Kilmar Abrego Garcia stands outside U.S. District Court in Greenbelt with his wife, Jennifer Vasquez Sura, left, and Lydia Walther-Rodriguez with CASA, after a federal judge ruled earlier this month he was allowed to remain free. (File photo by William J. Ford/Maryland Matters)

A federal judge in Tennessee is ordering federal prosecutors to turn over some documents to lawyers for Kilmar Abrego Garcia as they try to show his indictment on human smuggling charges was the product of vindictive prosecution.

U.S. District Judge Waverly Crenshaw’s nine-page ruling — issued under seal Dec. 3, but unsealed at noon Tuesday in U.S. District Court in Nashville — said a “subset” of more than 3,000 government documents he reviewed appear to undercut the government’s defense against vindictive prosecution.

“Specifically, the government’s documents may contradict its prior representations that the decision to prosecute was made locally and that there were no outside influences,” Crenshaw wrote.

The order is a partial victory for Abrego Garcia, the Salvadoran native who lives in Maryland, where he was stopped by immigration agents in March and deported to a notorious prison in El Salvador. His removal came without due process and despite an earlier court order that prohibited  immigration officials from deporting Abrego Garcia to his home country, for fear of violence.

A series of court battles ended with the U.S. Supreme Court in April ordering Abrego Garcia be returned to the United States. He was finally brought back to the U.S. in June, where he faced new charges of human smuggling, stemming from a 2022 traffic stop in Tennessee where he was let go without a citation.

Abrego Garcia argues that the smuggling charge was concocted years after the fact to punish him for embarrassing the administration in court, and should be thrown out.

The charges of “conspiracy to unlawfully transport illegal aliens for financial gain” and “unlawful transportation of illegal aliens for financial gain” are tied to a 2022 traffic stop in Putnam County, Tennessee, where he was pulled over for speeding. There were nine passengers in the back of his car.

Abrego Garcia was not arrested. No ticket was issued.

But three years later, as he was winning his case to be returned to the U.S., federal prosecutors were revisiting that traffic stop. A Homeland Security agent told a federal judge earlier this year that he was told on April 28 of this year to investigate the traffic stop.

Abrego Garcia pleaded not guilty to the charges, that his attorneys have claimed were filed as retaliation against their client. They claim senior officials in the Justice Department pushed for the indictment, citing television interviews where Deputy Attorney General Todd Blanche said the investigation began after “a judge in Maryland … questioned” the government and accused it of “doing something wrong,” according to Crenshaw’s order.

The government denies involvement by higher-ups, saying the decision to prosecute Abrego Garcia was made solely by Robert McGuire, the U.S. Attorney for the Middle District of Tennessee.

Crenshaw’s order includes a timeline of events. In it are several communications between McGuire and D.C.-based U.S. Associate Deputy Attorney General Aakash Singh that began on April 27, one day before a federal agent was assigned to investigate the 2022 traffic stop.

In an April 30 exchange, Singh writes that Abrego’s case is “a top priority.” McGuire writes “we want the high command looped in.”

In a May 15 email, McGuire writes about the pending indictment.

“Ultimately, I would hope to have ODAG [Office of the Deputy Attorney General] eyes on it as we move towards a decision about whether this matter is going to ultimately be charged,” he wrote, according to Crenshaw’s order.

McGuire adds: “While ultimately, the office’s decision to charge will land on me. I think it makes sense to get the benefit of all of your brains and talent in this process and as we consider this case. I have not received specific direction from ODAG other than I have heard anecdotally that the DAG and PDAG would like Garcia charged sooner rather than later.”

Singh is updated about the indictment over the next week, according to Crenshaw’s timeline.

“These documents show that McGuire did not act alone and to the extent McGuire had input on the decision to prosecute, he shared it with Singh and others,” Crenshaw wrote.

Abrego’s attorneys successfully made a case before Crenshaw that prosecutors had acted vindictively. They sought the release of documents through discovery. Federal prosecutors balked and withheld those documents, citing privilege.

