Ian Millhiser | Vox

The Supreme Court could legalize moonshine, and ruin everything else

2026-04-13T18:15:06-04:00

Two men with a jug of moonshine, ca. 1915 | Corbis via Getty Images

On Friday, a federal appeals court struck down a nearly 160-year-old federal law prohibiting people from distilling liquor in their own home.

That’s a fairly momentous event in its own right — any claim that a law that’s been on the books since Reconstruction is unconstitutional should be greeted with a heaping spoonful of skepticism. But the United States Court of Appeals for the Fifth Circuit’s decision in McNutt v. US Department of Justice is particularly significant because it is all but certain to be heard by the Supreme Court, and this case may tempt the Court’s Republican majority to impose restrictions on federal power that have not existed since the early stages of the New Deal.

Although the justices normally get to choose which cases they wish to hear, the Court almost always agrees to hear a case “when a lower court has invalidated a federal statute.”

McNutt potentially raises a question that the Supreme Court resolved in the Franklin D. Roosevelt administration, but that many right-leaning lawyers and legal scholars have wanted to reopen for many decades. These Roosevelt-era decisions permit Congress to regulate the American workplace, such as by banning child labor or establishing a minimum wage. They also allow many federal regulations of private businesses to exist, including nationwide bans on whites-only lunch counters and other forms of discrimination.

The Constitution gives Congress sweeping authority over the national economy. But, for a period of several decades beginning in the late 19th century, the Supreme Court strictly limited the federal government’s power to regulate commercial activity that occurs entirely within one state. In Hammer v. Dagenhart (1918), for example, the Court struck down a federal law that sought to ban child labor, on the theory that most child workers’ jobs do not require them to cross state lines.

The Court abandoned this strict divide between national and local economic activity during the New Deal era — Hammer was overruled in 1941. But many prominent conservative legal thinkers, including Justices Clarence Thomas and Neil Gorsuch, have called for a return to the more limited approach to federal power that drove the Hammer decision.

McNutt tees up a potential Supreme Court showdown over Congress’s ability to regulate economic activity that occurs within a single state because the new case challenges a ban on alcohol distilling within the home. Most people’s houses do not cross state lines.

That said, there is a wrinkle in the McNutt case that may make it more difficult for justices who want to relitigate the New Deal to do so in this case. For reasons that aren’t entirely clear, the Justice Department, which is defending the ban in court, decided not to make its strongest legal argument on appeal — the argument that the ban on home distilling fits within Congress’s broad authority to regulate the national economy. So, if there are five justices who want to overrule some of the Roosevelt-era decisions establishing that Congress’s power over the economy is very broad, they will have to do so despite the fact that the DOJ seems to want to avoid this issue.

But that doesn’t change the fact that the best legal argument for the law at issue in McNutt is that Congress has the power to regulate local distilling under the New Deal decisions. So, if the Supreme Court wants to declare the law unconstitutional, it will be difficult for the justices to ignore that fact.

McNutt is a hugely important case because it involves Congress’s two most consequential powers: the power to regulate the national economy, and the power to tax. Post-New Deal decisions defining these powers are the reason why a wide range of federal laws, including the minimum wage, the federal law guaranteeing that every American can obtain health insurance, and most federal laws barring discrimination, are able to exist. So the stakes are simply enormous every single time the Supreme Court decides to play with these federal powers.

Congress’s power to regulate production, briefly explained

The Constitution contains a laundry list of powers that Congress is allowed to exercise, such as the power to raise armies and the power to establish post offices. A federal law is unconstitutional if it does not fit within one of the powers specifically given to Congress by the Constitution.

That said, many of these powers are extremely broad. Congress’s lawful authority includes the power to tax, the power to spend these tax dollars to “provide for the common Defence and general Welfare of the United States,” and the power to “regulate Commerce…among the several States.” The Constitution also includes a somewhat vague provision permitting Congress to “make all Laws which shall be necessary and proper for carrying into Execution” laws enacted pursuant to its other powers.

When the Constitution was drafted way back in 1787, its provision allowing Congress to regulate commerce “among the several States” was understood to draw a line between the entire nation’s economy and purely local commerce. In the pre-industrial United States, a farmer located in, say, Iowa, might grow his crops on Iowa land, then transport them to a nearby Iowa town where they were purchased exclusively by other Iowans. Because none of this farmer’s behavior impacted more than one state, it was generally understood to be beyond Congress’s power to regulate.

But all of that changed after the construction of the railroads. In the post-industrial United States, this same farmer’s crops would be shipped to Chicago via the railways, where it would mix with similar grain grown by farmers throughout the Midwest. Then it might be shipped to consumers in many other states, or even overseas.

For about four decades in the late 19th and early 20th century, the Supreme Court tried to maintain a rigid divide between economic activities that were local in character, and those that impacted the entire nation’s economy. Hammer, for example, claimed that the production of goods for sale in an interstate or international market was beyond the reach of Congress, because factory workers typically do not cross state lines while they are producing those goods.

But this distinction proved unworkable. Even if Congress couldn’t regulate factory work directly, for example, its power to regulate the transit of goods across more than one state should allow it to ban any goods that are produced by child workers from traveling across state lines. So the Court largely stopped trying to draw a distinction between commerce that impacts the national economy and commerce that does not during the Roosevelt administration.

In Wickard v. Filburn (1942), the Supreme Court held that Congress’s power to regulate the production of goods includes the power to regulate all goods that are produced in the United States, even if some of those goods are never sold to anyone. Wickard rested on a modern understanding that all economic activity is connected, and that goods are often fungible. If a farmer grows wheat that only they and their family consume, the Court reasoned, that still increases the overall supply of wheat, which makes the overall price of wheat throughout the United States cheaper.

More recently, in Gonzales v. Raich (2005), the Court applied this logic to marijuana. Congress, Raich held, could ban all marijuana production throughout the United States, including marijuana growth by individual producers who consume their own supply, because otherwise local growers would undercut the federal government’s goal of eliminating the nationwide market for marijuana altogether.

Wickard, in other words, established that Congress’s power to regulate the national marketplace for wheat includes the power to regulate all wheat produced in the United States, and Raich reached a similar conclusion regarding marijuana. So it should follow that, in the McNutt case, Congress’s power to regulate distilled liquors includes the power to regulate all distilled liquors, including those that are produced inside the home.

The Justice Department inexplicably did not rely on Wickard and Raich in its brief defending the ban on home distilling

Despite all of this legal history, the Justice Department cites neither Wickard nor Raich in its Fifth Circuit brief in the McNutt case. So, rather than analyzing whether the ban on home distilling is constitutional under those two cases, the Fifth Circuit’s opinion includes a short footnote indicating that the government “forfeited” any claim that Congress may ban home distilling under its broad power to regulate commerce.

Notably, the Justice Department filed its brief in October 2024, when President Joe Biden was in office. So the DOJ’s decision not to raise its strongest legal argument cannot be blamed on the fact that the Trump Justice Department is staffed with many lawyers who share Thomas and Gorsuch’s belief that huge swaths of federal laws regulating private businesses are unconstitutional.

Instead, the Justice Department made a less intuitive argument that Congress may ban home distilling to prevent local distillers from undermining Congress’s ability to tax alcohol.

In fairness, this argument is less silly than it sounds at first blush. As the DOJ argued in its brief, the ban on home distilling was originally enacted in 1868 “shortly after a congressional committee detailed rampant evasion of the spirits tax, including by home distillers.” The law was intended to force liquor producers to create their products openly, in distilleries that could be easily identified by the government and thus taxed.

Recall that the Constitution does not simply permit Congress to levy taxes; it also permits it to “make all Laws which shall be necessary and proper for carrying into Execution” those tax laws. In Felsenheld v. United States (1902), the Supreme Court indicated that this power to make laws incidental to taxation is quite broad — writing that “in the rules and regulations for the manufacture and handling of goods which are subjected to an internal revenue tax, Congress may prescribe any rule or regulation which is not, in itself, unreasonable.”

Still, Felsenheld is a very old case. And it is far from clear that a majority of the current Court, which often appears eager to shrink the government’s power to regulate private businesses, would deem an outright ban on home distilling to be a “reasonable” way to ensure that federal liquor taxes are collected — even though this ban has been around for more than a century and a half.

