The Supreme Court on Monday granted the government’s application for a stay of a district court preliminary injunction that halted government construction of barriers along a portion of the U.S.-Mexico border. In an 8-1 unsigned opinion, the Court held that the government was likely to prevail in its argument that the district court lacked jurisdiction to decide respondents’ claim that the government violated the major questions doctrine. (Opinion.) (Docket.) (SCOTUSblog.) (Politico.) (WaPo.)

A coalition of Alaska civic groups and voters on Monday asked the Ninth Circuit to summarily affirm a district court order dismissing the government’s lawsuit seeking to block certification of the Alaska senate election if the incumbent Republican senator lost. (Motion.) (Election Law Blog.) For background on the litigation, see prior Roundups.

Labor and civil rights organizations on Friday voluntarily dismissed without prejudice their lawsuit challenging the Justice Department’s directives to election officials to segregate ballots of suspected noncitizens. The move comes after Judge Trina L. Thompson (N.D. Cal.) stayed all proceedings in the district court pending an appeal in the Ninth Circuit. (Notice.) (Docket.) For background on the litigation, see previous Roundups.

Social science researchers and associations sued the National Science Foundation and its acting director on Monday in the U.S. District Court for the District of Massachusetts seeking to block the dismantling of its Directorate for Social, Behavioral and Economic Sciences, which annually funds hundreds of millions of dollars in social, behavioral, and economic science research. (Complaint.) (NYT.)

Brett Shumate, the assistant attorney general of the Justice Department’s Civil Division, resigned on Monday, marking the latest DOJ official’s departure since Democrats won back control of Congress in the midterm elections. (CBS.)

President Trump in a social media post on Monday raised doubt about the integrity of the midterm elections, asking, “Does anybody really believe that this ‘Election’ was honest.” The post marked a change in tone after the president stated last week that he was “absolutely willing” to accept the results, which decisively favored Democrats. (Truth Social.) (WaPo.) (NYT.) (Politico.)

Rep. Thomas Massie (R-Ky) on Monday introduced eight articles of impeachment against Defense Secretary Pete Hegseth that the House will vote on by Wednesday. Hegseth denied the accusations and called the impeachment effort a political sham. (Resolution.) (NYT.) (WaPo.) Ilya Somin argued that Hegseth should be impeached and convicted for starting an unconstitutional war against Iran and for ordering unlawful military strikes against boats carrying suspected drug traffickers, which he called “outright murder.” (The Volokh Conspiracy.)

Joshua Braver argued that the Ninth Circuit’s “highly deferential” standard in Newsom v. Trump—in which a three-judge panel affirmed a preliminary injunction against President Trump’s federalization of the National Guard in Los Angeles—misreads the statutory history of domestic deployment. (Just Security.)

Julia Curlee argued that the new Democratic-led Congress should use funding limits, subpoenas, and record preservation to rebuild intelligence oversight. (Lawfare.)

Jennifer Nou used the term “parapresidency” to describe short-term, quasi-private entities such as the Department of Government Efficiency that “expand presidential control while diffusing legal and political accountability.” (SSRN.)

Judge Ana C. Reyes (D.D.C.) on Saturday indicated she will appoint former U.S. Attorney Jessie K. Liu as special master to investigate whether Department of Justice or Department of Interior lawyers committed ethical violations during ongoing litigation over the president’s plan to renovate the East Potomac Park golf course. Liu ran the U.S. Attorney’s Office for the District of Columbia from 2017 to 2020 under the first Trump administration. (Minute Order.) (NYT.)

The Department of Justice on Friday voluntarily dismissed its lawsuit to force California to sequester mail-in ballots cast by alleged noncitizen voters because “the relief the United States sought and needed is no longer available.” (Notice.) (NYT.) The government’s notice of appeal remains pending in its suit over the second Dan Sullivan in Alaska’s yet-undecided Senate race. (Docket.) (WaPo.)

President Trump on Saturday said he would order the Department of Justice to investigate “criminal act[s]” by Democratic members of Congress, who he said are “threatening a lot of people” with “impeachment and many other forms of punishment.” The president named as an example Sen. Elissa Slotkin “saying that she is going to go after all these young people that believe in Republican Values[.]” (Truth Social.) Attorney General Todd Blanche in a Sunday interview said that the “rhetoric the past couple days” goes beyond legitimate oversight duties and could be a crime, “depend[ing] on what’s said.” (CNN.)

The White House on Friday named Stephen Miller as the new chief of staff following Susie Wiles’ departure. (Announcement.) (NYT.) Bob Bauer highlighted similarities between Miller and President Trump’s long-time “fixer” Roy Cohn, arguing that a Miller-led “Roy Cohn presidency” “carries with it the high prospect of failure.” (Executive Functions.)

Bob Bauer and Jack Goldsmith discussed why the Trump election interference strategy failed. (Executive Functions.)

Josh Gerstein and Kyle Cheney discussed House Democrats’ potential strategies for overcoming the Trump administration’s assertions of executive privilege, arguing that how courts resolve these disputes “will shape . . . the future of Trump’s second term and even the future of the presidency.” (Politico.)

Andrew McCarthy surveyed “the ongoing shake-up” at the Department of Justice, suggesting that the departures of National Security Division chief John Eisenberg and U.S. Attorney Jason Reding Quiñones (S.D. Fla.) were at least partly precipitated by their unwillingness or inability to “successfully follow through” on the president’s demands. (National Review.)

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

Mullin v. Friends of the Ruidosa Church: The government on October 21 asked the Supreme Court to issue a stay pending appeal of a district court preliminary injunction halting government construction of barriers along a portion of the U.S.-Mexico border. The government asked the Court to construe its application as a petition for a writ of certiorari and grant the petition. (Application.) The respondents filed their opposition on October 29, and the government filed its reply on October 30.

Kai Bird’s richly detailed and absorbing biography of Roy Cohn, the lawyer Donald Trump much admired, devotes a chapter to the relationship and what so impressed Trump about his counsel. Bird, who wrote the book with Susan Goldmark, emphasizes the fabled playbook routinely employed by Cohn in pursuit of victory: never concede ground or admit defeat, always counterattack, deploy blatant falsehoods and inflammatory rhetoric as necessary and without shame. Cohn’s lawyering, such as it was, was of the “ends justify the means” variety: “I view an end…more important to me than the intermediate steps.” He was a “fixer” more than a lawyer in any formal (or ethical) sense of the term. He prided himself on absolute loyalty to his clientele and friends, and it was loyalty and ruthlessness that Trump lauded as among Cohn’s signature qualities. He was “brutal,” Trump has recalled, and “very vicious to others in his protection of me.”

In Trump’s first term, the president famously asked in frustration: “Where’s my Roy Cohn?” Now, in the aftermath of calamitous midterms, Trump has concluded he needs a new chief of staff, and he has found his Cohn: Stephen Miller. Trump has chosen for the next two years of his term a Roy Cohn presidency, and Miller is the natural selection for this purpose. The selection of Miller points toward a turbulent course defined by confrontational politics built around baseless claims of presidential power and a reckless, divisive rhetoric to go with it. It also carries with it the high prospect of failure.

Trump lauds in Miller the Cohn-like qualities he has been looking for. The day of the announcement, he singled out Miller for being “very loyal” and “a great fighter.” In his first speech since being named chief of staff, Miller pledged to the president “my absolute loyalty, my unwavering commitment and my total devotion to your success and the success of this country.”

Miller has established his “unwavering loyalty” over his years of service to Trump. Like Cohn, Miller routinely delivers a give-no-quarter defense of Trump and harsh derogation of his boss’s perceived enemies. He has characterized the Democratic Party as “a domestic extremist organization” and rulings against the administration on controversial immigration policies as the work of “radical rogue” and “communist” judges who are waging “war” against the president. “The leftist,” he has said, is “fundamentally motivated by envy, by hatred, by jealousy.” By contrast, the president he serves “saved America,” which without him “would not exist right now.” The administration of which he is a part is in “a fight to save civilization.”

Miller has demonstrated that, like Cohn, he will consider, if not advise, whatever it takes for the president to win his policy battles. He is reportedly committed to extreme positions on presidential power. According to press accounts, he has argued within the White House for suspending resort to writs of habeas corpus to protect against the immigrant “invasion”—a possibility he also raised publicly—and for deploying troops under the Insurrection Act to suppress protests against the administration’s immigration policy. He has also “personally drafted or edited nearly every executive order Trump has signed,” a number of which, such as the attempt to assert control over federal election rules, courts have found to have exceeded the president’s constitutional authority. The Wall Street Journal reports that he is now working with another architect of this use of executive orders, Office of Management and Budget Director Russell Vought, to “chart a second-term agenda with an emphasis on executive actions that don’t require congressional approval.” Or, more to the point, it will be an agenda that they will claim needs no such approval.

The political and policy risk for Trump in a Roy Cohn presidency is failure. What is most striking in the Bird account of Cohn’s career, and the parallels with Trump, is the story of successful rise and ignominious downfall. Cohn would score a win here and there, often secured by illegal or questionable means. His youthful rise in national politics crashed with his dismissal from his role as counsel to Joe McCarthy, and his legal career was riddled with financial stresses, serious legal problems, and, in the end, disbarment. Cohn, like Trump, was a large personality who liked to perform on the public stage and did so with considerable success. His deep flaws eventually caught up with him, and this second term and the midterm elections so far suggest that this may be the fate awaiting his former client Donald Trump.

A Roy Cohn presidency over the next two years driven by Miller as chief of staff seems destined to accelerate this failure. The weakness at the core of a Roy Cohn politics is that it is an antipolitics. It scorns the hard work of managing, not escalating, conflicts with adversaries, valorizing instead a strategy of attacks and counterattacks with a rejection of legal constraints, respect for facts, and civil debate. As I have written elsewhere:

In antipolitics, political activity as a means of reconciling diverse opinions and interests is seen as an abject surrender of principle. It is replaced instead by a bullying disregard for the views of the opposition, which is not just to be defeated at the polls but utterly vanquished. Partisans should control elections, all the better to ensure the desired results, and the rule of law, disdained as a political tool, is ready at hand for use against adversaries, to punish and weaken them.

Trump has pursued this antipolitics in his second term, and the midterms might have suggested to him that it was a factor contributing to historic losses. The Miller appointment shows that he has decided to stay the course.

In January 2025, Jack and I wrote that “[t]he Trump 2.0 administration is charging ahead with a ‘shock and awe’ executive order program enhanced by public pronouncements of desire to exercise executive power in the extreme. Far from absorbing the experiences of Trump 1.0, Trump 2.0 is doubling down. We predict it will not end close to as well as the new president imagines and hopes.” It has not, so far in this term, ended well, and putting Stephen Miller to work with the Cohn playbook will not improve matters.

Printable version

265KB ∙ PDF file

Download

Download

Mentioned:

• Bob Bauer, “Why the Trump Election Interference Strategy Failed,” Executive Functions (November 5, 2026)

• United States v. California, No. 26A624: Application for an Injunction Pending Appeal and order denying the application (U.S. November 2, 2026)

• Jack Goldsmith and Bob Bauer, “Donald Trump Might Challenge Election Results in 2026, Say Two Leading Lawyers,” The Economist (November 12, 2025)

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: Good morning, Bob.

Bob Bauer: Good morning, Jack.

The Trump administration’s rhetoric and actions throughout 2026 suggested to a lot of people, including you and me, that it intended to use presidential power to tilt the election in ways that would favor Trump and his party, yet that didn’t happen on Tuesday. Yesterday, you wrote a piece on Executive Functions entitled “Why the Trump Election Interference Strategy Failed.” So why did it fail?

It failed for a number of reasons. I identify three in particular. The first is the flawed premise and very poor execution of Trump’s strategy for tilting the election in the favor of the Republican Party. The second has to do with the role of the courts, and the third has to do with the way the system fundamentally operates, and it operates in a way that was not compatible with what Trump wanted to do.

And for that reason, we saw—and there are some other reasons we can discuss—we saw a very normal election day. There were glitches. There always are glitches. It’s an imperfect system. Human error always plays a part. Sometimes technology failure aided and abetted by human error plays a part. But it was an election day, and a period of early voting before it, like any other.

Okay, so let’s march through them. The first reason had to do with just the failed strategy, the strategy itself.

Yes. It rested, first of all, on an attempt on the administration’s part to assert a constitutionally flawed, constitutionally doomed theory of executive power to set rules in federal elections. The Constitution confers that rulemaking authority on the states unless Congress chooses to intervene and prescribe specific rules for federal elections.

Trump had wanted, by executive order and in litigation, to claim authority for the presidency that the Constitution does not provide, and he met with real reversal in the courts, consistent reversal in the courts. So that was the first problem. And we could talk a little bit more about the different approaches over time that the administration experimented with to try to get around that problem.

The second problem was a complete loss of credibility, primarily on claims that accelerated toward the end of the election cycle about the prevalence of noncitizen voting and the measures—therefore, emergency measures—the administration needed the states to adopt to prevent it. The administration was continuously making factual claims that were false, and in the end, had to admit that some of the key claims, particularly in the state of California, also in the state of Nevada, in other states, were just wrong. We’ve never had—and this subject has been studied up and down—we have never had massive illegal noncitizen voting in the United States.

