Federal law says that “any individual eligible for medical assistance” from a state Medicaid program may obtain that care “from any institution, agency, community pharmacy, or person, qualified to perform the service or services required.” In other words, all Medicaid patients have a right to choose their doctor, as long as they choose a health provider competent enough to provide the care they seek.

On Thursday, however, the Republican justices ruled, in Medina v. Planned Parenthood, that Medicaid patients may not choose their health provider. And then they went much further. Thursday’s decision radically reorders all of federal Medicaid law, rendering much of it unenforceable. Medina could prove to be one of the most consequential health care decisions of the last several years, and one of the deadliest, as it raises a cloud of doubt over countless laws requiring that certain people receive health coverage, as well as laws ensuring that they will receive a certain quality of care.

All three of the Court’s Democrats dissented.

Justice Neil Gorsuch’s opinion in Medina is a trainwreck of legal reasoning. It’s hard to think of a principled reason why, two years after the Court took a much more expansive approach to Medicaid law in Health and Hospital Corporation v. Talevski (2023), the Republican justices abruptly decided to reverse course. It is easy, however, to see a political reason for the Medina decision.

The plaintiff in Medina, after all, is Planned Parenthood, an abortion provider Republicans love to hate. Medina involved South Carolina’s attempt to forbid Medicaid patients from choosing Planned Parenthood as their health provider, a policy that violates federal law.

In an apparent attempt to spite Planned Parenthood, the Republican justices have now effectively repealed that law. This is not aberrant behavior from this Court’s Republican majority.

Four years ago, before the Court overruled Roe v. Wade and eliminated the constitutional right to an abortion, the justices considered a Texas law which permitted private bounty hunters to sue abortion providers and collect bounties of at least $10,000 from them. The Texas law was an obvious attempt to cut off abortion rights in violation of Roe, but five of the Republican justices joined an opinion by Gorsuch, which held that this sort of law could not be challenged in federal court because, Gorsuch claimed, abortion providers must wait until after they are hauled into court by a bounty hunter to assert their rights.

Medina fits within the same legal tradition. When a case involves abortion providers, the Court’s Republican majority is frequently willing to twist the law into any shape necessary to ensure that the abortion providers lose.

What was the specific legal issue in Medina?

A federal law known as “Section 1983” lets state officials be sued if they deprive someone of “any rights, privileges, or immunities secured by the Constitution and laws.” This is arguably the most important civil rights law ever enacted by Congress. Without it, many federal laws and constitutional provisions would be unenforceable.

Medina turns on Section 1983’s reference to “rights” protected by federal law. Past Supreme Court decisions establish that not all federal laws create a right that can be enforced under Section 1983 and so the Court has developed a set of rules to determine which laws do.

Before Thursday’s decision in Medina, the key case laying out this framework was Talevski. Talevski held that a federal law creates enforceable rights when it is “‘phrased in terms of the persons benefited’ and contains ‘rights-creating,’ individual-centric language with an ‘unmistakable focus on the benefited class.’”

Thus, before Thursday, the key question was whether a law’s text focuses on the individuals who benefit. A hypothetical federal law which provides that “no state may prevent a hungry person from eating at Taco Bell” would be enforceable, under Talevski, because this hypothetical law centers the people who benefit from it (people who are hungry). A similar statute stating that “states shall not impede access to cheap burritos” would likely not be enforceable under Talevski, because it does not mention who is supposed to benefit from these burritos.

Under Talevski, Medina is an easy case, and it should have ended in a 9-0 victory for Planned Parenthood. Here is the relevant statutory language from the Medina case:

A State plan for medical assistance must … provide that … any individual eligible for medical assistance (including drugs) may obtain such assistance from any institution, agency, community pharmacy, or person, qualified to perform the service or services required (including an organization which provides such services, or arranges for their availability, on a prepayment basis), who undertakes to provide him such services.

This law is full of the kind of “individual-centric language” demanded by Talevski. It provides a right to “any individual.” It provides that these individuals “may obtain” care from their chosen provider. And it concludes with a pronoun (“him”) which refers back to the individuals who benefit from this law.

There is simply no way to reconcile Gorsuch’s Medina opinion with Talevski.

So how does Gorsuch try to get around Talevski?

The Republican justices largely try to get around Talevski by ignoring it, or by misrepresenting what it said. Notably, the key words laying out Talevski’s legal rule — that federal laws are enforceable through private lawsuits if they are “phrased in terms of the persons benefited” — appear nowhere in Gorsuch’s opinion.