Crenshaw, in his now-unsealed order, said allowing the privilege assertion to trump due process protections would undermine rulings by other federal courts.

“The Court recognizes the government’s assertion of privileges, but Abrego’s due process right to a non-vindictive prosecution outweighs the blanket evidentiary privileges asserted by the government,” Crenshaw wrote. “If the work product, attorney-client, and deliberative process privileges asserted by the government precluded all discovery in the context of a vindictiveness motion, defendants would never be able to answer the question ‘what motivated the government’s prosecution?'”

Missouri Capitol Police officers conduct security checks on boxes of petition signatures submitted to force a referendum vote on the state’s new congressional map. State courts in Missouri and other states may decide whether new maps passed this year are used in the 2026 midterm elections. (Photo by Rudi Keller/Missouri Independent)

After Missouri lawmakers passed a gerrymandered congressional map this fall, opponents submitted more than 300,000 signatures seeking to force a statewide vote on whether to overturn the map. But Republican state officials say they will use the map in the meantime.

Missouri courts now appear likely to weigh in.

“If we need to continue to litigate to enforce our constitutional rights, we will,” said Richard von Glahn, a progressive activist who leads People Not Politicians, which is leading the campaign opposing the gerrymandered map.

As some states engage in an extraordinary redraw of congressional districts ahead of the 2026 midterm elections, state courts may decide the fate of the new maps. President Donald Trump has pushed Republican state lawmakers to gerrymander their states’ congressional maps, prompting Democratic state lawmakers to respond in kind.

Nationwide, state judges are poised to play a pivotal role in adjudicating legal challenges to the maps, which have been drafted to maximize partisan advantage for either Republicans or Democrats, depending on the state. Maps are typically only redrawn once a decade following the census.

While some state courts have long heard map-related lawsuits, the U.S. Supreme Court has all but taken federal courts out of the business of reviewing redrawn maps this year. On Dec. 4, a majority of the court allowed Texas’ new map, which seeks to secure five more U.S. House seats for Republicans, to proceed. A federal lawsuit against California’s new gerrymandered map, drawn to favor Democrats, hasn’t reached the high court.

The U.S. Supreme Court’s brief, unsigned majority decision voiced concern about inserting federal courts into an “active primary campaign,” though Texas’s primary election will occur in March. Critics of the court’s decision have said it effectively forecloses federal challenges to this year’s gerrymanders. The justices could also issue a decision next year that makes it more difficult to challenge maps as racially discriminatory.

State courts are taking center stage after gerrymandering opponents have spent decades encouraging them to play a more active role in policing maps that had been drawn for partisan advantage. Those efforts accelerated after the U.S. Supreme Court in 2019 limited the power of federal courts to block such maps.

“Basically, every one of the 50 states has something in its constitution that could be used to constrain partisan gerrymandering,” said Samuel Wang, director of the Princeton Gerrymandering Project.

State constitutions, which are interpreted by state supreme courts, typically have language that echoes the right to freedom of speech and association found in the First Amendment to the U.S. Constitution, Wang said. They also include a right to equal protection under the law, similar to the 14th Amendment.

Some state constitutions guarantee free and fair elections, language that doesn’t appear in the U.S. Constitution. Thirty states have some form of a constitutional requirement for free elections, according to the National Conference of State Legislatures.

At least 10 state supreme courts have found that state courts can decide cases involving allegations of partisan gerrymandering, according to a 2024 review by the State Democracy Research Initiative at the University of Wisconsin Law School.

So far this year, California, Missouri, North Carolina, Ohio, Texas and Utah have adopted new congressional maps. New maps also appear possible in Florida, Maryland and Virginia. A handful of other states — Alabama, Louisiana, New York and North Dakota — may have to change their maps depending on the outcome of court cases.