From time to time, noncitizens do wind up on the voter registration rolls for various reasons. Many of those don’t vote at all. A handful of cases, the administration did bring some prosecutions against noncitizens for voting. They are small in number and very often misunderstandings on the part of those who are voting that they are in fact not eligible to vote. So the whole premise, going all the way back to Trump claiming that the Clinton plurality victory in 2016 was accounted for by millions of noncitizens voting, was false and exposed to be false, and it seriously damaged the administration’s credibility with the courts—I think also with the public.

(3:15) Okay, so let me follow up on a couple of those things. Yes, you’re absolutely right that the president does not have a role in these elections by the Constitution—that’s given to Congress and to the states—but there are lots of laws related to elections, election enforcement, election monitoring, and the like. There are criminal laws. The worries were that the president would use his power over law enforcement to somehow disrupt or intervene in the elections, and then there were other worries that the president would use his power over the military in various ways. There was very little of the first and none of the second. Do we have an explanation for why that happened?

In the first case, I think that what transpired—and this is, again, a flaw of execution—the administration tried to push this law enforcement theory so hard that it was clear that it was a proxy for an unconstitutional claim of executive authority to make rules in federal elections, and that’s what happened in California toward the end of the election, in a theory that it also, by the way, tried to move to other states. The administration took the position that because of its law enforcement authority, because of its concern with noncitizens voting and its determination to enforce the federal statute against it, the states were required to screen for voter eligibility not as their state laws provided, but as the Department of Justice dictated, and that’s at bottom an unconstitutional position.

It is doomed to fail, but the administration tried to wrap it up in a law enforcement theory. Here is the fundamental problem. If under federal law there is noncitizen voting, the administration obviously retains the authority to prosecute individual cases, but it doesn’t have the authority to decide that states that have by law adopted procedures for screening for that kind of voting, those states are required to adopt an alternative federal procedure for basic screening. That just simply isn’t correct. The translation from the law enforcement to the unconstitutional rulemaking authority claim was destined to fail.

And how about the military?

There will be a day, I think, through oral accounts that are elicited and documents that become public, where we might find out a little bit more about whether the administration ever thought seriously about invoking the Insurrection Act. There was also talk—and I don’t think it’s unrelated—about potential administration plans to seize ballots or voting machines in particular jurisdictions, to sow chaos, create doubt about the elections, potentially alter the outcome of the elections in those jurisdictions. It didn’t do that.

And we can speculate about the reasons why. It may well be that there was significant resistance within the president’s own party as the polls showed increasingly dramatically negative results for the Republicans, that they did not think that this would do anything but make matters worse. After all, Republican politicians were also on the ballot. They were also looking to try to win the election. Having the president engage in an act of subversion against the background of polls showing that the Republican Party was about to lose was not likely to be something Republican politicians welcomed. I think it would hurt many more than it would have helped.

And there was also likely some public opinion polling—the White House does a lot of polling—that would have indicated that it would have been wildly unpopular. It would have turned the electorate even more against Trump, because that goes to the point of whether it would have undermined Republican prospects on the ballots, where they did have those prospects. And for those reasons, as in 2020, he chose not to pull that trigger, if you will.

(6:45) Okay, the second reason you gave was the courts. The courts were so vital here. And how did that work?

Speaking first of the lower courts, I mean, the lower courts were very rough on the administration’s claims, and I think rightly so, because the law was not on the administration’s side. A good example was the administration’s attempt to coerce the states into surrendering their unredacted voter rolls, as the administration sought to build its own list and use that to screen for ineligible voters around the states—once again, supplanting state processes for doing so. And the administration, when it met with resistance, filed suit to force the recalcitrant states to comply.

And it lost—26 at last count, and I think this is the last count—26 consecutive lawsuits on this issue. It’s extraordinary. They were 0 for 26, and at least one appellate review. The lower courts just wouldn’t have any part of this, and I can cite some other examples.

But let’s talk about the Supreme Court for a second. The Supreme Court, of course, doesn’t sit well with progressives on a whole range of issues in the sphere of the regulation of politics—how much authority Congress has to control campaign finance, how much of a role the courts will play on gerrymandering. But I think that it’s important to see—and I think it was on display in this election—the court treats election administration and has responded to election administration issues quite differently, and not in a way that the administration would have wanted. We can go back to 2020, where there was a lot of concern about whether the courts would help Trump with his challenge to that election, and it certainly did not. And in this cycle, it also didn’t.

And we can run through the number of instances where the [court] could have, if you will, lent him a hand, and it wouldn’t do so. And at the very end in particular, in the case that he brought against California over noncitizen voting, it filed an emergency application with the court for relief because it had lost in the lower courts below, and the Supreme Court, with no noted dissents, within the same day, without requesting briefing from other parties, turned the administration away. And boy, that was a strong message, and I think a really significant moment in the judging of the court’s performance on these issues in this cycle.

I agree with you. I think it was seven hours after they received the application, they rejected it without comment and without noted dissent. You noted in your piece, and this was also quite remarkable, and a bit of evidence that what you just described in how the lower courts acted is remarkable evidence of how efficacious law was in this context. But even, I would say, norms were doing work. I don’t know what you want to call it, but you noted that the solicitor general in the application in the California case that the court flipped away in just a few hours kind of distanced itself from false claims that were being made in the Ninth Circuit. So even there—that relationship between the SG and the court—I think that paragraph signaled that the SG wasn’t really on board for this either and may have been behind the court’s very quick dismissal of the application. What do you think?

I agree it was remarkable. The SG clearly distanced itself—distanced himself—from these already shown to be baseless factual claims. And on the norms, I suppose you could say that was a very good moment in an otherwise not very good record on the part of the Department of Justice.

I mean, the Department of Justice—though we do not know what presidential pressures it may have resisted; who knows what other extreme steps the president proposed and that the department declined to follow—nonetheless, the department took positions in this election, clear-cut interventions that were not lawful and that were clearly going to be rejected by the court and that did have the effect of signaling to the public that the administration might try something dramatic, certainly could undermine confidence in the executive’s willingness to live with the results and follow the law. So the Department of Justice’s record is poor. The solicitor general’s moment here, I certainly think, does deserve note, as you point out.

But let me just say more broadly, the solicitor general’s office has been very much on board for pushing the presidential agenda in the courts. But its rhetoric has always, and its posture has always from the beginning, been different from the posture the department has offered in the lower courts. And there are many examples of this. Even as the department was defying court orders in the lower courts, the SG was representing respectful court orders in the Supreme Court. And what I meant by norms is that there is a relationship between the solicitor general’s office and the court in which the SG has to maintain a modicum of credibility with the court. The court depends on the SG’s office. The SG needs the court. And that relationship is something that kind of cuts against what the president’s trying to accomplish. This isn’t the first time that’s happened.

I’m not suggesting, of course, that the SG hasn’t been extraordinarily aggressive in pushing presidential prerogatives. I’m just saying this is the latest instance of that relationship between the SG and the Supreme Court mattering and contrary to the interests of the White House.

I certainly agree with that. But I will say this. By the time the SG did this act of distancing in the California case just a couple of days before the election, the administration’s factual position on these noncitizen voting and other claims about the electoral process had completely collapsed. So there really wasn’t a whole lot of room for the solicitor general to come too close to embracing the administration on those issues. But better—better, certainly—that it was an active and clear distancing than if it had not been.

(12:13) Yep. And as we say, I do think it must have been part of the explanation for the court’s very quick denial of the application. So let’s go to the third reason. What was that?

The system: the way the system operates. We have a highly decentralized election administration in the United States. People disagree on the count, but there are somewhere between 8,000 and 10,000, maybe slightly more, individual voting jurisdictions. And as mentioned before, the states—unless the Congress intervenes to make rules for federal elections in particular—the states do have authority to set the rules for elections, which is why you have a variety of different regimes across the country with different periods of early voting and some cases same-day voter registration and other states not. And in the Republican Party in particular—I just want to stress, in the Republican Party in particular—there is a strong commitment to that federalized structure, that decentralized structure, rather.

And I certainly found—and I do travel around the country, did in this election cycle, talking to community leaders and also election officials who would meet with them to explain the preparation for the elections—that there was simply no appetite for the kind of role in federal elections that this administration was asserting aggressively. It just runs against the grain, maybe not of the MAGA denialist movement, but it runs against the grain of Republican beliefs about how this system ought to operate. There is that.

And then one more point that I would add to it, which is we do have—and increasingly since the presidential recount in 2000 in Florida, and the controversy over that and the concerns about the electoral process that followed, there has been a steady advance in the professional administration of elections in which voters actually have a significant amount of confidence. There was a poll recently that some two-thirds of the voters, notwithstanding all of the attacks on the system in recent years, do have confidence in elections. And by the way, that confidence has been dented. It’s been damaged by Trump’s war on the electoral process, his rhetorical war, maybe his legal war on the electoral process in recent years, but it’s held up remarkably well. And voters in the jurisdictions in which they cast their votes often know their election officials, have been voting the same way in the same location for years, and they have confidence in the system. And that system just kept operating.

Even with threats that were directed against election officials by the administration, the election officials—Democrats and Republicans in blue and red states—kept their heads down and just did the job they had to do.

And I’ll just add one more thing, and this is a point that was made after the successful elections, even under pandemic conditions in 2020. These officials operate with very limited resources. It’s actually scandalous how little money is allocated to support them in staffing and replacing technology and in other aspects of administration. And the job that they do with the resources they have is really quite extraordinary. And just think about this last election now, the one that’s just completed: 124 million people voted. There were glitches, but there was no reports of widespread breakdown or voter complaints that they were unable to receive and cast their ballots. There were glitches, but overall it ran really well. And that’s a tribute to the professionalized election administration that we see in the United States.

(15:21) So let me ask you about that. I agree, it’s just remarkable. I just want you to say more about why the system was able to hold, because, as you say, the Trump administration has—not just this term, but for a very long time—been threatening and trying to infiltrate and take control of, or at least influence, local election officials, especially on the Republican side, to kind of break through these norms you’re talking about or this culture that you’re talking about. So can you talk more—is there more to say about what that culture is, where it comes from, and why it was able to resist these pressures from the top, so to speak?

Well, and I’m not sure I’m going to capture it fully, but I would just point to two things. One is—sort of embedded in the political culture is a belief that voters are entitled to participate in these elections—eligible voters are—and they should be able to receive their ballots in timely fashion, mark them, return them, and have them fairly counted. And if there are disputes about the election, there are processes under law like recounts and contests—ultimately the role of the courts, of course, they are significant—but that we have an electoral process and it merits respect and it’s a cornerstone of democratic life in the United States. So I think that’s a political cultural commitment that crosses parties. And again, I know that there are extremes that view every outcome as the only significant measure of whether the system worked, but I don’t think that’s generally the case.

Secondly, I think election officials around the country understood that, on a bipartisan basis, leaders—whether elected leaders or community leaders—had their backs, that they were going to be defended, they were going to be protected, they could go ahead doing their work and keeping an eye on those threats, to be sure, nonetheless proceeding [with] confidence that they could get their job done and they would not be interfered with.

And I’ll give one example that I thought was quite striking. The administration sent roughly—I think it was—a thousand DOJ monitors around the country, performing an observation role that it does perform, but it’s an observation role. It’s not an intervention role. And in Wyoming, in the primary, a DOJ observer wound up just going beyond the boundaries of the job and looking to interview voters and inspect machinery. And the governor of Wyoming—a very red state, a Republican governor—complained bitterly to DOJ that this observer or these observers were transgressing against state responsibility here—state lawful constitutional responsibility for these elections—that it was an improper federal government interference. And I think that really does tell you something about the political culture and the reasons why election officials had confidence that, however threatening the environment was, they could do their jobs.

(17:56) So the last thing I’ll say is it just seems to me against the baseline of expectations going back over a year—you and I wrote a piece in The Economist a year ago in which we worried about all of the things that Trump was clearly planning to do and trying to do and scheming to do and might do. And those fears and worries persisted in many corners throughout 2026. And against that background, and the larger background of the Trump administration so obviously, in so many contexts, defying law, defying norms—against that background, what happened on Tuesday seems to me to be just an extraordinary vindication of what you call the political culture, law, courts, and basically the law and norms around the democratic process. Is that too enthusiastic?

No, I don’t think in this context it’s too enthusiastic. I just would note this. If it had been a very close election, then we would have had some ugly conflicts. And then who knows what the executive would have done. If control of the House or the Senate had been at stake, then, you know, we might be having a different conversation.

I do think, by the way, not only did the margin help enormously to put all that to the side and to make that not likely to happen, but the prophecy through polling that the election would in fact swing to the Democrats, and decisively so, really created an environment in which I think the administration was going to be hard-pressed to make the case that it was preparing for the Democrats to achieve the election, because it was a widespread expectation that the Democrats would—and obviously many voters thought should—win the election. And I think that conditioned the environment in a way that made any election denialist propaganda on the part of the administration very difficult to pull off.

Yeah, I think that’s an important point, because obviously the size of the vote—you’re absolutely right—matters to what shenanigans they might have pulled after the elections. The question for me is why they weren’t more aggressive in doing the things they had threatened to do before the election. And who knows what combination of things it might have been. We discussed many of them, but you’re adding the fact that the polls were cutting so much in favor of the Democrats that that too may have dampened the enthusiasm to intervene.

Yeah, and I think it connects—I should mention, I think it connects—to the overall perception and the reality of the president’s political weakness. A president ranting and raving about how the election is going to be stolen from him or claiming on election night it was going to be stolen from him would be speaking to a very, very slim audience. He was weak.