Instead, Gorsuch introduces some new principles into federal Medicaid law that are likely to confuse judges who must apply his decision to other provisions of the Medicaid statute.

In its brief, for example, South Carolina suggested that a federal law must use the magic word “right,” or it is unenforceable under Section 1983. Gorsuch’s opinion doesn’t go quite this far, but it does repeatedly point out that the provision of Medicaid law at issue in Talevski, which the Court held to be enforceable, uses this magic word in its text.

Unlike Talevski, however, Medina does not articulate a clear legal rule which lower court judges can apply to other provisions of Medicaid law. It does not even explicitly overrule Talevski. Instead, Gorsuch mostly just points to some random features of the law at issue in Medina, and then leaves readers to guess how to determine which Medicaid laws are still enforceable.

Gorsuch, for example, finds it quite significant that a different provision of federal Medicaid law allows states to exclude some providers who are convicted of a felony from their Medicaid program — a fact that is completely irrelevant under Talevski. He also notes that the provision at issue in Medina “appears in a subsection titled ‘Contents.’”

It’s hard to understand how this title is relevant. Moreover, this segment of Gorsuch’s opinion appears to conflict with the explicit text of a federal law, which states that a provision of Medicaid law “is not to be deemed unenforceable because of its inclusion in a section…specifying the required contents of a State plan.”

Gorsuch also includes an ominous line suggesting that, in the future, his Court will read Medicaid laws very narrowly: “Though it is rare enough for any statute to confer an enforceable right,” Gorsuch claims, “spending-power statutes like Medicaid are especially unlikely to do so.”

Thursday’s decision, in other words, is likely to have sweeping implications for low-income Americans’ health care, even if it was handed down solely to wound Planned Parenthood. Federal Medicaid law is riddled with provisions governing how states must operate their Medicaid programs, including requirements governing who must be covered, and rules governing patient safety. The Talevski case, for example, concerned a law which prohibits nursing homes from using psychotropic drugs “for purposes of discipline or convenience” when they are “not required to treat the resident’s medical symptoms.” Under Medina, many of these laws may now be rendered unenforceable.

It should be noted that, even under Gorsuch’s decision, there is still one possible way to enforce the law permitting Medicaid patients to choose their health providers — the federal government could cut off some or all Medicaid funding to South Carolina. Realistically, however, this remedy would only make matters worse. It does not help Medicaid patients to take away their funding, and so the federal government has historically been exceedingly reluctant to use this blunderbuss of an enforcement mechanism.

After Medina, that means that much of federal Medicaid law may effectively cease to function.

On Thursday evening, the Supreme Court handed down a brief order, which temporarily permits President Donald Trump to fire two federal officials who, by law, are shielded from being summarily terminated. That, in itself, is not particularly significant because, on April 9, Chief Justice John Roberts acted on his own authority to temporarily permit Trump to fire the same two officials. So the practical effect of Thursday’s order in Trump v. Wilcox is simply to maintain the status quo.

That said, the Thursday order does contain some important new information from the Court’s Republican majority. While the Republican justices have signaled for quite some time that they are eager to give the president broad authority to fire officials that Congress intended to insulate from presidential control, the order includes a paragraph signaling that they will not allow Trump to fire members of the Federal Reserve.

From a legal perspective, the paragraph is difficult to parse. And, as Justice Elena Kagan writes in a dissenting opinion, is not supported by the legal authority it cites. But it is likely to reassure investors that, while the Supreme Court does appear eager to expand Trump’s authority over previously independent parts of the federal government, it won’t permit him to disrupt the Fed’s ability to make technocratic decisions about interest rates.

The immediate stakes in Wilcox involve a former member of the National Labor Relations Board (NLRB), which enforces labor laws and adjudicates union-related disputes, along with a former member of the Merit Systems Protection Board (MSPB), which hears disputes claiming that a civil servant’s employment protections were violated. Trump fired both shortly after taking office, despite the fact that federal law only permits them to be fired for some sort of neglect or malfeasance.

The NLRB and the MSPB, moreover, are just two of an array of “independent” agencies led by multi-member boards, whose members all enjoy similar employment protections – agencies such as the Federal Trade Commission, the Federal Communications Commission, and the Federal Reserve.

