Judge Indira Talwani (D. Mass.) on Tuesday granted a renewed motion for a preliminary injunction blocking enforcement of President Trump’s executive order seeking to curtail voting by mail. Judge Talwani stated that her order preserved the “electoral status quo” now “where less than 90 days pend before the midterms and the millions of citizens who rely on mail voting require clarity as to how or whether they will vote in November.” (Memorandum & Order.) (AP.)

Attorneys for plaintiffs who prevailed in Trump v. Barbara filed a motion on Tuesday in the U.S. District Court for the District of New Hampshire requesting the court clarify that President Trump’s Aug. 6 executive order seeking to narrow birthright citizenship violates the court’s preliminary injunction that was affirmed by the Supreme Court. (Motion.) (SCOTUSBlog.) For background on the executive order, see a prior Roundup.

Judge Joan Ericksen (D. Minn.), the chief judge of the Alien Terrorist Removal Court, on Monday canceled the respondent’s release hearing that was scheduled for the following day, citing the need for further briefing on the respondent’s motion to compel discovery. (Order.) For background on the government’s case, see a prior Roundup.

Judge Eric C. Tostrud (D. Minn.) on Monday granted in part federal government agencies’ motion to dismiss a lawsuit brought by Minnesota that sought to block the Trump administration from prohibiting transgender women from participating in sports under Title IX. (Opinion and Order.)

The Justice Department on Monday brought lawsuits against New York, Connecticut, and Vermont, challenging state laws that provide in-state tuition assistance to undocumented immigrants. (Press Release.) (CT Complaint.) (VT Complaint.)

The U.S. Department of State announced on Monday that since the start of the second Trump administration it has revoked more than 175,000 visas from foreign nationals who committed crimes or endangered public safety. (Press Release.) (NYT.)

Jonathan Shaub argued that the “precedents set in the pursuit of Fauci could come back to haunt Republicans or possibly tee up even more politically motivated retribution campaigns in the next Congress.” (Lawfare.)

Pending Interim Order Applications Involving the U.S. Government in the Supreme Court

Trump v. California: The government filed an application on July 27 requesting the Supreme Court to stay a district court injunction that blocked federal agencies from implementing certain portions of the president’s March 31 executive order entitled “Ensuring Citizenship Verification and Integrity in Federal Elections.” The 23 states and the District of Columbia challenging the order filed a consolidated opposition on August 3, arguing that a stay “would allow the federal government to rush out an unprecedented, legally indefensible voter-verification and ballot-interception program.” The government filed a reply on August 4, arguing that the states rest their challenge on “speculation about what impact the Executive Order would have if it were ultimately implemented in violation of federal law.”

Alabama v. California: Twelve states filed an application on July 29 requesting the Supreme Court to stay a district court injunction that blocked federal agencies from implementing certain portions of the president’s March 31 executive order entitled “Ensuring Citizenship Verification and Integrity in Federal Elections.” The 23 states and the District of Columbia challenging the order filed a consolidated opposition on August 3. The twelve states filed a reply on August 4, arguing that the executive order “imposes zero obligations on the States or public.”

The Justice Department’s Office of Legal Counsel released an opinion on Monday concluding that executive privilege may extend to the president’s private advisers who do not work in the executive branch. (Opinion.)

Judge Nicholas G. Garaufis (E.D.N.Y.) on Monday granted the Justice Department’s motion to dismiss an indictment against Indian billionaire businessman Gautam Adani on charges including conspiracy to violate the Foreign Corrupt Practices Act. While noting that “irregularities in the decision to dismiss the Indictment are concerning,” Judge Garaufis ultimately determined that, based on the evidence before the court, the defendant’s pledge to invest $10 billion in the United States was a “non-consideration” in the Justice Department’s decision to seek a dismissal. (Memorandum & Order.) (NYT.)

President Trump on Monday signed an executive order recommending children receive immunizations against fewer diseases than the Centers for Disease Control and Prevention currently recommends. The order also directs the Attorney General to support legal challenges to state laws that fail “to provide religious and medical exemptions from childhood and adolescent immunization requirements.” (Executive Order.) (NYT.)

The Trump administration’s expansion of U.S. Immigration and Customs Enforcement’s mandatory detention policy has triggered tens of thousands of emergency lawsuits nationwide and strained the federal judiciary, according to an analysis by Politico. (Politico.)

Steve Vladeck analyzed the legality of President Trump’s new birthright citizenship orders. (One First.)

Mae Thompson, Kristine Beckerle, and Luke Moffett argued that the Trump administration’s rollback of civilian harm mitigation and response procedures “represents a dangerous retreat” from the consensus that effective civilian harm response is crucial to effective military operations. (Lawfare.)

Pending Interim Order Applications Involving the U.S. Government in the Supreme Court

Trump v. California: The government filed an application on July 27 requesting the Supreme Court to stay a district court injunction that blocked federal agencies from implementing certain portions of the president’s March 31 executive order entitled “Ensuring Citizenship Verification and Integrity in Federal Elections.” The 23 states and the District of Columbia challenging the order filed a consolidated opposition on August 3, arguing that a stay “would allow the federal government to rush out an unprecedented, legally indefensible voter-verification and ballot-interception program.” The government filed a reply on August 4, arguing that the states rest their challenge on “speculation about what impact the Executive Order would have if it were ultimately implemented in violation of federal law.”

Alabama v. California: Twelve states filed an application on July 29 requesting the Supreme Court to stay a district court injunction that blocked federal agencies from implementing certain portions of the president’s March 31 executive order entitled “Ensuring Citizenship Verification and Integrity in Federal Elections.” The 23 states and the District of Columbia challenging the order filed a consolidated opposition on August 3. The twelve states filed a reply on August 4, arguing that the executive order “imposes zero obligations on the States or public.”

A divided panel of the U.S. Court of Appeals for the District of Columbia on Friday affirmed a lower court’s injunction blocking President Trump from constructing a ballroom in the White House without congressional approval. The court stayed its decision for 14 days to allow the government to seek Supreme Court review. (Opinion.) (NYT.) President Trump announced on Truth Social that “[w]e will be immediately appealing” the adverse ruling. (WaPo.) For background, see a previous Roundup.

Judge Emily C. Marks (M.D. Ala.) on Friday denied the Southern Poverty Law Center’s motion to dismiss for vindictive prosecution an eleven-count indictment against the nonprofit. (Memorandum Opinion and Order.) (Bloomberg.) For background, see a previous Roundup.

An ex-federal prosecutor filed a lawsuit on Friday in the U.S. District Court for the Southern District of Florida challenging his firing on grounds of the First and Fifth Amendments, the Administrative Procedure Act, the Privacy Act, and separation of powers. (Complaint.) The complaint states that the Trump Justice Department fired the plaintiff hours after a decade-old blog post surfaced in which he criticized Donald Trump. (CNN.)

The White House is pressing forward with its effort to fire Fed Governor Lisa Cook after the Supreme Court temporarily blocked President Trump from firing her. A presidential aide notified Cook in a letter dated Wednesday that the president is “considering” her removal and offered her 21 days to respond to the allegation that she committed mortgage fraud. (Letter.) (WSJ.) (SCOTUSblog.) For background, see a previous Roundup and Jack Goldsmith’s discussion with Sai Prakash on Trump v. Cook and Trump v. Slaughter.

The Senate on Saturday confirmed Todd Blanche as Attorney General in a 50 to 49 vote. (WSJ.) (NYT.) Blanche will officially take the helm of a department characterized by low morale, firings and departures, and dependence on the White House. (WaPo.) For background, see a previous Roundup.

The Pentagon announced on Friday that it had revoked the security clearance of President Joe Biden’s Air Force secretary, alleging that he revealed classified information about Air Force One’s capabilities to the media. (WaPo.)

President Trump announced on Sunday that Will Scharf will replace David Warrington as White House Counsel, effective in September. (WSJ.)

Sarah Buckley argued that President Trump has exceeded his statutory authority under the Clean Air Act to roll back air pollution rules. (Just Security.)

Pending Interim Order Applications Involving the U.S. Government in the Supreme Court

Trump v. California: The government filed an application on July 27 requesting the Supreme Court to stay a district court injunction that blocked federal agencies from implementing certain portions of the president’s March 31 executive order entitled “Ensuring Citizenship Verification and Integrity in Federal Elections.” The 23 states and the District of Columbia challenging the order filed a consolidated opposition on August 3, arguing that a stay “would allow the federal government to rush out an unprecedented, legally indefensible voter-verification and ballot-interception program.” The government filed a reply on August 4, arguing that the states rest their challenge on “speculation about what impact the Executive Order would have if it were ultimately implemented in violation of federal law.”

Alabama v. California: Twelve states filed an application on July 29 requesting the Supreme Court to stay a district court injunction that blocked federal agencies from implementing certain portions of the president’s March 31 executive order entitled “Ensuring Citizenship Verification and Integrity in Federal Elections.” The 23 states and the District of Columbia challenging the order filed a consolidated opposition on August 3. The twelve states filed a reply on August 4, arguing that the executive order “imposes zero obligations on the States or public.”

Judge Randolph D. Moss (D.D.C.) on Thursday dismissed the Justice Department’s lawsuit to compel disclosure of D.C. voters’ Social Security and driver’s license numbers. (Order.)

Judge Todd E. Edelman (D.C. Super. Ct.) on Thursday dismissed the Justice Department’s indictment against David Hearn, the former Olympian who the department alleged had damaged the Lincoln Memorial Reflecting Pool. The judge ordered further briefing on the department’s request for the case to be dismissed without prejudice. (Order.) (NYT.) For background, see previous Roundups.

The individuals and entities challenging the Anti-Weaponization Fund in the U.S. District Court for the Eastern District of Virginia filed an amended complaint Thursday. The complaint asserts that the agreement between President Trump and the Departments of Justice and Treasury to grant Trump, his family, and his businesses sweeping immunity from tax liability and audits is unlawful. (Amended Complaint.) (NYT.) For background, see a previous Roundup.

President Trump on Thursday issued a pair of new executive orders that seek to limit birthright citizenship and combat “birth tourism.” (Executive Order.) (Executive Order.) (NYT.) (WSJ.) Ilya Somin argued that one of the orders—titled “Continuing to Protect the Meaning and Value of American Citizenship”—is unconstitutional. (Volokh.)

President Trump on Thursday imposed tariffs on imports of polysilicon, an essential component of semiconductors and solar panels. (Proclamation.) (NYT.)

Sen. Lisa Murkowski announced Friday that she will oppose Todd Blanche’s confirmation to be attorney general. (Statement.) (Politico.)

Andy Wright and Tara Ganapathy argued that the D.C. Circuit’s recent decision in United States v. Navarro, which upheld Trump aide Peter Navarro’s conviction for contempt of Congress, “significantly raises the stakes surrounding both the assertion of executive privilege, and decisions regarding compliance with congressional subpoenas.” (Just Security.)

Bob Bauer argued that President Trump’s “self-enrichment requires attention not only for its head-snapping brazenness, but as a defining feature of a particular model for presidential governance: what I have characterized previously as the ‘business model.’” (Executive Functions.)