There was already a lot of backlash against the self-interested topics of conversation that he chose to address in the final days of the election—conversation about how important it was that he removed algae from the Reflecting Pool, the ballroom, the renovations of Washington. And this perception—and I think it also, by the way, plays into the reason why corruption soared to the top of the polls—this perception of self-interestedness, I think, also sweeps in what voters have been hearing from him continuously since 2020, which is he was denied that election and Democrats always cheat. And by the time this election came around, I think they’d heard enough about that, and they thought of it as just another example of his thinking about things they didn’t buy, they didn’t think was most important, and that on his part was only about him.

Okay, Bob, thanks very much.

Thank you.

Judge Tanya S. Chutkan (D.D.C.) on Thursday granted Virginia and the District of Columbia’s motion for a temporary restraining order blocking construction of the president’s triumphal arch after the Interior Department issued a final decision approving the construction. (Opinion.) (NYT.)

Judge Jamal N. Whitehead (W.D. Wash.) on Thursday temporarily restrained the Justice Department from “demand[ing] that election officials” in Washington “set aside a registered voter’s ballot because the voter’s name appears on a federal list.” The judge’s order also provided that the department “may not threaten those officials with prosecution for counting votes as state law requires.” (Order.) (Politico.)

The D.C. Preservation League and two individual plaintiffs on Thursday moved for a temporary restraining order—or alternatively, a 14-day stay under 5 U.S.C. § 705—blocking the Department of the Interior from closing East Potomac Park. (Motion.)

President Trump on Thursday issued a proclamation designating the Oval Office, the Outer Oval Office, and the Cabinet Room as a national monument. (Proclamation.) (WSJ.) (AP.)

Harmeet Dhillon, the assistant attorney general for civil rights, on Thursday announced her resignation from the Justice Department. Dhillon stated that she resigned three weeks ago but honored White House Chief of Staff Susie Wiles’s request that she not announce her resignation until after the midterms. (NYT.) (WaPo.)

The Justice Department reportedly has issued grand jury subpoenas in a criminal investigation of the leak of the Supreme Court’s draft decision in Dobbs v. Jackson Women’s Health Organization. (NYT.)

Secretary of Defense Pete Hegseth reportedly has authorized the use of military trucks and Humvees to patrol Washington, D.C., and D.C. National Guard boats to patrol the Potomac and Anacostia Rivers. (AP.) (NYT.)

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

Mullin v. Friends of the Ruidosa Church: The government on October 21 asked the Supreme Court to issue a stay pending appeal of a district court preliminary injunction halting government construction of barriers along a portion of the U.S.-Mexico border. The government asked the Court to construe its application as a petition for a writ of certiorari and grant the petition. (Application.) The respondents filed their opposition on October 29, and the government filed its reply on October 30.

The Ninth Circuit on Tuesday denied a petition for full court rehearing en banc of the 11-judge en banc panel’s same-day order reinstating a stay of a district court’s temporary restraining order. The district court order had barred federal authorities from requesting that local election officials segregate ballots submitted by suspected noncitizens. (Order.) For background, see yesterday’s Roundup.

Chief Judge John J. McConnell, Jr. (D.R.I.) on Wednesday granted partial summary judgment to a coalition of states, ruling from the bench that the Justice Department cannot condition millions of dollars in federal public safety grants on states’ cooperation with federal immigration enforcement. (Docket.) (Reuters.)

Judge Leo T. Sorokin (D. Mass.) on Wednesday granted the Justice Department’s motion to dismiss with prejudice the indictment against a Harvard-affiliated scientist and J-1 visa holder accused of smuggling frog embryos into the United States. The government sought to drop the case after the court held that the defendant had offered sufficient evidence in her vindictive and selective prosecution claims to entitle her to discovery. (Order.) (AP.) (NBC.)

CNN, MS NOW, and Politico filed a motion on Wednesday in the U.S. District Court for the District of Columbia seeking a further preliminary injunction barring the White House from excluding their reporters from press-pool events on Air Force One and in the Oval Office. (Motion.) (Memorandum.) For background on an earlier preliminary injunction issued in the case by Judge Timothy J. Kelly (D.D.C.), see a previous Roundup.

Ranking member of the House Oversight Committee Rep. Robert Garcia (D-Calif.) on Tuesday issued a two-word statement after Democrats won a majority in the House: “Lawyer up.” Garcia has “vowed to take on the Trump Crime Family, corporate corruption, DHS and ICE abuses, and the cover-up of the Epstein files.” (Statement.)

Ranking member of the House Committee on Homeland Security Rep. Bennie G. Thompson (D-Miss.) demanded in a Wednesday letter to Homeland Security Secretary Markwayne Mullin that the department comply with all of the committee’s outstanding requests for information and provide written assurances that its records have not been and will not be destroyed. (Letter.)

Bob Bauer argued that, despite the Trump administration’s efforts to interfere in the midterm elections, Tuesday’s elections were free and fair due to the administration’s flawed legal strategy, a Supreme Court that was “unfriendly” to the government’s “election denialist program,” and a system of dedicated state and local election officials. (Executive Functions.)

Steve Vladeck argued that the midterm election results provoke three key questions about the Supreme Court, the answers to which have the potential to “shape its future.” (One First.)

Jonathan Nash argued that Congress should have standing to challenge the executive branch in court to vindicate its core functions to investigate and to push back against executive action that circumscribes Congress’s role in lawmaking. (Just Security.)

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

Mullin v. Friends of the Ruidosa Church: The government on October 21 asked the Supreme Court to issue a stay pending appeal of a district court preliminary injunction halting government construction of barriers along a portion of the U.S.-Mexico border. The government asked the Court to construe its application as a petition for a writ of certiorari and grant the petition. (Application.) The respondents filed their opposition on October 29, and the government filed its reply on October 30.

Around the country on election night, losing Republican candidates conceded. Donald Trump said he would respect his party’s massive midterm defeat. The vote count proceeded smoothly: administrative issues cropped up here and there, as they do in each election cycle, and election officials kept the public informed of the nature of each problem and the path to its resolution. The streets were quiet; the process was peaceful.

And all of this occurred against a background of Trump’s ceaseless attacks on the integrity of voting systems and an extraordinary assertion of presidential authority, by executive order and through litigation, to intervene in the conduct of elections. What accounts for the normalcy of this Election Day, and the mail and early voting that preceded it? In this piece, I point to a few key factors that contributed to a different outcome—a free and fair election conducted under law—than many had feared.

The Flawed Premises and Execution of the Trump Strategy

Trump had to navigate a major obstacle to his program of asserting presidential authority over the rules and conduct of election administration: the Constitution confers this power on the states—or on Congress, if it chooses to prescribe the rules for federal elections.

The administration’s lawyers tried first a direct challenge to the constitutional allocation, issuing executive orders that, among other measures, directed the Election Assistance Commission to change the rules governing eligibility to use the Federal Form for voter registration. This gambit failed in the courts, as did President Trump’s effort to position the United States Postal Service as the arbiter of mailable election material.

The administration came to lean aggressively on a strategy built around purported executive law enforcement functions. It focused its messaging and efforts on preventing the deluge of illegal noncitizen voting the president has alleged ever since his charge in 2016 that it accounted for Hillary Clinton’s nearly 3 million popular-vote plurality. On this theory, the Department of Justice sought to coerce the state of California to adopt the federal government’s administrative procedures for addressing voter eligibility. It also threatened election officials in that state and elsewhere with criminal prosecution if they did not submit to the executive branch’s directives. The courts—and, decisively, the Supreme Court—have rejected this path to the exercise of presidential power over the conduct of elections.

As of mid-October, by one count: “At least 34 federal district court decisions have either temporarily halted or permanently blocked efforts by the administration to interfere in elections, including 22 judges appointed by Democratic presidents and 12 judges appointed by Republican presidents (including 8 appointed by President Trump himself).”

It did not help the president or the department that, time and again, they made false claims in support of the president’s “election integrity” program. The president delivered a nationwide address to sound the alarm on a voting system he characterized as disgracefully unreliable and infected through and through with fraud. What he offered to make this case were recycled allegations that had been long ago discredited. The Department of Justice made similarly groundless claims about the numbers of noncitizens on the registration rolls in particular states. The collapse of these claims was spectacular: in Nevada, the administration alleged that there were thousands of noncitizens on the rolls, a number that, after state review, wound up being whittled down to zero. In an extraordinary move, the United States solicitor general’s application to the Supreme Court for emergency relief in the California case carefully declined to embrace DOJ’s factual assertions about the list of noncitizens in that state “believed” to be on the voter rolls. DOJ eventually had to concede that the list was marred by a “high” error rate.

One threat that loomed over the course of the cycle was the potential that Trump would resort to “emergency” authority—deploying ICE agents to polling locations, seizing ballots and machinery as the administration did in the investigation it instituted in 2025 into the 2020 presidential election in Fulton County, Georgia, or calling out the troops under the Insurrection Act. Historians or reporters with access in the future to papers and reliable witness accounts may one day be able to piece together why none of this happened.

One could speculate. Perhaps the experience with ICE sweeps, most notably in Minnesota, underscored public intolerance for the extent of the upheaval he would be responsible for. White Houses (via their political party) poll extensively: the data may have confirmed that the risks would exceed the rewards. Perhaps lawyers warned that he would, once again, fail in the courts and that there was little gain to go with the risk.

As I discuss more below, it also appears that, outside hard-core election denialist circles, there was political resistance within his own party, especially at the state and local levels, to how far he might go in imposing his will on the electoral process.

The Supreme Court

The Department of Justice’s failed suit against the state of California was a last-ditch maneuver blending the messaging and policy priorities of prime importance to this presidency: fraud in the elections, the specter of massive noncitizen voting, and extraordinary claims of executive power. The Supreme Court swiftly sent the government packing, denying within the day the emergency relief the administration sought. It did so without inviting briefing by other parties and with no noted dissents. It was a major blow to the administration on the eve of the vote.

Overall, the Court’s record in addressing the president’s election denialist program was not what its most ardent critics most feared—a Court that, as Ken Burns suggested on Election Day in the New York Times, was “compromised,” by which he apparently meant an institution in league with Trump, the far right, or both. On election administration issues, a Court majority was manifestly unfriendly to the president’s election interference program. The Court blocked the president’s unprecedented attempt to have the United States Postal Service deny the use of the mails for official election materials and to construe federal law to prevent states from adopting the “postmark” rules for the timely receipt of a mail ballot. It also stopped the state of Missouri from disregarding its own state Supreme Court and using an unlawful redistricting map to knock off one more Democratic House incumbent. And in the California noncitizen voting case, the Court delivered as clear a rejection as possible of what was, in the closing days of the election, a signature nationwide administration effort to intervene in and disrupt state electoral processes. When the Court did clear the way for the administration to share with states the federal SAVE database for use in screening voter rolls for noncitizens, election law expert Rick Hasen, among others, noted that “both the majority and dissent agree that this case is likely to have limited impact on the midterms….”

The Court’s sharpest critics will cite in response the Court’s decisions on gerrymandering, the Voting Rights Act, and campaign finance. This is where oversimplification in the critique of the Court takes hold. As I have written before, outside the field of election administration, a conservative Court majority is undoubtedly committed to a jurisprudence that provokes fierce progressive objections. This jurisprudence has been in active development for years, well before Trump came on the scene. Justice Kagan can certainly conclude that this approach is mistaken, exhibiting “a kind of lack of the appropriate concern or understanding of the consequences of their decisions.” But the Court’s record on election administration in this cycle does not support the claim that it was prepared to do “everything in its power to save Trump in the midterms.”

As of Election Day, the Trump lawyers would have had every reason to doubt that, if the voters turned against their boss, the Court would somehow save him—just as it declined in 2020 to come to his rescue.

The “System”

The United States conducts its elections in over 10,000 individual voting jurisdictions around the country. Election officials are committed to this highly decentralized system under state and local control, and voters by and large trust it. The voting controversies stoked by Trump in recent years have certainly exacted a toll on the level of public confidence, with a notable decrease in trust in mail voting. Democrats and Republicans have also long disagreed over whether the dominant concern in election administration policy should be voter fraud or voter access. But the running of elections has remained predominantly a state and local affair. In my travels around the country in the last two election cycles, meeting with community leaders and election officials, I have found little support among Republicans for a large role for the federal government.

At this state and local level, election officials from both parties resent the aspersions Trump has cast on the process—on the integrity of their work. They did not respond well to the public distrust he has baselessly and recklessly encouraged, or to DOJ’s threats to prosecute them for declining to follow federal government dictates at variance with state laws.

In preparing for and conducting the election, these officials, in red and blue states, have done the work they normally do. November 3, 2026, was an extraordinary political event, and this was possible because, for the approximately 124 million voters who cast their ballots, this election ran like any other.

Printable version

272KB ∙ PDF file

Download

Download

Judge Tanya S. Chutkan (D.D.C.) on Monday issued a preliminary injunction and stay of the Department of Justice and Department of Homeland Security’s “Voter Data Transmission Policy,” whereby the federal government has urged local election officials to investigate or set aside votes by people whom DHS suspects are noncitizens based on a national database it has compiled of voter registration information. Judge Chutkan held that plaintiff nonprofit organizations were likely to succeed on their claims that the government’s policy violates the Privacy Act and is not authorized by any statute. (Opinion.) (Democracy Docket.)