For at least 15 years, when the Court handed down Free Enterprise Fund v. Public Company Accounting Board (2010), a majority of the justices have signaled that they are eager to strip Congress of its authority to create such independent agencies, and give the president full authority to fire these agencies’ leaders at will. Many economists and investors, meanwhile, have warned that it would be particularly dangerous to strip the Federal Reserve — which is supposed to set interest rates based on delicate economic calculations and not based on what will benefit the sitting president — of its independence, as doing so could throw the US economy into chaos.

Thursday’s order is a clear signal that the Court has heard these concerns and does not intend to eliminate the Fed’s independence. It is unlikely to satisfy many constitutional scholars, as its explanation for why Federal Reserve leaders should be treated differently than the leaders of any other independent agency is so baffling that it appears contrived.

Regardless of the underlying reasoning, however, the order does strongly suggest that this Court will not give Trump full control over the Fed.

The “unitary executive,” briefly explained

Trump v. Wilcox is the culmination of a longstanding grudge many Republican legal elites hold against Humphrey’s Executor v. United States (1935), the Supreme Court case establishing that Congress may create independent agencies whose members may only be fired for cause.

Though the leaders of these agencies are typically nominated by the president for a term of several years, and confirmed by the Senate, Humphrey’s Executor explained that laws protecting them from being fired while in office are supposed to ensure that they “act with entire impartiality,” and “exercise the trained judgment of a body of experts.”

All six of the Court’s Republicans, however, have made it clear they believe in a theory known as the “unitary executive,” which is incompatible with Humphrey’s Executor.

The Constitution provides that “the executive power shall be vested in a President of the United States of America.” In a 1988 dissenting opinion, which many legal conservatives now treat as if it were a holy text, Justice Antonin Scalia argued that “this does not mean some of the executive power, but all of the executive power.” And thus, if a federal official is charged with executing federal laws in some way, they must be fully subject to presidential control.

If you take this unitary executive theory seriously, then there should be no doubt that Federal Reserve governors may be fired at will by the president. The Fed’s authority over interest rates, after all, derives from federal statutes instructing it to pursue the dual goals of “maximum employment” and “stable prices.” So the Fed is charged with executing federal laws.

But the consequences of stripping the Fed of its independence could be catastrophic.

In 1971, President Richard Nixon pressured Fed chair Arthur Burns to lower interest rates in advance of Nixon’s reelection race — the idea was to juice the economy right while voters were weighing Nixon’s record — and Burns complied. In the short term, this worked out great for Nixon. The economy boomed in 1972, and Nixon won reelection by a historic landslide. But Burns’s action is often blamed for years of “stagflation,” slow economic growth combined with high inflation, in the 1970s.

The Fed, in other words, has the power to effectively inject cocaine into the US economy – giving it a temporary boost that can be timed to benefit incumbent presidents, at the cost of much greater economic turmoil down the road. It’s not hard to see how presidents could abuse their power if they can fire members of the Federal Reserve who refuse to give the economy such a temporary and costly high.

One might think that these risks would be enough to caution the justices against overruling Humphrey’s Executor. But the Republican justices appear quite committed to the unitary executive theory, and they have been that way for quite some time. (If you want to know more about why they feel this way, I can refer you to three separate explainers I’ve written on this subject.)

And so those justices spend the bulk of Thursday’s Wilcox order laying out the process they are likely to use to formally overrule Humphrey’s Executor. The order announces that the Trump administration is “likely” to prevail in its bid to fire NLRB and MSPB officials, and it temporarily blocks lower court decisions that reinstated the two officials at issue in this case. But the Court puts off the question of whether to formally repudiate Humphrey’s Executor until after the ordinary appeals process plays out and the justices receive full briefing and oral argument on whether to do so — which could happen as soon as the Court’s next term.

The Wilcox order’s language protecting the Fed is gobbledygook

Embedded within all this language laying out the process to challenge Humphrey’s Executor is the paragraph indicating that the Fed is safe. While the two fired officials “contend that arguments in this case necessarily implicate the constitutionality of for-cause removal protections for members of the Federal Reserve’s Board of Governors or other members of the Federal Open Market Committee,” the order states, “we disagree.”

The justices who joined the order then offer a single sentence explaining why: “The Federal Reserve is a uniquely structured, quasi-private entity that follows in the distinct historical tradition of the First and Second Banks of the United States.”