Pending Interim Order Applications Involving the U.S. Government in the Supreme Court

Trump v. California: The government filed an application on July 27 requesting the Supreme Court to stay a district court injunction that blocked federal agencies from implementing certain portions of the president’s March 31 executive order entitled “Ensuring Citizenship Verification and Integrity in Federal Elections.” The 23 states and the District of Columbia challenging the order filed a consolidated opposition on August 3, arguing that a stay “would allow the federal government to rush out an unprecedented, legally indefensible voter-verification and ballot-interception program.” The government filed a reply on August 4, arguing that the states rest their challenge on “speculation about what impact the Executive Order would have if it were ultimately implemented in violation of federal law.”

Alabama v. California: Twelve states filed an application on July 29 requesting the Supreme Court to stay a district court injunction that blocked federal agencies from implementing certain portions of the president’s March 31 executive order entitled “Ensuring Citizenship Verification and Integrity in Federal Elections.” The 23 states and the District of Columbia challenging the order filed a consolidated opposition on August 3. The twelve states filed a reply on August 4, arguing that the executive order “imposes zero obligations on the States or public.”

Since Aug. 1, President Trump has been profiting from his Truth Social announcements of official actions or positions. Trump Media and Technology Group, which owns Truth Social, has announced that, for a fee of up to $100,000 a month, Wall Street traders will have milliseconds faster access to “market-moving” presidential statements issued on the platform. For firms competing to trade successfully on this information, milliseconds can make a difference of many millions of dollars. If the sales pitch for this new subscription service is successful, it will be helpful to the reportedly ailing Truth Social, but therefore also to the president, whose 41.5% stake is held in a revocable trust of which he is the sole beneficiary and his son Donald Trump Jr. the sole trustee.

Commentators and members of Congress, including Republicans, have sharply questioned this arrangement. The question of its legality is contested, and I do not take it up here. The ethical failing could not be clearer: a flat-out, egregious conflict of interest. Any Truth Social announcement of a governmental or presidential action or policy, or simply the expression of an opinion, stands to be shaped by Trump’s private financial interest in building this new roster of paid subscription clients.

How is it, then, that Trump, mired in dismal job performance ratings, chooses once again to ignore the conflicts and make flagrant use of his office to make a lot of money? He is evidently discounting the political costs, and he is well defended against any legal or ethics regulatory ramifications. By a combination of his control of the Department of Justice, the uncertain contours of his constitutional immunities, and a potential self-pardon, he can minimize any risk that the conflicts lead to a public corruption prosecution. Within the executive branch, he has disabled the ethics regulatory machinery and need not fear criticism or embarrassment from that quarter. By his own account, Trump concluded after his first term that “nobody cared” about ethics rules. To some degree the polling data bear him out, as only “a small sliver” of the public rank his profiteering as a primary concern about his presidency. And even if voters are beginning to take notice of the scale of his self-enrichment, their attention to the issue may stem more from overall dissatisfaction with the way he is doing his job than from a focused rejection of abuse of office for personal financial gain.

The challenge for the balance of this term and then again after he leaves office is building the case that conflicts of interest in the presidency matter on their own terms—in the good times and the bad, irrespective of the president’s approval ratings on other measures. It will not be easy. Process issues—like campaign finance or ethics regulation—are rarely at the top of voters’ minds.

But Trump’s self-enrichment requires attention not only for its head-snapping brazenness, but as a defining feature of a particular model for presidential governance: what I have characterized previously as the “business model.” This is one in which “deals” forged out of a range of private interests and incentives, including the president’s own, are seen as necessarily serving the public interest as well. This model does not allow for the application of standard conflict-of-interest and other ethical rules, because it does not recognize the standard line drawn between public and private interests.

The Truth Social subscription service fits within this model. Trump is working out a deal within the interests and incentives of the stock market, which he cites as the leading indicator of his successful stewardship of the economy. The new social media subscription service is a good deal for smart traders, if also for Trump; they will make money, and he will make money. It is (the theory goes) good for the market and good for Truth Social. Those traders who decline to participate are missing out on a good deal. Conflict of interest has nothing to do with it.

The demise of conflict of interest relates to the administration’s aggressive approach to the use—and, in the standard of view, abuse—of power. Conflict-of-interest is one kind of abuse of power, defined by the potential or actual subordination of the public interest to private gain. Other abuses may also serve presidential dealmaking, and not always in circumstances that involve a direct financial benefit. When Trump launched his vendetta against major national law firms, he denied that the settlements he exacted from a number of them were coercive, an abuse of power. His executive orders targeting firms that had aroused his ire were the first—and, courts have so far uniformly held, illegal—steps in a series of negotiations. These firms that settled did so because they “want to make deals,” because “they’re very sophisticated people.” Ethics has no place in this understanding of how power may be used, because, as I wrote before on the business model, “ethics imposes limits on the cutting of deals,” and for that reason, in this view, “are just dysfunctional, and therefore bad policy.”

The suspicion and often outright rejection of expertise follow from this dismissal of standard ethical considerations. In theory, policy experts guide deliberations over the public welfare. They help to find that space outside the clash of private interests where something like a common good resides. The influence of experts largely disappears in the business model picture of that common good as the best possible deal cut among various and competing private interests. On this account, this president, touted as the consummate dealmaker, is the kind of expert, a dealmaking expert, who is most needed. Among the experts neutered in this administration are those who specialize in the standard model of conflict-of-interest and government ethics regulation.

How the administration views conflict of interest is something new, a world apart from long-standing conceptions of how government fulfills its responsibilities. Personal gain is well and very intentionally served by this “business model” presidency, but it is a model that, more fundamentally, has no room for ethical constraints on the uses of power to make deals on a thoroughly privatized understanding of the public interest.

New Mexico sued the Justice Department and Acting Attorney General Todd Blanche on Wednesday in the U.S. District Court for the District of Columbia to secure access to unredacted Epstein files for the state’s criminal investigation into activities at Epstein’s “Zorro Ranch.” (Complaint.) (Press Release.) (WSJ.) (NBC.)

Judge Ana C. Reyes (D.D.C.) on Wednesday recognized that her stay of the administration’s termination of Temporary Protected Status for Haitians “is no longer in effect” after the Supreme Court’s decision in Mullin v. Doe, and denied the government’s request to stay discovery on the plaintiffs’ claim that the termination was racially motivated. (Order.) (WaPo.)

Judge Noël Wise (N.D. Cal.) on Tuesday granted a temporary restraining order requiring the government to release a Visa Waiver Program entrant seized at Oakland International Airport, finding “a strong likelihood that he is entitled to a pre-deprivation hearing before an immigration judge.” She also enjoined his removal and re-detention pending a hearing. (Order.)

The New York Times reports that the C.I.A. has created a Cuba task force aimed at splitting the country’s political elite and pressuring it to replace anti-American leaders with individuals more open to the Trump administration’s demands. The task force reportedly cannot authorize lethal operations. (NYT.)

The White House is pushing Congress to delay the start of a ban on intoxicating hemp products as part of the continuing resolution currently under consideration. The delay would benefit White House Chief of Staff Susie Wiles’s son-in-law, the chief executive of companies that sell such products. (NYT.) (NBC.)

Camille Mackler argued that the Department of Homeland Security’s “untested, undisclosed, and unreviewed” use of artificial intelligence in immigration enforcement offers a “preview of how AI could reshape executive power.” (Lawfare.)

Pending Interim Order Applications Involving the U.S. Government in the Supreme Court

Trump v. California: The government filed an application on July 27 requesting the Supreme Court to stay a district court injunction that blocked federal agencies from implementing certain portions of the president’s March 31 executive order entitled “Ensuring Citizenship Verification and Integrity in Federal Elections.” The 23 states and the District of Columbia challenging the order filed a consolidated opposition on August 3, arguing that a stay “would allow the federal government to rush out an unprecedented, legally indefensible voter-verification and ballot-interception program.” The government filed a reply on August 4, arguing that the states rest their challenge on “speculation about what impact the Executive Order would have if it were ultimately implemented in violation of federal law.”

Alabama v. California: Twelve states filed an application on July 29 requesting the Supreme Court to stay a district court injunction that blocked federal agencies from implementing certain portions of the president’s March 31 executive order entitled “Ensuring Citizenship Verification and Integrity in Federal Elections.” The 23 states and the District of Columbia challenging the order filed a consolidated opposition on August 3. The twelve states filed a reply on August 4, arguing that the executive order “imposes zero obligations on the States or public.”

The en banc D.C. Circuit on Tuesday affirmed a preliminary injunction barring the Environmental Protection Agency from terminating $20 billion in Greenhouse Gas Reduction Fund grants. Six of the ten participating judges concluded that EPA likely contravened the Inflation Reduction Act’s mandatory appropriation by attempting to claw back disbursed funds “based solely on a policy disagreement.” (Judgment.) (NYT.)

Judge Amit P. Mehta (D.D.C.) on Tuesday granted the Justice Department’s motion to dismiss with prejudice the indictment against nine members of the Oath Keepers, closing the last January 6 prosecution. Judge Mehta wrote that the government’s request “to absolve these Defendants of crimes against the United States itself” is not in the public interest, but that the court “must give way to the primacy of the Executive Branch in making charging decisions.” (Memorandum Opinion and Order.) (Politico.)

Judge Philip A. Brimmer (D. Colo.) on Monday dismissed with prejudice the Justice Department’s suit seeking Colorado’s statewide voter registration list. The ruling is the department’s 20th consecutive district court loss in its effort to obtain state voter rolls. (Order.) (Democracy Docket.) For background, see a previous Roundup.

Twenty-four states and the District of Columbia sued the Administration for Children and Families on Monday over a records notice that would let the agency disclose Temporary Assistance for Needy Families recipients’ Social Security numbers and immigration status “to any public or private entity that ACF chooses, at any time.” (Complaint.) (Press Release.)

The Senate Judiciary Committee on Tuesday advanced acting Attorney General Todd Blanche’s nomination to be attorney general on a 12–10 party-line vote, after Senators John Cornyn and Thom Tillis dropped their objections. Senator Susan Collins said afterward that she does not intend to support Blanche on the floor. (NYT.) Chris Geidner argued that Cornyn and Tillis’s acceptance of Blanche’s written assurances “is not oversight, it is not principled.” (Law Dork.) For background on the assurances, see a previous Roundup.

U.S. Attorney Jeanine Pirro’s office has moved in recent days to dismiss misdemeanor charges against three more defendants accused of vandalizing the Lincoln Memorial Reflecting Pool, after investigators attributed the damage to a contractor. President Trump met with Pirro in the Oval Office on Monday, hours after accusing her of “folding like an umbrella.” He said Tuesday that he had told her he was “not happy” with her filing and declined to say whether her job was safe. (NYT.) (NYT.) (Politico.) For background, see a previous Roundup.

The National Guard deployment in Washington, D.C., is set to cost an additional $1.4 billion from October through the end of President Trump’s term, according to an estimate the Pentagon’s comptroller nominee provided to Senator Elizabeth Warren during his confirmation. (WaPo.)

Pending Interim Order Applications Involving the U.S. Government in the Supreme Court

Trump v. California: The government filed an application on July 27 requesting the Supreme Court to stay a district court injunction that blocked federal agencies from implementing certain portions of the president’s March 31 executive order entitled “Ensuring Citizenship Verification and Integrity in Federal Elections.” The 23 states and the District of Columbia challenging the order filed a consolidated opposition on August 3, arguing that a stay “would allow the federal government to rush out an unprecedented, legally indefensible voter-verification and ballot-interception program.” The government filed a reply on August 4, arguing that the states rest their challenge on “speculation about what impact the Executive Order would have if it were ultimately implemented in violation of federal law.”