The Fifth Circuit, for what it is worth, did include a single sentence in its opinion explaining how a law that’s been around for nearly 160 years could suddenly become unconstitutional. It claimed that “the economics and practicality of at-home distilling today are much different than they were in the nineteenth century, and so is the government’s ability to investigate such activity.” So maybe the fact that the government has more ability to track down home distillers in 2026 than it did in 1868 could allow the Supreme Court to write a narrow opinion striking this law down because the law is no longer needed to serve its original purpose.

But that argument only works if you ignore Wickard and Raich, which permit the government to regulate all alcohol production anywhere in the United States, including within the home.

So how is this case likely to play out?

Again, it’s overwhelmingly likely that the Supreme Court will hear McNutt. The Court almost always reviews federal appeals court decisions that declare a federal statute unconstitutional.

To the extent that the Biden Justice Department wanted to avoid a showdown over whether Wickard and Raich should remain good law by simply ignoring those cases in its Fifth Circuit brief, this strategy is unlikely to work for very long. If the Supreme Court strikes down the home distilling ban on the narrow grounds that it’s not necessary to ensure that liquor is taxed, the federal government could revive the ban at any time by claiming that it’s lawful under Wickard and Raich — and then the courts would have no choice but to consider that argument.

Once McNutt reaches the Supreme Court, moreover, it’s likely that many of the justices will be eager to reconsider Wickard and Raich. Both decisions are very unpopular in Republican legal circles. And two justices, Thomas and Gorsuch, are so hostile to the post-New Deal understanding of federal power that they’ve endorsed the same legal framework that the Court once used to strike down child labor laws.

The question is just how far this Court will go if it does reconsider those two decisions. Again, the New Deal-era insight that Congress may regulate the entire chain of commerce, from the production of goods to their eventual sale to a local consumer, forms the basis for countless federal laws. It is the reason why Congress may regulate the workplace, bar restaurants from refusing to sell to Black customers, or require businesses to construct wheelchair ramps or other accommodations which ensure they are accessible to everyone.

Wickard and similar cases all stand for the proposition that it is so hard for the courts to draw a principled line separating the national economy from local commerce that any attempt to do so will make a hash of the entire project, and require the courts to strike down federal laws for completely arbitrary reasons. If a majority of the justices decide to reconsider those cases, we can only hope that they find some way to limit the scope of their decision.

It should be much easier to remove the president from office

2026-04-08T16:01:29-04:00

President Donald Trump mimics firing a gun during a news conference in the White House briefing room about the war in Iran on April 6, 2026. | Tom Williams/CQ-Roll Call, Inc via Getty Images

The 25th Amendment is having a moment.

According to a tally by NBC News, over 70 Democratic lawmakers called for President Donald Trump’s Cabinet to invoke an obscure constitutional provision that would allow them to temporarily prevent Trump from acting as president, after Trump threatened to wipe out “a whole civilization” in Iran. (Trump has backed away from that threat, at least for now.)

Notably, their call for a 25th Amendment solution was echoed by some voices on the far right, including former US Rep. Majorie Taylor Greene, radio host Alex Jones, and MAGA influencer Candace Owens.

It’s not the first time the amendment has come up. There’s been a regular background hum of Trump critics demanding its invocation throughout both his terms in office, which peaked in the days after January 6, 2021, with real conversations in his Cabinet and in congressional leadership about the process.

As a practical matter, Trump is not going anywhere, even if he didn’t command the near-universal loyalty within his party that he currently does. By international standards, it is extremely difficult to remove the president of the United States, and much harder than it is to remove the leaders of many of our peer democracies. And the 25th Amendment is not a viable shortcut around this problem, which is rooted in the fundamental structure of America’s government.

How the 25th Amendment actually works

Let’s cut to the chase: Trump is about as likely to be removed via the 25th Amendment as he is to be deposed by an army of unicorn-riding elves.

While it is theoretically possible to remove Trump from office (or, at least, to strip him of his powers permanently) using the amendment, the removal process is too cumbersome, has too many failure points, and requires too much of a bipartisan consensus to be an effective method of removing a president who is merely bad at being president, rather than one who is literally incapable of performing their duties.

The 25th Amendment was enacted shortly after President John F. Kennedy’s assassination in 1963, and was intended to solve a different problem than the one the United States faces today — what if the president of the United States was still alive, but was physically or mentally incapacitated in a way that prevented him from exercising the powers of office?

Before the 25th Amendment was ratified, the Constitution provided that the vice president shall assume the powers of the presidency should the president show “Inability to discharge the Powers and Duties of the said Office.” But the original Constitution did not lay out a process to determine when the president was unable to exercise their duties. That created a risk that the president may be unfit for duty, but no one could be sure how to formally transfer power to the vice president.

The process laid out in the 25th Amendment is, to put it mildly, complicated. It allows the vice president to declare the president unfit for duty, provided that a majority of the president’s Cabinet officers consent. Once the vice president and a majority of the Cabinet inform Congress that “the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.”

But such a declaration is unlikely to amount to much if the president is still capable of clinging to power. The 25th Amendment also provides that the president may regain their authority merely by transmitting his own “written declaration that no inability exists” to congressional leaders. If that happens, the vice president and the Cabinet may force a congressional vote on whether the president should retain power, but if two-thirds of both houses of Congress do not agree that “the President is unable to discharge the powers and duties of his office,” then the president remains president. And they can’t stall the vote for too long: if Congress does nothing in 21 days, the president regains his executive powers.

To even begin the process of removing Trump, in other words, a majority of Trump’s hand-picked Cabinet officials (plus Vice President JD Vance) would need to agree that he was unfit. Then, when Trump inevitably told Congress that he was resuming his duties, a supermajority of both the US House and the Senate — both of which are controlled by Trump’s Republican Party — would have to vote to install Vance as acting president.

There really was some limited bipartisan chatter in the aftermath of the January 6 attack on the Capitol about removing Trump via the 25th Amendment. But Trump was a lame duck with only two weeks left in office then, meaning a Cabinet vote to strip him of his powers, combined with the 21-day time limit in Congress, could actually run out the clock on his presidency.

That wouldn’t be a possibility this time. Indeed, because the 25th Amendment requires a two-thirds majority of both houses of Congress to remove Trump against his will, it is even more cumbersome than the impeachment process, which only requires a simple majority in the House and a two-thirds majority in the Senate. In 2021, the Senate couldn’t even secure a two-thirds majority to disqualify Trump from office while he was on trial for stirring up a violent attack against the Senate itself.

Other democracies make it much easier to remove an incompetent, unfit, or unpopular leader

The United States is unusual in that it elects its chief executive separately from its legislature. The US often elects a Congress that is controlled by a different party than the one that controls the White House. And the Congress has only limited power to remove a president — a power it has never successfully used in all of US history.

Compare this system to parliamentary democracies such as Canada, the United Kingdom, Germany, India, and Japan. In these systems, the people elect the members of the legislature, but the legislature chooses the official who will run the government. That official also can often be removed by a no-confidence vote in the legislature, frequently by a simple majority.

The founders saw this as a key feature: The executive branch and legislative branch were expected to each jockey for control in order to keep either from consolidating power. But as the late political scientist Juan Linz observed in 1990, presidential democracies such as the United States have proven inherently unstable, because the president and the legislature may deadlock on some crucial issue and both can simultaneously claim to have a popular mandate if such a deadlock occurs. The US system also locks in place a president who may have lost the confidence of both the Congress and the people, but who is nonetheless entitled to serve out their entire term.

One additional advantage of parliamentary democracy is that it allows a political party to remove an unfit or unpopular leader without triggering a political crisis. In 1990, for example, British Conservatives replaced unpopular Prime Minister Margaret Thatcher with John Major, and then retained power for seven more years under new leadership. A similar drama recently played out in Canada, where the governing Liberal Party replaced former Prime Minister Justin Trudeau with current PM Mark Carney — allowing Carney to lead the Liberals to another electoral victory in 2025.

In parliamentary systems, in other words, removal of a head of government isn’t an unheard-of event that humiliates the outgoing leader and places them in a class of one. It is a normal political tactic that allows the outgoing prime minister to leave office gracefully. That sort of system gives political parties an incentive to remove bad leaders.

Meanwhile, the United States is almost certainly stuck with Trump until his term expires in 2029 — even if Democrats win back both houses of Congress in the upcoming midterm elections, there is no plausible outcome where they win two-thirds of the seats in the Senate. Some new controversy would have to generate near-universal bipartisan demand for his removal, and it’s frankly not very pleasant to imagine what the world looks like in that scenario.