It’s certainly possible to parse the components of this sentence. The description of the Fed as a “quasi-private entity,” for example, may refer to the fact that much of the Fed’s authority is wielded through regional entities, which are themselves controlled by board members who are mostly selected by commercial banks. But it is hardly unusual for members of the private sector to be given a formal role within government — just ask Elon Musk. Indeed, the Supreme Court heard at least two cases this spring involving the role experts from the private sector may play in setting government policy.

The “First and Second Banks of the United States” are 18th- and early 19th-century predecessors to the Fed. The Supreme Court upheld Congress’s power to create national banks in McCulloch v. Maryland (1819), but the nation abandoned national banking under President Andrew Jackson, setting off a period of economic turmoil, including an economic depression shortly after Jackson left office.

But it’s unclear what any of this has to do with the president’s powers as outlined in the Constitution. If the theory of the unitary executive is correct, then no entity — regardless of whether it is “quasi-private” or is part of a “distinct historical tradition” involving banks — may execute federal laws, unless that entity is controlled by people who are themselves under presidential control. As a legal matter, the Court’s explanation of why the Fed is special is nothing more than word salad.

The only legal authority that the Wilcox order cites to support its claim that the Fed is special is a footnote in its pro-unitary executive decision in Seila Law v. CFPB (2020). But nothing in that footnote provides any support for this claim.

As Kagan points out in her dissent in Wilcox, the only relevant language in that footnote is a throwaway line responding to her partial dissent in Seila Law. Kagan had argued that “federal regulators” historically have enjoyed some insulation from the president. The footnote dismisses this argument, stating that even “assuming financial institutions like the Second Bank and the Federal Reserve can claim a special historical status,” the agency at issue in Seila Law does not qualify.

The Court, in other words, waved away Kagan’s argument that institutions like the Fed should be shielded from presidential control in Seila Law. Now, however, the justices in the majority appear to be signaling they believe there is some merit to Kagan’s argument.

If the Court does formally overrule Humphrey’s Executor in the coming months, the justices in the majority will likely elaborate on why a different rule should apply to the Fed. The best reading of the Wilcox order’s one paragraph about the Fed is that a majority of the justices have already decided that they want to protect it, and they would now like some smart lawyers to file briefs coming up with an argument for that position — one that uses terms like “quasi-private” and that refers to the early history of national banking.

Of course, this is not how the law is supposed to work — judges are not supposed to start with the outcome that they want and then invite members of the bar to explain how to get there. But this also will hardly be the first time that the Roberts Court started with its intended outcome and reasoned backward to get there. It’s just being more transparent this time around.

Three years ago, Montgomery County, Maryland, approved several books with LGBTQ characters for use in public school classrooms. Not much else is known about these books, how they have been used, when they were used in lessons, or how teachers plan to use them in the future.

These questions have come before lower courts, but the Supreme Court decided to hear a case — Mahmoud v. Taylor, brought by conservative Muslim and Christian parents who find these books objectionable — before these lower courts had a chance to sort out whether anyone’s constitutional rights have actually been violated.

Despite all this uncertainty, all six of the Supreme Court’s Republicans appeared absolutely convinced, during an oral argument on Tuesday, that the Montgomery County school district violated the Constitution, and that it must do more to protect parents who object to these books on religious grounds.

Based on Tuesday’s argument in Mahmoud, it seems all but certain the Court will rule that parents who object to these books must be allowed to remove their children from any classes where the books are featured. What is less clear is whether the Court will do so in a way that could endanger every public school in the country’s ability to function.

Eric Baxter, the lawyer representing the parents who oppose these books, seemed quite emboldened during Tuesday’s argument, and advocated for a result that would be extraordinarily disruptive. In his brief, Baxter suggested that parents who object to any form of classroom instruction on religious grounds must be notified in advance about that instruction and be permitted to opt their child out of the class.

The implications of this argument are breathtaking. As Justice Sonia Sotomayor pointed out, past cases involve parents who object to lessons touching on topics like divorce, interfaith couples, and “immodest dress.” Parents have brought federal lawsuits objecting, on religious grounds, to the government using unique numbers to identify people in its own internal records. They’ve objected to lessons exposing children to ideas about evolution, pacifism, magic, women achieving things outside of the home, and “false views of death” — among other things.

Under Baxter’s proposed rule, to avoid these lawsuits, school districts would have an obligation to notify parents in advance if they will teach any book where magic exists, any book where divorce exists, any book where women have accomplishments, or any book about famous pacifists such as Martin Luther King, Jr. — among many other things. It is hard to imagine how any public school could comply with such an obligation.