Alabama v. California: Twelve states filed an application on July 29 requesting the Supreme Court to stay a district court injunction that blocked federal agencies from implementing certain portions of the president’s March 31 executive order entitled “Ensuring Citizenship Verification and Integrity in Federal Elections.” The 23 states and the District of Columbia challenging the order filed a consolidated opposition on August 3. The twelve states filed a reply on August 4, arguing that the executive order “imposes zero obligations on the States or public.”

The Supreme Court’s judgment in Trump v. Barbara issued Monday, affirming the District of New Hampshire’s ruling that President Trump’s birthright citizenship order was unconstitutional. The government filed no petition for rehearing, which would have delayed it. (Judgment.) For background, see a previous Roundup.

Judge Mae A. D’Agostino (N.D.N.Y.) on Monday held that New York’s laws restricting when federal law enforcement officers may wear face coverings and requiring them to wear visible identification likely violate the Supremacy Clause, and preliminarily enjoined their enforcement. She denied the United States’ challenge to a third state law ending New York’s agreements allowing local officers to perform federal immigration enforcement. (Opinion.)

Twenty-five states led by Oregon sued on Monday in the U.S. Court of International Trade to challenge President Trump’s Section 301 tariffs. The complaint alleges that the administration’s “third attempt to impose worldwide tariffs—now through Section 301 of the Trade Act—is equally unlawful.” (Complaint.) Ilya Somin urged the states to press major questions and nondelegation arguments. (Volokh.)

Acting Attorney General Todd Blanche told faith leaders on a private call last week that the Justice Department is working with federal health agencies and the White House “so that the Dobbs decision becomes permanent in every single state.” The Justice Department said the remarks concerned “mail order abortion drugs” alone, and that its 2022 Office of Legal Counsel opinion concluding that the Comstock Act does not bar mailing those drugs is under “a thorough review.” (Recording.) (Politico.)

The Wall Street Journal reported that Immigration and Customs Enforcement has built a round-the-clock program to monitor social media for speech that could threaten its agents or disrupt its operations, and that the Department of Homeland Security has sent hundreds of subpoenas to social media companies to identify anonymous critics. Judges have upheld four grand jury subpoenas seeking users’ identities, but no charges have been filed in those cases. (WSJ.)

Steve Vladeck argued that the Supreme Court’s four rulings against President Trump this term do not establish its independence, given the “massive amount of allegedly unlawful behavior by this administration that the Court has green-lit.” (One First.) Jack Goldsmith previously argued that the Court’s strategy of temporizing preserved its authority while securing presidential compliance many thought impossible. (Executive Functions.)

Pending Interim Order Applications Involving the U.S. Government in the Supreme Court

Trump v. California: The government filed an application on July 27 requesting the Supreme Court to stay a district court injunction that blocked federal agencies from implementing certain portions of the president’s March 31 executive order entitled “Ensuring Citizenship Verification and Integrity in Federal Elections.” The 23 states and the District of Columbia challenging the order filed a consolidated opposition on August 3, arguing that a stay “would allow the federal government to rush out an unprecedented, legally indefensible voter-verification and ballot-interception program.”

Alabama v. California: Twelve states filed an application on July 29 requesting the Supreme Court to stay a district court injunction that blocked federal agencies from implementing certain portions of the president’s March 31 executive order entitled “Ensuring Citizenship Verification and Integrity in Federal Elections.” The 23 states and the District of Columbia challenging the order filed a consolidated opposition on August 3.

Acting Attorney General Todd Blanche on Sunday issued an order providing that the $1.8 billion Anti-Weaponization Fund “is rescinded and shall have no force or effect.” The order does not alter the settlement that created the fund, which cannot be modified without President Trump’s agreement. (Order.) (WSJ.) Sens. John Cornyn and Thom Tillis, who had withheld support for Blanche’s confirmation as attorney general over the fund, said Monday that they will advance the nomination. (NYT.)

President Trump, his sons, the Trump Organization, and two of his personal attorneys on Friday appealed Judge Kathleen M. Williams’s (S.D. Fla.) July 13 sanctions order to the Eleventh Circuit and asked her to stay it pending appeal. (Notice of Appeal.) (Motion.) (Politico.) (NYT.) For background, see a previous Roundup.

U.S. Attorney for the District of Columbia Jeanine Pirro on Friday moved to dismiss without prejudice the felony indictment against former Olympian David Hearn for damaging the Lincoln Memorial Reflecting Pool. (Motion to Dismiss.) (Law Dork.) Trump wrote Saturday that he “disagree[s] 100%” with Pirro. (Truth Social.) For background on the renovation, see a previous Roundup.

The New York Times reported Saturday that the Justice Department subpoenaed freelance journalist Matthew Cole in February for his testimony and more than two years of notes to identify the sources of a 2025 story on a botched Navy SEAL operation in North Korea. (NYT.) Jack Goldsmith previously examined the administration’s subpoenas of NYT reporters. (Executive Functions.)

Senate appropriators on Sunday released a continuing resolution that would fund the government until Dec. 11 and, until then, bar the Office of Management and Budget from codifying President Trump’s grantmaking executive order in the government-wide grants rules. (Bill.) (Proposed Rule.) (Politico.)

The New York Times reported that President Trump publicly announced terms Paul, Weiss, Rifkind, Wharton & Garrison had not agreed to in settling his March 2025 executive order against the firm, including a pledge to “not adopt, use, or pursue any DEI policies.” Then-chairman Brad Karp wrote to partners that Trump “changed the agreement” and attributed to him “a completely false quote,” but the firm never publicly rebutted the White House. (NYT.) (Takeaways.)

Daniel Wilf-Townsend argued that the Court’s decision in Trump v. Slaughter leaves private third-party auditors as the best way to insulate AI regulation from presidential control. (Lawfare.)

Pending Interim Order Applications Involving the U.S. Government in the Supreme Court

Trump v. California: The government filed an application on July 27 requesting the Supreme Court to stay a district court injunction that blocked federal agencies from implementing certain portions of the president’s March 31 executive order entitled “Ensuring Citizenship Verification and Integrity in Federal Elections.” Justice Jackson formally set a deadline of August 3 for a response to the application.

Alabama v. California: Twelve states filed an application on July 29 requesting the Supreme Court to stay a district court injunction that blocked federal agencies from implementing certain portions of the president’s March 31 executive order entitled “Ensuring Citizenship Verification and Integrity in Federal Elections.” Justice Jackson formally set a deadline of August 3 for a response to the application.

Divided Ninth and Seventh Circuit panels on Thursday ruled against the Trump administration’s interpretation of 8 U.S.C. § 1225(b)(2)(A), the provision the Department of Homeland Security has relied upon to place certain noncitizens arrested in the interior into mandatory detention without bond. (Ninth Cir. Opinion.) (Seventh Cir. Opinion.) Appeals courts have now split 6-2 against the administration on the issue. (NYT.)

The Alien Terrorist Removal Court held its first public hearing on Thursday in the case against Nazira Haji Zada, an Afghan woman the Justice Department is seeking to deport despite her status as a lawful permanent resident. Haji Zada has not been publicly charged with any crimes but is accused of supporting an ISIS-inspired terrorist plot. (NYT.)

After President Trump on Thursday threatened to temporarily withdraw Todd Blanche’s attorney general nomination until the next Congress following opposition by two outgoing Republican senators, Sen. John Cornyn wrote that “POTUS is mistaken if he believes concerns about the provisions in his tax lawsuit settlement are limited to me and Senator Tillis.” (X.) (NYT.)

A dozen red states on Wednesday filed an application to the Supreme Court asking it to immediately grant an administrative stay of a district court injunction barring federal agencies from implementing portions of President Trump’s elections executive order. (Application.) Steve Vladeck argued that the dispute before the Court “involves who can challenge Trump’s order and when—not whether the order is legally valid on its face,” meaning that even a full grant of relief would simply put off resolution of the merits. (One First.)

The Senate on Thursday narrowly rejected, by a vote of 50-49, a resolution directing President Trump to withdraw U.S. troops from hostilities with Iran. (NYT.)

Bob Bauer spoke with Danielle Friedman about how state criminal laws could constrain potential federal interference in the 2026 elections. (Executive Functions.)

Peyton Baker, Nick Bednar, and Amy Wildermuth examined the questions raised by Comans v. Executive Office of the President, the first case to consider removal protections for inferior officers post-Slaughter. (Lawfare.)

Pending Interim Order Applications Involving the U.S. Government in the Supreme Court

Trump v. California: The government filed an application on July 27 requesting the Supreme Court to stay a district court injunction that blocked federal agencies from implementing certain portions of the president’s March 31 executive order entitled “Ensuring Citizenship Verification and Integrity in Federal Elections.” Justice Jackson formally set a deadline of August 3 for a response to the application.

Alabama v. California: Twelve states filed an application on July 29 requesting the Supreme Court to stay a district court injunction that blocked federal agencies from implementing certain portions of the president’s March 31 executive order entitled “Ensuring Citizenship Verification and Integrity in Federal Elections.” Justice Jackson formally set a deadline of August 3 for a response to the application.

Mentioned:

• “Can State Prohibitions on Election Interference Constrain Federal Actions?” by Danielle Friedman, Bryna Godar, and Emily Lau (State Democracy Research Initiative, University of Wisconsin Law School, July 17, 2026)

This is an edited transcript of an episode of “Executive Functions Chat.” You can listen to the full conversation by following or subscribing to the show on Substack, Apple, Spotify, or wherever you get your podcasts.

Bob Bauer: This is Bob Bauer with an edition of our video chat on Executive Functions, and I’m pleased to welcome Danielle Friedman, who is the legal director at the University of Wisconsin Law School’s State Democracy Research Initiative. We will be talking very specifically about state laws that may apply to prevent various forms of federal government interference in elections, a topic obviously being very much discussed right now as the midterms approach. But first, let me welcome Danielle.

Danielle Friedman: Hi. Thanks so much for having me.

It is a pleasure. And let me give you a brief introduction of Danielle. I mentioned that she’s currently director of this project at the University of Wisconsin.

She practiced for many years privately, and some of those years with me, in the areas of campaign finance, voting law, and election administration. She also was the chief of staff to the head of the Office of Intergovernmental Affairs in the White House. There, she was the primary point of contact with secretaries of state and state attorneys general.

Danielle now has been leading an initiative that is doing some extremely interesting work. Our focus today will be on a piece recently produced—we will have a link on the site to the piece—about potential state laws that apply to prevent federal interference in elections.

So, Danielle, let’s begin with the basics. The piece opens by noting that there are state criminal laws that would appear to apply in various ways to address federal government efforts to interfere in elections in three identified categories.

One would be the deployment of ICE troops or other armed forces to polling locations.

A second would be disruption of mail-in voting, potentially through the refusal of the United States Postal Service to pass mail on, under various criteria, to otherwise eligible voters.

And a third would be, as we’ve seen in Fulton County, Georgia, with respect to the 2020 election, the potential seizure of voting machines and ballots on some claim by the federal government that an election has been rigged or hacked, but otherwise can’t be counted upon to produce a reliable outcome.

So let’s begin, first of all, with the whole question of whose responsibility it is to police these matters. What is the constitutional allocation of authority for elections? Because I think we should set that up first.

Sure. And thanks again for having me. Excited to be here and chat about all of this.