Democrats just locked down control of one of the most important courts in America

2026-04-14T16:01:17-04:00

Wisconsin Appeals Court Judge Chris Taylor celebrates winning the Wisconsin Supreme Court election at the the Madison Concourse Hotel and Governor's Club on April 7, 2026 in Madison, | Joe Timmerman/Wisconsin Watch via Getty Images

Wisconsin voters effectively gave Democrats a supermajority on one of the most important state supreme courts in the country on Tuesday.

The result was a blowout. Justice-elect Chris Taylor defeated Judge Maria Lazar by a 20-point margin. Although Wisconsin Supreme Court races are technically nonpartisan, every recent race has pitted a “liberal” backed by Democrats against a “conservative” supported by the Republican Party. Taylor previously served in the state legislature as a Democrat.

She will replace Justice Rebecca Bradley, a “conservative” in the euphemistic language Wisconsin uses to describe Republican justices.

Taylor’s victory also means that, barring the death of a justice or some other unlikely event, Democrats will retain effective control of the judiciary in one of the nation’s most hotly contested swing states during the 2028 presidential election.

In 2020, after President Donald Trump lost Wisconsin to former President Joe Biden, Trump asked the Wisconsin Supreme Court to toss out 220,000 ballots cast in Democratic areas of the state. Although Trump did not prevail in this lawsuit, three justices, including retiring Justice Bradley, concluded that at least some of these voters should have been disenfranchised.

Partisan control of the Wisconsin Supreme Court has national implications

Although Taylor’s victory gives Democrats a supermajority on Wisconsin’s highest court, the battle to control this swing state court has long been one of the most contested judicial fights in the country.

Billionaire Elon Musk ostentatiously backed the “conservative” candidate in 2025, warning the future of “Western Civilization” was at stake and even handing out million-dollar checks at a political rally. With Musk sitting things out, Democrats favored more strongly this time, and partisan control of the court no longer in question, this week’s race was less high-profile and less expensive.

Republicans controlled the court as recently as 2023, when Justice Janet Protasiewicz won her seat and gave Democrats a narrow majority. Protasiewicz’s win also ended a period of more than a decade when Wisconsin did not hold competitive elections for control of its state legislature. After a strong electoral performance in 2010, Republicans gained control of Wisconsin’s government and used that control to aggressively gerrymander the state in order to prevent Democrats from ever regaining control of the legislature.

In 2018, for example, Democratic candidates for the state assembly received 54 percent of the popular vote in Wisconsin, but Republicans still won 63 of the assembly’s 99 seats thanks to the GOP’s gerrymander.

But Protasiewicz campaigned on abolishing this gerrymander. After she took office, she joined her three Democratic colleagues in striking down the gerrymander in Clarke v. Wisconsin Elections Commission (2023). Though Republicans retained control of the state legislature in 2024, they lost a total of 14 seats in the state assembly and senate thanks to the new, less biased maps.

With the state supreme court now firmly in Democratic hands, Wisconsin will hold another free and fair election for control of the state legislature in November, potentially giving Democrats their first opportunity to govern the state in more than a decade.

Meanwhile, Taylor’s win will most likely prevent a Republican from convincing the state supreme court to overturn the result of the 2028 election in Wisconsin, as Trump asked them to do in 2020.

Justice Annette Ziegler, a Republican, plans to retire in 2027. And Democratic Justice Rebecca Dallet’s seat is up in 2028. But even if Republicans win both of these races, the state supreme court will still have a 4-3 Democratic majority during the 2028 presidential election.

Pam Bondi’s ouster makes Trump’s Justice Department even more dangerous

2026-04-07T14:55:42-04:00

Outgoing Attorney General Pam Bondi “will be transitioning” to a “new job in the private sector,” President Donald Trump announced. | Yuri Gripas/Abaca/Bloomberg via Getty Images

Early in the first Trump administration, the legal journalist Benjamin Wittes coined one of the best descriptions of how President Donald Trump governs: “malevolence tempered by incompetence.” Trump, as Wittes originally wrote, often issued executive orders that were not vetted by lawyers or policy experts — and thus were vulnerable to lawsuits and often achieved very little. And this penchant for taking seemingly bold actions that fall apart once they are exposed to the real world pervades both of Trump’s administrations.

No one embodied Trump’s brand of incompetent malice more than outgoing Attorney General Pam Bondi, who, as Trump announced Thursday, “will be transitioning” to a “new job in the private sector.” In her 15 months as the country’s top legal official, Bondi flouted norms, stretching back to the end of the Nixon administration, which sought to insulate federal prosecutors from political control by the White House. But her actual attempts to use the Department of Justice to seek revenge against Trump’s perceived enemies frequently floundered on the shores of bad lawyering.

Bondi may be best known for saying, in a February 2025 interview with Fox News, that a list of sex offender Jeffrey Epstein’s clients was “sitting on my desk right now” — months before the DOJ later claimed that this list doesn’t exist. After she was asked about her mishandling of the Epstein files in a congressional hearing, she told lawmakers that they shouldn’t even be talking about Epstein because “the Dow is over 50,000 right now.” (As of this writing, the Dow Jones Industrial Average sits at 46,371.57.)

Consider, as well, the Trump DOJ’s attempts to prosecute former FBI Director James Comey and New York Attorney General Letitia James, two officials who Trump loathes because they investigated allegedly illegal activity by the president. Both prosecutions were dismissed by a federal court, however, after a judge determined that Lindsey Halligan, the former insurance lawyer that this administration tried to install as a top federal prosecutor in Virginia, was never lawfully appointed.

Similarly, when the Trump administration ordered thousands of federal law enforcement officers to occupy the city of Minneapolis and to arrest many immigrants in that city, a competent attorney general would have recognized that these mass arrests would trigger an array of legal proceedings, and would have preemptively detailed additional lawyers to Minnesota to handle the increased caseload. Instead, the US Attorney’s Office in Minnesota was almost comically understaffed, and completely unprepared for an array of court orders, requiring the administration to release many of the immigrants it had just arrested.

Federal judges criticized the Justice Department’s incompetence in their opinions — the chief judge of the local federal district court wrote that the Trump administration “decided to send thousands of agents to Minnesota to detain aliens without making any provision for dealing with the hundreds of habeas petitions and other lawsuits that were sure to result.” One DOJ lawyer, who was assigned an impossible workload of 88 cases in a single month, told a judge that she sometimes wished she’d be held in contempt of court so that she could sleep in jail.

At times, the ineptitude of Bondi’s Justice Department even endangered the Republican Party’s ability to hold onto political power. Last November, a federal court in Texas struck down a Republican gerrymander that is expected to gain the GOP five more US House seats after the 2026 midterms. The court’s opinion, authored by a Trump-appointed judge, relied on a letter from one of Bondi’s top lieutenants, which effectively ordered the state of Texas to redraw its maps for racial reasons that are forbidden by the Constitution.

Though the Supreme Court eventually reinstated the gerrymander, the lower court’s decision was well-rooted in Supreme Court precedents questioning racially motivated laws. All of this drama would have been avoided if Bondi’s DOJ had never sent its letter, which the judge said was “challenging to unpack” because “it contains so many factual, legal, and typographical errors,” Texas’s Republican gerrymander would have never been in any danger.

This list is just the beginning. Not every Republican attorney general loyal to Trump would have made such basic errors in carrying out his agenda. And there’s no guarantee that Bondi’s successor will share her ineptitude. So Trump’s opponents may want to wait and see what comes next before they celebrate Bondi’s humiliation.

Bondi’s ouster gives Trump a chance to place a competent loyalist in charge of DOJ

Bondi’s bumbling management of the Justice Department would have mattered more if Republicans didn’t have a firm grip on the federal judiciary. For the moment, at least, lawsuits challenging many illegal detentions in Minnesota are on hold thanks to a decision by two Republican appellate judges holding that these detentions are, in fact, legally mandated. The Texas court’s decision against that state’s gerrymander was blocked by a Republican Supreme Court.

Still, Bondi’s incompetence is likely to plague the DOJ for a long time, even though she no longer leads it. Federal judges have historically treated Justice Department lawyers with a degree of deference, because for decades the DOJ held a well-deserved reputation for being candid with judges and for hiring highly skilled lawyers. But now many judges are openly questioning the Justice Department in their opinions. That means that rank-and-file Justice Department lawyers will have to spend countless hours shoring up claims that federal judges would have simply believed in the past.

