Late Thursday afternoon, the Supreme Court handed down an incomprehensible order concerning the Trump administration’s decision to cancel numerous public health grants. The array of six opinions in National Institutes of Health v. American Public Health Association is so labyrinthine that any judge who attempts to parse it risks being devoured by a minotaur.

As Justice Ketanji Brown Jackson writes in a partial dissent, the decision is “Calvinball jurisprudence,” which appears to be designed to ensure that “this Administration always wins.”

The case involves thousands of NIH grants that the Trump administration abruptly canceled which, according to Jackson, involve “research into suicide risk and prevention, HIV transmission, Alzheimer’s, and cardiovascular disease,” among other things. The grants were canceled in response to executive orders prohibiting grants relating to DEI, gender identity, or Covid-19.

A federal district court ruled that this policy was unlawful — “arbitrary and capricious” in the language of federal administrative law — in part because the executive orders gave NIH officials no precise guidance on which grants should be canceled. As Jackson summarized the district court’s reasoning, “‘DEI’—the central concept the executive orders aimed to extirpate—was nowhere defined,” leaving NIH officials “to arrive at whatever conclusion [they] wishe[d]” regarding which grants should be terminated.

According to Jackson, “the court found, as a factual matter, ‘an unmistakable pattern of discrimination against women’s health issues’ and ‘pervasive racial discrimination’—indeed, ‘palpable’ racial discrimination of a sort the judge had ‘never seen’ in 40 years on the bench.”

The question of whether this judge was correct to deem the Trump administration’s policy arbitrary and capricious, however, was not before the Supreme Court. Instead, the case hinged on a jurisdictional dispute.

Which court is supposed to hear this case?

As a general rule, lawsuits alleging that a federal policy is illegal are heard by federal district courts, while suits alleging that the federal government breached a contract are heard by the Court of Federal Claims.

In NIH, the plaintiffs alleged that the broader policy that led to their grants being canceled was illegal, so that suggests that this case should have been brought in a district court (which is where it was actually brought). But the case also bears some superficial similarity to a breach of contract suit, because it involved the government’s decision not to pay money that it had previously agreed to pay.

Four justices — the three Democrats plus Chief Justice John Roberts — concluded that these plaintiffs were right to bring their suit in the district court. Four other justices — Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh — concluded that the case must be brought in the Court of Claims. That would mean that these plaintiffs would have to start over again in the claims court, and possibly that they would have to bring individual suits seeking to reinstate individual grants, rather than seeking a broad order attacking the entire grant cancellation policy.

Justice Amy Coney Barrett, meanwhile, cast the deciding vote. She claims that this suit must be split between the two courts. In her view, the district court was the proper venue for the plaintiffs to argue that the overall policy is illegal, but the claims court is the proper venue for them to actually seek the money they would have received if the grants are not canceled.

If that sounds confusing, it gets worse. Barrett’s opinion states that federal law bars the claims court from hearing “claims pending in other courts when those claims arise from ‘substantially the same operative facts.’” So these plaintiffs likely must wait until after they have fully litigated the question of whether the Trump administration’s broad policy is illegal in district court, before they can actually try to get any money in the claims court.

That could take years, especially if the first question is heard by the justices again. Moreover, as Jackson warns in her opinion, by the time the first round of litigation is finished, the plaintiffs may be unable to seek relief in the claims court because the statute of limitations for doing so will have expired.

The bottom line is that, because there are five votes for the proposition that some parts of this case go to the district court, and also five votes for the proposition that other parts of it go to the claims court, Barrett’s opinion controls the case. By the time this mess gets sorted out, it is likely that most — if not all — of the research at issue in NIH will be lost, even if the plaintiffs do prevail.

As Jackson writes, without any money to fund their operations, the grant recipients will need to “euthanize animal subjects, terminate life-saving trials, and close community health clinics.”