So, as you mentioned, we sort of focus on three areas of anticipated federal overreach as we head into the November elections. I think that’s relevant because we’ve heard from various members of the federal government, from a lot of commentators, and even from court documents that these kinds of activities are things that it’s worthwhile to prepare for at this point in time. And so that’s why we’ve honed in on those three areas.

And just setting up some of the framework for this discussion, it has been very well established that the Constitution gives the states primary authority for administering elections. The federal government plays some role if Congress passes laws that preempt what states want to do in that space. But the executive branch, and the president in particular, don’t have any role in actually administering elections, despite this administration’s attempts to do a lot of things with respect to the election.

They play no role from a constitutional perspective. I think it’s also important just to note that much of the activity you just described is actually prohibited under federal law. There are federal laws that specifically prohibit troops or other armed forces from being at polling locations.

There are federal laws that prohibit any kind of intimidation or interference in the voting process for voters and election officials. But clearly, given the tenor of the administration’s approach here, there is legitimate worry that not only will the federal government not enforce those laws, but they may be overtly ordering violations of those laws.

Beyond that, there are DOJ practices that have served as an important guardrail in the past. The DOJ manual on federal election prosecutions has specifically stated that the government won’t interfere in an ongoing election. That manual no longer exists on the Department of Justice website.

So there’s fear that not only will there be non-enforcement of the law, perhaps overt orders to violate the law, and a real change in pattern from what the Department of Justice has done in the past when investigating election crimes, but that it will try to insert itself into an ongoing election, which would really change things.

And that is why turning to the states and thinking about what levers the states might have to stop some of this behavior in its tracks, and to ensure that everyone at the state level understands what the competing state laws are, is a really important thing for us to be doing at this time.

Let me ask you one quick clarification point. The president doesn’t have authority under the Constitution to make rules for elections. And the constitutional gap that this or any other administration might wish to use to fill the absence of that authority is the claim that it is enforcing federal law.

It gets involved with troop deployments, potential interference with the Postal Service’s delivery of mail ballots, or the seizure of machines, not because it claims it’s engaged in rulemaking authority—although this president has come close to making exactly those claims in the executive orders issued in March of two consecutive years, 2025 and 2026—but because there are federal laws on the books and the president is simply doing what a president with executive authority should do, and that’s enforce the law.

Is that a fair statement of where the executive branch would go in a constitutional contest?

I think that is a fair statement of where the executive branch might go in terms of its arguments for its own authority.

I think we’ve seen some of that begin to play out in court. For example, the Department of Justice is suing a number of states and demanding access to their voter rolls under a number of laws—the NVRA, HAVA, and the Civil Rights Act. We’ve seen the courts thus far universally not be sympathetic to those arguments and to reject them.

But I think that’s one indication that the federal government is beginning to test the boundaries of those laws in exactly the way that you described.

Okay, so let’s proceed to the state criminal law landscape. Give us examples of the types of state criminal statutes, and the variations in them across the country, that might conceivably apply if the states were to resist federal government interference in the categories we’ve been discussing.

Sure. So let’s start with troops or ICE at the polls, which is something that people talk about very regularly as a concern for the November election.

A limited number of states actually have laws on the books that specifically address federal law enforcement or federal military presence. Those laws are fairly easy to understand. In states like Pennsylvania and California, they simply say that law enforcement presence, including federal law enforcement presence, is prohibited at the polls.

Many more states have laws that are a bit broader and generally prohibit any military presence or law enforcement presence at the polls, with some exceptions if local or state election officials ask them to come in response to a particular disturbance.

Now, those laws are quite broad. They don’t necessarily define military or law enforcement presence as either state or federal officials. I think this is an important time to recognize that these laws, in many instances, have not been applied to federal officials in the past.

So there isn’t a lot of precedent here. The reason for that is fairly obvious: the level of federal overreach being considered here is itself unprecedented. These laws simply have not had occasion in the past to be considered as they apply to federal officials.

But this moment, and the anticipation of the November election, demands a rethinking of some of these laws and perhaps some clarity around how they might apply. It’s not because they don’t apply to federal officials that they haven’t been used that way in the past; it’s because the level of activity from the federal government is so unprecedented and unlike anything we’ve seen before. Thinking about these laws in a slightly different way is therefore a necessary thing for the states to be doing. That will be true of almost all of the categories of state law I describe here.

So that leads into another category of laws that may apply to troops or ICE being deployed to the polls. Every state has some form of voter intimidation statute intended to allow voters to cast their ballots free from an intimidating presence.

Some of these laws are extremely broad. Any kind of intimidating presence may be prohibited, either inside or outside the polling location. Those laws could certainly be applied to the deployment of troops or ICE at the polls.

Other laws are much narrower. For example, a number of states now prohibit firearms from being carried near or outside a polling location. Sometimes there’s an exception for certain forms of law enforcement; other times there isn’t.

This would be another example where, when states wrote these laws, they weren’t really thinking about federal officials or federal law enforcement presence at the polls.

That doesn’t mean the laws don’t apply. It may simply mean there’s an opportunity for, for example, a state’s attorney general to clarify in advance of November how they might apply to federal officials, because this would be a case of first impression.

So those are the types of laws that may apply to troops or ICE being deployed at or near polling locations.

So let’s move on to the Postal Service.

Sure.

The delivery of mail—election mail, either mail generally or election mail in particular.

Yeah. So, at the federal level, there are a number of statutes that apply to mail generally. At the state level, a number of states have specific laws that make it a crime to knowingly delay the delivery of a ballot.

Unlike the laws we talked about with respect to troops or ICE at the polls, these laws are actually relatively uniform. When a state has these laws, they very basically prohibit any person from knowingly delaying the delivery of any ballot. They’re quite broad.

There’s not a lot of application of these laws in the past, but presumably, if they apply to any person, that would include, for example, a Postal Service carrier in the state.

And if they apply to any ballot, they may include the delivery of the mail ballot in the first instance to the voter, and could also include the delivery of the mail ballot from the voter back to the local election official or secretary of state.

As we know, this administration has been very focused on mail ballots, has been very focused on the timing and delivery of mail ballots, particularly the receipt of a mail ballot by Election Day.

It will be critical for those ballots not to be delayed in order to ensure that eligible voters casting them lawfully under their state’s election laws have confidence that their ballot is not going to be delayed for any reason, and that it will be received back by the election official in a timely fashion.

And so knowing and understanding that states have these criminal laws on the books is really significant. It’s actually a more specific law than the federal law that would apply, which is important for folks to understand.

Okay, so let’s move to the third category: seizure of machines and ballot materials. Talk about state criminal laws that could conceivably apply there if the federal government were to do in this election what it has already done once in Fulton County, Georgia, with respect to the 2020 election.

Exactly. Fulton County serves as the main example, but I think it’s also important for folks to remember that this was a topic of discussion by the president and the administration in 2020, when he was in office. He has since said that he regrets the fact that he didn’t seize ballots during the 2020 election.

We know there were executive orders drafted to that effect at the time. So again, this is a very legitimate thing for people to be worried about happening, especially in the wake of Fulton County.

Here, I think it is critical to understand that every state has very specific laws about the chain of custody of ballots, voting machines, and other election materials, as well as possession of those materials throughout the election process.

It actually starts, in many cases, before the election—covering where ballots are kept before they’re voted, how they are handled after they have been received back, and then throughout the post-election process, and for a period afterward, to ensure that recounts can take place, election contests can take place, and all of the state-law mechanisms for ensuring free and fair elections can function as intended. Throughout all of that, custody of the ballots is maintained by state and local election administrators.

Again, these laws vary slightly from state to state. In some states, the ballots are kept with the secretary of state. In others, they remain with local election officials for a period of time before they’re transferred.

The amount of time election officials are required to retain ballots, voting materials, or voting machines differs by state. Likewise, when and how voting machines are tested, where they’re kept, and the particulars of those procedures vary.

But the key point for these purposes is that the underlying goal of all of these state laws is to keep possession of all election materials—including the ballots themselves—in the hands of the designated election officials, regardless of what is happening in the post-election process.

During a recount, during an election contest—all of those things may play out—but possession uniformly remains within the state election administration infrastructure.

I think that’s really important. Any attempt to remove those materials from that custody is criminalized under most state laws.

There are no exceptions. There are no exceptions for law enforcement. There are no exceptions for any other persons. So certainly the assumption is that the federal government would be included within those “no exceptions” provisions.

So let’s then take up what the federal government is going to say in response to threatened or actual criminal prosecutions under these statutes, which would be unprecedented.

The federal government is certainly going to argue—so tell us how it would most likely argue it—”You can’t do that.”

Absolutely. I want to say first, recognizing that prosecution is one tool in the toolbox, that it doesn’t necessarily solve the problem in real time.

We can talk about some other options these laws may give the states for preparation. Once we get to the point of prosecution—which I do think is still important—it is important to hold people accountable and preserve order for future elections. But, recognizing that it probably wouldn’t happen very quickly, it could take some amount of time after the election. And the state prosecution of federal officials is always a complex thing to consider.

But I think there are a number of reasons why, in the election context, it may be significantly less complicated. That gets back to some of what we discussed at the beginning about the federal laws that already exist.

Almost all of what I just described in terms of the state criminal laws mirrors prohibitions in federal law.

Federal law already prohibits troops or armed personnel from being deployed to the polls. State law has a corresponding prohibition, whether it directly addresses federal officials, whether it’s a broader prohibition, or whether it’s a prohibition on voter intimidation. Both federal and state law prohibit the same activity.

That means some of the defenses the federal government would articulate in response to state prosecution are significantly weaker in this context.

For example, the federal government may argue that it is entitled to Supremacy Clause immunity, which means the states can’t interfere with the normal responsibilities of a federal official acting pursuant to authority granted under federal law.

It’s very difficult to argue that Supremacy Clause immunity exists in the case of troops or ICE being deployed to the polls because that activity is itself prohibited under federal law.

So the argument that a federal official is exercising authority granted under federal law falls apart because they actually are not permitted to do that under federal law.

Those arguments will certainly be made. Of course, the federal government will try to make them. But they’re significantly weaker here because of the prohibitions that already exist in federal law.

That puts this in a different context from some other circumstances that have recently come up—for example, in the immigration context—where the federal government argues that it has broad authority.

In the election context, the federal government really doesn’t have that broad authority. The Constitution gives primary authority to the states and gives Congress a very specific role.

Beyond that, federal law itself prohibits the activity we’re talking about.

So those kinds of defenses tend to fall apart in the election context. That doesn’t mean they won’t be raised, and it doesn’t mean they won’t present a challenge. But it does mean that states are on better footing than they otherwise might be, given how elections are structured under the Constitution and in practice.

So there’s believed to be a plan afoot, say, to deploy ICE agents or deploy the military. States are preparing to say—or do say—”We have state laws that prohibit that, and there are criminal consequences.”

Then the president says, “Well, then I suppose I’ll have to invoke the Insurrection Act.”

That’s emergency authority. The statute is written appallingly broadly. Of course, nobody knows precisely how a legal contest over the president’s authority under that statute would be resolved in any particular set of facts.

Do you have any thoughts about how that might play out?

Well, I certainly think it’s possible, and it certainly seems likely, that the president might be looking for any opportunity to deploy that argument.

I think the specific criminal prosecutions we’re talking about from the state side would likely come much later in time and therefore are unlikely to collide directly with that.