Some of those new or potential maps could face legal obstacles. Florida, New York and Ohio all have state supreme courts that have previously found problems with partisan gerrymanders. Maryland Democrats have so far not moved forward with a gerrymander, in part because of fears of an adverse decision from the state Supreme Court.

Four state supreme courts — including in Missouri — have determined that they cannot review partisan gerrymandering claims, though state courts may still consider challenges on other grounds, such as whether the districts are compact or contiguous.

In Missouri’s case, courts could also clear the way for a referendum vote over the new map, which is intended to force out U.S. Rep. Emanuel Cleaver, a Democrat who has represented Kansas City in Congress for the past two decades. Republicans currently hold six of the state’s eight congressional districts.

The map already faces a bevy of lawsuits, most notably over whether state officials must count some 103,000 referendum signatures gathered before the governor signed the map into law; at least 106,000 signatures are needed to send the map to voters.

Opponents of the new map have also filed lawsuits asserting the Missouri Constitution prevents redistricting without new census data and that an area of Kansas City was simultaneously placed into two separate congressional districts.

Missouri Republican Secretary of State Denny Hoskins’ decision this month (relying on an opinion from Missouri Republican Attorney General Catherine Hanaway) to implement the new congressional map, despite a submitted referendum petition, is expected to become the latest legal flashpoint. Opponents of the map argue it is now paused under state law.

Hoskins spokesperson Rachael Dunn said in a statement to Stateline that local election officials have until late July to verify referendum signatures — months after candidate filing ends March 31 and days before the Aug. 4 primary election. At that point, blocking the new map would be all but impossible, even if map opponents have gathered enough signatures to force a vote.

“Once signatures are all verified, the Secretary will certify the referendum based on constitutionality and verification,” Dunn wrote.

Hanaway’s office didn’t respond to questions.

Breaking out of lockstep

As federal courts limit their review of gerrymandering because of U.S. Supreme Court decisions, some state supreme courts are reluctant to wade into the issue because of a practice called “lockstepping.”

State supreme courts often interpret their state constitutions in line with — or in lockstep with — how the U.S. Supreme Court views similar language in the U.S. Constitution. Because the U.S. Supreme Court has declined to limit partisan gerrymandering, some state supreme courts have also declined to impose limits.

Gerrymandering opponents have used a variety of arguments over the years to try to prod state supreme courts out of lockstep. They have emphasized differences in wording between state constitutions and the federal one, and provisions in state constitutions — such as the free elections requirement — not found in the U.S. Constitution.

Sometimes these arguments work — and sometimes they don’t. The North Carolina Supreme Court in 2022 ruled against partisan gerrymandering. But after two Republicans were elected as justices that fall, the court reversed itself months later.

“Across the country, we have seen advocates turn to state supreme courts, and state courts in general, for state constitutional arguments against gerrymandering or voter suppression more broadly. And it’s been met with mixed success,” said Sharon Brett, a University of Kansas associate professor of law. In 2022 as litigation director of the American Civil Liberties Union of Kansas, she unsuccessfully argued a case before the state’s high court challenging Kansas’ congressional map.

In states where legislatures draw congressional maps, some lawmakers argue that state constitutions shouldn’t be interpreted to curb legislative authority over mapmaking. Court-imposed limits amount to violations of the traditional separation of powers, they say, with the judiciary overstepping its authority to interfere in politics.

“We expect them to be nonpartisan. We expect them to be unbiased. We expect them to be fair. We expect them to read the constitution and to protect or at least respect the separation of powers,” said Utah Republican state Rep. Casey Snider, speaking of Utah courts during a floor speech earlier this month.

In Utah, state courts waded through a yearslong legal battle over whether state lawmakers must adopt a non-gerrymandered map. After the Republican-controlled legislature repealed and replaced an independent redistricting process, the Utah Supreme Court last year ruled lawmakers had violated the state constitution.

A Utah district court judge in November then adopted a congressional map that will likely lead next year to the election of a Democrat. The state’s four congressional seats are currently all held by Republicans.