That said, while all six of the Republican justices appeared highly likely to rule against the school district in Mahmoud, some of them did appear to be looking for a way to decide this case more narrowly than Baxter suggested.

Justice Samuel Alito, for example, suggested at one point that Baxter’s rule might only apply to very young students, or to lessons that touch upon sexuality. Justice Neil Gorsuch pointed to an alleged statement by a school board member, which Gorsuch claims showed animus against certain religious beliefs. Following Gorsuch’s line of thinking to its conclusion would allow the Court to rule that Montgomery County’s policies must be changed because they are rooted in animus, but that another school district might be allowed to enact similar policies so long as they did not display similar hostility toward religion.

So, while there seems to be little doubt that the school district will lose the Mahmoud case, it is possible that it will lose in a way that doesn’t endanger public school instruction throughout the United States.

The Court appeared to divide into four camps

Broadly speaking, the justices floated four different approaches to this case.

All three of the Court’s Democrats — Sotomayor, and Justices Elena Kagan and Ketanji Brown Jackson — focused on the “line-drawing” problems presented by this case. Kagan said she understood how even non-religious parents might object to “young kids” being taught “on matters concerning sexuality,” but she added that there wasn’t anything in Baxter’s argument that would allow the Court to limit claims by parents who want to micromanage a school’s lessons.

Similarly, Jackson was troubled that Baxter’s arguments seemed so broad that they could prevent a gay teacher from displaying a picture of their own wedding, or even prevent a teacher from referring to a transgender child by that child’s preferred pronouns in the presence of another student whose parents object to trans people on religious grounds.

But these concerns were largely limited to the Court’s Democratic minority. The other six justices appeared to be hunting for a way to rule against the school district.

The most extreme of these six Republicans was Justice Brett Kavanaugh, who at one point said that he is “mystified, as a longtime resident” of Montgomery County, that this case exists. As the Supreme Court said in Lyng v. Northwest Indian Cemetery (1988), the First Amendment only prohibits government action that tends “to coerce individuals into acting contrary to their religious beliefs.” But Kavanaugh at one point seemed to propose overruling Lyng and holding that a parent with religious objections to a lesson must only show a “burden” on their faith — however Kavanaugh would define that term.

Both Alito and Chief Justice John Roberts, meanwhile, appeared to think that there is something particularly noxious about exposing young people to books with gay characters. Alito, for example, argued that older students will understand that their teacher isn’t always correct — so it’s okay if those students are exposed to lessons that are in tension with their parents’ religious beliefs. But a different rule should apply to younger students.

Similarly, Roberts argued that it would be “dangerous” to expose kindergarten-age children to lessons their parents might object to, because that might cause those children to question whether they should obey their teacher.

Gorsuch, meanwhile, latched onto several lines in Baxter’s brief, which claim that a school board member compared parents who object to LGBTQ-inclusive literature to “white supremacists” and “xenophobes.” This matters because, in Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018), the Court ruled in favor of a baker who refused to bake wedding cakes for same-sex couples because a state civil rights commissioner made similarly disparaging comments about the baker.

Under Gorsuch’s approach, in other words, the Court could decide the Mahmoud case very narrowly, ruling in favor of the parents because of this school board member’s alleged comments, without handing down a broader rule that would impose unworkable disclosure rules on every public school in the country.

So it is possible that the Court will hand down a good-for-this-ride-only decision that gives these specific Montgomery County parents the result they want, without harming public education elsewhere. It is also possible that the Court will impose a kind of “Don’t Say Gay” rule on elementary school teachers, while allowing high school teachers to reveal that some people form romantic attachments to people of the same sex.

The Court used to be more cautious about rules that prevent public schools from functioning

One surprising omission in Tuesday’s argument is that no one mentioned the Court’s decision in Tinker v. Des Moines Independent Community School District (1969), a free speech case brought by students who wore black armbands to class in order to protest the Vietnam War.

In Tinker, the Court held that these students had a right to wear the black armbands, but it did so because the students merely engaged in a “silent, passive expression of opinion, unaccompanied by any disorder or disturbance on the part of petitioners.” Tinker held that public school students retain free speech rights, but not when their speech “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.”

The Court, in other words, recognized that public schools could not function if students could engage in speech that disrupts lessons, and it crafted a careful rule which respects those students’ First Amendment rights without undercutting the school’s ability to educate them and their classmates.