Now, could states talking about these ideas potentially bolster his argument that such action is necessary? Maybe.

But I think these issues are of a different scale and timing, making a direct collision unlikely.

I would also point out that, very recently, the Civil Division of the Department of Justice sent letters to all of the states threatening federal criminal prosecution if any noncitizens were to vote in their elections. I think, if you’re the states, you want to understand that you have some things to throw back at the federal government on that front.

It’s not necessarily that any states are looking to do this or are being encouraged to do this. Rather, it’s about understanding the tools they have available and recognizing that those tools exist not only for purposes of prosecution but also to reassure voters.

For example, voters should know that there are state laws intended to ensure that their mail ballot is going to get back to the secretary of state or local election administrator on time so that it can be counted—that there’s not a sense that nothing can be done about interference.

So I think having the conversation about how these laws might apply is important not only for enforcement reasons but also for helping the general public and voters understand that there are protections available to them in the face of rhetoric from the federal government about prosecuting local election officials or otherwise throwing wrenches into the election process.

Well, the context for this conversation is, as you said at the very beginning, one in which issues are being raised and statutes are being uncovered, as your study does. There are a range of them in a good number of states that apply to all of the threats we’ve been talking about.

And, of course, all of these complicated issues arise in the context you noted earlier, which is really quite extraordinary.

In the modern era, we haven’t seen anything like it.

Absolutely not. And I think that’s part of what we hope our report uncovers for folks: that there’s probably a lot of education to be done at the state and local level, even just about the existence of these laws and how they may apply to the very real circumstances election workers are likely to face in November.

It’s important to ensure that those folks understand what the state laws are—not just election officials, but state and local law enforcement as well—so that they understand there are state laws that may apply to these situations and have very real, concrete guidance about how to approach them if and when they occur in real time.

I don’t think it’s unreasonable to suggest that a local election official may not be familiar with many of these laws as they might apply to the federal government, and may not be exactly sure whom to call, what the appropriate response would be, or who in the chain of command needs to be aware of these issues.

So using these laws as an opportunity to revisit some of those protocols, rethink how they may apply, and educate both law enforcement and election officials at the state and local level is another thing I think states can really do here.

Even in states that don’t have a specific law addressing federal law enforcement, it’s worth thinking about how existing state laws may apply, what state and local officials should do if ICE shows up at a polling location, who the first call should be, what the legal response might be, and how that response should be coordinated.

Hopefully, this report, along with other critical work that people are doing, will serve as a jumping-off point for many of those conversations.

A very interesting piece. And thank you again, Danielle Friedman, legal director of the State Democracy Research Initiative at the University of Wisconsin Law School. Thank you very much for being here.

Judge Zahid N. Quraishi (D.N.J.) on Wednesday dismissed a lawsuit brought by the Justice Department seeking voter registration data from the state of New Jersey. (Opinion.)

Court filings unsealed Wednesday detail the first-ever case before the Alien Terrorist Removal Court. The Justice Department is seeking the deportation of Nazira Haji Zada, a lawful U.S. permanent resident accused of supporting the Islamic State and helping radicalize family members who plotted a thwarted terrorist attack. (ATRC.) (Politico.) Jess Dawgert argued that despite its limited rights and secretive proceedings, “the ATRC still holds more promise to protect due process than current immigration proceedings.” (Just Security.)

The Senate passed a resolution on Wednesday stating that Ghislaine Maxwell “should not be granted a presidential pardon or any form of clemency for her crimes with Jeffrey Epstein relating to the sexual exploitation and abuse of minors.” (Resolution.) (WaPo.)

The government appears to have missed the deadline to ask the Supreme Court to reconsider its birthright citizenship opinion. The 25-day deadline lapsed on Monday without the government filing a petition for a rehearing, despite President Trump representing in a post on social media earlier this month that he would ask the Supreme Court for a rehearing in the case “IMMEDIATELY.” (Politico.)

The Republican-led Senate Judiciary Committee on Wednesday postponed a vote on Todd Blanche’s nomination as attorney general after two Senate Republicans voiced skepticism of his candidacy due to a deal Blanche negotiated to settle President Trump’s lawsuit against the Internal Revenue Service. (NYT.) President Trump this morning said that he has “no objection to temporarily withdrawing Todd’s name . . . and putting him back after Cornyn and Tillis are out of office.” (Truth Social.) (WSJ.)

Federal district court judges on Wednesday approved President Trump’s choice of James M. McDonald to lead the U.S. Attorney’s Office for the Southern District of New York. McDonald previously represented Trump in his appeal of his 2024 criminal conviction. (NYT.)

Pending Interim Order Applications Involving the U.S. Government in the Supreme Court

Trump v. California: The government filed an emergency application on July 27 requesting the Supreme Court to stay a district court injunction that blocked federal agencies from implementing certain portions of the president’s March 31 executive order entitled “Ensuring Citizenship Verification and Integrity in Federal Elections.” Justice Jackson formally set a deadline of August 3 for a response to the application.

The D.C. Circuit on Tuesday affirmed the district court’s denial of a preliminary injunction blocking implementation of the president’s election integrity executive order. The panel concluded that “while Plaintiffs have identified a number of serious questions concerning the lawfulness of proposed actions if implemented on the threshold of the upcoming federal election, this case likely is unripe for review in its present posture.” (Judgment.) For background, see previous Roundups and Jack and Bob’s chat on Trump and the midterms.

Judge Jamal N. Whitehead (W.D. Wash.) on Tuesday denied the Department of Homeland Security’s motion to dismiss the American Federation of Government Employees’ challenge to the department’s 2025decision to terminate the collective bargaining agreement between AFGE and the Transportation Security Administration. The order also denied DHS’s motion to dissolve the preliminary injunction barring it from moving forward with the termination. (Order.)

Judge Kymberly K. Evanson (W.D. Wash.) on Monday granted a coalition of states’ motion for a temporary restraining order barring the Department of Education from terminating mental-health-services grants for students in public schools. The order bars the department from terminating the grants without the procedural protections federal law requires and from evaluating them against priorities that did not exist when the grants were awarded. (Order.)

President Trump petitioned the Supreme Court to reverse an $83.3 million judgment against him for defaming E. Jean Carroll, who has accused Trump of sexually assaulting her in the 1990s. (NYT.) The Washington Post reports that the Justice Department has separately petitioned the Court to substitute the United States as defendant. (WaPo.) For background, see previous Roundups.

Former FBI Director James Comey on Tuesday filed a motion to dismiss the indictment accusing him of threatening the president on the grounds that the prosecution was vindictive and selective. (Motion.) (Memorandum in Support.) In separate filings, Comey also requested the court hold a Franks hearing and order the disclosure of the records from the grand jury proceedings in his case. (Franks Motion.) (Disclosure Motion.) (CBS.)

The Senate on Tuesday confirmed Jay Clayton to be director of national intelligence. (Roll Call Vote.) (NYT.)

Immigration and Customs Enforcement has reportedly expanded enforcement operations in U.S. airports and started arresting foreign citizens with expired visas, including the spouses of U.S. citizens and individuals with pending asylum applications. (NYT.)

Bob Bauer argued that a new Senate bill that would regulate the president’s “issuance” and “sponsorship” of certain digital assets is “the wrong path to conflict-of-interest regulation in response to this president’s amassing of billions of dollars of wealth in the course of this second term.” (Executive Functions.)

Pending Interim Order Applications Involving the U.S. Government in the Supreme Court

Trump v. California: The government filed an emergency application on July 27 requesting the Supreme Court to stay a district court injunction that blocked federal agencies from implementing certain portions of the president’s March 31 executive order entitled “Ensuring Citizenship Verification and Integrity in Federal Elections.” Justice Jackson formally set a deadline of August 3 for a response to the application.

As surprising as it may seem, the Senate is actively considering a measure to subject the president of the United States to new conflict-of-interest regulation. The reform under consideration is not comprehensive: It would constrain the president only in the “issuance” or “sponsorship” of specific digital assets, such as the $TRUMP meme coin that he has energetically promoted. The proposed regulation would be included within the Clarity Act, a complicated bill to reform the regulatory framework for the cryptocurrency markets.

As presidents are generally exempt from conflict-of-interest requirements binding on other executive branch officials, the prospect of some reform in this area may seem welcome. Trump is working with Senate Republicans on rules he can accept. The Republican leadership is touting his cooperation: A Banking subcommittee release declares that “no president in American history has voluntarily agreed to self-imposed, substantive ethics limits like President Trump has” in the development of this proposal. Democrats (and at least one Republican, Sen. Thom Tillis) have criticized the current draft, but discussions between the parties are expected to continue. What is surely driving Republicans to seek common ground is the unprecedented and highly controversial sum—a reported $1.4 billion—that the president earned from his crypto-industry business interests and pursuits in 2025 alone.

The question is whether any deal on the model of the current proposal is better than none. The answer turns, of course, on the shape and specific language of the final agreement, if reached. The details will matter. However, so will the overall approach to presidential conflict of interest that these details have been fashioned to support. In this respect, the version now under discussion is, to understate the point, bad. It focuses exclusively on, but does not seriously address, a particular “digital assets” conflict-of-interest issue, while effectively blessing the more basic conflict problem across the full range of this president’s multibillion-dollar business pursuits.

In only summary terms, this is the basic structure of the proposal now on the table:

A public official, including a president, could not issue or sponsor, in exchange for consideration, a specific digital asset. Under the bill, the sponsorship of an asset includes expressly promoting it, or permitting “the use of the official’s name, likeness, office, or official position in connection with the creation, launch, or express promotion [of the asset].” A violation would subject the official to the disgorgement of profits and civil penalties through enforcement action by the attorney general. An asset issued or sponsored in violation of the statute could not be listed on any exchange. Moreover, other statutes, such as the Securities Exchange and Commodity Exchange Acts, would still apply to market manipulations or fraud along with the criminal penalties those laws provide for. The personal financial disclosure law for public officials would be amended to provide for a new category of reporting of “digital assets that are sold for remuneration.”

As noted below, the bill provides for expansive allowances and loopholes. The Republican majority has nonetheless been advertising the core framework as a “first-of-its-kind ban” that proves that “clean government and pro-innovation policy are not opposites.” The bill is carefully built around the proposition that this is a one-time voluntary submission by Trump to “a higher standard than the law required of him”—a “standard President Trump chose to hold himself to, not one Congress imposed on him.”

This is the oddest of constructs for any presidential conflict-of-interest reform. It applies only, and with significant exceptions, to the creation or promotion of a specific asset, and only for the balance of this president’s term. Sen. Cynthia Lummis of Wyoming, who is managing this effort for the Republican side of the aisle, claims that this is not “legislation around one person who holds one office for the next two years,” but the bill as written belies that assertion. Consider on this point the bill’s sunset provision. The proposed ethics requirements expire on Jan. 20, 2029, and the sunset provision expressly insulates the public officials (or any other person within its scope) from liability after the sunset date for conduct that may have violated the law when it was in effect. And the bill’s ethics requirements do not become effective upon enactment. Rather, they take effect only after a delayed implementation period that may extend to 360 days after enactment. Also peculiar is the sponsors’ position that these requirements are the product of a “voluntary” agreement by the president and not rules “imposed” by Congress.