Two labor unions and two political-interest groups petitioned the Ninth Circuit on Tuesday for full court en banc review of the limited en banc court’s reinstatement of a three-judge panel stay that allowed federal authorities to request that local election officials “sequester” ballots submitted by voters whom DHS believes are noncitizens. (Petition.)

Lawyers for the Justice Department argued in a Tuesday hearing that executive privilege shields communications related to President Trump’s decision to close the Kennedy Center for two years for renovations. Lawyers for Rep. Joyce Beatty (D-Ohio) have sought discovery of communications between Kennedy Center staff and President Trump, who is chairman of the center, as part of the lawmaker’s lawsuit challenging the center’s closing. (NYT.) (Motion to Compel.) (Docket.)

The Justice Department has reportedly sent letters to approximately 20 Democrats telling them that they are targets of an investigation or asking them to preserve records related to the recruitment in the Alaska Senate race of a candidate with the same name as the incumbent. (WaPo.) (NYT.) For background on the controversy, see a prior Roundup.

Andrew C. McCarthy argued that although the statute of limitations has run on the criminal offense for which the Justice Department has attempted to charge former FBI director James Comey, the statute of limitations is a defense to prosecution—not a bar to indictment. (National Review.)

Eric S. Fish argues in a forthcoming article that expedited removals are inconsistent with the Appointments Clause. (SSRN.) Christopher Walker reviewed the article and argued that expedited removals are an example of “bureaucracy beyond judicial review.” (Jotwell.)

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

Mullin v. Friends of the Ruidosa Church: The government on October 21 asked the Supreme Court to issue a stay pending appeal of a district court preliminary injunction halting government construction of barriers along a portion of the U.S.-Mexico border. The government asked the Court to construe its application as a petition for a writ of certiorari and grant the petition. (Application.) The respondents filed their opposition on October 29, and the government filed its reply on October 30.

The Supreme Court on Monday denied the Justice Department’s application for an injunction pending appeal in United States v. California, the ballot-segregation case. The Court’s one-sentence, unsigned order came down within hours of the filing. No dissents were noted. (Docket.) For background, see yesterday’s Roundup.

Judge James E. Boasberg (D.D.C.) on Monday temporarily restrained the Justice Department and the Department of Homeland Security from demanding that California election officials segregate ballots, or otherwise deviate from state election procedures, based on voters’ inclusion on the government’s suspected-noncitizen lists at issue in United States v. California. Judge Boasberg held that the demands likely violate the Elections Clause, and found that “the lists are flawed.” (Opinion.) In a separate case the same day, Judge Boasberg denied for lack of standing the Democratic Senatorial Campaign Committee’s motion to enjoin DOJ and DHS from making such demands of election officials nationwide. (Opinion.)

Magistrate Judge Zia M. Faruqui (D.D.C.) on Monday dismissed for lack of probable cause the criminal complaint against Nikki Floris and Bradley Benavides, the former FBI officials charged with lying to Congress about the bureau’s investigations of Hunter Biden. Judge Faruqui stated from the bench that “[w]hat has transpired here cannot be described as anything other than weaponization.” (Docket.) (NYT.) For background, see a previous Roundup.

Judge Mustafa T. Kasubhai (D. Or.) on Monday granted a motion to enforce his preliminary injunction limiting warrantless immigration arrests in Oregon, and ordered the government to produce all arrest records and body-camera footage for arrests since Sept. 1. Judge Kasubhai found that ICE officers repeatedly recorded warrantless arrests as warrant-based and that the sole officer to testify “lied in an official record,” and concluded that the presumption of regularity no longer holds for ICE and DHS. (Opinion.)

Judge April M. Perry (N.D. Ill.) on Monday ordered U.S. Attorney Andrew Boutros and three assistant U.S. attorneys to testify under oath on Nov. 16 about whether prosecutors made “willful false statements” to the court in the “Broadview Six” case, the dismissed prosecution of six protesters at an ICE facility. Judge Perry cited a lawsuit filed Monday by the FBI’s former Chicago chief alleging that Boutros met with Attorney General Todd Blanche and FBI Director Kash Patel about the case, which would directly contradict a prosecutor’s assurances that no one outside the office weighed in on charging decisions. (Order.) (Sun-Times.)

Judge Stephanie A. Gallagher (D. Md.) on Monday denied the government’s motion to dismiss former NIAID Director Jeanne Marrazzo’s challenge to her September 2025 firing. Following the Comey and Comans decisions, Judge Gallagher held that a removal made under Article II, rather than “for such cause as will promote the efficiency of the service,” cannot be channelled through the Civil Service Reform Act. (Opinion.)

Judge Myong J. Joun (D. Mass.) on Monday dismissed without prejudice the Justice Department’s suit to compel Harvard to produce applicant-level admissions data for the government’s Title VI review. Judge Joun held that the government had not shown that it satisfied the regulatory prerequisites to judicial enforcement. (Opinion.)

Three watchdog groups on Monday sued the Department of Defense under the Federal Advisory Committee Act over a war-planning panel created by Secretary of Defense Pete Hegseth and co-directed by Elon Musk, Palmer Luckey, and Newt Gingrich. The complaint alleges that the panel has met behind closed doors without a charter and draws 19 of its 21 members from the private sector. (Complaint.)

The Justice Department on Monday announced charges against 63 people in 20 federal districts for voting or registering to vote as noncitizens, including four it described as illegal aliens. Attorney General Todd Blanche called the announcement “the largest surge of voter-fraud arrests since President Trump returned to office,” and the department said that it has charged 195 noncitizens in the past nine weeks. (Press Release.)

David Manners-Weber argued that Trump v. United States cabined Congress’s oversight authority, and predicted that a Democratic Congress might try to work around the decision by investigating under its impeachment power or its Article V power to propose constitutional amendments. (Lawfare.)

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

Mullin v. Friends of the Ruidosa Church: The government on October 21 asked the Supreme Court to issue a stay pending appeal of a district court preliminary injunction halting government construction of barriers along a portion of the U.S.-Mexico border. The government asked the Court to construe its application as a petition for a writ of certiorari and grant the petition. (Application.) The respondents filed their opposition on October 29, and the government filed its reply on October 30.

A unanimous Ninth Circuit panel on Friday denied the Department of Homeland Security’s motion for a stay pending appeal of a preliminary injunction barring the department’s “Unlawful Voter Initiative” election-related field operations in nine states through Election Day. The panel held that the government had not shown it would be irreparably harmed by the injunction, noting it had waited until weeks before the election to begin its enforcement “Surge.” (Order.) The Ninth Circuit also denied rehearing en banc over the dissent of seven judges. (En Banc Order.)

A divided Ninth Circuit panel on Friday denied the Justice Department’s emergency motion for an injunction pending appeal that would have required California to segregate the mail-in ballots of roughly 20,000 people whom the government has identified as “likely noncitizens.” The per curiam majority held that the government had not clearly shown that the federal ban on voting by noncitizens preempts California’s procedures for challenging ballots. Judge Patrick J. Bumatay dissented. (Order.) For background, see a previous Roundup.

Judge James E. Boasberg (D.D.C.) on Friday ordered the government to disclose to plaintiffs’ attorneys, under strict confidentiality, its list of roughly 20,000 alleged noncitizen California voters. The plaintiffs’ experts then reported that over 40% of the names were “not anywhere to be found on the current California voter file.” (Supplemental Memo.) On Sunday, the government moved to strike the filing as a violation of the court’s confidentiality order. (Docket.)

Judge Sharon L. Gleason (D. Alaska) on Sunday dismissed without leave to amend the Justice Department’s suit seeking to block certification of Alaska’s Senate election if incumbent Senator Dan Sullivan loses and the votes cast for a second candidate, Daniel J. Sullivan, would have changed the outcome. Judge Gleason held that the United States failed to establish redressability; segregating ballots so that law enforcement could investigate the voters who cast them “is not a remedy that this Court can or should order” given the right of Alaskans to a secret ballot. (Order.) (NYT.) The department appealed. (Notice of Appeal.) For background on the suit, see a previous Roundup.

Judge Trina L. Thompson (N.D. Cal.) on Friday temporarily restrained the Justice Department and the Department of Homeland Security from threatening election officials with criminal prosecution for processing the ballots of voters whom the government alleges are ineligible, and from demanding that officials remove such voters from the rolls or segregate their ballots. (Order.) The government appealed and moved to stay the order; Judge Thompson scheduled a hearing on the stay motion for Monday afternoon. (Notice of Appeal.) (Motion to Stay.) (Docket.)

Judge Jennifer L. Rochon (S.D.N.Y.) on Friday expanded her temporary restraining order against the Trump administration’s taxpayer-funded advertising campaign to enjoin the dissemination of three of the challenged advertisements, including via third parties such as MAGA Inc. Judge Rochon concluded that the plaintiffs had demonstrated a clear and substantial likelihood of success on their ultra vires claim. (Order.) (WaPo.)

Judge Brendan A. Hurson (D. Md.) on Friday granted a temporary restraining order and APA stay requiring U.S. Citizenship and Immigration Services to resume giving unaccompanied children at least 21 days’ written notice of their asylum interviews—rather than as little as a day—and to restore its prior rescheduling policy. Judge Hurson wrote that it is “difficult to maintain that the public has an interest in the perpetuation of a chaotic system that may result in vulnerable children being wrongfully removed to places where they may suffer abuse, or even death.” (Order.) (NYT.)

Virginia and the District of Columbia on Saturday sued the National Park Service to block construction of President Trump’s planned 250-foot arch, which the government has said could begin as soon as Nov. 5. The complaint alleges that the arch lacks the congressional authorization required by the Commemorative Works Act and would nearly double the District’s 130-foot height limit. (Complaint.) Judge Tanya S. Chutkan (D.D.C.) consolidated the case with Lemmon v. Trump, the Vietnam War veterans’ pending challenge to the arch, and on Sunday set briefing on the plaintiffs’ motion for a temporary restraining order. (Order.) (Minute Order.) (NYT.) For background on the veterans’ case, see a previous Roundup.

Andrew C. McCarthy characterized the perjury case against Cassidy Hutchinson as an unserious and “hopeless attempt” that demonstrates the total dearth of senior administration officials able to dissuade the president from “forcing actions that are both imbecilic and against his political interests.” (National Review.) For background on the perjury case, see a previous Roundup.

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

Mullin v. Friends of the Ruidosa Church: The government on October 21 asked the Supreme Court to issue a stay pending appeal of a district court preliminary injunction halting government construction of barriers along a portion of the U.S.-Mexico border. The government asked the Court to construe its application as a petition for a writ of certiorari and grant the petition. (Application.) The respondents filed their opposition on October 29, and the government filed its reply on October 30.

A panel of the U.S. Court of Appeals for the Ninth Circuit on Thursday heard oral argument on the Department of Homeland Security’s request for a stay of a district court order enjoining the department and its agents and officers from conducting certain “elections-related field operations and field interviews in California, Connecticut, Georgia, Missouri, Nevada, New York, Pennsylvania, Washington, and Wisconsin.” (Oral Argument.) (Stay Motion.) (Order Granting Prelim. Inj.) Politico reported that the panel appeared “unlikely” to allow the department to resume the enjoined operations. (Politico.) For background, see a previous Roundup.

Judge James E. Boasberg (D.D.C.) on Thursday issued a minute order directing the Trump administration to answer by noon on Friday an interrogatory from the Democratic Senatorial Campaign Committee, which asks the administration to “[i]dentify all States where Defendants have sent state or local election official communications demanding or requesting that they (i) remove specific registered voters from their statewide voter registration lists; (ii) refuse to issue ballots to specific registered voters; or (iii) segregate, or otherwise not count and tabulate, any ballots returned by specific registered voters for the upcoming November 3, 2026 General Election.” (Minute Order.) (Interrogatories.) (NYT.) (Politico.) For background, see a previous Roundup.

Judge Leonard T. Strand (N.D. Iowa) on Monday ordered the government to release Ernesto Rodriguez Martinez from immigration detention after an immigration judge failed to provide Rodriguez Martinez adequate process at the bond hearing Judge Strand previously had ordered. “The IJ’s so-called ‘hearings’ were a flagrant deprivation of Rodriguez Martinez’s due process rights,” Judge Strand wrote, “and have caused me to lose trust that any administrative, post-deprivation process will meaningfully safeguard his liberty interest.” (Order.)

The Justice Department on Thursday filed a motion with the U.S. Court of Appeals for the Ninth Circuit for an injunction pending appeal that would require California “(1) to segregate vote-by-mail ballots from persons identified by the Federal Government likely to be noncitizens and (2) to independently—or in collaboration with the Federal Government—verify their citizenship status before tabulating their vote-by-mail ballot.” (Motion.) The Justice Department also reportedly has issued grand jury subpoenas to local election officials as part of its criminal investigation into the alleged presence of noncitizens on California’s voter rolls. (NYT.)

The department also reportedly has issued grand jury subpoenas in its investigation of efforts in Alaska to recruit a U.S. Senate candidate with the same name as the state’s incumbent Senator Dan Sullivan to challenge him and confuse voters. (WSJ.) (AP.) The department filed an amended complaint on Thursday in its lawsuit to “protect the integrity of the 2026 Senate election in Alaska.” (Amended Complaint.)