There are actually even more complexities in this case, but rather than engage in the Sysiphean task of trying to list all of them, I will simply repeat Jackson’s summary of what appears to be going on here:

In a broader sense, however, today’s ruling is of a piece with this Court’s recent tendencies. “[R]ight when the Judiciary should be hunkering down to do all it can to preserve the law’s constraints,” the Court opts instead to make vindicating the rule of law and preventing manifestly injurious Government action as difficult as possible. This is Calvinball jurisprudence with a twist. Calvinball has only one rule: There are no fixed rules. We seem to have two: that one, and this Administration always wins.

Godspeed to the poor lawyers and judges who now have to untangle the mess this Court just created.

One of the biggest mysteries that has emerged from the Trump-era Supreme Court is the 2023 decision in Allen v. Milligan.

In Milligan, two of the Republican justices — Chief Justice John Roberts and Justice Brett Kavanaugh — voted with the Court’s Democratic minority to strike down Alabama’s racially gerrymandered congressional maps, ordering the state to redraw those maps to include an additional district with a Black majority.

As Roberts emphasized in his opinion for the Court in Milligan, a lower court that also struck down these maps “faithfully applied our precedents.” But the Roberts Court frequently overrules or ignores precedents that interpret the Voting Rights Act — the federal law at issue in Milligan — to do more than block the most egregious forms of Jim Crow-like voter suppression. And the Court’s Republican majority is normally hostile to lawsuits challenging gerrymanders of any kind.

Most notably, in Rucho v. Common Cause (2019), the Republican justices held that federal courts may not hear suits challenging partisan gerrymanders. Among other things, Rucho enables tactics like Texas Republicans’ current plans to redraw that state’s congressional maps to maximize GOP power in Congress.

So why did two Republican justices break with their previous skepticism of gerrymandering suits in the Milligan case? A new order that the Supreme Court handed down Friday evening appears to answer that question.

The new order, in a case known as Louisiana v. Callais, suggests that the Court’s decision in Milligan was merely a minor detour, and that Roberts and Kavanaugh’s votes in Milligan were largely driven by unwise legal decisions by Alabama’s lawyers. The legal issues in the Callais case are virtually identical to the ones presented in Milligan, but the Court’s new order indicates it is likely to use Callais to strike down the Voting Rights Act’s safeguards against gerrymandering altogether.

The Callais order, in other words, doesn’t simply suggest that Milligan was a one-off decision that is unlikely to be repeated. It also suggests that the Court’s Republican majority will resume its laissez-faire approach to gerrymandering, just as the redistricting wars appear to be heating up.

A brief history of the Supreme Court’s approach to gerrymandering

Broadly speaking, there are two kinds of lawsuits alleging that a legislative map is illegally gerrymandered. Partisan gerrymandering suits claim that a map was drawn to maximize one major political party’s power at the expense of the other. Racial gerrymandering suits, meanwhile, allege that a state’s legislative maps improperly dilute the voting power of voters of a particular race.

Prior to Rucho, the Court imposed minimal — but not entirely nonexistent — limits on partisan gerrymandering. It has historically been more aggressive in policing racial gerrymanders.

The Supreme Court held in Davis v. Bandemer (1986) that federal courts may hear claims alleging that a state’s maps are so egregiously partisan that they amount to unconstitutional discrimination. The idea is that maps that intentionally inflate Democratic voters’ power, while minimizing Republican voters’ power (or vice-versa) violate the Constitution’s guarantee that all voters should have an equal say in elections.

Notably, however, no five justices agreed to a single legal standard that would allow courts to determine which maps are illegal partisan gerrymanders in Davis. Nor did a majority of the Court set such a standard in later lawsuits challenging partisan gerrymanders. In Rucho, the Republican justices essentially announced that the Court would give up its quest to find such a standard. A few years later, in Alexander v. NAACP (2024), those justices went even further, declaring that “as far as the Federal Constitution is concerned, a legislature may pursue partisan ends when it engages in redistricting.”

