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Judge Carl J. Nichols (D.D.C.) on Sunday preliminarily enjoined the U.S. Postal Service from implementing its mail-in ballot rule in its entirety, holding that challengers are likely to succeed on their claim that the rule is ultra vires because “[n]othing in the Postal Reorganization Act authorizes the Postal Service to impose new election procedures on state election officials.” The government’s application to stay Judge Indira Talwani’s (D. Mass.) parallel injunction remains pending in the Supreme Court. (Opinion.) (Order.) (AP.) Marty Lederman argued that the government’s reply brief in support of that application fails to address the harms the rule would impose on voters and states. (Just Security.)
The Supreme Court on Friday dismissed Genalo v. Black, a case on bond hearings for noncitizens in prolonged mandatory detention, after New York Gov. Kathy Hochul pardoned the conviction underlying the remaining respondent’s detention. The Solicitor General said the government stipulated to the dismissal “with the aim of identifying alternative vehicles” to return the questions to the Court later this term. (Letter.) (SCOTUSblog.)
A D.C. Circuit panel on Friday vacated the Department of Energy’s emergency order under section 202(c) of the Federal Power Act that required a Michigan coal plant slated for closure to remain in operation. The panel held that “[t]he mere possibility of an electricity supply shortfall—with no specifics about its potential severity, timing, location, or likelihood—does not warrant an emergency federal response.” (Opinion.)
Judge Susan Illston (N.D. Cal.) on Friday granted partial summary judgment against the Department of Homeland Security’s plan to cut FEMA’s staff by roughly half, holding that the plan is arbitrary and capricious under the Administrative Procedure Act. (Order.) (NYT.) (WaPo.) In a separate order, Judge Illston found that DHS officials intentionally used Signal’s auto-delete feature to destroy messages about the cuts, and imposed spoliation sanctions. (Order.)
The Justice Department on Friday announced that it had deported Nazira Haji Zada, a lawful permanent resident, to Afghanistan under the first removal order issued by the Alien Terrorist Removal Court. Haji Zada, who the government alleged supported her son and son-in-law’s plan for an Islamic State-inspired attack, was not charged with a crime and agreed to her removal on Aug. 20. (Press Release.) (WaPo.) For background, see a previous Roundup.
The Washington Post reports that the National Security Agency is planning its “most extensive internal restructuring in at least a decade.” A plan by NSA Director Gen. Joshua M. Rudd would create five new organizations—for artificial intelligence, China, cybersecurity, combat support, and global intelligence—each led by a new “mission director.” (WaPo.)
Jack Goldsmith argued, on the 25th anniversary of the 2001 Authorization for Use of Military Force (AUMF), that the statute’s importance “has dimmed,” and that now “[t]he real challenge is whether Congress can claw back or constrain the super-broad claims of Article II use-of-force power that the executive branch has made over the decades.” (Executive Functions.)
Bob Bauer argued that Secretary of State Denny Hoskins’s maneuvering for Missouri’s gerrymandered map illustrates the structural risk of the “entrusting of election administration to political party-affiliated officials,” and that the courts’ response suggests judicial alertness “could prove crucial” this fall. (Executive Functions.)
Bob Bauer and Jack Goldsmith discussed Republican pushback against the administration’s election interventions. (Executive Functions.)
Pending Interim Order Applications Involving the U.S. Government in the Supreme Court
United States Postal Service v. California: The government filed an application with the Supreme Court on September 6 seeking an immediate administrative stay and a stay pending appeal of Judge Indira Talwani’s (D. Mass.) preliminary injunction barring the U.S. Postal Service from implementing the mandatory sections of its mail-in ballot rule. California and the League of Women Voters each filed responses on September 9, and the government filed a reply in support of the application on September 10. A First Circuit panel on September 10 denied the government’s parallel stay application.
Department of Homeland Security v. League of Women Voters: The government filed an application to the Supreme Court on September 8 seeking a stay pending appeal of a June 22 order issued by Judge Sparkle L. Sooknanan (D.D.C.) that vacated a Department of Homeland Security program that used Social Security data to verify voters’ citizenship status. Chief Justice Roberts set a response deadline of 4 p.m. on September 15.