the National Republican Congressional Committee, along with J.D. Vance and Steve Chabot, sued the FEC, alleging that a statutory ban on so-called “coordinated expenditures” by political parties violate the First Amendment. The theory is that political parties need to be able to communicate with candidates to make sure their ads send the same political message. The candidates in the case—Vance and Chatbot—also argue that under the First Amendment they should be able to accept the funds and talk to their own political party about how to use the funds in their campaigns. The district court judge rejected these claims, and the case was fast-tracked to the Supreme Court.

What does the existing law say?

The government has an important interest in preventing actual or apparent corruption. Accordingly, the Supreme Court has previously held that party spending restrictions are permissible and do not violate the First Amendment’s guarantee of free speech. Buckley v. Valeo (1976) was the first landmark decision that defined the constitutional limits on campaign finance, in which the Supreme Court in a very complicated case basically ruled that restrictions on contributions to political campaigns and candidates (money in) generally do not violate the Constitution, but that restrictions on expenditures (money out) do.

Later, in 2001, the Supreme Court decided in a 5-4 ruling called FEC v. Colorado Republican Federal Campaign Committee (Colorado II) that “a party's coordinated expenditures, unlike expenditures truly independent, may be restricted to minimize circumvention of contribution limits.” The Court added that “there is little evidence to suggest that coordinated party spending limits adopted by Congress have frustrated the ability of political parties to exercise their First Amendment rights to support their candidates.”

Petitioners in National Republican Senatorial Committee v. FEC now argue that Colorado II is wrong.

Why does it matter whether political parties can coordinate spending with candidates?

If parties can spend unlimited money in “coordination” with candidates, then donors can bypass contribution limits by funneling money through parties. The concern is that this could enable wealthy donors to have outsized influence over candidates, undermining the goal of preventing corruption.

The petitioners respond that the proper concern of campaign finance laws is preventing “quid pro quo” corruption—that is, the acceptance of money in exchange for promises that if the candidate wins they will use the power of the office to benefit the donor—and not limiting money in politics, which is what this statute does, in violation of the First Amendment.

What’s the takeaway?

This right-leaning Court has a long history of hostility to campaign finance laws as well as laws protecting voting rights. During oral argument, Justice Ketanji Brown Jackson expressed concern that if the petitioners win this case, they will “come back and attempt to suggest that” other campaign finance “guardrails” aimed at limiting corruption should go, too. Her prediction? “[W]e’re going to be back here with the other kinds of limits” and “the same kinds of arguments” that they also must be struck down.

None of those arguments favor the interests—and relative power—of regular voters.

I’m glad you’re here,

KW

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