Though Davis’s limits on partisan gerrymandering were always fuzzy, it is likely that this ambiguity deterred at least some states from enacting extreme gerrymanders that might have caused the courts to intervene. At the very least, Rucho changed how states litigate gerrymandering suits. Before Rucho, states accused of gerrymandering would often try to offer another explanation for why their maps benefited one party or the other. Now, they will openly state in their briefs that they drew maps for partisan reasons — confident that federal judges will do nothing, despite these confessions.

Historically, however, the Court has imposed more concrete limits on racial gerrymanders. In Milligan, for example, the Court struck down Alabama congressional maps that would have given Black voters a majority in just one of the state’s seven districts (or 14 percent of the districts), despite the fact that Black people make up about 27 percent of the state’s population. The Court ordered the state to draw new maps with two Black-majority districts.

The linchpin of Milligan and similar cases is the Court’s decision in Thornburg v. Gingles (1986), which laid out the rules governing when an alleged racial gerrymander violates the Voting Rights Act (which broadly prohibits race discrimination in elections). The framework laid out in Gingles is notoriously complicated, but it turns on whether voters in a particular state vote in racially cohesive blocs.

Thus, for example, in a state where the white majority supports Republicans nearly all of the time, while the Black minority supports Democrats nearly all of the time, Gingles sometimes requires courts to redraw the state’s maps to ensure that the Black minority is adequately represented. This is because, in such a state, the white majority can wield its near-unanimous support for Republicans to cut Black voters (and Democrats) out of power altogether.

In a different state, where both Black and white voters sometimes vote for either party, Gingles tells courts to stay out of redistricting. Black voters, after all, are United States citizens who have as much of a right to choose their leaders as anyone else. So, if they choose to be represented by a white Republican in a free and fair election, that’s their choice and the courts should honor it.

Because Gingles only kicks in when an electorate’s racial demographics closely match its partisan voting patterns, it places some practical limits on both partisan and racial gerrymandering. In Milligan, for example, Alabama was not able to draw maps that maximized Republican voting power because doing so required the state to dilute Black voting power. So, even though Rucho prevents lawsuits that challenge partisan gerrymandering directly, Gingles sometimes allows suits which target it indirectly by alleging that a partisan gerrymander is also an impermissible racial gerrymander.

But now the Court is signaling that it is likely to overrule Gingles and abolish suits alleging that racial gerrymanders violate the Voting Rights Act altogether.

So what’s the deal with the Court’s new order in Callais?

The Callais case is virtually identical to Milligan — indeed, the cases are so similar that Louisiana said in a brief to the justices that Callais “presents the same question” as the Alabama redistricting case. Before the Callais case reached the justices, a lower court determined that Louisiana’s congressional maps violate Gingles, and ordered the state to draw an additional Black-majority district.

Nevertheless, when the Supreme Court heard oral arguments in Callais last March, all six of the Republican justices appeared to disagree with this lower court’s decision — although the lower court’s decision merely applied the same legal rules that the Supreme Court applied two years earlier in Milligan. Then, at the end of June, the Court issued a brief order announcing that it would hold an unusual second oral argument in Callais, and that it would seek additional briefing from the parties in this case.

On Friday, the Court issued a new order laying out what these parties should address in those briefs. Those briefs should examine whether the lower court order requiring Louisiana to draw an additional Black-majority district “violates the Fourteenth or Fifteenth Amendments to the U.S. Constitution.” The justices, in other words, want briefing on whether Gingles — and the Voting Rights Act’s safeguards against racial gerrymandering more broadly — are unconstitutional.

This suggestion that the Voting Rights Act may be unconstitutional — or, at least, that it violates the Republican justices’ vision of the Constitution — should not surprise anyone who has followed the Court’s voting rights cases.

In Shelby County v. Holder (2013), the Republican justices neutralized a different provision of the Voting Rights Act, which required states with a history of racist election practices to “preclear” new election laws with federal officials before they take effect. The Court’s Republican majority labeled this provision “strong medicine” that could be justified to combat the kind of widespread racial voting discrimination that existed during Jim Crow. But they argued that the United States was not racist enough in 2013 to justify letting preclearance remain in place.

