Please click here to opt in to receive the Executive Functions Roundup via email and to subscribe to Executive Functions.
The Supreme Court on Monday denied a petition for a writ of certiorari filed by three men accused of orchestrating the 9/11 attacks to consider allowing their plea deals to go forward. The Defense Department had agreed in 2024 to not seek the death penalty in exchange for them relinquishing their right to appeal but reneged on the deal following public backlash. (Order List.) (NYT.)
A divided panel of the D.C. Circuit on Tuesday reversed a district court decision holding that 27 religious organizations likely lacked standing to challenge a Department of Homeland Security policy allowing immigration enforcement operations at houses of worship. (Opinion.)
Judge Debra M. Brown (N.D. Miss.) on Monday granted the Justice Department’s motion to intervene in—but denied its motion to dismiss—a citizen suit brought by the National Association for the Advancement of Colored People against Elon Musk’s artificial intelligence company under the Clean Air Act. (Opinion and Order.) For background on the government’s argument, see a prior Roundup.
Judge Sarah M. Davenport (D.N.M.) on Friday ordered the government to “show cause why sanctions, contempt proceedings, or other appropriate actions should not be considered” after Immigration and Customs Enforcement removed a detained individual to Honduras despite a court order barring his removal during the pendency of his habeas lawsuit. (Order.)
Judge Ramón E. Reyes, Jr. (E.D.N.Y.) on Thursday dismissed for failure to state a claim the Justice Department’s lawsuit challenging New York City’s policies limiting cooperation with federal immigration enforcement on grounds of the Supremacy Clause. (Memorandum & Order.)
The government has begun disclosing records related to a criminal investigation launched by the Justice Department in 2008 examining the CIA’s destruction of evidence of its torture program in the wake of 9/11. The New York Times obtained an initial batch of FBI interview records pursuant to a Freedom of Information Act request. (NYT.)
Jack Goldsmith and Bob Bauer discussed recent viral remarks by Sen. Elissa Slotkin (D-MI) and the weaponization of government. (Executive Functions.)
Brian O’Neill argued that it is uncertain whether the United States’ election-security apparatus is adequately prepared to respond to growing foreign threats to U.S. elections. (Just Security.)
Joel Michaels argued in a forthcoming article that “the case of Bowsher v. Synar—which prevents Congress from empowering Article I officials to help implement appropriations laws—interlocks with technical aspects of the federal budget process to produce a structural dilemma. In order to effectively enact certain forms of spending, lawmakers must sacrifice their ability to use that spending to check the executive.” (SSRN.)
Elena Chachko, Kathleen Claussen, and David T. Zaring argued in a forthcoming article that the “success of executive orders depends less on formal presidential authority than on sustained White House engagement, institutional design, and bureaucratic incentives over time.” (SSRN.)
Pending Interim Order Applications Involving the U.S. Government in the Supreme Court
Trump v. Kingdom: The government filed an application to the Supreme Court on September 28 seeking a stay of the district court’s August 26 order barring enforcement of the Bureau of Prisons’ 2026 policy ending hormone therapy, “sex-trait-modification surgery,” and social accommodations for inmates with gender dysphoria. The respondents filed their opposition on October 8, and the government submitted its reply on October 9.