“What we would like is them to redistrict based on population — fairly,” Katharine Biele, president of the League of Women Voters of Utah, said of state lawmakers.

Republican Gov. Spencer Cox called the Utah legislature into special session earlier in December to respond to the judge’s decision. Lawmakers pushed back candidate filing deadlines in hopes that an appeal to the Utah Supreme Court will result in a decision overturning the judge’s adopted map.

They also passed a resolution condemning the judiciary.

Constitutional concerns

As the Indiana legislature weighed a gerrymandered map to boost Republicans this month, some lawmakers were reluctant to constrain state courts. Democrats currently hold two of the state’s nine congressional districts.

The GOP-controlled Indiana Senate voted down the map in a major setback to Trump’s national redistricting push. The vote came after a floor debate where opponents raised concerns about limiting court involvement; the legislation included a provision sending any legal challenge directly to the Indiana Supreme Court, bypassing a jury trial.

Indiana Republican state Sen. Greg Walker said the measure violated the state constitution, which guarantees an “inviolate” right to a jury trial in all civil cases. “In legal terms, ‘inviolate’ has the implication of being sacred, as opposed to being just a piece of the law,” Walker said on the floor.

State Sen. Mike Gaskill, a Republican who sponsored the map, said during a speech that Indiana residents would benefit from a quick process to resolve legal challenges. “Both sides, in any case, want them to be settled quickly so that they don’t cause chaos and interruptions in the elections process,” he said.

If the map had passed, opponents would have likely attacked the measure using a provision of the Indiana Constitution that requires “free and equal” elections.

Stateline reporter Jonathan Shorman can be reached at jshorman@stateline.org.

 

Members of the Texas National Guard are seen at the Elwood Army Reserve Training Center on Oct. 7, 2025 in Elwood, Illinois. (Photo by Scott Olson/Getty Images)

President Donald Trump for now has not met the requirements to send National Guard troops to Chicago, the U.S. Supreme Court ruled Tuesday afternoon in a major setback for the president.

The court’s majority rejected the Trump administration’s request to stay, or halt, a lower court’s order barring federalization of National Guard troops to assist federal immigration enforcement officers in Chicago. 

The president is only empowered to federalize National Guard units when the troops are enforcing laws that regular military forces are legally allowed to enforce, the court said in a ruling from its emergency docket that will apply while the merits of the case are argued.

The Posse Comitatus Act, passed in 1878, generally prevents the military from participating in civilian law enforcement.

The decision on the eve of a five-day holiday weekend for the federal government appeared to be 6-3, with three conservative justices, Samuel Alito, Clarence Thomas and Neil Gorsuch, dissenting. The ruling represented the first time the high court has weighed in on Trump’s use of the guard in several cities, though other legal fights continue.

The administration had not shown why the situation in Chicago, in which residents have protested aggressive immigration enforcement, should present an exception to the law, the court majority said.

“At this preliminary stage, the Government has failed to identify a source of authority that would allow the military to execute the laws in Illinois,” the majority opinion said.

In an emailed statement, White House spokeswoman Abigail Jackson said the ruling would not detract from Trump’s “core agenda.”

“The President promised the American people he would work tirelessly to enforce our immigration laws and protect federal personnel from violent rioters,” Jackson wrote. “He activated the National Guard to protect federal law enforcement officers, and to ensure rioters did not destroy federal buildings and property.”

Protecting federal officers

In a concurring opinion, Justice Brett Kavanaugh, whom Trump appointed during his first term, wrote that he agreed with the decision to deny the motion for a stay, but would have done so on narrower grounds.

The majority opinion was overly restrictive and would block the president from using National Guard forces to protect federal property and personnel, Kavanaugh said.

Alito wrote in a dissent, joined by Thomas, that their interpretation of the majority’s order could have far-reaching consequences that undermine the traditional role of the guard.