The Court could take a similar approach in Mahmoud. Because the full facts of this case are not yet known, it may, in fact, turn out that a teacher tried to coerce a student into rejecting their religious beliefs, or otherwise behaved in a manner that violates the Constitution’s protections for religious people. If that turns out to be true, then the courts absolutely should provide appropriate relief to that student and their parents.

But, instead of waiting until they know all the facts of the Mahmoud case and crafting an appropriately tailored rule like the one announced in Tinker, many of the justices seemed inclined to a more ham-handed approach. Based on Tuesday’s argument, it is difficult to guess whether Kavanaugh’s, Alito’s, Gorsuch’s, or some other approach will prevail. But, if the justices choose to accept Baxter’s arguments in full, they could easily impose unworkable obligations on public schools that will prevent them from functioning.

On Monday night, the Supreme Court handed down a 5-4 decision tossing out a closely watched district court decision, which blocked President Donald Trump’s attempt to use a 227-year-old law — the Alien Enemies Act — to deport many individuals without due process. The Court largely voted along party lines, although Republican Justice Amy Coney Barrett crossed over to dissent with the three Democratic justices.

Though the Court’s decision in Trump v. J.G.G. is a win for Trump, it is not a total victory. The Court does not express an opinion on whether the Alien Enemies Act actually permits Trump to deport anyone. It also rules that, before anyone is deported under this law, that person must be given “notice and an opportunity to challenge their removal.”

But this decision is still a significant victory for Trump — and a loss for anyone Trump’s administration deems worthy of deportation. For starters, Judge James Boasberg, the district court judge, had issued a blanket order that temporarily blocked all deportations under the Alien Enemies Act. Those deportations can now resume.

The Supreme Court’s decision also rules that anyone Trump targets must bring a “habeas” proceeding, a process that ordinarily can only be used by a single individual to challenge their detention by the government. That means judges can only bar detention on a person-by-person basis.

As Justice Sonia Sotomayor warns in dissent, “individuals who are unable to secure counsel, or who cannot timely appeal an adverse judgment rendered by a habeas court, face the prospect of removal directly into the perilous conditions of El Salvador’s [Center for Terrorism Confinement], where detainees suffer egregious human rights abuses.” (The administration has sent several hundred men accused of belonging to the Venezuelan gang Tren de Aragua to that prison.)

Habeas proceedings must be brought in the place where the person seeking relief is detained. Thus far, the Trump administration has transferred prisoners it intends to deport under the Alien Enemies Act to Texas, which is located in the US Court of Appeals for the Fifth Circuit’s jurisdiction.

The Fifth Circuit is the most right-wing court in the federal appellate system. If someone brings a habeas suit in its jurisdiction, and the decision is appealed to the Fifth Circuit, the court could hand down a precedent that means any habeas proceedings challenging these deportations would fail.

The Supreme Court’s decision in J.G.G. stands on dubious legal grounds. Habeas is the correct process for anyone who challenges the government’s decision to detain them, but the individuals at issue in J.G.G. do not challenge the government’s authority to detain them. They only challenge the government’s ability to deport them under the Alien Enemies Act.

As the Court said in Skinner v. Switzer (2011), there is no case “in which the Court has recognized habeas as the sole remedy, or even an available one, where the relief sought would ‘neither terminat[e] custody, accelerat[e] the future date of release from custody, nor reduc[e] the level of custody.’”

Finally, while the Supreme Court does not reach the question of whether the Alien Enemies Act can be used by Trump to deport people, the answer to this question under current law is an emphatic “no.” The Act, which has only been used three times in American history before Trump took office, may only be used against citizens of a country that the United States is at war with, or against a country that is engaged in a military invasion of the United States. The United States is not at war, nor has it been invaded.

Realistically, it is unlikely the Court can avoid the question of whether Trump may invoke this wartime statute for long. Indeed, in the likely event that the Fifth Circuit denies relief to the people Trump seeks to deport, one of them is likely to seek Supreme Court review of that decision.

For now, however, the Court gets to delay that showdown. The one silver lining in the J.G.G. case is that all nine justices agree that anyone Trump seeks to deport under the Alien Enemies Act must be given an opportunity to find a lawyer and challenge their deportation.

But that opportunity is unlikely to mean much for as long as these cases remain in the Fifth Circuit.