Washington Secretary of State Steve Hobbs on Wednesday rebuffed the Justice Department’s request not to count ballots from a list of persons, compiled by the department, who allegedly “are or were noncitizens” and “who are registered to vote.” Hobbs wrote that “[w]ithout individualized proof of ineligibility, it would be both irresponsible and illegal for election officials to decline to process a registered voter’s ballot.” (Letter.)

Payvand Ahdout argues that when “courts decline to hear interbranch cases on justiciability grounds, those determinations are not neutral. Instead, they have upstream consequences for the way powers are exercised between the branches.” (SSRN.)

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

Mullin v. Friends of the Ruidosa Church: The government on October 21 asked the Supreme Court to issue a stay pending appeal of a district court preliminary injunction halting government construction of barriers along a portion of the U.S.-Mexico border. The government asked the Court to construe its application as a petition for a writ of certiorari and grant the petition. (Application.) The respondents filed their opposition on October 29.

Judge David O. Carter (C.D. Cal.) on Wednesday denied the Justice Department’s application for a temporary restraining order in its lawsuit to compel California to set aside ballots cast by individuals on its list of “likely noncitizens.” Judge Carter found the government was unlikely to succeed on the merits of its Supremacy Clause claim and emphasized that the government’s delay, the unreliability of the list, the risk of disenfranchisement, and the Purcell principle all weighed against relief. (Order.) (Reuters.) The Department of Justice will appeal to the Ninth Circuit, which denied the government emergency relief just three days ago. (Notice of Appeal.) (X.)

Judge Ana C. Reyes (D.D.C.) on Wednesday scheduled a new hearing to address whether President Trump ordered federal agencies to close East Potomac Park for golf course renovations on Nov. 15. (Minute Order.) President Trump announced the closure on Truth Social, stating “[t]he judge has absolutely no right to hold up this very important and beautiful Project.” (Truth Social.) The government notified the court of the impending closure on Wednesday—as required by the court’s Monday injunction—after the court took judicial notice of the post. (Notice.) (Minute Order.) See previous Roundup for background.

Judge Loren L. AliKhan (D.D.C.) on Wednesday granted a temporary restraining order against the Trump administration’s use of $20 million in DHS funds to air campaign-style advertisements, finding the DNC likely to prevail on its claim that DHS and the Office of Management and Budget (OMB) violated the APA by spending the funds in contravention of the Consolidated Appropriations Act, the Purpose Statute, and the Anti-Deficiency Act. (Op. & Order.)

Judge Julia E. Kobick (D. Mass.) on Wednesday entered a ten-day administrative stay of the Department of Homeland Security’s (DHS) recent interim final rule cutting the time that refugees have to respond to status terminations from thirty days to ten. (Order.) (Reuters.)

CNN, MS Now, and Politico on Wednesday filed an amended complaint in the District of the District of Columbia alleging that despite the court’s Oct. 13 preliminary injunction restoring their hard passes, the White House continues to exclude them from press-pool roles, including aboard Air Force One, and has signaled it will keep them out of the Oval Office. (Amended Complaint.) (CNBC.)

Civil rights organizations on Wednesday filed a complaint in the Northern District of California seeking an injunction against USCIS and DHS’s “Unlawful Voter Initiative,” which includes the assembly of “likely noncitizen” voter lists, arguing it violates the Civil Rights Act, the Privacy Act, and the APA. (Complaint.)

Nick Bednar argued that the recent district court ruling reinstating AUSA Maurene Comey correctly interprets the scope of the attorney general’s statutory removal authority, but the “constitutional question remains live,” pointing to upcoming oral argument at the Federal Circuit in Jackler v. Department of Justice. (Lawfare.)

Rick Hasen argued that the New York Times’ recent reporting that Democrat Mary Peltola’s campaign recruited third-party candidate Dan Sullivan to divert votes from her Republican opponent of the same name does not have “any bearing at all” on the Justice Department’s suit to delay certification of the Alaska Senate election. (Election Law Blog.)

Steve Vladeck wrote that despite the “collusion” concerns raised by the Supreme Court’s decision not to stay the recent consent judgment obtained by the Department of Justice and Texas, the “justices may have held their fire,” perhaps waiting for a better vehicle. (One First.)

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

Mullin v. Friends of the Ruidosa Church: The government on October 21 asked the Supreme Court to issue a stay pending appeal of a district court preliminary injunction halting government construction of barriers along a portion of the U.S.-Mexico border. The government asked the Court to construe its application as a petition for a writ of certiorari and grant the petition. (Application.) Justice Alito requested a response to the application by 4 p.m. on October 29.

The Supreme Court on Tuesday denied an application to stay a consent judgment in which the Justice Department joined Texas to vacate a 2024 rule that let immigration judges set removal cases aside through administrative closure. The cities of Baltimore, New Haven, and Columbus, which sought to defend the rule, described the judgment as “egregious collusion.” (Docket.) (NYT.) (WaPo.)

Judge Ana C. Reyes (D.D.C.) on Monday preliminarily enjoined the Interior Department from felling any more trees at East Potomac Park, and from closing its golf course without sufficient notice. Judge Reyes held that the department likely violated the National Environmental Policy Act by reviewing the tree removal as a stand-alone project rather than as part of the full redesign. (Opinion.) (WSJ.) The government appealed on Tuesday. (Notice.) For background, see a previous Roundup.

Magistrate Judge Zia M. Faruqui (D.D.C.) on Tuesday struck an unsigned superseding criminal complaint against Nikki Floris and Bradley Benavides, the former FBI officials charged last week with lying to Congress about the bureau’s Hunter Biden investigations. Judge Faruqui noted that prosecutors had filed new charges without any judge finding probable cause, asking: “Why today on this one case have you changed the entire history of how you charge cases?” (Complaint.) (Motion to Strike.) (AP.) (CBS.)

Magistrate Judge Maureen P. Kelly (W.D. Pa.) on Monday held Attorney General Todd Blanche and Homeland Security Secretary Markwayne Mullin in civil contempt in their official capacities for violating court orders, after ICE agents rearrested a man in June despite a writ of habeas corpus ordering his release. (Order.)

Judge J. Michael Seabright (D. Haw.), sitting by designation in the Central District of California, on Tuesday disqualified First Assistant U.S. Attorney Bill Essayli from supervising two prosecutions, holding that Essayli has been serving unlawfully since his interim appointment lapsed in 2025. (Order.) (Docket.)

Alaska’s election officials on Monday moved to dismiss with prejudice the Justice Department’s suit to block certification of the state’s Senate election if incumbent Senator Dan Sullivan loses, arguing that “the United States lacks authority to intervene in state elections at all, much less in support of a favored candidate.” (Motion.) For background, see a previous Roundup.

A federal grand jury in Washington on Tuesday refused to issue the indictment the Justice Department sought against Cassidy Hutchinson, the former White House aide whose testimony to the House Jan. 6 committee implicated President Trump. (NYT.)

Acting U.S. Attorney Neil Floyd (W.D. Wash.) on Monday asked Washington Secretary of State Steve Hobbs to sequester the ballots of over 400 registered voters whom the Justice Department asserts may be noncitizens. Hobbs responded that the request, and its timing, are “no doubt intended to cast unfounded suspicion on the results.” (Statement.) (Press Release.) (WaPo.)

A split Ninth Circuit on Monday dismissed the Justice Department’s appeal seeking an injunction to set aside 20,000 California mail ballots for lack of jurisdiction. The majority wrote that the government failed to allow adequate time to exhaust remedies at the lower court level, while Judge Patrick Bumatay in the dissent argued that the federal government would likely end up prevailing on the merits regardless. (Order.) (The Hill.) (Politico.)

Judge Jesse M. Furman (S.D.N.Y.) ruled on Monday that the Justice Department unlawfully fired Maurene Comey. He reasoned that her removal was not statutorily authorized, and the government’s argument that Article II bars Congress from regulating the removal of AUSAs is unpersuasive given contrary Supreme Court precedent on the Appointments Clause. (Opinion.) (WaPo.)

The Justice Department charged former FBI Director James Comey a third time, by a sealed criminal information that was unsealed Monday by Judge Trevor N. McFadden (D.D.C.). The information accuses Comey of unlawfully disclosing national defense information in October 2016 and of conspiring to leak it to a reporter. (Information.) (NYT). Jack Goldsmith called the case “so obviously a sham” and argued, as Comey does in a motion to dismiss, that it should be dismissed because the ten year-limitations period for the offense can be satisfied only by a grand jury indictment, which the department never obtained. (Motion to Dismiss.) (Executive Functions.)

Six readers of White House news coverage, including Lawfare editor-in-chief Benjamin Wittes, sued President Trump, Susie Wiles, and Steven Cheung on Monday over the White House press-access policy. The plaintiffs argued the Administration’s actions interfere with Americans’ First Amendment right to receive accurate reporting on the presidency. (Complaint.) (Politico.) (The Hill.)

Refugee groups and refugees on Monday filed a class action in the District of Massachusetts against several DHS and USCIS policies that they argue keep refugees from obtaining lawful permanent residency and place them at risk of having their refugee status terminated without a meaningful opportunity to be heard. (Complaint.) (The Hill.)

The Peltola campaign and the Democratic Senatorial Campaign Committee on Sunday moved to intervene in and dismiss the Alaska election case, arguing that the “case never should have been filed.” (Motion to Dismiss.) (NBC.) For more information, see yesterday’s Roundup. Justin Levitt argued that the Justice Department’s Alaska and California suits fail for lack of any cause of action. (Election Law Blog.)

Bob Bauer highlighted data showing a surge in public disapproval of perceived presidential corruption and argued that public alarm over Trump’s self-enrichment “materialized primarily as a critical response to governance failure.” (Executive Functions.)

Elena Chachko, Kathleen Claussen, and David Zaring argued that the legality and impact of executive orders depend on whether and how agencies implement them, and that perfect implementation of these directives is far from assumed. They also analyzed what it would take for executive orders to translate presidential priorities into durable change. (SSRN.)

The “criminal information” the Department of Justice filed on Oct. 5 against former FBI Director James Comey is legally flawed. The problem is not just that two sets of prosecutors in the Trump 1.0 Justice Department investigated this matter and declined to bring charges. The more immediate problem is that the Trump 2.0 Justice Department waited too long to bring the case.

The information accuses Comey of violating 18 U.S.C. § 793 related to an alleged leak on Oct. 5, 2016. Section 19 of the Internal Security Act of 1950 provides that “[a]n indictment for any violation of” 18 U.S.C. § 793 “may be found at any time within ten years next after such violation shall have been committed.” To satisfy this statute of limitations, DOJ needed to bring an indictment for a violation of Section 793 within ten years of the alleged crime.

For whatever reason—lack of evidence, incompetence, some combination—DOJ did not secure an indictment from a grand jury within the ten-year period. Instead, it filed a criminal information, a document unreviewed by a grand jury or a judge. That does not meet Section 19’s plain-text requirement of an indictment to satisfy the statute of limitations for alleged violations of Section 793.

There is a big difference between an indictment and an information. The Fifth Amendment says: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury[.]” A criminal information is a unilateral prosecutorial charging document that can only be used to support conviction for felony defendants who “waive[] prosecution by indictment.” Comey did not waive.

DOJ released this statement:

The Department filed a waiverless criminal information to toll the statute of limitations as it relates to allegations concerning former FBI Director Comey. Filing a criminal information to toll the statute of limitations is a widely recognized practice in federal court and has been approved by multiple Circuit Courts of Appeals.

The “widely recognized practice” approved by many circuit courts has no connection to this case. The government is referring to the filing of an information under the default 5-year statute of limitations for federal crimes in 18 U.S.C. § 3282. That statute provides: “[e]xcept as otherwise expressly provided by law, no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found or the information is instituted within five years next after such offense shall have been committed.”

Several courts of appeals have read this language to mean that the filing of an information within 5 years of the crime satisfies the statute of limitations under 3282. But Section 3282 cannot help the government. Its 5-year period ran in 2021 and in any event does not apply if another statute “otherwise expressly provide[s].” Section 19 otherwise expressly provides. It establishes a 10-year statute of limitations for Section 793 crimes, but only if DOJ brings an indictment, which it did not do.

The government is trying to leverage the language of the now-expired 5-year statute of limitations, which could have been satisfied by the filing of a criminal information, to meet the requirements of a 10-year statute of limitations that can only be satisfied by the filing of an indictment that it did not secure.

As Section 3282 (and other statutes) shows, Congress understands indictments and informations to be the different things that they are when it writes statutes of limitations. It often says that both can satisfy a criminal statute of limitations. But Congress in Section 19 decided that only an “indictment” could satisfy the statute of limitations relevant to the charges against Comey. The government did not secure an indictment within the ten-year period, and the case should be dismissed.

The government’s arguments against this straightforward reading of Section 19 are convoluted. The main one is this: “Section 19 sets the limitations period for the underlying Espionage offenses at ten years; and under 18 U.S.C. § 3282(a), that statute-of-limitations period is satisfied whether ‘the indictment is found or the information is instituted.’”

But Section 3282(a) does not say this and cannot be split up in this way. That section provides a 5-year statute of limitations for the bulk of federal crimes and specifies what events trigger it: indictment or information. It further says that these rules apply “except as otherwise expressly provided by law[.]” And as noted above, the law does expressly otherwise provide: Section 793 offenses have their own express statute of limitations (10 years) and their own express trigger (an indictment), which the government did not satisfy.

