#18 - Shut Down No More
A Week of ICE: Immigration, Convictions, and Elections
Happy Sunday and welcome back to Lex Liberas, home to all constitutional questions large and small. On Sundays I send out these nifty newsletters, and on Fridays I write about the Constitution, law, and of course, constitutional law. If you enjoy either, please subscribe to both.
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Alright, let’s get into it.
News Desk - This Week’s Top Ten Headlines
Supreme Court Adds Major Elections Case to Docket
In Watson v. National Republican Committee, the Court agreed to hear a case implicating election laws on the books in over thirty states. The core question, as stated in the petition for certiorari, is whether federal Election Day laws preempt state laws that allow ballots cast by Election Day to be received by officials after Election Day. In other words, whether Election Day is a hard cutoff and therefore, whether mail-in ballots must be received by that date. Needless to say, the stakes are high, and the ruling will apply to the midterm elections in 2026. Due to this profile, I will most certainly write about it in-depth soon, but two quick points while we are here: 1) It’s nice to see the Libertarian Party of Mississippi involved in the litigation in step with the state GOP, and 2) the Fifth Circuit ruled in the Republican Committee’s favor. Last term, the Fifth Circuit was overturned 83% of the time at the Supreme Court, notably higher than the 71% average. Still, it remains to be seen how the Court will approach this closely-watched election integrity case, and predictions at this point are but exercises in futility.
SNAP Case Dismissed as Government Reopens
As mentioned in previous newsletters, some particularly giddy district courts ordered the Trump administration to fund SNAP through November, despite the lengthy government shutdown. The Supreme Court initially granted an administrative stay, and extended it until November 13 amid ongoing congressional talks. This week, the dispute was resolved when Congress passed a bill ending the shutdown and fully funding SNAP through the fiscal year, leading the administration to withdraw its request for a stay. The case is now moot.Another State Defies the Supreme Court
A few weeks ago, the #1 story in this newsletter was the efforts of Washington state to subvert the Supreme Court’s ruling against them from last term. This week, Montgomery County School District followed Washington’s suit. According to documents obtained by the nonprofit Defending Education, MCPS asked students in a seventh grade class “to match definitions to the following vocabulary words: ‘Sex Assigned at Birth’, ‘Gender Identity’, ‘Transgender,’ ‘Gender Expression’, and ‘Cisgender.’” In June, the Supreme Court ruled in Mahmoud v. Taylor that MCPS was likely to lose on the merits of an argument that exposing children to these materials while refusing any opt-outs somehow did not violate the religious rights of the students’ parents. Based on the newly discovered evidence, either Maryland’s public schools suffer terribly from amnesia, or they, like Wisconsin, have decided to defy the Supreme Court. For a recap of Mahmoud, see my coverage from earlier this year:Dissenting Justices Suggest Overruling 139-Year-Old Precedent
On Monday, Justices Gorsuch and Thomas dissented from the denial of certiorari in Veneno v. United States, and argued the Court should reexamine an 1886 precedent called United States v. Kagama. Discussing Article IV’s Territories Clause, the pair of Justices questioned whether the federal government exercises broad plenary power over the criminal law of Native American tribes. “Congress’s limited and enumerated powers,” the dissent says, “no more include some plenary power over the internal affairs of Tribes than they do over the internal affairs of States.” Justice Gorsuch has long held a skeptical views of the Court’s precedents surrounding Native American governance, but Justice Thomas appears to have been the only other Justice interested in hearing this particular challenge.Courts of Appeals Rule in Abortion Cases in Oregon and Utah
The Ninth Circuit reinstated Oregon Right to Life’s lawsuit challenging the state’s Reproductive Health Equity Act, which mandates abortion coverage in employee health plans, ruling that a lower court erred in dismissing the case. The lower court failed to designate the pro-life group as a “religious employer,” which makes them exempt from the law. Oregon Right to Life argues the abortion coverage mandate violates its First Amendment rights by forcing it to fund abortions despite its core mission of opposing them. The case will continue to proceed through litigation, but now with the group favorably reclassified. In another abortion case, the Fifth Circuit heard oral arguments challenging the “Defund Provision” in the One Big Beautiful Bill Act, which disqualifies Planned Parenthood affiliates from Medicaid funding. Planned Parenthood argued the provision violates the a number of constitutional provisions by punishing non-abortion-providing affiliates for their association with Planned Parenthood. The panel balanced their questions, but the most conservative Court of Appeals in the country may have some cold news for Planned Parenthood when they rule.Trump’s Civil Court Conviction Arrives at Supreme Court