Meanwhile, the worst-case scenario for Trump’s political enemies, and for anyone else who the Justice Department decides to target for political reasons, is that Bondi could be replaced by a capable advocate. (The full list of possible candidates to replace Bondi is not yet known, but some early news reports indicate that EPA administrator Lee Zeldin is under consideration).

A competent attorney general would have made sure that a lawfully appointed prosecutor brought charges against Comey and James. A competent attorney general might have selectively leaked Epstein documents that mention Democrats, rather than inspiring an act of Congress requiring all of the documents to be released. And a competent attorney general would treat DOJ lawyers’ time as precious, because every minute a prosecutor spends on unnecessary work is time they can’t spend advancing Trump’s agenda.

It remains to be seen who Trump will pick to replace the maladroit Bondi. But there’s hardly a shortage of highly partisan Republican lawyers who are actually good at their jobs. Trump could find someone like his first-term Attorney General Bill Barr, who was an extraordinarily capable advocate for MAGA’s agenda. And, if that happens, anyone unfortunate to wind up on Trump’s enemies list will miss Pam Bondi.

Even this Supreme Court seems unwilling to end birthright citizenship

2026-04-01T14:01:29-04:00

People demonstrate outside the U.S. Supreme Court ahead of US President Donald Trump's expected arrival on April 01, 2026, in Washington, DC. The Supreme Court is hearing oral arguments in Trump v. Barbara to determine if President Trump's executive order ending birthright citizenship is constitutional. | Al Drago/Getty Images

If you’ve been worried that this Supreme Court might give President Donald Trump the power to strip citizenship away from Americans, you can go ahead and exhale.

On Wednesday, the Supreme Court heard oral arguments in Trump v. Barbara, a case challenging an executive order Trump issued on his first day back in office, which purports to strip citizenship from children born to undocumented immigrants and from many people who are lawfully present in the United States but who are not yet authorized to remain here permanently.

There is no plausible argument that Trump’s executive order is constitutional. The Constitution’s Fourteenth Amendment provides that “all persons” born in the United States are citizens, with one narrow exception that does not apply in Barbara. Just three days after the executive order was issued, a Reagan-appointed federal judge blocked it — after saying that he’s “been on the bench for over four decades” and that he “can’t remember another case where the question presented is as clear as this one is.”

Trump’s order has never taken effect thanks to lower court orders against it. Many of those orders relied on United States v. Wong Kim Ark (1898), a Supreme Court case that rejected a similar effort to restrict who can be a citizen of the United States nearly 130 years ago.

Still, Trump no doubt bet that this Court — which has a 6-3 Republican supermajority that previously ruled that Trump is allowed to use the powers of the presidency to commit crimes — would ignore both the text of the Constitution and Wong Kim Ark and decide the Barbara case based solely on their partisan loyalty to him.

Wednesday’s oral argument, however, left little doubt that Trump made a bad bet. Of the nine justices, only Justice Samuel Alito, the Court’s most reliable partisan for Republican Party causes, appeared to be a certain vote for Trump — although Justice Clarence Thomas asked ambiguous questions and might join Alito in dissent. That leaves seven justices who appear to believe that Trump cannot simply wipe away the Fourteenth Amendment’s text with an executive order.

Trump’s legal arguments in Barbara are risible

The Barbara case turns on the meaning of a single word — “jurisdiction” — which appears in the first sentence of the Fourteenth Amendment: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

Someone is “subject to the jurisdiction” of a nation if they are bound by its laws. So, if Trump were correct that some children of immigrants are not subject to US jurisdiction, it would mean that the federal government was powerless to deport them — even if they were in this country illegally. It would also mean that the United States was powerless to arrest them if they robbed a bank.

As the Court explained many years ago in Wong Kim Ark, there are, in fact, some newborns who are born in the United States but not subject to its jurisdiction. When the Fourteenth Amendment was ratified, the most significant exemption to the birthright citizenship rule applied to citizens of American Indian tribes who were born on tribal lands — because those lands were considered a separate nation from the United States. But, in 1924, Congress granted citizenship to all Indigenous people born in the US.

Today, the Fourteenth Amendment’s “subject to the jurisdiction” rule primarily excludes the children of foreign ambassadors and similar foreign officials from US citizenship, because the families of diplomats often enjoy diplomatic immunity from US law.

Trump’s attempt to expand this “subject to the jurisdiction” exception to include children of undocumented immigrants and people here on a temporary basis received a cold reception from nearly all of the justices. After US Solicitor General John Sauer tried to argue that Wong Kim Ark actually supports Trump’s position, for example, Justice Neil Gorsuch quipped back, “I’m not sure how much you want to rely on Wong Kim Ark.”

Similarly, after Sauer claimed that we live in a new world where pregnant foreign nationals allegedly enter the United States to ensure that their child will be a US citizen, Chief Justice John Roberts responded that “It’s a new world; it’s the same Constitution.”

Justice Brett Kavanaugh, meanwhile, asked several questions suggesting that he’d already decided to rule against Trump and was merely trying to decide what the legal basis for that decision should be. At one point, he asked Cecillia Wang, the ACLU lawyer defending birthright citizenship, whether the Court should rule against Trump based on a 20th century statute that also protects birthright citizenship. At another point, he noted that Trump’s lawyers don’t actually ask the Court to overrule Wong Kim Ark, so he suggested that the Court could issue a very short opinion affirming the lower courts and citing that 1898 case.

For her part, Justice Amy Coney Barrett offered a clever hypothetical exposing a contradiction in Sauer’s legal argument. Sauer argued that the children of immigrants who are not “domiciled” in the United States — meaning that they did not intend to remain here indefinitely — are not citizens. But Sauer also concedes that the Fourteenth Amendment was intended to extend citizenship to enslaved people freed during the Civil War.

So, Barrett asked about an enslaved person who was brought to the United States against their will, who always viewed themselves as a captive, and who never intended to remain in the US. Under Sauer’s “domicile” rule, she pointed out, this person could not be a citizen even though Sauer concedes that the Fourteenth Amendment does give citizenship to freed slaves.

These four Republican justices, along with the Court’s three Democrats, appear likely to reaffirm Wong Kim Ark and to declare Trump’s executive order unconstitutional. It appears that it is still possible for Trump to do something that is so clearly illegal that even this Supreme Court will rule against him.

Why an 8-1 Supreme Court just ruled in favor of anti-LGBTQ+ “conversion therapy”

2026-03-31T12:46:38-04:00

Transgender rights supporters and opponents rally outside of the US Supreme Court | Kevin Dietsch/Getty Images

There was never much doubt how this Supreme Court would decide Chiles v. Salazar, a lawsuit challenging a Colorado law that bars licensed therapists from providing “conversion therapy,” or counseling that seeks to convert LGBTQ+ patients into straight and cisgender people. This Court, which has a 6-3 Republican majority, typically rules in favor of religious conservatives when their interests conflict with those of queer people, even when religious conservatives raise fairly aggressive legal arguments.

In Chiles, moreover, the plaintiffs’ arguments were actually pretty strong. The plaintiff in Chiles is a therapist who wishes to provide conversion therapy to patients hoping to “reduce or eliminate unwanted sexual attractions, change sexual behaviors, or grow in the experience of harmony with [their] bod[ies].” She says she does not physically abuse LGBTQ+ patients or prescribe them any medication; she merely engages in talk therapy with them. And it doesn’t take a law degree to see how a law regulating talk therapy implicates the First Amendment’s free speech protections.

And so, the Court’s vote in Chiles was lopsided, with Democratic Justices Sonia Sotomayor and Elena Kagan joining the majority opinion. Only Justice Ketanji Brown Jackson dissented.

Despite this lopsided vote, Chiles did raise difficult questions under the First Amendment. While the constitutional right to free speech is broad and typically applies to speech that is offensive or even harmful, the law has historically placed some restrictions on what sort of things licensed professionals may say to their patients or clients. A lawyer who tells a client that it is legal to rob banks risks a malpractice suit or worse. A doctor who tells a patient that they can treat their flu by taking arsenic risks being tried for murder.

So, Justice Neil Gorsuch, who wrote the majority opinion, had to devise a rule that invalidates Colorado’s ban on conversion therapy — at least as applied to therapists who do not touch their patients or engage in anything other than talk therapy — while also ensuring that quack doctors and incompetent lawyers aren’t placed above the law.