“There is no denying,” Roberts wrote for the Court in Shelby County, “that the conditions that originally justified these measures no longer characterize voting in the covered jurisdictions.”

Although Kavanaugh joined nearly all of the majority opinion in Milligan, he also wrote a separate opinion indicating that he wanted to extend Shelby County to gerrymandering cases in a future ruling. “Even if Congress in 1982 could constitutionally authorize race-based redistricting under [the Voting Rights Act] for some period of time,” Kavanaugh wrote, “the authority to conduct race-based redistricting cannot extend indefinitely into the future.”

Gingles also suggests that Voting Rights Act suits challenging racial gerrymanders should eventually cease to exist. If the electorate ceases to be racially polarized — something that appears to be slowly happening — then Gingles plaintiffs will no longer be able to win cases, and the federal judiciary’s role in redistricting will diminish. But Kavanaugh seems to be impatient to end these suits while many states remain racially polarized.

Read in the context of Kavanaugh’s Milligan opinion, in other words, the new Callais order suggests that a majority of the justices have decided the Voting Rights Act’s safeguards against racial gerrymandering have reached their expiration date, and they are looking for arguments to justify striking them down.

It now looks like Milligan was Gingles’s last gasp. The Republican justices remain hostile both to the Voting Rights Act and toward gerrymandering suits more broadly. And they appear very likely to use Callais to remove one of the few remaining safeguards against gerrymanders.

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.

In a short, one-paragraph order, the Republican justices ruled on Monday evening that President Donald Trump may effectively nullify a federal law and an international treaty that is supposed to protect immigrants from torture. The Court’s order in Department of Homeland Security v. D.V.D. does not explain the GOP’s justices’ reasoning, although Justice Sonia Sotomayor responds to their silent decision in a 19-page dissent joined by her two Democratic colleagues.

The Court’s order is only temporary, and will permit Trump to send immigrants to countries where they may be tortured while the D.V.D. case is fully litigated. It is possible that one or more of the Court’s Republicans could reverse course at a later date. But it is hard to know what arguments might persuade them to do so because the justices in the majority did not explain why they decided this case the way they did.

Federal law requires that the United States shall not “expel, extradite, or otherwise effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture.” This statute implements a treaty, known as the Convention Against Torture, which the United States ratified over three decades ago.

Trump’s lawyers, however, claim that they uncovered a loophole that permits the Trump administration to bypass these laws, at least with respect to some immigrants.

Typically, before a noncitizen may be removed from the United States, they are entitled to a hearing before an immigration judge. The immigration judge will inform the person facing deportation which countries they might be sent to, allowing the noncitizen to object to any countries where they fear they may be tortured. If the immigration judge determines that these objections are sufficiently serious to trigger the Convention Against Torture’s protections, the judge may still issue an order permitting the immigrant to be deported — but not to the nation or nations the immigrant raised objections about.

The D.V.D. case involves noncitizens who have already been through this process. In their case, an immigration judge determined that they may be deported, but not to specific countries. After the hearing process was complete, however, the Trump administration unexpectedly announced that it would deport the D.V.D. plaintiffs to other nations that were not previously under consideration.

That means that no immigration judge has determined whether these immigrants may be sent to those particular nations, and the immigrants have not been given a meaningful opportunity to object to the new countries where they are about to be deported. Using this loophole, the Trump administration seeks to deport them without a new hearing.

The Trump administration, moreover, appears to have intentionally selected countries where the noncitizens are likely to be unsafe. It wishes to deport many of these immigrants to South Sudan, for example, a country that was recently in a civil war, and where an uneasy peace appears to be collapsing. Others are slated for removal to Libya despite the fact that, according to Sotomayor’s dissent, they “would have landed in Tripoli in the midst of violence caused by opposition to their arrival.”

The Trump administration, in other words, appears to have created a deadly trap for immigrants who fear torture in their home nations. These noncitizens may object to being sent home under the Convention Against Torture, and an immigration judge may even rule in their favor. But the Trump administration may still send them somewhere else even more dangerous.