President Trump petitioned the Court on Monday to overturn the verdict that found him liable for sexually abusing E. Jean Carroll in the 1990s. His legal team calls the claims politically motivated and challenges the admission of the “Access Hollywood” tape and testimony from other accusers as prejudicial. The case, which has not yet been docketed, is the first time the years-long litigation has reached the Court. The related $83 million defamation suit has not yet been appealed to the Court.Additional Briefs Filed in National Guard Case
Also on Monday, the Trump administration and lawyers for Illinois and Chicago filed supplemental briefs with the Supreme Court in Trump v. Illinois. The briefs address the interpretation of the term “regular forces” under Title 10, which could determine what sort of troops the President may deploy under the statute. The administration argued that “regular forces” refers to civilian law enforcement. The respondents say the term means full-time professional military personnel. Reply briefs are due tomorrow, with no decision yet made on the government’s stay request, leaving the federal judge’s injunction against using the Guard in place.Lower Court Orders the Release of Illegal Immigrants
On Thursday, District Judge Jeffrey Cummings ordered the Trump administration to release 13 immigrants from ICE detention and transition 615 others to alternative monitoring by next Friday. The Judge cited likely violations of an earlier ruling during September’s Operation Midway Blitz in Chicago. This operation was launched to target illegal immigrants following a fatal hit-and-run in Chicago, and led to thousands of arrests. The plaintiffs allege some of those arrests violated the Immigration and Nationality Act and Fourth Amendment. DHS conceded that the 13 releases were unlawfully arrested, but they may have little to worry about, as some groups estimate that over a thousand detainees may have already been deported or left voluntarily.DOJ Joins Racial Redistricting Case in California
While DHS dealt with its immigration roadblocks, the Department of Justice joined a suit filed by the California Republican Party alleging that the state’s new congressional map is a racial gerrymander and violates the Equal Protection Clause and Section 2 of the Voting Rights Act. The DOJ seeks to enjoin use of the map in the midterms. In its 991-page complaint, DOJ says that the redistricting treats voters as racial classes rather than individuals, with no justified remedial purpose. This issue has already arrived at the Supreme Court from a different state, in Louisiana v. Callais, and a ruling may be postponed in the California case until the Supreme Court makes its decision. Read more about Callais here:Supreme Court Demands Response to Steve Bannon’s Appeal
Steve Bannon received a potentially positive development in the appeal of his 2022 contempt of Congress conviction, as the Court unexpectedly requested a response from the Justice Department, rather than dismissing the petition outright. The DOJ had initially waived its right to reply, signaling a likely denial at the court’s upcoming conference, but the request now requires a filing by December 10. This gives Bannon an improved chance of having his case granted, although the Court also asked for a response in the recently denied Kim Davis case. While this is no guarantee that the court will take the case, it shows at least one Justice was interested in the issues presented. Unfortunately for Bannon, this development was not the week’s top Steve Bannon story.
Steve Bannon. Image Credit: Crisis Magazine.
Picks of the Week - Articles Worth Your Time
States seek clarity on class actions in a post-CASA world
By Adam Crews at SCOTUSBlog
After the Supreme Court struck down the widespread use of universal injunctions, lower courts have responded to a dramatic rise in class action lawsuits that act as a similar vehicle. This article shows the need for the Supreme Court to address this soon.
The Stakes in the Supreme Court Mail Ballot Case
By Bob Bauer at Executive Functions
Worth a read before diving into my forthcoming article examining the case.
Indiana University’s Free Speech Crisis
By Will Harris for Expression
Some very troubling events are occurring at Indiana University that represent all too well the state of free speech among our colleges.
Quote of the Week
Under our Constitution, if you’re a bad citizen, you’re still a citizen; that’s the way we roll.
Steve Bannon
Not from this week, but relevant in many ways.
Papers and Research - Scholarly Selections
Trump v. Biden Judges, by Choi & Gulati
A must-read paper from two largely liberal law professors who evaluated the performance of Trump-appointed judges versus Biden appointees. The result will not surprise anyone reading this newsletter, but may have surprised the authors.
Bush v. Gore’s Uniformity Principle and the 2020 Election, by Michael Morley
This paper addresses the application of the Bush v. Gore decision to some of the 2020 election litigation. A very timely paper given the new Supreme Court case.
Thank you for reading. Please like or comment, and I’ll see you this Friday!
In liberty,
Ethan Savka