His opinion suggests that, at least in some cases, a client or patient who receives very bad legal or medical advice must wait until they have actually suffered the consequences of taking that advice before suing the professional who gave them the bad advice for malpractice. That rule may lead to unfortunate, or even tragic, results in some unusual cases. Conversion therapy is rejected by every major medical and mental health organization, because it, in the words of the American Psychological Association, “puts individuals at a significant risk of harm.” After Chiles, some patients may not have any legal recourse against quack therapists until they engage in self-harm — or worse.

But Chiles also likely won’t turn the practice of law or medicine into the Wild West. There are still some safeguards against bad therapeutic practices. And the possibility of a malpractice suit may deter some therapists from using discredited methods.

The First Amendment hates laws that discriminate on the basis of viewpoint

The thrust of Gorsuch’s opinion is that Colorado’s law is unconstitutional, because it engages in “viewpoint discrimination,” and laws that do so are almost always forbidden by the Constitution.

As Gorsuch writes, the law treats therapists differently depending on which views they express about a client’s sexuality or gender. “With respect to sexual orientation,” for example,” Colorado permits a therapist to “affirm a client’s sexual orientation, but prohibits her from speaking in any way that helps a client ‘change’ his sexual attractions or behaviors.”

Discriminating based on viewpoint is just about the worst thing that a state legislature can do if it wants a law to survive a First Amendment challenge, which explains why two of the Court’s three Democrats joined Gorsuch’s opinion. In a separate concurrence, Kagan explains why she and Sotomayor voted against Colorado’s law, and her opinion leans heavily into the very strong rules against viewpoint discrimination.

Such laws, Kagan writes, are an “‘egregious form’ of content-based regulation,” in part because they suggest that the government had an “impermissible motive” when it wrote the law — “regulating speech because of its own ‘hostility’ towards the targeted messages.” For this reason, Kagan writes, laws that engage in viewpoint discrimination of any kind “are the most suspect of all speech regulations.”

That said, the Constitution has historically allowed the government to discriminate against lawyers who express the viewpoint that their client should murder their wife or against doctors who express the viewpoint that cyanide is an effective cure for the common cold. Although Gorsuch’s opinion includes a categorical statement that the First Amendment’s protections “extend to licensed professionals much as they do to everyone else,” he also does describe some circumstances when the government may regulate professional speech.

The government may require professionals to “disclose only factual, noncontroversial information,” so laws requiring doctors to disclose the risks of a particular medical procedure before performing it on a patient should remain constitutional. And Gorsuch also notes that the right to free speech is greatly reduced when the government regulates “speech promoting the sale of contraband because such speech is often bound up with traditional criminal conduct.” Perhaps the Court could also rely on this second exemption in a future case involving a lawyer who tells a client that it is legal to rob banks, because such speech would also be “bound up with traditional criminal conduct.”

Gorsuch also endorses malpractice suits, but only when a plaintiff shows “among other things, that he has suffered an injury caused by the defendant’s breach of the applicable duty of care.” So, a patient who actually takes a doctor or lawyer’s terrible advice and suffers for doing so may still sue that professional for malpractice. A state licensing board might also strip a doctor of their license after they harm a patient. Talk therapists, including those who engage in conversion therapy, should also be liable for malpractice if they cause serious harm to a patient — although, an LGBTQ+ patient who attempts suicide or otherwise suffers because of conversion therapy may find it difficult to prove that their therpist, and not some other source of mental anguish, caused the patient’s mental health to deteriorate.

After Chiles, the government likely has less power to proactively prevent professionals from doing things that may harm a client. Suppose, for example, that a state had barred doctors from telling patients to take the drug ivermectin to treat Covid-19. During the Covid pandemic, many online sources encouraged Covid patients to use this drug, despite the fact that evidence does not suggest that it is an effective treatment.

It is unclear whether such a proactive attempt to stop quack doctors from prescribing bad medicine would survive judicial review under Chiles. After all, a law engages in viewpoint discrimination if it permits doctors to express the viewpoint that ivermectin is an ineffective treatment, but does not allow them to express the opposite opinion.

Still, Chiles does leave many laws regulating health and legal professionals intact. And Kagan is correct that the Constitution casts an extremely skeptical eye on laws that engage in viewpoint discrimination, even when those laws seek to address very real harms.

The sneaky way Trump’s lawyers are supercharging ICE

2026-03-30T13:29:09-04:00

Minneapolis, Minnesota. ICE out sign on a neighborhood home. (Photo by: Michael Siluk/UCG/Universal Images Group via Getty Images)

Shortly after President Donald Trump took office for the second time, his administration started illegally detaining immigrants without giving them a bond hearing or other method of avoiding incarceration while an immigration judge determines if they are in the country legally.

The overwhelming majority of federal judges have rejected this illegal practice. As Politico’s Kyle Cheney reported in February, “at least 360 judges rejected the expanded detention strategy — in more than 3,000 cases — while just 27 backed it in about 130 cases.”

Unfortunately for the immigrants caught up in Trump’s dragnet, the minority of judges who support the administration’s mass detentions policy appear to be overrepresented on federal appeals courts, powerful bodies which can determine how federal law functions in multiple states. On Wednesday, a divided panel of the US Court of Appeals for the Eighth Circuit, whose jurisdiction includes Minnesota, embraced the minority position and called for mandatory detention.

That means that, unless the Eighth Circuit’s decision is reversed on appeal, immigrants arrested during Trump’s occupation of Minneapolis just lost the most effective legal tool they could use to challenge their detentions. So long as the Eighth Circuit’s decision remains in effect, most of these immigrants will likely have no way to escape detention while their cases remain pending in immigration court.

Federal immigration law contains two provisions laying out how noncitizens should be treated while immigration officials and courts are determining whether they may legally remain in the country. One provision says that immigrants who are “seeking admission” to the United States must be detained if there is uncertainty about whether they should be admitted. But once an immigrant enters the United States, a different provision allows them to be released on bond or parole if they are arrested for allegedly being in the country unlawfully.

The overwhelming majority of judges have ruled that immigrants arrested within the interior of the United States are not subject to mandatory detention. This is also how every presidential administration prior to the second Trump administration — including Trump’s first administration — read federal immigration law after the relevant provisions were enacted in 1996. Again, federal law only calls for mandatory detention when an immigrant is “seeking admission” to the US. (I explained Trump’s contrary interpretation of the law, and why it is incorrect, here.)

Why are appellate courts backing a MAGA interpretation of the law that nearly every trial court has rejected?

While only a small handful of federal judges have backed Trump’s interpretation of federal immigration law, they include four who serve on powerful appeals courts. In February, two members of a three-judge panel on the Fifth Circuit called for mandatory detention of immigrants arrested within the United States. Two members of the Eighth Circuit agreed with their fellow Republicans on the Fifth on Wednesday, in a case known as Herrera Avila v. Bondi.

A third appeals court, the Seventh Circuit, adopted the majority view of federal immigration law in December.

There are two explanations for why two of the three appeals courts to consider this question have reached a conclusion that is out of step with the rest of the judiciary. One is that appellate judges, who often issue broad legal rulings that govern multiple states, typically go through a more partisan vetting process than their counterparts on trial courts. District court nominations are still sometimes doled out based on merit, or based on a judicial candidate’s connection to a home-state senator, but appellate judges are typically vetted very closely by the White House or the Justice Department to ensure that they hold similar ideological views to the president and his party.

For this reason, judicial decision making often becomes more partisan as cases move up through the appellate process. And the Fifth and Eighth Circuits, the two courts which called for mandatory detention, are both Republican Party strongholds. The Fifth Circuit is dominated by MAGA judges who frequently hand down decisions limiting the rights of immigrants. And, while the Eighth Circuit’s judges tend to be less flamboyant in their conservatism than their counterparts on the Fifth, 10 of the Eighth Circuit’s 11 active judges were appointed by a Republican.

And that brings us to the second reason why appeals courts have, thus far, tended to view mass detention differently than federal trial judges. The Justice Department has a fair amount of control over the timing of lawsuits involving the United States. It can immediately appeal some cases that it lost in the court below, while waiting until the last minute to appeal in others. It can also seek expedited review in some cases, and not in others.

In a recent immigration case out of New Jersey, a federal judge noted that the Trump administration sought expedited review of the mandatory detention question in the Fifth Circuit, but did not do so in the more ideologically balanced Third Circuit. Trump’s lawyers, in other words, appear to be intentionally manipulating court schedules to ensure that the most Trump-aligned circuits decide the mass detention question first.