This reading applies Section 3282 in full and reads the exception by its terms. The government, by contrast, is trying to lift the trigger from the 5-year limitation in Section 3282 (indictment or information) and splice it onto the 10-year limitation in Section 19 while ignoring Section 19’s specified, bespoke trigger—indictment alone.

The government also makes historical and purposivist arguments that Comey’s lawyers have successful responses to. But the meaning of the relevant statutes is so clear that I do not think these secondary arguments should matter.

I feel a bit silly making technical legal points when this matter—filed not by the U.S. Attorney or the National Security Division of the Justice Department, but rather by Attorney General Blanche’s cronies—is so obviously a sham. It’s hard to fathom what the Attorney General tells himself as he grossly abuses the power of the Department of Justice at the behest of his Article II master.

Printable version

601KB ∙ PDF file

Download

Download

A divided Ninth Circuit on Friday ruled 2-1 that in the wake of Trump v. Illinois, the Trump administration’s National Guard deployment to Los Angeles in 2025 was unlawful. In particular, the court held that the order exceeded the President’s statutory authority “and encroached on Congress’s calling forth power, in violation of the constitutional separation of powers.” (Opinion.) (The Hill.)

A divided en banc Fifth Circuit on Friday ruled that noncitizens residing unlawfully in the country have no constitutional entitlement to bond hearings. The court held that the due process requirement of the Fifth Amendment did not entitle the petitioners to proceedings beyond what Congress provided in 8 U.S.C. § 1225(b)(2)(A). (Opinion.)

The Justice Department on Thursday sued the State of Alaska and its election officials to block the certification of the Senate results if Senator Dan Sullivan loses and the votes cast for a second candidate, Daniel J. Sullivan, would have changed the outcome. The complaint alleges that Daniel J. Sullivan ran “with the intention of misleading supporters of Senator Sullivan into voting for him.” (Complaint.) (NYT.) (The Hill.)

Anna Bower, Eric Columbus, and Molly Roberts analyzed former FBI Director James Comey’s four pending motions in the “86, 47” prosecution, concluding that the prosecution’s case appears to be “utterly lacking in merit,” while conceding that the case may still go to trial regardless. (Lawfare I.) (Lawfare II.)

Rick Hasen wrote that the major questions doctrine on its own should doom Justice Department lawsuits in Alaska and California, because of the fundamental premise in the doctrine that Congress would not hide broad executive branch authority over elections in statutes without being clear about its intentions. (Election Law Blog.)

Rodger Citron argued that Chief Justice Roberts’ long game is to expand executive power, and analyzes how recent Supreme Court cases such as Trump v. Slaughter and Humphrey’s Executor v. United States fit into this paradigm. (SCOTUSblog.)

Numerous polls indicate a sharp and surging public disapproval of Donald Trump’s business activities and self-enrichment in office. In a Fox News poll published Oct. 14, government corruption has moved ahead of inflation and the cost of living as voters’ primary concern. There is evidence that this concern is focused on Trump’s acquisition of vast wealth in this second term and is found among Republicans as well as Democrats and independents. An Oct. 18 Washington Post poll finds that “nearly 2 in 3 Americans say President Donald Trump is using the presidency to enrich himself,” and that “most of the increase over the past year has come from people who lean Republican.” Yet another poll earlier this year found that two in three independents have concluded that Trump’s business interests influence his decisions as president.

This raises the question of how Trump, who has boasted about his money-making capabilities, came to alienate so wide a swath of voters who might once have been impressed. One possible explanation is that, nearly two years into this administration, he just went too far. As Trump’s money-making has passed into the billions of dollars, a public willing to admire it or look the other way has come to be acutely alarmed. Particular stories may have broken through, such as the news that a Russian oligarch close to Vladimir Putin paid substantial sums to underwrite the celebrations for Donald Trump Jr.’s recent wedding.

It is just as probable that corruption has soared as a concern in proportion to mounting public disaffection with Trump’s governance. Voters might have accepted Trump’s aggressive pursuit of vast wealth in return for his construction of “the greatest economy in the history of the world” for their benefit. He would be making money for himself, yes, but also for them. The skills he displayed in his pursuit of self-enrichment would yield benefits for the public at large. There is substantial evidence in the polls for this connection—alarm over corruption triggered by unhappiness with job performance.

The good news is that the public does care about corruption. The bad news is that the widespread rejection of flagrant self-enrichment we see today materialized primarily as a critical response to governance failure.

Political science literature has consistently shown that the public generally believes that politicians are corrupt, “in it for themselves,” and that it neither expects much from nor trusts much in reforms passed by those same politicians, purportedly to address the problem. Reformers will often reply that the public registers strong disapproval of corruption—of the role of money in politics, for example—and, in the abstract, they will express support for reforms to limit political spending or expand transparency requirements. Yet voters don’t expect much to come of any specific measures that are taken. And voters also seem to be, as in the Trump case, somewhat “transactional”—they’ll put up with a certain amount of corruption as long as the government delivers.

What does this “on-off” cycle mean for corruption as a public policy issue and the prospects for future reform? Of course, a congressional majority could pursue the reform project regardless of whether voters will have much faith in the outcome. The public will not oppose reform. They may support it in principle. They just do not take it all that seriously.

But it would certainly help if reform could be organized around strong, publicly accessible arguments that it will make a difference to voters on the issues they care about. An example I have written about recently is the deep public suspicion of tech companies and their explosive development of the AI industry, and the wide support for an end to the construction of data centers. I suggested that there is a path to reform through the strengthening of an already existing but loophole-ridden limitation on political spending by federal contractors—which the large tech companies are. Elon Musk’s SpaceX alone has over $25 billion in contracts, while Musk, busily mining one of the loopholes, has spent so far over $400 million on federal campaigns this election cycle. Billions are involved in the relationship between the government and the tech industry: the billions in money the government doles out to the companies, and the hundreds of millions in spending by these companies and their executives to protect and expand this relationship.

Structural reform within that context may bring home to voters—more than any “too much money in politics” line of argument—why it is that our laws should constrain this category of political spending. For voters to care about a reform program, and for politicians to respond to those concerns, a case needs to be made for the relationship of reform to concrete governance issues voters care about.

Printable version

222KB ∙ PDF file

Download

Download

Magistrate Judge Enjoliqué A. Lett (S.D. Fla.) on Thursday ordered President Trump to sit for a deposition by Dec. 11 in his defamation lawsuit against the British Broadcasting Corporation. The president’s lawyers wrote in a Wednesday filingthat “matters of national importance” required the president to cancel his deposition scheduled for Oct. 16. (Docket.) (NYT.) (Politico.) For background on the case, see a previous Roundup.

Magistrate Judge Cyrus Y. Chung (D. Colo.) on Monday ordered a Uganda national released from Immigration and Customs Enforcement detention, stating that the government had “no concrete plan to remove him” and that his period of detention following a final order of removal exceeded the “presumptively reasonable” six-month limit. (Order.) The Washington Post reported that he experienced untreated pneumonia during the course of his 13-month detention, losing more than 30 pounds and the strength to walk. (WaPo.)

The Justice Department has reportedly opened a criminal investigation into whether Corey Lewandowski unlawfully profited from his position as a top adviser in the Department of Homeland Security. (NYT.) (WaPo.)

The Justice Department filed a notice on Wednesday with the U.S. District Court for the District of Columbia stating that construction of President Trump’s 250-foot triumphal arch could start as early as Nov. 5, when the National Capital Planning Commission is scheduled to vote on the proposal. (Notice.) (WaPo.)

Jack Goldsmith and Caleb Nelson discussed Trump v. Slaughter and the rise of the unitary executive theory. (Executive Functions.)

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

Mullin v. Friends of the Ruidosa Church: The government on October 21 asked the Supreme Court to issue a stay pending appeal of a district court preliminary injunction halting government construction of barriers along a portion of the U.S.-Mexico border. The government asked the Court to construe its application as a petition for a writ of certiorari and grant the petition. (Application.) Justice Alito requested a response to the application by 4 p.m. on October 29.

Mentioned:

• Caleb Nelson, “Against the Dictatorial Presidency” (Working paper, October 16, 2026)

• Trump v. Slaughter, 146 S. Ct. 2283 (2026)

• Daniel Webster, Speech on the Appointing and Removing Power, U.S. Senate, February 16, 1835

• Jed Shugerman and Gary Lawson, “Presidential Removal as Article I, Not Article II,” 121 Northwestern University Law Review (forthcoming)

• Jane Manners and Lev Menand, “The Three Permissions: Presidential Removal and the Statutory Limits of Agency Independence,” 121 Columbia Law Review 1 (2021)

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: I’m Jack Goldsmith. Today I’m going to be discussing modern unitary executive theory, what the theory means, its origins, its application in the already famous Trump v. Slaughter case, and its implications. And I’m thrilled to discuss these issues with Caleb Nelson, the Emerson Spies Distinguished Professor of Law at the University of Virginia. Caleb is one of the leading public law scholars in the country and also a prominent originalist, and he’s written an important article about Slaughter called “Against the Dictatorial Presidency.” Caleb, welcome.

Caleb Nelson: Thanks, Jack. I’m delighted to be here.

So your article, as I read it, is a bit of a takedown of the Slaughter decision. But before we get to that, I want to set the stage. You kind of give the intellectual origins of modern unitary executive theory, going back through decades of conservative legal thought. Can you talk about those origins?

Sure. Others have done that more thoroughly than I, but I do gesture at that. I think the idea that Article II of the Constitution entitles the president to fire executive officers at will, and that Congress can’t restrict that authority by statute, has been around for a long time. But I think until sometime in the 1970s or so, a lot of conservatives resisted that idea. I think dating back to the New Deal and FDR, they didn’t like aggressive claims of presidential power. That had changed by the start of the Reagan administration.

The party line among Reagan Republicans from the 1980s on was that Article II did indeed give the president unilateral removal authority, and Article II did indeed entitle the president to control all executive power—the unitary executive theory. I’m sure we’ll talk about the legal arguments for that idea, and maybe the idea was more about law than about politics. But I think it is worth noting that Reagan Republicans did have political incentives to like the idea.

The basic idea of the theory is that all principal executive officers, and maybe inferior executive officers too, serve at the pleasure of the president, and Congress can’t restrict his authority to fire them for any reason or for no reason at all. In the 1980s, Republicans thought that they would pretty often have the presidency, but that they wouldn’t be in control of Congress for a long time. And under those circumstances, I think a legal theory that allocated more power to the presidency and less to Congress was politically congenial.

I think at the same time, the theory also would have appealed to Reagan Republicans and other administrations with anti-regulatory commitments, because it suggested a mechanism for the president to curb or control regulatory activities by administrative agencies, including even agencies that Congress had tried to make independent of presidential removal authority. Anyway, the idea that Article II entitles the president to remove executive officers at will, and also broader visions of unitary executive theory, those I think have become the party line in Republican legal circles and have been the party line since at least the early 1980s. And they also found their way to the Supreme Court.

One thing about the Supreme Court is that when vacancies arise, the president nominates people to fill them. As unitary executive theory became more prominent in Republican legal circles, it also became important in Supreme Court nominations. I don’t think it’s an accident that both of George W. Bush’s Supreme Court appointees, Chief Justice Roberts and Justice Alito, had worked as lawyers in the executive branch and were strong believers in the unitary executive theory. And I don’t think it hurt Justice Kavanaugh’s chances that he, as a judge on the D.C. Circuit, had been a strong proponent of unitary executive theory. I think President Trump would have liked that.

So I think it has kind of filtered from Reagan era Republican circles to the modern Supreme Court, perhaps for political reasons as well as for legal reasons.

Okay, so political as well as legal reasons, it became an article of belief. I mean, it may have had these political origins, but my sense is that the conservatives who are believers in the unitary executive have a kind of theological commitment to it almost. So this theory, through some of the mechanisms you mentioned, Caleb, makes its way into Supreme Court jurisprudence, but it culminates in the Slaughter case where the Court held last summer that the president had the power under Article II to remove two Democratic commissioners of the FTC without regard to their statutory for-cause removal protections. And you’re very critical of the decision. You have a long and complicated argument, but if you could just hit the high points and tell us what the main arguments were about why this was perhaps a poor interpretation of Article II.

(4:38) Sure. So my criticism is partly about timing. Even if you think there’s a stronger case for unitary executive theory than I do, this is an extraordinarily dangerous time, I think, for the Supreme Court to upend precedent and to move in that direction.

And my criticism is also about history. Chief Justice Roberts keeps repeating claims about the First Congress that I’m pretty sure aren’t true and that scholars have, I think, debunked. But let’s just focus on the text of the Constitution for now.

There are two sentences in Article II of the Constitution that could be read to support Chief Justice Roberts’s position. The first is just the opening sentence of Article II, the Vesting Clause, which says, quote, “the executive power shall be vested in a president of the United States.” And the second sentence that I’ve mentioned is the Take Care Clause, which says the president, quote, “shall take care that the laws be faithfully executed.”

Those are pretty general sentences. I’m not sure that they should be understood to provide as many details about personnel practices as advocates of unitary executive theory suggest. In fact, Article II really doesn’t say much about the structure of the executive branch.