If you are interested in the specific legal arguments Trump’s lawyers raised to justify this trap, I summarized them here. But, again, it is not possible to determine which of these arguments persuaded a majority of the justices because those justices did not even bother to explain their decision.

Federal law states that the United States shall not “expel, extradite, or otherwise effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture.” This law implements a treaty, known as the Convention Against Torture, which the United States ratified more than three decades ago.

Federal regulations, moreover, provide that even after an immigration judge has determined that a noncitizen may be deported to another country, that judge’s order “shall not be executed in circumstances that would violate Article 3 of the United Nations Convention Against Torture.” And those regulations also establish a process that immigrants can use to raise concerns with an immigration judge that they may be tortured if sent to a specific country.

The Trump administration, however, claims it has discovered a loophole that renders all of these legal protections worthless, and is now asking the Supreme Court to explicitly give it the authority to make use of that loophole in order to enact its immigration policies.

According to President Donald Trump’s lawyers, the administration can simply wait until after an immigration judge has conducted the proceeding that ordinarily would determine whether a particular noncitizen may be deported to a particular country, and then, if that noncitizen is allowed to be deported, announce that the immigrant will be deported to some previously unmentioned country — even if that immigrant reasonably fears they will be tortured in that nation.

Department of Homeland Security v. D.V.D., the case where the Trump administration asks the justices to neutralize the Convention Against Torture, is unlike some of the more high-profile deportation cases that reached the Supreme Court — such as the unlawful deportation of Kilmar Armando Abrego Garcia to El Salvador — in that no one really questions that the immigrants at the heart of this case may be deported somewhere.

D.V.D. involves immigrants who have gone through the ordinary process to determine whether they can be removed from the country. The Trump administration even claims that some of them were convicted of very serious crimes. According to the administration, “all were adjudicated removable.”

But the Convention Against Torture and the federal law implementing it forbid the government from deporting anyone to a country where there is good reason to believe they will be tortured. And federal immigration law and regulations lay out the process that should be used to determine if an immigrant may be deported to a particular country.

How immigration hearings are supposed to work

As the district judge who heard this case explained in his opinion ruling that Trump must comply with the Convention Against Torture, when the government wishes to deport a noncitizen, that individual is typically entitled to a hearing before an immigration judge. That hearing determines “not only whether an individual may be removed from the United States but also to where he may be removed.”

In these proceedings, the immigrant is given an opportunity to name where they want to be deported to, if the immigration judge determines that they should be removed. If the immigrant does not do so, or if the United States cannot deport them to their designated country, federal law lays out where they may be sent. The United States may deport someone to a country where they have no ties only as a last resort, and only if that nation’s government “will accept the alien into that country.”

The immigration judge will generally inform the noncitizen which nations they could potentially be sent to, giving that noncitizen an opportunity to raise any concerns that they may be tortured if sent to a particular country. The immigration judge will then decide whether those concerns are sufficiently serious to prohibit the United States from sending the immigrant to that particular country.

The D.V.D. case concerns noncitizens who have been through this process. In many cases, an immigration judge determined that they could not be deported to a particular country. According to the immigrants’ lawyers, for example, one of their clients is a Honduran woman. An immigration judge determined that she cannot be sent back to Honduras because her husband “severely beat her and the children after his release from prison” and she fears that he would find her and abuse her again.

And that brings us to the loophole that Trump’s lawyers claim he can exploit to bypass the Convention Against Torture.

Ordinarily, if the government wants to deport someone to a country that did not come up during their hearing before an immigration judge, it can reopen the process. The government will inform the immigrant where it wishes to deport them. The immigrant will again have the opportunity to object if they fear being tortured, and an immigration officer and, eventually, an immigration judge, will determine if this fear is credible.

But the Trump administration claims it can bypass this process. If a country “has provided diplomatic assurances that aliens removed from the United States will not be persecuted or tortured,” the Trump administration claims it can deport people to that country “without the need for further procedures.” In other cases, it claims that it can give the immigrant such a brief period of time to raise an objection that it would be exceedingly difficult for them to find legal counsel, much less compile enough evidence to show that their fears are justified.