In any event, the Supreme Court typically takes up cases that divide federal appeals courts. So the fact that the Seventh Circuit has already disagreed with the Fifth and the Eighth means that Supreme Court review of this question is probably inevitable. By manipulating the circuit courts’ calendars, however, Trump may give the justices the mistaken impression that an outlier view held by only a small minority of judges is, in fact, the dominant one.

The Supreme Court is scared it’s going to break the internet

2026-04-13T17:12:30-04:00

Justice Clarence Thomas wrote the majority opinion tossing out a billion-dollar verdict against an internet service provider in the case Cox Communications v. Sony Music Entertainment. | Chip Somodevilla/Getty Images/Bloomberg via Getty Images

The Supreme Court tossed out a billion-dollar verdict against an internet service provider (ISP) on Wednesday, in a closely watched case that could have severely damaged many Americans’ access to the internet if it had gone the other way.

Wednesday’s decision in Cox Communications v. Sony Music Entertainment is part of a broader pattern. It is one of a handful of recent Supreme Court cases that threatened to break the internet — or, at least, to fundamentally harm its ability to function as it has for decades. In each case, the justices took a cautious and libertarian approach. And they’ve often done so by lopsided margins. All nine justices joined the result in Cox, although Justices Sonia Sotomayor and Ketanji Brown Jackson criticized some of the nuances of Justice Clarence Thomas’s majority opinion.

Some members of the Court have said explicitly that this wary approach stems from a fear that they do not understand the internet well enough to oversee it. As Justice Elena Kagan said in a 2023 oral argument, “we really don’t know about these things. You know, these are not like the nine greatest experts on the internet.”

Thomas’s opinion in Cox does a fine job of articulating why this case could have upended millions of Americans’ ability to get online. The plaintiffs were major music companies who, in Thomas’s words, have “struggled to protect their copyrights in the age of online music sharing.” It is very easy to pirate copyrighted music online. And the music industry has fought online piracy with mixed success since the Napster Wars of the late 1990s.

Before bringing the Cox lawsuit, the music company plaintiffs used software that allowed them to “detect when copyrighted works are illegally uploaded or downloaded and trace the infringing activity to a particular IP address,” an identification number assigned to online devices. The software informed ISPs when a user at a particular IP address was potentially violating copyright law. After the music companies decided that Cox Communications, the primary defendant in Cox, was not doing enough to cut off these users’ internet access, they sued.

Two practical problems arose from this lawsuit. One is that, as Thomas writes, “many users can share a particular IP address” — such as in a household, coffee shop, hospital, or college dorm. Thus, if Cox had cut off a customer’s internet access whenever someone using that client’s IP address downloaded something illegally, it would also wind up shutting off internet access for dozens or even thousands of innocent people.

Imagine, for example, a high-rise college dormitory where just one student illegally downloads the latest Taylor Swift album. That student might share an IP address with everyone else in that building.

The other reason the Cox case could have fundamentally changed how people get online is that the monetary penalties for violating federal copyright law are often astronomical. Again, the plaintiffs in Cox won a billion-dollar verdict in the trial court. If these plaintiffs had prevailed in front of the Supreme Court, ISPs would likely have been forced into draconian crackdowns on any customer that allowed any internet users to pirate music online — because the costs of failing to do so would be catastrophic.

But that won’t happen. After Cox, college students, hospital patients, and hotel guests across the country can rest assured that they will not lose internet access just because someone down the hall illegally downloads “The Fate of Ophelia.” Thomas’s decision does not simply reject the music industry’s suit against Cox, it nukes it from orbit.

Cox, moreover, is the most recent of at least three decisions where the Court showed similarly broad skepticism of lawsuits or statutes seeking to regulate the internet.

The Supreme Court is an internet-based company’s best friend

The most striking thing about Thomas’s majority opinion in Cox is its breadth. Cox does not simply reject this one lawsuit, it cuts off a wide swath of copyright suits against internet service providers.

Thomas argues that, in order to prevail in Cox, the music industry plaintiffs would have needed to show that Cox “intended” for its customers to use its service for copyright infringement. To overcome this hurdle, the plaintiffs would have needed to show either that internet service providers “promoted and marketed their [service] as a tool to infringe copyrights” or that the only viable use of the internet is to illegally download copyrighted music.

Thomas also adds that the mere fact that Cox may have known that some of its users were illegally pirating copyrighted material is not enough to hold them liable for that activity.

As a legal matter, this very broad holding is dubious. As Sotomayor argues in a separate opinion, Congress enacted a law in 1998 which creates a safe harbor for some ISPs that are sued for copyright infringement by their customers. Under that 1998 law, the lawsuit fails if the ISP “adopted and reasonably implemented” a system to terminate repeat offenders of federal copyright law.

The fact that this safe harbor exists suggests that Congress believed that ISPs which do not comply with its terms may be sued. But Thomas’s opinion cuts off many lawsuits against defendants who do not comply with the safe harbor provision.

Still, while lawyers can quibble about whether Thomas or Sotomayor have the best reading of federal law, Thomas’s opinion was joined by a total of seven justices. And it is consistent with the Court’s previous decisions seeking to protect the internet from lawsuits and statutes that could undermine its ability to function.

In Twitter v. Taamneh (2023), a unanimous Supreme Court rejected a lawsuit seeking to hold social media companies liable for overseas terrorist activity. Twitter arose out of a federal law permitting suits against anyone “who aids and abets, by knowingly providing substantial assistance” to certain acts of “international terrorism.” The plaintiffs in Twitter claimed that social media companies were liable for an ISIS attack that killed 39 people in Istanbul, because ISIS used those companies’ platforms to post recruitment videos and other content.

Thomas also wrote the majority opinion in Twitter, and his opinion in that case mirrors the Cox decision’s view that internet companies generally should not be held responsible for bad actors who use their products. “Ordinary merchants,” Thomas wrote in Twitter, typically should not “become liable for any misuse of their goods and services, no matter how attenuated their relationship with the wrongdoer.”

Indeed, several key justices are so protective of the internet — or, at least, so cautious about interfering with it — that they’ve taken a libertarian approach to internet companies even when their own political party wants to control online discourse.

In Moody v. Netchoice (2024) the Court considered two state laws, one from Texas and one from Florida, that sought to force social media companies to publish conservative and Republican voices that those companies had allegedly banned or otherwise suppressed. As Texas’s Republican Gov. Greg Abbott said of his state’s law, it was enacted to stop a supposedly “dangerous movement by social media companies to silence conservative viewpoints and ideas.”

Both laws were blatantly unconstitutional. The First Amendment does not permit the government to force Twitter or Facebook to unban someone for the same reason the government cannot force a newspaper to publish op-eds disagreeing with its regular columnists. As the Court held in Miami Herald Publishing Co. v. Tornillo (1974), media outlets have an absolute right to determine “the choice of material” that they publish.

After Moody reached the Supreme Court, however, the justices uncovered a procedural flaw in the plaintiffs’ case that should have required them to send the case back down to the lower courts without weighing in on whether the two state laws are constitutional. Yet, while the Court did send the case back down, it did so with a very pointed warning that the US Court of Appeals for the Fifth Circuit, which had backed Texas’s law, “was wrong.”

Six justices, including three Republicans, joined a majority opinion leaving no doubt that the Texas and Florida laws violate the First Amendment. They protected the sanctity of the internet, even when it was procedurally improper for them to do so.

This Supreme Court isn’t normally so protective of institutions

One reason why the Court’s hands-off-the-internet approach in Cox, Twitter, and Moody is so remarkable is that the Supreme Court’s current majority rarely shows such restraint in other cases, at least when those cases have high partisan or ideological stakes.

In two recent decisions — Mahmoud v. Taylor (2025) and Mirabelli v. Bonta (2026) — for example, the Court’s Republican majority imposed onerous new burdens on public schools, which appear to be designed to prevent those schools from teaching a pro-LGBTQ viewpoint to students whose parents find gay or trans people objectionable. I’ve previously explained why public schools will struggle to comply with Mahmoud and Mirabelli, and why many might find compliance impossible. Neither opinion showed even a hint of the caution that the Court displayed in Cox and similar cases.