That’s at least partly because Article I of the Constitution explicitly gives Congress the power to make all laws that are necessary and proper for carrying into execution not only Congress’s own powers, but also, quote, “all other powers vested by the Constitution in the government of the United States or in any department or officer thereof,” including the executive power. In part because of that clause, there’s widespread agreement that the Constitution doesn’t authorize the president to create offices, even for people who would help him execute the laws. That’s up to Congress.

Congress can decide whether to create particular offices and how to organize those offices into broader agencies or departments and what powers and duties to give the people who hold those offices. If and when Congress does create offices, the Appointments Clause addresses how people are appointed to fill them. And the Commission Clause adds that the president, quote, “shall commission all the officers of the United States.”

So when somebody has been appointed to an office pursuant to the Appointments Clause, the president has a duty to issue a commission. I think it’s pretty clear that when Congress has created an office by statute and when somebody has been properly appointed to that office pursuant to the Appointments Clause and has received his commission from the president as required by the Commission Clause, the officer can exercise the powers that the law validly assigns to the office. And that’s true even if those powers are executive for constitutional purposes.

What about removal? Nothing in the Constitution specifies that once an officer has been appointed to an executive office pursuant to the Appointments Clause and once the president has issued the commission that the Commission Clause requires, the president can always terminate the appointment and can always revoke the commission. Aside from its provisions about impeachment and conviction, the Constitution doesn’t say anything about removal at all.

I would conclude that just like the Necessary and Proper Clause lets Congress specify other details about the structure of the executive branch and the characteristics of the offices that Congress creates by statute, so too Congress gets to regulate the tenure of those offices as it deems necessary and proper for carrying the executive power into execution. Rather than getting into the weeds of the ambiguities that I see in the Vesting Clause and why I don’t think it has to be understood in the way that unitary executive theorists suggest, let me highlight just a couple of big picture points that I think are suggestive. The first point is about administrative agencies.

Everybody agrees that Congress can try to promote good decision making in agencies by regulating administrative procedures and establishing rules of evidence and requiring the agencies to make the decisions that they make on the basis of certain statutory criteria and not other criteria. To promote proper application of the statutory criteria and hence to promote faithful execution of the law, Congress might sensibly think that the decision makers who are applying those statutory criteria should be subject to removal only for some causes, like failure to faithfully execute the law, and not others, like failure to protect the president’s friends or to punish the president’s enemies.

In my view, just like Article I allows Congress to try to create the conditions for good agency decision making by having statutory criteria that agencies are supposed to apply, so too I think the Necessary and Proper Clause allows Congress to try to create the conditions under which agency decision makers can actually apply those criteria instead of having just to do what the president tells them to do. That’s the first point, just a practical point.

If Congress can provide statutory criteria for administrative decision making, maybe it should be able to create the structures under which those criteria matter. The second point is about the enormous variety of tasks that count as exercises of executive power for constitutional purposes, at least as modern unitary executive theorists understand the concept of executive power. It includes all kinds of different authorities granted by statute, the authority to grant licenses of the sort that the law requires to operate a civilian nuclear reactor, or the authority to prosecute criminal defendants on behalf of the United States, or the authority to make procurement decisions, or to enter into contracts on behalf of the United States, or the authority to adjudicate disputes about social security benefits, or the authority to promulgate regulations establishing safety standards for motor vehicles, or the authority to manage federal buildings and other federal property, or the authority to dispatch security details to protect particular federal officials or former officials, or innumerable other things. From the standpoint of system design, there’s no reason to think that the decision-making structure should be the same for all of those various tasks.

For instance, one probably would want adjudicators to have more decisional independence than, say, treaty negotiators, but unitary executive theory reads the Constitution to put a single person in charge of all executive branch decision-making, no matter what that decision-making is about. To whatever extent the law confers discretion, unitary executive theory says that the president has to be in charge of that discretion, and unitary executive theory also suggests that within the executive branch, at least, the president gets the last word about whether the law confers discretion. That’s the structure that you might choose if you wanted to maximize the president’s personal authority, but I don’t think you would take that one-size-fits-all approach if you wanted the government to reach the best decisions, or even just to execute the law according to the instructions that the law itself supplies.

One feature of the Necessary and Proper Clause is that it allows Congress to establish different decision-making structures for different kinds of decisions. Given the complexity of modern government, that seems like a good design feature, one that I wouldn’t lightly read the general language of the Vesting Clause to discard.

(11:54) I have a whole bunch of questions to follow up on. Let me begin with the Necessary and Proper Clause. I’ve never really understood where one is supposed to draw the line between Congress’s necessary and proper power, which, as you say, has always been understood to allow Congress to create and structure executive offices, but doesn’t extend to removal authority. But I take it that, on the theory you just articulated, one could argue—or could one?—that Congress could, for example, make every department, including, say, the Justice Department, the Defense Department, have for-cause removal protections. Does that follow from what you said?

Yeah, let me give a two-pronged answer to that. The first relates to the 20th century settlement that I think was pretty stable when you and I were both in law school. The Supreme Court seemed to have settled on the idea that the president does get to fire the heads of executive departments at will, and maybe even some inferior officers like the postmaster in Myers, but the president isn’t entitled to the same unfettered removal authority with respect to administrative agencies like the Federal Trade Commission.

As modified by Chief Justice Rehnquist’s opinion for the Court in Morrison against Olson, that line depended on functional considerations. But I think the 20th century consensus would have been that Congress has power to establish for-cause removal restrictions for agencies whose tasks would benefit from them, but not for the attorney general or the secretary of defense. The president needs to be able to remove those people at will, and Congress can’t restrict that.

As a matter of first principles, I’m not actually sure that’s right. Chief Justice Taft’s opinion for the Supreme Court in Myers, I think, suffers from a lot of the same flaws as Chief Justice Roberts’s opinion in Slaughter. And while Humphrey’s Executor disapproved a lot of what Taft had said in Myers, I probably would personally be inclined to disapprove more.

Take the attorney general, for instance, the head of the Justice Department. Obviously, Congress hasn’t tried to insulate the attorney general from removal without cause, but that was proposed in the wake of Watergate. And I think we are again seeing why it maybe isn’t so great for the president just to be able to demand that the Department of Justice be run according to his dictates, so that criminal investigations and prosecutions might be used to harass the president’s opponents and to shield the president’s allies.

In his dissent in Morrison against Olson, which has become canonical in conservative legal circles, Justice Scalia spoke about criminal prosecutions as being just at the core of executive power, the executive power that the Constitution allegedly entitles the president to control. But historians have questioned that claim. And while Justice Scalia suggested as a practical matter that we don’t need to worry that his version of unitary executive theory would let the president demand prosecutions of his opponents because the administration would just pay too big a political cost for that sort of bad faith behavior, current events suggest that maybe Justice Scalia was overconfident about the fact that unitary executive theory wouldn’t lead to those problems. I personally probably come down where Daniel Webster did in the 1830s.

Here’s what he said in the Senate in 1835. Quote, “If Congress were to declare by law that the attorney general or the secretary of state should hold his office during good behavior, I am not aware of any ground on which such a law could be held unconstitutional. A provision of that kind might be unwise in regard to such officers, but I do not perceive that it would transcend the power of Congress.”

Maybe that position goes too far. Professors Gary Lawson and Jed Shugerman have a forthcoming article about the scope of the Necessary and Proper Clause as it relates to removal, and they suggest that giving the attorney general life tenure is not a necessary and proper means of carrying the executive power into execution, but I don’t know what they would say about lesser forms of removal protections like the for-cause idea that you mentioned, or giving the attorney general a four-year term with the possibility of removal only for some causes and not others, that sort of thing. So I guess the two-pronged answer is if Chief Justice Roberts hadn’t started to unsettle the 20th century consensus generated by Myers and Humphrey’s Executor in that case law, then attorney general and the secretary of defense and the secretary of state probably would be held to be removable at will.

As a matter of first principles, if we’re going back to how the Constitution ought to be understood, I’m not actually sure that’s right. The Necessary and Proper Clause maybe does give Congress the ability to make some judgment calls about whether the attorney general should be more insulated than the attorney general currently is.

So you’re right about the Watergate proposal, but it was rejected even in the 70s on basically Article II grounds.

It was, yeah. Griffin Bell wrote an opinion to that effect.

Bell wrote an opinion, and lots of progressive scholars who didn’t like what Nixon did came and testified and said, not a good idea. Maybe they were wrong about that, but also not allowed by Article II.

That’s right. And that certainly was contrary to the 20th century consensus that they were operating under at that time.

So what you call this mid-century settlement, that seemed to me to reflect all sorts of compromises having to do with the New Deal state and a bunch of other things. Just to be clear about this, it seems to me that that view of the Necessary and Proper Clause commits the opposite sin, kind of allowing Congress to really make the presidency—just shrink it down to nothing. If they can have a for-cause provision for the senior departments, let’s just say DOD and DOJ, and if they could impose, I don’t see any reason why under the theory they couldn’t impose an even higher for-cause standard. It seems to me it would be very hard for the president, at least in many contexts, to run the government. Is that an unfair way of looking at it?

The question maybe is what one thinks the executive power is and how much kind of independent policymaking authority one thinks that phrase conveys. I don’t really think it conveys independent policymaking authority. I think the executive power is at most the power to execute the laws, to carry out the instructions that the laws supply, using the means that the laws authorize.

It’s not like executive power, even as used in Article II, is sort of a defined quantity, a certain set of things that the president can do. The power to execute the laws depends on what the laws are, and I think Congress does have primacy with respect to what the laws are. So maybe I’m less troubled than you at the thought that the president might not have freewheeling authority to remove executive officers, even kind of cabinet level officers of the sort who have long been thought to be removable at will.

But I don’t want to insist on that point. That is, by 20th century historical standards, an extreme position that I think, as you say, goes to maybe the same lengths in the opposite direction that the unitary executive theory does in support of presidential power. I think the unitary executive theory is an extreme position in the other direction.

So if the Court had not started unsettling the 20th century settlement, I don’t think I would be writing about how we got to overrule the 20th century settlement and let Congress do whatever it wants to do. I do think that the Necessary and Proper Clause is an important source of authority for Congress that unitary executive theorists tend to overlook or minimize.

I agree with that completely. I’m just wondering if that purist argument goes too far. And let me just ask you how that view of the Necessary and Proper Clause squares with the take care duty, which is also invoked to support the unitary executive. I think the basic idea being it’s the president’s duty to take care to faithfully execute the law, and therefore he has to be able to control at least the removal, at least the principal officers who enforce the law, if not all the way down. On this view, does the Take Care Clause square with the Necessary and Proper Clause?

Again, the Take Care Clause, the duty to take care that the laws be faithfully executed, I think does depend on what the laws are. If the laws were to confer discretion on a certain administrative agency, I don’t think that the Take Care Clause naturally suggests, well, the president has to be able to control the agency’s exercise of discretion. I think the president could take care that that law be faithfully executed by just trying to ensure that nobody interferes with the discretion that the agency has by virtue of its statutory authority.

So I don’t know that the Take Care Clause necessarily tells us what the structure of decision-making in matters that count as exercises of executive power has to be. I think that the duty to take care that the laws be faithfully executed depends on what the laws are. With respect to removal, Jane Manners and Lev Menand have pointed out that even aggressive readings of the Take Care Clause don’t suggest that the president has to be able to remove executive officers without cause.

And for that purpose, I think cause could be defined pretty narrowly. So the cause that has to be available for removal would just involve failure to execute the law faithfully. That’s different from an officer’s failure to follow the president’s orders.

If the law gives discretion to the officer, I don’t think the president automatically gets to exercise that discretion himself by virtue of Article II or the Take Care Clause, or gets to direct how the officer has to exercise the discretion. And if Congress reasonably decides that the president should be able to remove certain officers only for certain causes and through certain processes, I think the president could comply with his duties under the Take Care Clause just by going through those processes when warranted. So I don’t think that the Take Care Clause provides a strong independent argument for unitary executive theory.

To me, the stronger argument for unitary executive theory relies on the Vesting Clause rather than the Take Care Clause. But I’m not persuaded by the Vesting Clause arguments either.

(22:45) Okay, let’s go back to Slaughter. It’s technically, I suppose, limited to the case before it. And the chief justice sort of said this at the end. He said it doesn’t extend to questions about officers not involved in the case. And the case was about commissioners of a multi-member, formerly independent agency. But the opinion was written in what I would say are sweeping maximalist unitary executive terms. Basically, the president has all of the executive power and has to be able to remove those who exercise the executive power. It’s a little more subtle than that, but not much more so. So I’m just wondering what you make of that, and how broadly—just as a matter of interpreting the opinion—do you, for example, think that it will extend to inferior officers, all inferior officers, some inferior officers that the president can remove? Is the civil service in jeopardy? And then we’ll get to other issues after that.

Yeah, so just to start, I agree with you. I think that Slaughter is written in a sweeping maximalist way. The tenor of the opinion and the logic of the opinion is very broad.

It is true that Chief Justice Roberts did include some lines like the one you mentioned. He said, “because the FTC’s activities fall well within the heartland of executive power, we have no occasion today to define the bounds of what such power entails.” Of course, that’s drawing a line between executive power and other things, not between, say, inferior officers and principal officers.

And his main examples of entities that he wasn’t addressing, at least in that section of the opinion, were federally chartered corporations like the Boy Scouts of America or Georgetown University that probably don’t exercise governmental power at all. If the edge cases that he has in mind that he’s not weighing in on are whether the Constitution entitles the president to fire Georgetown professors, then I don’t think he sees all that many edge cases. He did say that the Court was reserving judgment about, quote, “the permissibility of tenure protections for the judges of ‘non-Article III courts,’ such as the Tax Court and the Court of Federal Claims.”