The measure as proposed is further written to lighten the bill’s burden on Trump’s crypto business pursuits even for the remaining years that he is in office. The prohibition on issuance or sponsorship applies to the officials and their spouses, not to family members, such as the Trump sons, who have managed his business interests throughout his presidencies. The president would not be liable in the event of “third-party” uses if he did not “authorize, direct, coerce, exercise control over, or coordinate” those uses with that third party, and his sons would qualify as third parties for purposes of this provision.

Moreover, persons other than the president or his spouse can continue to use his name, likeness, or image in issuing or sponsoring new digital assets, provided that the president divests of any “direct interest” in the asset, or places it in a “qualified blind trust” as defined by law. I will not address here what would constitute a “direct interest” except to note that the law also empowers the Office of Government Ethics to provide “interpretive guidance” on this and other provisions of the act. There’s the rub: Trump has defanged the OGE, and he controls it and any interpretive choices that it makes. And there is still more room in the bill for the president’s direct personal promotion of digital assets with benefits for his own holdings. The bill does not prohibit Trump from “appearing at an event paid for or organized by a person that issues or sponsors a digital asset or encouraging the use of digital assets generally.”

Another, deeper problem with the bill is its adoption of the narrowest of views of what constitutes a conflict of interest in a president’s conduct of his official duties. The law permits the president to hold digital assets as “investment[s],” subject to “conflict-of-interest requirements as otherwise provided by law.” Few such requirements apply to presidents. At the same time that the president maintains his investments, he may make public statements and take official actions that have a major impact on their value. The law reflects the view that this intersection of personal interest and public policy does not present conflict-of-interest issues. The bill is clear on this point: It identifies, among other “safe harbors,” from the application of its proscriptions, “official actions and duties,” and it specifies that a president is not prohibited from 1) “making any statement or taking an official government action on digital asset policy, digital asset legislation, or digital asset regulation, in the exercise of official duties” or 2) “making any statement regarding digital assets that is not made in expectation of receiving consideration.”

The proviso that statements made “regarding digital assets” cannot be made in “expectation of receiving consideration” has little force. It sets up a subjective test—an “expectation”—that would be very difficult for an enforcing authority to satisfy.

Taken all together, the various provisions that make up this proposal validate a presidential conflict-of-interest regulatory scheme that allows for lucrative presidential business pursuits while in office—the value of which would be necessarily influenced by his exercise of his official duties. It is consistent with Trump’s own view that “The law’s totally on my side, meaning, the president can’t have a conflict of interest,” that is, in the elemental sense that no conflict arises when a president can take action with predictable, significant effects on his personal finances. The bill embraces this perspective, focusing only on specific actions involving “a specific digital asset,” but, even at this level, taking care to minimize adverse impact on this aspect of the president’s business interests.

Even if some of the loopholes and allowances are closed or tightened, this bill—the basic framework it establishes—is the wrong path to conflict-of-interest regulation in response to this president’s amassing of billions of dollars of wealth in the course of this second term. Rather than acceding to the president’s view of his prerogatives, Congress could assert and defend its own. It could decline to pass the pending “specific digital assets” ethics bill as it is now structured, and then, when the opportunity arises in the years ahead, write serious reform legislation. Any such reform would bring presidents within the zone of current conflict-of-interest regulation of other federal elected officials for all of their business interests. The right approach would also be the most straightforward and would include meaningful financial disclosure and blind trust requirements, and strengthened enforcement of the Foreign Emoluments Clause.

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The solicitor general on Monday asked the Supreme Court to issue an immediate administrative stay of a district court order, upheld by the First Circuit on Saturday, which barred the Trump administration from implementing portions of the president’s March 31 executive order on mail-in voting in 24 jurisdictions. (Emergency Application.) (Politico.) (WSJ.) For background, see yesterday’s Roundup.

Judge John Cronan (S.D.N.Y.) on Monday dismissed a challenge to President Trump’s Religious Liberty Commission and denied plaintiffs’ request for a preliminary injunction that would have blocked the commission from issuing its report. The court held that only President Trump has authority to appoint commission members, but that the president is not an “agency” subject to suit under the Administrative Procedure Act and that plaintiffs failed to show he violated a “clear nondiscretionary duty” that would warrant mandamus relief. (Opinion and Order.) (AP.)

Former FBI Director James Comey on Monday filed a motion to dismiss on First Amendment grounds an indictment alleging he threatened President Trump’s life by posting a photo of seashells arranged to read “86 47.” (Motion.) (Memorandum in Support.) Comey’s lawyers are expected to submit additional filings today arguing that the case against him is the product of selective and vindictive prosecution. (NYT.) Noting Comey’s Oct. 21 trial date, Andrew McCarthy wrote he would be “very surprised if there is a trial.” (National Review.)

The Justice Department on Monday moved to dismiss without prejudice its case against David Huerta, a California labor leader arrested last summer for allegedly impeding the work of federal immigration agents. (Motion.) (NYT.) Judge Stanley Blumenfeld, Jr. (C.D. Cal.) granted the motion and ordered that the dismissal will automatically convert to one with prejudice on Aug. 27. (Order to Dismiss.)

U.S. Citizenship and Immigration Services on Monday announced a rule change that would allow the agency to refer certain asylum applications to immigration judges without first interviewing the individual. USCIS framed the change as an effort to reduce the asylum backlog. (Interim Final Rule.) (Press Release.) (Bloomberg.)

Pending Interim Order Applications Involving the U.S. Government in the Supreme Court

Trump v. California: The government filed an emergency application on July 27 requesting the Supreme Court to stay a district court injunction that blocked federal agencies from implementing certain portions of the president’s March 31 executive order entitled “Ensuring Citizenship Verification and Integrity in Federal Elections.” Justice Jackson formally set a deadline of August 3 for a response to the application.

A panel of the First Circuit on Saturday denied the Justice Department’s motion to stay a lower court ruling that barred federal agencies from implementing certain provisions of President Trump’s March 31 elections executive order in 23 states and the District of Columbia. The court concluded that the government had not shown it was likely to succeed on its arguments that the plaintiff states lacked standing or that their claims were unripe. (Order) (Bloomberg.) (NYT.)

Since the Supreme Court’s Temporary Protected Status decision in Mullin v. Doe, three district judges have temporarily preserved TPS designations while considering newly asserted constitutional challenges. (CNN.) On Friday, after two district court judges issued administrative stays blocking the Trump administration from ending TPS designations for South Sudan and Ethiopia, Department of Homeland Security General Counsel James Percival accused the judges of “open defiance of” and “mutiny against” the Supreme Court.

CBS News reports that ICE “has made plans to ramp up operations to arrest and deport Haitian migrants, as hundreds of thousands of Haitians brace for the termination of their legal status.” Haiti’s TPS designation is set to expire today. (CBS.)

The Department of Energy acknowledged in a July 15 court filing that it recommended terminating more than 600 clean-energy grants “based solely on the political identity” of the recipient’s state before the Office of Management and Budget ultimately terminated 284 of them. (Filing.) (NYT.) (CNN.)

Jack Goldsmith spoke with former DHS Secretary and Pentagon General Counsel Jeh Johnson about an article Johnson recently co-authored entitled “Presidential War Powers: Executive Expansion and Congressional Retreat.” (Executive Functions.)

Mentioned:

• Jeh Johnson and Ethan Klaris, Presidential War Powers: Executive Expansion and Congressional Retreat (2026)

• Cyrus Vance, Striking the Balance: Congress and the President Under the War Powers Resolution (1984)

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This is an edited transcript of an episode of “Executive Functions Chat.” You can listen to the full conversation by following or subscribing to the show on Substack, Apple, Spotify, or wherever you get your podcasts.

Jack Goldsmith: Today I’m with Jeh Johnson, the former Secretary of Homeland Security, who before that, among other things, was General Counsel of the Department of Defense. We’re talking today about an article Jeh co-authored in the Journal of National Security Law and Policy, entitled “Presidential War Powers, Executive Expansion, and Congressional Retreat.” Jeh, thanks for talking to me. What was the article about?

Jeh Johnson: Jack, thanks for your interest. As I’m sure you’ve noted, you were very frequently quoted and cited throughout the article. It’s about presidential war powers. This is a subject that has interested me going back to when I was a political science major in college, frankly. And then, when I was General Counsel of the Department of Defense — a lawyer to someone in the National Command Authority chain of command — I became personally acquainted with many of these issues. I’ve been thinking and talking about this topic for some time now, because it really is the case, in my view, that Article I, Section 8 has become a near nullity, if not a complete nullity.

May I stop you there? Article I, Section 8 is a nullity — you mean the war powers provision, or the whole thing?

Correct. The war powers provision.

And the political branches of government seem unable or unwilling to do anything about it. The founding fathers — the so-called founding fathers — in many respects had, in my view, a limited imagination for our Constitution. When they declared our independence in 1776 and wrote the Constitution in 1789, they simultaneously disenfranchised more than half of us in this country — women, Blacks, and Native Americans. And when the war powers provision was written, as you know, there was no standing army.

It would take weeks, if not months, to start a war. Now, of course, it’s radically different. A war can be started in hours.

You have ballistic missiles, nuclear weapons, drones. The one thing I believe has endured as an American value — and should be as relevant today as it was then — is that no one man can start a war. No one man should be able to take the nation to war, which is why the framers left it to the people’s representatives in Congress to do so.

I believe that is as relevant today as it was in 1789.

So let me ask you about that — about the framers’ intent. It seems to me — and I’ve been studying this for a long time — I agree with you that the framers believed they were constraining the president from using military force in the absence of congressional approval, at least in offensive situations. But it’s not clear to me, even now, how they thought they were doing that, and I don’t think they had a clear idea about it. There’s the Declare War Clause, which gives Congress the power to declare war — but of course, “declare war” is a technical term of art, and scholars debate today what it meant back then. There were other provisions, though, that gave Congress control, especially over appropriations and over providing for the standing army.

And if you just think about the first war, the first major war — the Quasi-War with France — President Adams couldn’t go to war without getting approval from Congress, because he needed Congress to pay for and build the ships. It seems to me that if that was the main mechanism by which the framers thought Congress would control the presidential war power — namely, that the president would have to go back to Congress to get an army or a navy to fight the war — then that form of constraint just went away with the rise of the standing army over time.

And so I’m just wondering what you think of that argument.

Another way to think about it is that the power of Congress, the prerogative of Congress, becomes even more important — all the more important — when you don’t have the need to go to Congress to build an army or a navy. But the provision still stands, and I believe it is just as important, just as relevant today, even if the commander-in-chief has the ability to go to war against another nation-state on a day’s notice, because behind the provision is the principle that no one person, no one man, should be able to take the nation into war.

I agree with that in general. Again, defensive wars are harder, and what counts as a defensive war is a tricky question a lot of the time. I’m just wondering — because, of course, appropriating for the army was supposed to happen every two years. There was a compromise at the founding; there was a debate about whether the standing army should be allowed at all. It was, as the framers understood it, allowed on the condition that Congress would have to reapprove it every two years.

But that process withered over time. With each war the standing army grew larger, and then, of course, after World War II, it remained huge. I’m just wondering whether it’s possible to have real, legal constraints on presidential war powers when there’s just this enormous standing army deployed globally.

Well, if Congress had the votes, it could always defund a military operation — “No dollar should be spent on this engagement.” That is a legal restraint, but it would also have to be tendered to the president for approval or veto.