Similarly, in Medina v. Planned Parenthood (2025), the Court handed down a decision that is likely to render much of federal Medicaid law unenforceable. If taken seriously, Medina overrules decades of Supreme Court decisions shaping the rights of about 76 million Medicaid patients, including a decision the Court handed down as recently as 2023 — though it remains to be seen if the Court’s Republican majority will apply Medina’s new rule in a case that doesn’t involve an abortion provider.

The Court’s Republican majority, in other words, is rarely cautious. And it is often willing to throw important American institutions such as the public school system or the US health care system into turmoil, especially in highly ideological cases.

But this Court does appear to hold the internet in the same high regard that it holds religious conservatives and opponents of abortion. And that means that the internet is one institution that these justices will protect.

Correction, April 13, 2025: This story originally misstated the year of Justice Elena Kagan’s comment during Supreme Court oral arguments about the justices’ lack of internet expertise. She said it in 2023.

The ugly history behind Trump’s birthright citizenship case in the Supreme Court

2026-03-23T16:33:22-04:00

This man wants to revive a 145-year-old white supremacist idea that even 19th-century racists eventually rejected. | Joe Raedle/Getty Images

Three days after President Donald Trump began his second term, Judge John Coughenour, a Reagan appointee, became the first judge to block Trump’s attempt to strip citizenship from many Americans who were born in the United States. “I’ve been on the bench for over four decades,” Coughenour said at the time, adding that he “can’t remember another case where the question presented is as clear as this one is.”

Coughenour was the first of many judges to strike down a Trump executive order, which purports to strip citizenship from the children of undocumented immigrants and immigrants who are lawfully present in the United States, but only temporarily.

The fate of Trump’s anti-citizenship order is now before the Supreme Court, in a case known as Trump v. Barbara, and the legal case against it is about as airtight as these cases get. The Constitution’s 14th Amendment says that “all persons” born in the United States are citizens, with one narrow exception that does not apply in Barbara. And the Supreme Court settled this question nearly 130 years ago in United States v. Wong Kim Ark (1898).

Key takeaways

Trump’s legal arguments against birthright citizenship are exceedingly weak.
His administration’s chief argument was first developed in the 19th century by white supremacists who wanted to deny citizenship to Chinese Americans.
Yet even in an era of open white supremacy, 19th-century courts did not accept the argument as grounds for denying citizenship to children of Chinese immigrants.

Yet, while Trump’s legal arguments in Barbara are exceptionally weak, they aren’t exactly new. Indeed, they are quite old. As law professor Sam Erman and historian Nathan Perl-Rosenthal explain in a recent paper, a white supremacist lawyer named Alexander Porter Morse — the same lawyer who would go on to argue the pro-segregationist side in Plessy v. Ferguson (1896) — masterminded a failed effort to weaken the 14th Amendment in the late 19th century, largely to deny US citizenship to Americans of Chinese descent.

The Supreme Court put that effort to rest in Wong Kim Ark. But Trump’s unusual arguments in the Barbara case closely mirror an early version of the anti-Chinese citizenship argument devised by Morse and other similarly minded lawyers. Trump’s brief in Barbara twice cites an 1881 book by Morse, which made this early case against citizenship for Chinese Americans, as well as several other writings by advocates and scholars who shared Morse’s goals.

Morse argued in 1881 that the 14th Amendment, which provides that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States” should be read to deny citizenship to “children of foreigners transiently within the United States.”

The heart of Trump’s brief is a list (on pages 26–28) of quotations from 19th and early 20th century books and law review articles that make the same argument Morse made in his 1881 treatise. Trump’s lawyers claim that the 14th Amendment does not apply to “children of temporarily present aliens or illegal aliens.”

The mere fact that an argument existed in the late 19th century does not prove it was widely accepted, or even that it enjoyed any meaningful support. According to Erman and Perl-Rosenthal, even Morse eventually rejected the anti-citizenship argument he made in his 1881 book, telling the American Bar Association in an 1884 speech that tying citizenship to whether the parents are permanent residents of the United States “utterly fails to furnish a convenient or practical rule of decision.” (Although Morse came up with other legal arguments seeking to diminish the 14th Amendment.)

Trump, in other words, seeks to justify his anti-citizenship order using a century-and-a-half old idea that was swiftly rejected even by its most prominent 19th-century proponent.

What the 14th Amendment actually says, and why Morse wanted to change it

The 14th Amendment provides that “all persons” born in the United States are citizens, with the exception of newborns who are not “subject to the jurisdiction” of the United States. The word “jurisdiction” means that someone is subject to US law. So, if Trump were correct that the children of undocumented immigrants or temporary visitors to the United States are not citizens, it would mean that the federal government could not deport them. Or even arrest them if they rob a bank.

In modern America, this “subject to the jurisdiction” exception to birthright citizenship primarily applies to the children of ambassadors and other foreign diplomats whose families enjoy diplomatic immunity from US law. But, as the Court explained in Wong Kim Ark, the exception also was intended to exclude many Native Americans, who were considered to be citizens of their tribal nations and not of the United States. (Congress extended full citizenship to “all noncitizen Indians born within the territorial limits of the United States” in 1924).

A minority of lawmakers objected to the 14th Amendment’s goal of extending citizenship to nearly everyone born in this country — sometimes naming racial or ethnic groups that they deemed unworthy of citizenship. In an 1866 congressional debate, for example, Sen. Edgar Cowan complained that the “child of the Chinese immigrant in California” and the “child of a Gypsy born in Pennsylvania” should not be citizens.

After the 14th Amendment was ratified, many advocates who shared Cowan’s views started devising legal arguments seeking to exclude disfavored racial groups from citizenship. At the time, Morse was a former Confederate army officer and newly minted lawyer who swiftly became a prominent figure in the newly emerging field of international law. He would become a leading American advocate for the concept of jus sanguinis, or “right of the blood” citizenship — the idea that a child’s nationality should be determined by the citizenship of their parents.

Of course, Morse’s biggest obstacle, as an advocate seeking to make jus sanguinis the law in the United States, is that the 14th Amendment explicitly rejects this theory of citizenship. So the white supremacist lawyer spent much of his career attempting to shoehorn his preferred theory into constitutional language that would not support it, often advancing theories that sought to deny citizenship to immigrants from non-European nations.

His 1881 book, A Treatise on Citizenship, by Birth and by Nationalization, was an early attempt to do so. Though Morse conceded that the “main purpose of” the 14th Amendment’s Citizenship Clause was to “establish the citizenship of the negro,” he claimed that the amendment “exclude[s] the children of foreigners transiently within the United States.”

This argument plays a starring role in Trump’s Barbara brief, which opens with the line “The Fourteenth Amendment’s Citizenship Clause was adopted to grant citizenship to freed slaves and their children—not to children of temporarily present aliens or illegal aliens.”

To a modern reader, the connection between Morse’s claim that the children of transient visitors to the United States are not citizens, and the broader goal of denying citizenship to Chinese Americans, probably isn’t obvious. By the 1870s, many Chinese nationals had immigrated to California, often drawn by work building railroad lines connecting the western state to the rest of the nation. The descendants of these immigrants form much of the large Chinese American community in modern day California and throughout the United States.

These immigrants formed families, started businesses, and many of them spent the rest of their lives in the United States. It is now obvious that these immigrants were no more transient visitors than many European immigrants with similar histories.

But in the 19th century, a common racist trope held that people of Chinese descent were such alien creatures that they were incapable of integrating into American society. An 1877 message to Congress prepared by seven California state senators, for example, complained that Chinese immigrants “seem to be antediluvian men renewed.” The senators claimed that there was “no hope that any contact with our people, however long continued, will ever conform [Chinese immigrants] to our institutions, enable them to comprehend or appreciate our form of government, or to assume the duties or discharge the functions of citizens.”

Morse’s 1881 treatise relied on the work of Francis Wharton, another prominent 19th-century international lawyer whose writings are heavily cited in Trump’s Barbara brief. Wharton focused on the legal concept of “domicile,” or the intention to remain indefinitely in a particular place, and argued that Chinese nationals were so unlike Americans that they were “not capable of naturalization,” assuming that they “do not expect to remain permanently in this country” and that they all “look forward to a return, sooner or later, to China.”

Thus, by linking citizenship to permanent residence, Morse hoped to exclude people of Chinese descent from US citizenship altogether. If Chinese people were truly incapable of permanently settling in the United States, then a rule denying citizenship to the children of temporary visitors would necessarily exclude Chinese Americans.