Using this virtually nonexistent process, the Trump administration recently tried to deport several non-Sudanese immigrants to South Sudan, a nation that was recently in a civil war. The peace in South Sudan, moreover, appears to be collapsing.

So Trump’s lawyers claim that the government can wait until after a noncitizen has received a hearing before an immigration judge, and only then reveal where it intends to send that noncitizen — even if that country is one of the most dangerous locations on Earth. And the immigrant may receive no process whatsoever after they learn about this decision.

Can Trump actually deny due process to people who might be tortured?

Recently, in A.A.R.P. v. Trump (2025), the Supreme Court ruled that a different group of immigrants that Trump hoped to deport without due process “must receive notice…that they are subject to removal…within a reasonable time and in such a manner as will allow them to actually seek” relief from a federal court. The district judge that heard the D.V.D. case determined that a similar rule should apply to noncitizens the Trump administration wants to deport to a surprise third country.

The Trump administration, however, primarily argues that three provisions of federal law governing which courts are allowed to hear immigration disputes mean that the district judge lacked jurisdiction to hear the D.V.D. case in the first place.

One of these provisions generally forbids federal courts from second-guessing the government’s decision to bring a removal proceeding against a particular immigrant. It also typically prohibits judges from intervening in the government’s decision to execute an existing removal order once that order has been handed down by an immigration judge. But, as the district judge explained, the D.V.D. plaintiffs do not challenge the government’s ”discretionary decisions to execute their removal orders.” Nor do they “challenge their removability.” They merely challenge the government’s decision to bypass the ordinary process it must use to obtain an order permitting an immigrant to be deported to a specific country.

The other two provisions, meanwhile, largely govern the appeals process that immigrants may use if they lose a case before an immigration judge. Such cases are typically appealed to the Board of Immigration Appeals, and then to a federal circuit court, not the district court that heard the D.V.D. case. But, again, the D.V.D. plaintiffs do not seek to appeal an immigration judge’s decision. They object to the Trump administration’s refusal to bring them before an immigration judge in the first place.

Trump’s lawyers, moreover, are quite candid about what it means if the Supreme Court accepts these jurisdictional arguments. “To the extent an action does not fit” within their proposed process, they argue, “the result is that judicial review is not available.” So, if Trump prevails, many of the immigrants he hopes to target will not have any recourse in any court.

Many immigrants, in other words, could be deported without any judge or other neutral adjudicator considering whether the immigrant will be tortured in the country the Trump administration wants to send them to — both circumventing the Convention Against Torture and giving the administration a cruel new weapon in its immigration crackdown.

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.

There are no heroes in Libby v. Fecteau, a decision about an anti-trans lawmaker that the Supreme Court handed down on Tuesday. With only two justices publicly dissenting, the Court handed down a brief order temporarily lifting sanctions against that lawmaker.

The lawmaker at the heart of the case, Maine Republican Rep. Laurel Libby, was sanctioned by her colleagues for posting an unblurred picture of a transgender high school athlete, along with the student’s name and the name of her school, in order to protest against including transgender girls in women’s sports.

The sanction those colleagues imposed on her could not possibly be constitutional: They effectively stripped her of her right to vote on legislation as a member of Maine’s House of Representatives, stripping Libby’s constituents of their representation in the state House. And Libby’s fellow lawmakers likely also violated her First Amendment rights in the process.

As a legal matter, Libby closely resembles Bond v. Floyd (1966), a case brought by a Georgia state lawmaker who was not allowed to take his seat in the state legislature — ostensibly because his colleagues objected to his opposition to the Vietnam War. Bond held that the First Amendment “requires that legislators be given the widest latitude to express their views on issues of policy.”

To be sure, no moral comparisons can be drawn between the plaintiffs in Bond and Libby. Bond involved Rep. Julian Bond, a Black man and a prominent civil rights activist who was elected to the Georgia legislature just as Jim Crow was beginning to lose its grip on the South. Libby, by contrast, arises out of Libby’s decision to bully a high school student.