The first thing that comes to mind is what Congress did in 2010, by inserting into the NDAA a provision that said no dollar should be spent transferring a prisoner at Guantanamo into the continental United States unless we approve it. So Congress always has the spending power, backed up by the Anti-Deficiency Act, which can impose a criminal sanction on an official who spends money that has not been appropriated. But again, that requires effectively a two-thirds majority.

This is what I’m trying to get at. Yes, Congress, in theory, can always defund a war, and it has exercised its prerogative to stop presidents from engaging in certain conflicts by defunding them. That’s happened.

The problem is that, with a huge standing army, the burden of inertia flips. The president has a huge standing army; he decides to use it; the war is under way; and then it’s up to Congress — with the troops in the field — not only to muster the votes to pass legislation cutting off funding, but to override a veto. And it seems to me that having a huge standing army gives the president that enormous advantage in being able to start and maintain wars.

Correct. Another way to think of it is that it’s a standing war capacity. You can pull that trigger at any moment, any day of the week — which, in my judgment, makes the original provision requiring a declaration of war all the more important. Because, as you point out, there are all these other checkpoints, all these other boxes that would have to be checked in 1789 in order to send the nation into war.

Now, effectively, it’s only the one in Article I, Section 8 — the requirement, the supposed requirement, that the president seek a declaration of war from Congress. But you’re absolutely right: to go to war now, you could do so by airstrikes or anything else, based on existing capabilities.

Okay. So you give a nice overview of the long history — the rise of presidential offensive war powers throughout the 19th century. As I see it, presidential war powers grew in conjunction with the rise of the standing army.

The more troops, the more weapons the president had, the more inclined he would be to use them. What’s your account of why this happened?

In the course of interviewing present and former members of Congress, one of the people we interviewed was Dick Gephardt, former majority leader of the House. He made the point, which is quoted here, that from the beginning, presidents don’t like to go to Congress to ask permission to do something. It’s going to a committee of 535 people who don’t all share your view, don’t have the resources, don’t have the intel, don’t have the insights that a president has.

So from the beginning there obviously has been a natural reluctance on the part of a president who wants to go to war, intends to go to war, to seek the permission of 535 people. I was surprised at the statistic — which I read and incorporated here — that Congress has only formally declared war five times in the history of this republic, even though the president has deployed the military in various contexts hundreds of times. So that, to me, suggests a natural reluctance from the beginning to go to Congress for this.

But I agree with you that the arc of that has, for the executive branch, trended upward.

But many of those hundreds of deployments you’re talking about were authorized. Even though they weren’t declared, they were authorized. Just as with an authorization to use force in modern times, the Quasi-War I was just talking about in the 1790s was not a declared war. That was Adams getting the authority from Congress to engage in limited naval warfare against France.

That was Adams getting the authority from Congress to engage in limited naval warfare against France.

There was no declaration of war in Korea, for example.

Yeah, that’s right. And there hasn’t been a declaration of war since World War II. There’s an argument (which we don’t need to get into) that declared wars are now passé because of the UN Charter.

Okay, so we’re in this situation. Iran is the latest and greatest example. I’ve written something that said, in effect, that I think Iran is the second most consequential unilateral use of force by a president; the other case being Korea, which you just mentioned. It’s a huge deal. It’s not going well. The president made the decision to do it on his own. He didn’t really consult with Congress. He hasn’t asked for their permission.

At the moment, however, they need money. The Secretary of Defense was before Congress this week seeking appropriations for DoD generally and for the war in Iran. So this is a point where Congress has leverage, because the president needs money to continue the war.

And yet it doesn’t look like it’s going to use that leverage, at least not yet, to limit the war in any way or put conditions on it. Now — and this reminds me of Kosovo — it looks like there might be the votes to continue appropriating for the war, even though there was a majority this week, I believe, in Congress that actually voted to stop the war.

And these contradictory signals are like something that happened in Kosovo.

Somebody’s trying to have it both ways.

Yeah, exactly. So what about this moment? Congress has to act, and the president ultimately can’t act unless Congress funds the war. How do you see the situation?

I have two thoughts in response to your question. One, there is no doubt — there should be no doubt — that Iran is a war. If another nation-state launched an airstrike on our nation’s capital and killed most of our political leadership, I think we’d all regard that as a war. And it has exceeded 60 days; it has exceeded 90 days. So this is an undeclared war. There’s no credible argument that it’s not. That’s number one.

Number two, Congress should not have to assert its existing constitutional prerogative by cutting off funding. If we take the provision in the Constitution seriously, the fact that Congress has not declared war should be enough. They shouldn’t have to go the extra mile to cut off spending in order to assert their constitutional prerogative. I hope that makes sense.

This is your Chadha argument.

Yes.

At the end of the article, you have several proposals about what can be done about the situation. One is to argue that Chadha does not apply to the War Powers Resolution. The War Powers Resolution says that Congress can, by concurrent resolution, declare that a war is not authorized. And that’s what the War Powers Resolution provides for. But the Supreme Court in Chadha, in the early 1980s, held that legislative vetoes were unconstitutional. Do you think Chadha might not apply to the War Powers Resolution? Is that the argument you’re making?

Yes. First, when we interviewed Congresswoman Elizabeth Holtzman, who was in Congress in the 1970s or 1980s, she really gave us this idea first — that Chadha effectively guts the constitutional provision and the War Powers Resolution. The legal argument we make is based on a law review article written by former Secretary of State Cyrus Vance in the 1980s.

He argues — and I fully agree — that Chadha, because it was decided in the immigration context, should require presidential approval (or, if he doesn’t approve, a veto) in order to have legal force and effect. Because when Congress enacted the Immigration and Nationality Act, it effectively delegated to the executive authority over that whole space — immigration. In the war context, the war powers context, that is not true. Congress has the prerogative to declare war. Congress has never said to the executive branch, “You know what, we’re going to give this all to you by statute, and you go figure it out.” And so we argue that it’s distinct from Chadha, because it’s war powers, not immigration. The authority to act has not been delegated to the president by statute. And apparently this has never been tested in court. I think it’s an entirely compelling argument.

So I’m skeptical, for a couple of reasons. Let’s say Congress does that. It’s not clear who is going to bring the lawsuit to enforce it, because the president is just going to disagree and say the act is void. And I’m not sure anybody is going to have standing to bring the lawsuit, or that a court is going to adjudicate it. So I’m not sure it’s going to work, for that reason.

Also, it seems to me the war powers situation could be harder, not easier, than Chadha, because, you’re right — the president isn’t relying on a statutory authorization to go to war. He’s relying on Article II. So what you’re saying is that the president makes an Article II claim to go to war. It’s a contested claim, but he thinks he has the constitutional authority. And Congress can, not through enactment of law but by a concurrent resolution, stop the president from exercising an Article II prerogative.

I don’t see how that’s going to be consistent with Chadha, which said that bicameralism and presentment were needed for Congress to have legal effect — to enact law. And I don’t see how Congress can stop the president from exercising his Article II authorities without passing a law.

Well, let’s put this in the context of Iran. If you’re correct, then Article II effectively makes the war powers provision in Article I a nullity, because what President Trump is doing here is engaging in a full-blown, protracted war. He can make the argument that it’s pursuant to his Article II authority.

But I think that effectively means the war powers provision in Article I becomes a nullity — which the framers could not possibly have intended. As I see it, when Congress acts — let’s say by majority vote — and says stop, it’s not trying to take back some authority the president has. It’s a manifestation of authority that Congress originally got in Article I. It’s simply stating, by majority vote, that you are violating Article I, Section 8, which is our prerogative, not yours. Congress ought to be able to do that by majority vote. That’s certainly what the War Powers Resolution contemplated.

Otherwise, requiring a two-thirds vote in order for the war powers provision to have any meaning effectively guts the provision.

Guts the constitutional provision.

Correct.

Okay. I think we’ve fleshed out the positions. This is just another way of saying the president has arrogated enormous Article II authority. I agree it’s a limitless understanding of Article II power. But Trump is acting in the Iran context with wind in his sails, based on a lot of OLC opinions, even though people don’t want to recognize that. The president has an Article II claim. Congress has an Article I claim. The question is: Who has authority here? Is Congress’s authority exclusive? If Congress passes a concurrent resolution that says, in effect, “We don’t like your assertion of Article II power,” I think the president just ignores it and says it’s not law.

Well, okay, two things. One, the current interpretation of the president’s Article II authority — “important national interest,” so long as it does not rise to the level of a war in scope, nature, and duration — has not expanded over the years because a group of lawyers one day got in a room together and decided this is what it really means.

It expanded through political inertia on the legislative side and urgency on the executive side. You and I know how this works.

I agree.

The White House goes to the Department of Justice, to the Office of Legal Counsel, and says, “We need a legal opinion to justify X.” The lawyers are under a lot of pressure to make it work. As you and I have both pointed out in writings, that authority has become so vast that it is virtually limitless.

No court, no lawyer is ever going to second-guess the president when he says there’s an important national interest that requires him to do this. It’s a virtually limitless test. It got that way because of a political dynamic between the two branches, not because of any concerted, methodical, thoughtful legal analysis that says, “You know what? We really think Article II means X. It’s been that way all along since 1789.”

The other thing I want to come back to is the litigation question. You’re correct. As we point out, Congress is extremely reluctant to get involved in fights between the political branches of government, particularly when it comes to matters of war and peace. Liz Holtzman was involved in Holtzman v. Schlesinger back in the 1970s to try to stop the Vietnam War. As a freshman Congresswoman, she sued the Secretary of Defense to try to stop the war. Congress has historically been reluctant to get in the middle of this, but I see among the nine of them [the Supreme Court] more of a willingness to get into spaces like this while there’s a stalemate between the political branches.

On the standing question — I’m not an expert on standing, but I would think that if someone purports to bring a lawsuit on behalf of the body, not just individual members of the body — let’s say the Democrats control the House, and the Speaker of the House, a Democrat, brings a lawsuit on behalf of the House, and the House has voted to bring that lawsuit by majority vote — I would think that would be a pretty compelling basis for standing.

It’s tough. Congressional standing is hard. It has a better fighting chance if Congress has authorized the lawsuit, but it’s just not clear whether that would work. But let’s talk briefly about your other proposals.

So your proposal — the concurrent resolution to stop the president — would, I think you agree, have to be enforced in court. That’s the problem with it. Even if your legal argument is right, even if you overcome standing, there’s going to be a political question. Do you really think a court is likely to say that the president— I mean, you’re basically talking about enforcing the War Powers Resolution and distinguishing Chadha. So I’m skeptical that that’s actually going to work out in court. I’m also skeptical about — and again, I’ve made similar proposals myself — your idea of revising the War Powers Resolution. That itself assumes you’ll be able to get a supermajority in Congress, as was required for the original War Powers Resolution. But even there, it’s hard to know exactly how to constrain the president in legal language.

I think it’s tough. We’ve both thought about these questions for a long time. The political reality — and you make this pretty clear in your article — is that Congress is kind of at sea and on its heels in this context.

Though, you know, Tim Kaine told us that he’s forcing Congress to exercise an atrophied muscle. So he’s forcing these votes — a vote on war powers as a privileged motion. He’s getting members more used to having to vote on this.

You know, I’m a bit of an optimist, in that you could have another candidate for president, like a Barack Obama, who says, “You know what, I agree with Johnson and Vance that Chadha doesn’t apply. And if Congress votes by majority, it’s a manifestation and implementation of its constitutional prerogatives. So if a majority of Congress says I should not be fighting this war, then I will not fight this war.”