The phrase non-Article III courts, that’s not clear language, but he certainly didn’t seem to mean that administrative agencies like the FTC that conduct adjudications are non-Article III courts for this purpose. And if I’m reading the tea leaves of the shadow docket and some denials of cert correctly, a majority of the Supreme Court seems to think that Article II also entitles the president to fire, say, the members of the Merit Systems Protection Board without regard to the statutory restrictions on that removal authority. I’d like to talk about the MSPB in a little bit.

You mentioned civil service, and I think the MSPB is crucial to enforcing civil service laws. With respect to civil service laws, I don’t know exactly what to predict about how far the Supreme Court will take these ideas. I think Chief Justice Roberts himself might be inclined to extend his opinion to all inferior executive officers, not just principal executive officers like FTC commissioners, but all inferior executive officers as well.

That would include some people who are covered by civil service laws. The civil service laws currently protect some people who are inferior officers and some people who are just mere employees. Maybe Chief Justice Roberts would allow those who are mere employees to remain protected by civil service laws, but maybe he’ll say that inferior officers have to be removable at will by the president if they exercise power that he considers executive for constitutional purposes.

For people like Chief Justice Roberts, who take a strong view of unitary executive theory, it’s also worth noting that the difference between at-will removal and removal for cause might not be all that meaningful. Even if Chief Justice Roberts allows Congress to protect certain government employees against removal without cause, he might think that the causes that justify removal have to include failure to do what the president tells them to do. And if you think the Constitution entitles the president to direct the activities of everybody who wields executive power, then failure to follow the president’s directions would provide cause for removal, and that starts to look a lot like removal at will.

So I think Slaughter is going to go pretty far. I read Chief Justice Roberts’s opinion to be quite sweeping, and it certainly goes farther than I would want it to go.

Okay. So you mentioned the Merit Systems Protection Board, and this gets us into some of the dangers of the unitary executive embraced by Slaughter. And the MSPB is one example, and I think it’s a great example because it’s an agency that a lot of people haven’t heard of, and yet if its members are fireable by the president and the president can effectively control it, it empowers the president in important ways. Just walk through that as a danger to connect that up to the civil service, if you like.

Sure. So the MSPB is a primarily adjudicative agency. In the words of a regulation that was promulgated in the 1990s and is still on the books, it, quote, “operates like a court.”

Federal employees who are protected by the civil service laws can ask the board to review personnel actions that they think are illegal, like if they’ve been fired without adequate cause or in retaliation for being a whistleblower, that sort of thing. The MSPB is also involved if an agency wants to fire one of its administrative law judges, an adjudicator within the agency. By statute, an agency can do that, quote, “only for good cause established and determined by the Merit Systems Protection Board on the record after opportunity for hearing before the board.”

Those are important adjudicative functions the MSPB performs. By statute, Congress has set up the MSPB to have three members, no more than two of whom can belong to the same political party, and they serve staggered and non-renewable seven-year terms. I assume the terms are non-renewable in another effort to try to protect the independence of the MSPB’s members.

The Civil Service Reform Act, the statute explicitly provides that members of the MSPB, quote, “may be removed by the president only for inefficiency, neglect of duty, or malfeasance in office.” So a pretty strong for-cause removal restriction. At the start of President Trump’s term, the MSPB had two Democratic members and one Republican member, but just two weeks in, President Trump fired one of the Democratic members, Cathy Harris, without identifying any cause.

She sued because that violates the statute, and a federal district court granted summary judgment in her favor. But even before Slaughter, the Supreme Court stayed the relief that the district court had ordered, so Harris was out while appeals proceeded. In the meantime, the other Democratic member’s term had expired, and he had left the board, so the MSPB was down to just one member out of three, and it lacked a quorum.

But in October 2025, President Trump appointed another Republican member, so the board now has two Republicans and no Democrats. Ultimately, a panel of the D.C. Circuit ruled in favor of the Trump administration in its appeal from the district court’s judgment in favor of Cathy Harris. Harris sought certiorari, and the Supreme Court held onto the cert petition pending its disposition of Slaughter.

But once the Supreme Court decided Slaughter, it just denied Harris’s petition, suggesting that the Court either isn’t willing or at least isn’t eager to distinguish the MSPB from the FTC, and consistent with that understanding, the current leadership of the MSPB is no longer describing the MSPB as an independent agency. For anybody who doesn’t like the spoils system or who supports civil service laws, that strikes me as a bad outcome. The MSPB adjudicates complaints by executive branch employees who say that they’ve been fired in violation of civil service laws. They’ve been the victim of prohibited personnel practices, which include failure to follow merit systems, retaliation against whistleblowers, and so forth—other things that political appointees might want to do.

As a policy matter, I think it is close to obvious that the president and his inner circle shouldn’t be able to threaten MSPB members that they’ll lose their jobs if they find that the president’s political appointees have violated civil service laws, even if the Court ends up holding that the civil service laws themselves don’t violate Article II, because it’s okay for Congress to provide employment protections, at least for mere employees as opposed to inferior executive officers.

The MSPB is less likely to apply the civil service laws faithfully, I think, if the president can just direct its decisions or can fire MSPB members who rule against the president’s wishes. If I were trying to identify a list of agencies that really, really, really should be insulated from at-will removal, the MSPB would be pretty high up on my list, so I think it’s quite disturbing that the Supreme Court seems to think that Article II entitles the president to remove members of the MSPB at will, which—I think the Court hasn’t explicitly held that, but those are the suggestions that I get from its shadow docket action and its subsequent denial of certiorari.

The danger, as you put it, is especially poignant or obvious now, because at the same time that the president is going to increasingly, I think, exercise control over the MSPB, he’s firing civil servants and pushing civil servants out and rearranging civil servants in a way that raises a whole host of legal questions that the courts have been saying have to go through the MSPB, which is now under the control, effectively, of the president. So it’s really those two things together, it seems to me, that highlight the danger here.

I agree with all that, but even apart from the MSPB, we are also seeing similar threats to the decisional independence of other agency adjudicators. Immigration judges, for instance, are a prominent example. Those are employed within the Justice Department in a sub-agency called the Executive Office for Immigration Review, EOIR.

And when President Trump started his second term, there were about 725 of them. In the first year alone, he fired more than 100. I think it’s now up to about 130.

And news reports suggest that the administration has selected immigration judges for firing based on their rates of granting asylum applications. Those applications are supposed to be determined on the basis of the evidence, and there’s regulatory guarantees of independence, although the statutes don’t provide as much decisional independence to immigration judges as some people might want. But I think it is pretty troubling, again, that the unitary executive theory seems to allow the president, as a matter of constitutional power, to remove agency adjudicators based on their decisions of particular cases and to threaten them with being fired if they don’t follow the party line in denying relief, even if they think that the applicable statutory standards require relief or support relief. That seems like a bad arrangement for agency adjudication to me.

Okay. So I urge the reader to read the last section of your article where you really go through a whole host of other executive branch entities, inspectors general, whistleblowers, other agencies, non-Article III courts, and talk about the potential implications of Slaughter for basically bad governance because of executive control that might be untoward, let’s just say. But I want to close by asking you something you said at the beginning and something you talked about in the paper, which is you said something to the effect of whatever you think of unitary executive theory in the abstract or normal times, this is an especially dangerous time for the Court to be embracing it, especially in the robust terms it’s embracing it. And so my question is, why? It’s a couple of questions. One, my sense is that the Court, as I suggested at the beginning, they really believe in the principle. And one might have thought that they would adjust it or narrow it or constrain it in the light of what Trump is doing. I can’t believe that many members of the Court love all of the things Trump is doing. I think it’s probably evidence of commitment to principle despite consequences. So just a couple of questions. One, I mean, how do you think about the legal principle versus adjusting the principle for consequence? And two, what is your explanation, if you have one, for why the Court has basically been indifferent to consequences, or seemingly so, except, of course, with this giant unexplained ad hoc exception for the Federal Reserve, where they were clearly focused on consequences, why have they been indifferent to them in other contexts? Do you have a view on that?

(34:31) Well, I was going to mention the Federal Reserve in response to your question, because it is, I think, an unprincipled exception to their unitary executive theory. They certainly don’t provide a good account, a satisfying account of why the Federal Reserve is different. To me, that suggests that consequences matter to them when they are sufficiently concerned about the consequences that they care about.

And I wish they cared about some other consequences, too. On the broader question of commitment to principle versus adjusting for consequences, I guess if you thought that the Constitution is just clear on this topic—there’s no ambiguity, and of course the president gets to remove all executive officers at will, and Congress can’t do anything about it—then I think you’d be more likely to adhere to that principle, almost regardless of consequences.

That’s not my understanding of the Constitution. To the extent that the justices have persuaded themselves that it’s the unambiguous meaning of the Constitution, I think they’re wrong. And to the extent that the Constitution is more indeterminate on this question, as I think it is, and as I think debates heading back to the time of the First Congress suggest people at the time of the founding thought there wasn’t a clear answer to this question, the more indeterminate you think it is, the more you might think, well, let’s think about whether the structure of government should look this way or the other way, right? Let’s think about consequences as we resolve the indeterminacy in the Constitution.

As a practical matter, unitary executive theory prevents Congress from using its authority under the Necessary and Proper Clause, which is an explicit provision in the Constitution, to create the conditions that it deems most conducive to the faithful execution of the law. Basically, Congress and all the rest of us are effectively told we have to trust the president to act in good faith, subject to the possibility that courts will occasionally reverse what he does if he gets things wrong in a way that the courts can correct. Maybe that wouldn’t be a disaster if the president and his inner circle were honestly trying to follow the law, but I think it’s very dangerous at a time when the president sees the law as a tool for getting what he wants, for other reasons, or as a cudgel that he can use against his opponents, rather than as a real constraint on his own behavior.

And sadly, I think those are the times that we are in. I do not think that President Trump cares much about law, except as a device for inflicting pain on others. And I think the others whom he wants to inflict pain on include critics of his administration and people whose activities would traditionally have been thought to deserve some protection.

And I do think we are heading into dangerous times, and I am not optimistic about how things will turn out, but I hope I’m wrong.

I hope you’re wrong too, and thanks so much, Caleb. It’s a great article.

Thank you, Jack. I appreciate the opportunity to be with you.

The Supreme Court on Wednesday denied the government’s request for a stay of a district court order prohibiting the Bureau of Prisons from implementing its new policy ending hormone therapy, “sex-trait-modification surgery,” and social accommodations for inmates with gender dysphoria. (Order.) (SCOTUSblog.) (NYT.) For background on the case, see a previous Roundup.

The government on Wednesday asked the Supreme Court to issue a stay pending appeal of a district court preliminary injunction halting government construction of barriers along a portion of the U.S.-Mexico border. The government asked the Court to construe its application as a petition for a writ of certiorari and grant the petition. (Application.) (SCOTUSblog.) (WaPo.)

A divided panel of the Tenth Circuit on Wednesday held in part that the six-month period of “presumptively reasonable detention” of a noncitizen following a final order of removal established under Zadvydas v. Davis is not “resettable,” rejecting the government’s argument that the time limit restarts if a detainee is released and then detained again. (Opinion.)

Judge Denise Cote (S.D.N.Y.) on Tuesday granted summary judgment to current and former federal employees on their claims that the Office of Personnel Management violated the Privacy Act and the Administrative Procedure Act by granting the Department of Government Efficiency access to federal employees’ personally identifiable information. Judge Cote stated that the court would later rule on whether permanent injunctive relief is warranted. (Opinion and Order.)

Judge Araceli Martínez-Olguín (N.D. Cal.) on Wednesday issued a preliminary injunction blocking the Department of Homeland Security from implementing its “Surge Initiative Guidance,” which directs agents to “prioritize field investigations questioning people about their voter eligibility” in nine states. Judge Martínez-Olguín held that the program likely constituted voter intimidation in violation of Section 11(b) of the Voting Rights Act. (Order.) (NYT.)

The Justice Department on Tuesday filed motions to disqualify Judge Patrick Schiltz (D. Minn.) and Judge John R. Tunheim (D. Minn.) in immigration cases pending before them due to concerns about “whether they can be impartial in these cases” following interviews they gave The New York Times in which they criticized the Trump administration’s immigration enforcement surge in Minnesota. (Motion to Disqualify.) (X.) (CBS.) The department previously lodged misconduct complaints against the judges with the Judicial Council of the Eighth Circuit. For background on the case, see a previous Roundup.

A coalition of Democrats filed a lawsuit on Tuesday in the U.S. District Court for the District of Columbia against executive branch agencies and officials seeking to prevent defendants from interfering in ballot counting and “continuing to threaten state and local election officials.” (Complaint.) (NYT.)

President Trump on Tuesday announced a new $25 million program to incentivize the public to come forward with reports of suspected fraud. The president told reporters that he would personally administer the program, stating, “I will be the arbitrator of all of these decisions.” (NYT.)

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

Mullin v. Friends of the Ruidosa Church: The government on October 21 asked the Supreme Court to issue a stay pending appeal of a district court preliminary injunction halting government construction of barriers along a portion of the U.S.-Mexico border. The government asked the Court to construe its application as a petition for a writ of certiorari and grant the petition. (Application.)