But the First Amendment protects offensive speech just as surely as it protects speech that is now widely viewed as prescient and wise. Indeed, nearly all First Amendment cases arise out of speech that someone in a position of power deemed offensive — why else would they have tried to censure or ban that speech?

After Libby posted the picture of the high school student on Facebook, Maine House Speaker Ryan Fecteau asked her to take it down due to concerns “that publicizing the student’s identity would threaten the student’s health and safety.” When Libby refused, the state House passed a resolution formally censuring her — which, under the Maine House’s rules, meant that Libby “may not be allowed to vote or speak” on the House floor until she apologizes for the conduct that resulted in her censure. Libby refuses to apologize, which means that her constituents effectively do not have representation in the state House, at least with respect to bills that receive a vote on the floor.

The Supreme Court’s order in the Libby case is very brief and does not explain why the justices decided to reinstate Libby’s floor privileges. Notably, however, none of the justices defended the state legislature’s decision to strip Libby of her voting rights.

The Court’s order includes a single line noting that Justice Sonia Sotomayor dissented, but Sotomayor did not explain why. Justice Ketanji Brown Jackson, meanwhile, penned a brief dissenting opinion which largely criticizes her colleagues for overusing the Court’s “shadow docket” — a mix of emergency motions and other matters that the Court decides without full briefing and oral argument. It was on this docket that Libby was heard.

As Jackson notes, the Court used to be exceedingly reluctant to rule in favor of parties that seek shadow docket relief — she quotes Justice Potter Stewart’s 1968 warning that such relief “should be used sparingly and only in the most critical and exigent circumstances.” And Jackson, who emerged as the Court’s most outspoken opponent of the shadow docket after she became a justice in 2022, is right that the Court’s practices have changed dramatically in recent years.

Prior to the first Trump administration, Supreme Court decisions on the shadow docket were exceedingly rare outside of death penalty cases, where the justices often had to act right away to prevent an execution from moving forward before they could review the case.

But, regardless of whether the justices should have acted as quickly as they did — or, as Jackson suggests, waited until the lower courts had fully considered this case before stepping in — there’s little doubt that Libby should have prevailed eventually. Libby’s constituents have a right to representation, regardless what views their representative holds.

And, if lawmakers were allowed to strip their colleagues of their voting rights at will, there’s no guarantee that another legislature would not use that power to target elected officials who, like Bond, can more easily claim the moral high ground than Libby.

Editor’s note: Following a loss in federal court, Judge Jefferson Griffin ended his legal battle to unseat North Carolina Supreme Court Justice Allison Riggs on May 7. The story that follows was originally published April 14.

On Friday, four Republican members of the North Carolina Supreme Court issued an order attempting to disenfranchise more than 5,000 of the state’s voters. This order is part of an ongoing effort by Judge Jefferson Griffin, a Republican and the losing candidate in a recent state supreme court race, to overturn Democratic state Supreme Court Justice Allison Riggs’s reelection in that race.

Four of the state’s Republican justices, in other words, are attempting to unseat one of their own Democratic colleagues and replace her with the Republican who lost his bid to unseat her.

Riggs’s victory over Griffin was very close, which is why canceling several thousand votes may be enough to change the result of this election. By official tallies, Riggs beat Griffin by just 734 votes.

Griffin’s attempt to steal this election closely resembles an even more famous court case about a contested election: Bush v. Gore (2000). Bush addressed the nail-bitingly close 2000 presidential election in Florida. Initial tallies showed Republican George W. Bush with just a 537-vote lead, and whoever prevailed in Florida would also win a term in the White House.

Democrat Al Gore, meanwhile, sought a recount of some Florida ballots in the hopes that this recount would push him over the top. But we’ll never know if Bush or Gore was the proper winner of the 2000 presidential election because the Supreme Court effectively halted that recount in Bush.