So it could be that you have a thoughtful president or presidential candidate who respects the Constitution as much as you and I do, even in the face of a compelling national security matter. Could be.

You know, I don’t think President Obama would have signed off on that. He used war powers without congressional authorization, as you know.

And no president— remember, they had to pass that law over Nixon’s veto, when he was at his lowest point. No president is going to be able to sign on to that language easily. I was hopeful during the Biden administration. Senator Biden had proposed a very intelligent war powers bill that would have tightened restraints on the president’s use of war powers. There was zero interest — even from a president who held himself out as a constitutionalist, as favoring Congress, and the like. There was zero interest then. So I don’t want to say never. I just think — well, let me say this, and then I’ll let you have the next word. If it’s going to happen, it’s going to have to be after some utter, complete collapse and disaster. That’s kind of what happened in the 1970s — it was post-Vietnam. We’re getting pretty close to another complete disaster right now.

We’re getting pretty close to another complete disaster right now.

I think the optimistic scenario is that a war goes so badly that Congress finally decides it needs to exercise its prerogatives and put some constraints on the president. What do you think?

Well, a couple of thoughts. One, I was very impressed that in the run-up to the first Gulf War in 1990, George H.W. Bush’s lawyers told him, “We think you have constitutional authority to push Iraq out of Kuwait, and you don’t need congressional approval.” Notwithstanding that, Bush decided to go to Congress, because he respected the constitutional norm.

It might’ve been for pure political reasons, but he did it. And there was a robust debate in Congress, as you know, and Congress ultimately authorized Bush to go to war against Iraq. The other thing I’ll say is — I’m going to quote Jack Goldsmith, as I often do on this particular line. You wrote an article nine years ago about what happens if the president orders the Secretary of Defense to do something deeply unwise. And the last sentence of your article was something I wholeheartedly agree with and have quoted and requoted numerous times: “The current conundrum highlights again how very deeply our system of government depends on the people electing a president who is generally reasonable, prudent, and responsible.” Another way of saying that is: hopefully we elect presidents who respect constitutional norms.

Yep. I agree.

And respect the original intent of the Constitution.

I don’t want to relitigate the original intent of the Constitution. It’s a little tricky, because I imagine you’re probably not an originalist in constitutional interpretation on most matters — and it’s so strange that everyone becomes an originalist when it comes to war powers. There’s been a lot of water under the bridge in the last 240 years in terms of constitutional development. But setting the original intent aside, I agree that we’re in a place that just can’t be the right place to be — where the president has limitless power to bring the country to war. Let me ask you a final question.

You and I both worked on these issues in government, and my views have certainly changed since I worked in government. How do you see the issue differently now than when you were the person making the hard decisions?

Well, I’m going to answer a slightly different question. Take interpretations of the existing 2001 AUMF. When I was the General Counsel of the Defense Department, I was responsible for interpreting it. We made it work against core al-Qaeda, al-Qaeda in the Arabian Peninsula, and al-Shabaab — or at least the al-Qaeda-affiliated elements of al-Shabaab.

That was a compromise with Harold Koh. Subsequent interpretations have become so vast — it now encompasses ISIS, which didn’t even exist in 2001. I haven’t changed my view on this, but I’ve seen how vast the interpretation of that statutory authority has become, and it’s still on the books. Of course, when you’re out of government, you become more clear-eyed about certain things. I always tried to tell my clients what I believed to be the best, most sustainable legal authority, but I have seen the pressures that presidents and secretaries of defense come under in a national security emergency. If someone’s committing genocide against their own people, for example, there’s a human cry: “Mr. President, you’ve got the vast military at your fingertips — do something, stop this.”

So I see the pressure that presidents come under, where they have to effectively act contrary to certain statements they made while running for president. And so I’m probably more realistic about that now than I was then. But I still believe 100% that if a president wants to take the nation to war, it should be incumbent on the president to make the case to Congress and the American people why this is necessary. And if he makes a persuasive case — like Bush did in 1990, like Bush 43 did in 2001, and somehow again in 2002 and 2003 — then make the case. You shouldn’t be able to just take the nation into war overnight, as the current president has done in the current conflict.

And I agree with that. And I’ll just add that, comparing the two President Bushes on Iraq, both were told by their lawyers that they didn’t need to go to Congress, and both times they did. Probably political prudence — maybe a legal judgment by the president — but at a minimum it was political prudence. And that political prudence was enormously beneficial to them, both in getting the country on board and in arguments later, when things didn’t go so well. It’s something President Trump just didn’t do. And this is a very consequential war that doesn’t look great right now. He’s just out there completely by himself.

Well, yeah — to take it a step further, it’s not even the executive branch by itself. I’m convinced it’s a war council of one person. And there are people at the Pentagon who wake up in the morning not knowing whether they’re going to be at war by the time they go home that evening.

Yeah. Mercurial is an understatement. Okay, Jeh, thank you so much. The article is called “Presidential War Powers, Executive Expansion, and Congressional Retreat,” in the Journal of National Security Law and Policy. Thanks so much.

Thank you, Jack. Thanks for your interest.

The D.C. Circuit on Thursday denied the Department of Homeland Security’s petition to rehear en banc its April 2026 decision in Refugee and Immigrant Center for Education and Legal Services v. Mullin. (July Order.) The April decision held unlawful the president’s proclamation and agency guidance barring entry into the United States by migrants who crossed the southern border either without proper documentation at a port of entry or not at a port of entry, and subjecting individuals who violated the ban to summary removal proceedings. (April Opinion.)

A coalition of states on Thursday sued the Federal Emergency Management Agency in the U.S. District Court for the District of Rhode Island, challenging its imposition of election- and immigration-related conditions on the receipt of emergency management funds, as well as its imposition of new terms that allegedly give FEMA greater discretion to terminate states’ funding. (Complaint.)

The president has imposed new tariffs under Section 301 of the 1974 Trade Act on over 80 countries. (NYT.) Ilya Somin argued they are “illegal for some of the same reasons as the IEEPA tariffs invalidated by the Supreme Court in February.” (Volokh.)

The House of Representatives, for the second time this summer, passed a concurrent resolution Thursday directing the president to “remove the use of United States Armed Forces from hostilities against the Islamic Republic of Iran or any part of its government or military” unless Congress expressly authorizes such action. (H. Con. Res. 89.) (NYT.) Four Republicans joined Democrats in voting for the measure. (Roll Call.) For background on the concurrent resolution that passed both chambers in June, see a prior Roundup.

Justice Elena Kagan, when asked at the Ninth Circuit’s annual judicial conference whether the Supreme Court has been too deferential to the president, stated: “I think that is a bad rap…. I don’t see this as a court that is just going to rubber-stamp what the current administration does—quite the opposite.” (NYT.) (Politico.)

The Justice Department has withdrawn the subpoenas it issued to New York Times journalists. (NYT.)

Katherine Yon Ebright argued that although President Trump’s “Donroe Doctrine” is a “supposed revitalization of the Monroe Doctrine,” the history of the Monroe Doctrine, properly understood, “supplies strong precedents for war powers constraints, not presidential aggrandizement in matters of war.” (Lawfare.)

Steve Vladeck argued that the en banc Fifth Circuit’s “unsigned, unexplained order” granting a “precedential stay” of consolidated district court decisions concerning the administration’s immigration detention policies “turn[s] the entire concept of an emergency application on its head.” (OneFirst.)

Judge Michael Farbiarz (D.N.J.) ordered the release of a detained migrant, Marlon Andres Torres Gomez, after Immigration and Customs Enforcement prevented his voluntary departure from the United States. An immigration judge previously had ordered that Torres Gomez be permitted to depart voluntarily by June 11. (Opinion and Order.)

Judge Ana Reyes (D.D.C.) ordered the Defense Department—in light of its recently announced policy providing voluntary testosterone replacement therapy to service members with testosterone deficiency—to address in forthcoming briefing the “basis for treating trans men and other service members differently.” The order referenced the president’s Jan. 2025 executive order barring transgender service in the military, which stated that “the Armed Forces must adhere to high mental and physical health standards… without the benefit of routine medical treatment or special provisions.” (Minute Order.) (Lawdork.)

The House voted on Tuesday to pass the fiscal year 2027 National Defense Authorization Act. (Roll Call.) It also passed a concurrent budget resolution to begin a third reconciliation process aimed at providing the military funding to cover costs related to the Iran war. Senate Majority Leader John Thune has said he will not immediately take up the resolution. (Roll Call.) (NYT.)

The House Judiciary Committee sent a letter Tuesday to the Justice Department, alleging that former Special Counsel Jack Smith “knowingly made false statements” to the committee during his Dec. 2025 deposition. (Letter.) (NYT.)

Politico reported that the Justice Department has delivered hundreds of millions of dollars to Alaska under two settlements and a grant award as Acting Attorney General Todd Blanche works to secure Senate support for his confirmation to be attorney general. (Politico.)

The Second Circuit on Tuesday vacated a district court order releasing Columbia University activist Mohsen Mahdawi from immigration detention and ordered his habeas petition dismissed. The panel held that the Immigration and Nationality Act routes his claims, including his First Amendment challenge to Secretary of State Marco Rubio’s foreign-policy removal determination, through the immigration system rather than federal court. (Opinion.) (CNN.)

The D.C. Circuit on Tuesday affirmed former Trump adviser Peter Navarro’s two contempt-of-Congress convictions for defying the House Jan. 6 committee’s subpoena. The panel held that only the president or his designee may invoke executive privilege, and that no valid invocation occurred here. (Opinion.) (WaPo.)

Roger Rogoff sued the Trump administration in the Western District of Washington and moved to be reinstated as U.S. Attorney, after the district court’s judges appointed him on July 15 and the administration fired him by email less than an hour later. The complaint argues the removal violates the appointment statute and the Appointments Clause. (Complaint.) (NYT.) (CNN.) See a previous Roundup for background.

The Department of Health and Human Services said Tuesday it was withholding another $1 billion in Medicaid payments from California and Minnesota over claims it called fraudulent, including billing for deceased enrollees. That adds to $1.3 billion already withheld from California since May. (Press Release.) (NYT.)

Defense Secretary Pete Hegseth told the Senate Appropriations Committee on Tuesday that the Iran war has cost $37.5 billion so far, as he pressed President Trump’s $87.6 billion supplemental. Asked about the war’s legal basis, Hegseth backed the White House’s position that “we have all the authorities” needed, though its July 10 letter to Congress restarted a 60-day clock to seek approval. (Hearing.) (WSJ.) (WaPo.)

The Justice Department’s Civil Rights Division demanded that New Jersey hand over the names, birthdates, nationalities, and addresses of roughly 6,600 noncitizens the state said were mistakenly registered to vote, plus voting details for the fewer than 400 who cast ballots. Assistant Attorney General Harmeet Dhillon gave the state five business days and said the disclosure strengthens the department’s pending suit to obtain New Jersey’s full voter roll. (X.) (NBC News.) (Democracy Docket.)

Faiza Patel argued that pairing the Pentagon’s new commercial-AI deals with the warrantless data the government already buys on Americans gives it a domestic-surveillance capability that the current legal framework does not adequately constrain. (Just Security.)

Bob Bauer argued that Trump’s clash with the networks over his July 16 “election integrity” speech, which three declined to carry live, could escalate to an invocation of emergency powers under federal communications law to seize or shut down stations, a move he said would face serious legal challenges. (Executive Functions.)