Even Morse eventually abandoned his own argument from 1881

One problem with Morse’s 1881 theory of citizenship, even from the perspective of white supremacists who shared his goals is that, while anti-Chinese racists may have believed that no Chinese person could intend to live permanently in the United States, a court tasked with determining whether a particular Chinese immigrant wants to remain here permanently must actually base its decision in real facts.

Trump’s lawyers want to implement a 145-year-old idea that was deemed unworkable even by one of its preeminent original champions.

As Erman and Perl-Rosenthal write, a 19th-century Chinese immigrant advocacy group “secured the best lawyers, backed thousands of claims, won most of the time, and pressed expansive interpretations of the 14th Amendment.” Lawyers enthralled with the writings of people like Morse or Wharton could certainly argue that no Chinese immigrant could assimilate into American society or intend to remain permanently in the United States. But advocates for individual immigrants had no trouble finding clients who had assimilated, and who did wish to remain in California or elsewhere in the US.

This is why, only three years after the publication of Morse’s 1881 treatise, he told the American Bar Association that his own proposed test was a failure. Morse abandoned his own argument because it was not prevailing in court.

Of course, Morse and other lawyers who shared his goals devised new strategies to deny citizenship to Chinese Americans — strategies that the Court ultimately rejected in Wong Kim Ark. It is likely that Morse’s claim that citizenship should be tied to permanent residency would be forgotten today, even by most scholars of immigration law, if not for Trump’s lawyers’ decision to revive this claim.

And it would be exceedingly strange if the justices take this claim seriously. The Constitution’s language is clear. The issue was settled in Wong Kim Ark. And Trump’s lawyers want to implement a 145-year-old idea that was deemed unworkable even by one of its preeminent original champions.

The Supreme Court seems alarmingly willing to trash thousands of ballots

2026-03-23T15:56:29-04:00

President Donald Trump shakes hands with Justice Brett Kavanaugh before delivering the State of the Union address at the US Capitol in 2019. | Mandel Ngan/AFP via Getty Images

If the United States had a nonpartisan judiciary, Watson v. Republican National Committee would have been laughed out of court months ago. The premise of the Republican Party’s lawsuit in Watson is that, beginning in 1845, Congress banned states from counting many absentee ballots — and somehow no one noticed this for the better part of two centuries.

To understand Watson, it’s important to understand how President Donald Trump has transformed previously technocratic questions about election administration into a partisan battlefield. Until Trump’s rise, neither party really contested that states may accept absentee ballots or other ballots cast by mail, and even many red states were allowing more and more voters to cast their ballot by mail. Indeed, it’s notable that, in Watson, the GOP challenges a voting law in the blood-red state of Mississippi.

In the lead-up to the 2020 election, however, Trump started attacking voting by mail. As a result, Democrats are now much more likely to mail their ballots than Republicans, so any new policy that invalidates mailed ballots is likely to skew elections toward Trump’s Republican Party.

Which brings us to the specific legal theory in Watson. The GOP (along with the Libertarian Party of Mississippi) claim that three federal laws which set the date for federal elections (one governing presidential elections, one governing House elections, and one governing Senate elections) preclude any state from counting a ballot that arrives after Election Day, even if it was mailed prior to that date.

Mississippi is one of many states that counts some ballots that arrive after the congressionally determined Election Day. Under Mississippi law, ballots that are mailed by Election Day, but that arrive up to five business days after the election, will still be counted. The Republican Party claims this practice violates federal law, and that only ballots that arrive on or before Election Day may be counted.

This argument is, to put it mildly, a huge stretch. For the most part, absentee balloting didn’t even exist in the 19th century, so there is no evidence that Congress intended to limit it when it enacted the first law setting a nationwide Election Day in 1845.

The best early example of absentee balloting occurred during the Civil War — as Justice Sonia Sotomayor pointed out during the Watson oral argument, Rhode Island and Nevada required Union soldiers in the field to give their ballots to one of their officers, who would often mail those ballots to state election officials after the federally determined Election Day.

Modern-day absentee voting laws began to appear in the early 20th century, and many states now allow at least some late-arriving ballots to be counted. According to Mississippi’s brief, “nearly 30 States and the District of Columbia allow at least some ballots that are cast by election day to be counted if they are received soon after that.”

So the premise of the Republican Party’s argument is that a widespread practice that has existed since the Civil War was actually made illegal in 1845, and yet no one noticed this until very recently, after Donald Trump decided to campaign against voting by mail.

It’s fairly obvious, in other words, that the GOP’s arguments in Watson have nothing to do with what the law actually says, or what Congress actually intended when it enacted that law, and everything to do with the Republican Party’s hope to gain an electoral advantage by tossing out Democratic ballots. Unfortunately, at least four members of the Supreme Court — all Republicans — seemed very likely to embrace the GOP’s arguments in this case.

That said, both Chief Justice John Roberts and Justice Amy Coney Barrett seemed skeptical of the Republican Party’s arguments. So the most likely outcome in Watson is a 5-4 decision rejecting this attempt to trash lawfully cast ballots. But it is unnerving that any judge, whether Democratic or Republican, would take the GOP’s cockamamie legal arguments seriously.

So what is the Republican Party’s argument for tossing lawful ballots in the trash?

The GOP’s brief raises three legal objections to the Mississippi law. But even the four justices most closely aligned with the Republican Party seemed to take only one of those arguments seriously.

Although the three statutes at issue in Watson have different wording, they all do more or less the same thing. The law governing House elections, for example, provides that “the Tuesday next after the 1st Monday in November, in every even numbered year, is established as the day for the election.”

The GOP’s primary argument is that the word “election,” when used in this context, refers to an event where all ballots are cast by voters and collected by election officials. So if Congress sets a “day for the election” both the casting and the collection must happen on that day.

Some of the Republican justices appeared to simply assume that the GOP’s definition of an “election” was correct, and pressed Mississippi on why its law does not require a state official to collect the ballot by Election Day. Justice Samuel Alito, for example, complained that the US postal service is not part of a state, and therefore Mississippi’s law allows ballots to be cast by voters without delivering them to a state official. Justice Neil Gorsuch also seemed bothered by a hypothetical law that would allow voters to cast their ballot by certifying them with a notary public (someone else who is not a state official).

Of course, as Sotomayor pointed out, Alito and Gorsuch’s objections are out of step with longstanding historical practice — in the Civil War, it was common for individual soldiers to deliver their ballot to a military officer, for example, not a state election official.

The four justices most hostile toward Mississippi’s law, however, focused primarily on policy considerations that are irrelevant to what the law actually says. Both Alito and Justice Brett Kavanaugh, for example, fretted that some voters might lose faith in elections if the winner of an election seems to change after late-arriving ballots are counted.

Gorsuch, meanwhile, spun out a baroque hypothetical involving a situation where a damning scandal involving a candidate is discovered the day after an election, and voters somehow get the US Post Office to recall their ballots before they arrive in the hands of state officials.

Based on the justices’ questions, Justices Clarence Thomas, Alito, Gorsuch, and Kavanaugh all seem likely to back the GOP’s attempt to toss out late-arriving mailed ballots.

That said, two Republicans, Roberts and Barrett, appeared more skeptical of their party’s position.

Roberts was fairly quiet during Monday’s argument, but his few questions focused on his concern that, if the GOP’s reading of the statute is correct, then it would also forbid states from allowing voters to cast a ballot before Election Day. Thus, unless Roberts is prepared to ban all early voting, including absentee balloting, it appears unlikely that he will back the GOP in Watson.

Barrett’s questions, meanwhile, were narrower and more technical, but they mostly seemed skeptical of the GOP’s legal arguments. In response to Gorsuch’s hypothetical about voters attempting to recall their ballots after Election Day, for example, Barrett suggested that her Court could simply declare such a recall illegal without banning late-arriving ballots from being counted altogether.

Similarly, in response to the GOP’s argument that states ordinarily did not permit absentee balloting in the 19th century, Barrett said that was probably because they thought it was “good policy” to require voters to vote in person, and not because they thought voting by mail is illegal or restricted by federal law.

It is more likely than not, in other words, that the Supreme Court will reject the Republican Party’s embarrassingly weak arguments in Watson, but that outcome is not guaranteed. It appears to hinge on whether the three Democratic justices can hold onto both Roberts and Barrett. And an alarmingly large contingent of the justices appear eager to sign onto their political party’s attempt to toss out thousands of lawful ballots, most of which will be cast by Democrats.