The stunning thing about the North Carolina Supreme Court’s recent decision, in a case known as Griffin v. North Carolina State Board of Electors, is that the four Republican justices behind that decision somehow managed to recreate the exact same constitutional violation that drove the Supreme Court to shut down the recount in Bush.

That’s not easy to do. One reason why Bush is widely criticized as a partisan decision is that the five justices in the majority went to great pains to limit their decision to the “present circumstances” before the Court — implying that Bush’s victory was a good-for-this-ride-only decision involving facts that are unlikely to arise again. But now they have arisen in the Griffin case.

The specific legal violation identified in Bush v. Gore was that the Florida Supreme Court ordered just three counties — counties that tended to favor Democrats — to recount their ballots, a problem exacerbated by the fact that each of these three counties used different procedures to conduct this recount. A majority of the justices concluded that this piecemeal procedure was not allowed and the state supreme court had an obligation to “assure uniformity” of election rules throughout the state.

In Griffin, meanwhile, the four Republican justices ordered voters disenfranchised in just four North Carolina counties — all of which favor Democrats — while leaving similarly situated voters in other counties untouched. That’s the exact same thing the Florida Supreme Court did in Bush. A state supreme court cannot apply non-uniform rules after an election has already happened.

For the moment, the state supreme court’s attempt to steal Riggs’s seat is on hold — a federal judge issued a temporary order forbidding the state from certifying the result of the election until after this case is fully litigated in federal court. But under Bush, there’s only one conclusion the federal courts should reach in this case: that North Carolina’s Supreme Court cannot selectively toss out ballots.

Which voters are being disenfranchised?

Griffin primarily involves military and overseas voters who cast their ballot using either an online or paper form permitting them to vote absentee. Though North Carolina state law generally requires voters to show a photo ID before they can vote, the state’s administrative code provides that military and overseas voters are “not required to submit a photocopy of acceptable photo identification” when they cast their ballot.

Indeed, according to lawyers representing several voters the state supreme court is attempting to disenfranchise, it was impossible for military and overseas voters to submit a copy of their ID even if they wanted to. Many of these voters cast their ballot using an online portal maintained by the state, but that portal neither asked voters to provide ID nor “[provided them] with a means of doing so.”

Nevertheless, a majority of the state supreme court ruled on Friday that these voters’ ballots are presumptively invalid because they did not comply with a different provision of state law that requires the state to establish rules governing the use of ID by absentee voters. The state supreme court’s decision does allow these voters to “cure deficiencies arising from lack of photo identification” within 30 days, but it is unclear how this curing process will even work.

The state’s decision to hold an election under one set of rules and then change those rules after the election in just four Democratic counties violates the Constitution in at least two ways.

The first is that several federal appeals courts have ruled against states that attempted to retroactively change their election rules after an election took place. In Griffin v. Burns (1978), for example, the United States Court of Appeals for the First Circuit ruled that the Rhode Island Supreme Court could not toss out a stack of ballots “after the results of the election were in,” pointing to the fact that the state’s top elections official had previously “advertised, issued, and sanctioned” the ballot forms that the state supreme court later tried to invalidate.

The Supreme Court has not yet ruled on whether a state can retroactively change its election procedures, so it is possible that the justices will break with these appeals court decisions.

The second constitutional violation arises under Bush. And because Bush was a decision of the Supreme Court of the United States, its rule clearly should apply to the dispute between Riggs and Griffin.

Under Bush, the North Carolina Supreme Court might have been allowed to disenfranchise military and overseas voters throughout the state. But it cannot disenfranchise these voters in just four Democratic counties while counting military and overseas ballots elsewhere. Again, Bush said state supreme courts must “assure uniformity” when they announce a new election rule after the election has already happened.

The good news for Riggs is that the Fourth Circuit, the appeals court that oversees North Carolina, has a 9-6 Democratic majority among its active judges. So that court is unlikely to tolerate the state supreme court’s violation of the Constitution. It remains to be seen, however, whether the GOP-controlled US Supreme Court decides to get involved in this case. If it does, it is difficult to predict how it might rule.