It would free National Guard members to enforce immigration law, but not to provide protection to the Immigration and Customs Enforcement officers who are assigned that function, Alito wrote. 

“Whatever one may think about the current administration’s enforcement of the immigration laws or the way ICE has conducted its operations, the protection of federal officers from potentially lethal attacks should not be thwarted,” Alito wrote. “I therefore respectfully dissent.”

Implications for other cities

The ruling is only in effect while the case, in which Illinois is challenging the administration’s deployment there, proceeds. 

But it marks a rebuke, including from a Trump appointee, of the administration’s strategy of deploying National Guard troops to assist in its aggressive immigration enforcement.

Trump has ordered troops to Los Angeles, Washington, D.C., Memphis, Tennessee, and Portland, Oregon, to either counter crime generally or assist federal immigration officials. Governors of Democratic-led states have strenuously pushed back against those deployments. Republican attorneys general have argued their states are harmed by the protests in Chicago and other cities that impede federal ICE officers from doing their jobs.

Illinois Gov. JB Pritzer in a statement praised the ruling. “Today is a big win for Illinois and American democracy,” he said. “I am glad the Supreme Court has ruled that Donald Trump did not have the authority to deploy the federalized guard in Illinois. This is an important step in curbing the Trump Administration’s consistent abuse of power and slowing Trump’s march toward authoritarianism.”

Voters walk to a polling place at a school gym in New Orleans. Republicans could gain scores of state legislative seats if the U.S. Supreme Court weakens a federal voting rights law, a new analysis finds. (Photo by Stacy Revere/Getty Images)

Republicans could gain nearly 200 state legislative seats across the South if the U.S. Supreme Court guts a key provision of the federal Voting Rights Act, a new analysis finds.

The bulk of the gains would be concentrated in 10 GOP-controlled state legislatures in Southern states, according to the analysis, produced by Fair Fight Action, a Georgia-based progressive voting rights group, in partnership with Black Voters Matter Fund, which advocates on behalf of Black voters.

The analysis, featured in a report released by the groups on Monday, underscores the alarm among progressives over the potential consequences of the Supreme Court’s looming decision in a case known as Louisiana v. Callais. While the case centers on the constitutionality of Louisiana’s congressional map, the effects of the decision could extend into statehouses across the country.

The Supreme Court’s conservative majority appears likely to severely weaken Section 2 of the Voting Rights Act, a landmark 1965 civil rights law that bans racial discrimination in voting access. Section 2 restricts racial gerrymandering, and until now has limited the power of lawmakers to draw districts that dilute the voting power of racial minority voters.

A sweeping decision by the court could give state lawmakers a freer hand to draw congressional and state legislative districts that dilute the power of minority voters — as well as districts for local governments, such as county commissions, city councils and school boards. The justices held oral arguments in October; a decision could come at any time.

At the state legislative level, a court ruling that strikes down Section 2 could lead to Democrats losing about 191 seats, according to the analysis, which examined how state legislative districts could be redrawn if Section 2 is no longer in place. Most of those seats are currently held by Black lawmakers in districts where minority voters make up a majority of residents.

“What that is doing is providing a fatal blow to Black representation in the South,” Fair Fight Action CEO Lauren Groh-Wargo said in an interview.

The total number of state legislative districts in 10 Southern states where Black or Hispanic voters comprise a majority could fall from 342 to 202. Those states are Alabama, Arkansas, Florida, Georgia, Louisiana, Mississippi, North Carolina, South Carolina, Tennessee and Texas.

Some Republican states argue that courts have interpreted Section 2’s protections too broadly and in the process wrongly restrained the ability of lawmakers to draw favorable maps.

Alabama and 13 other GOP states said in a brief filed with the Supreme Court earlier this year that Section 2 has been turned into “the proverbial golden hammer, wielded by plaintiffs and courts in a never-ending search for a nail.”

If the Supreme Court weakens the Voting Rights Act, it’s unclear whether state legislatures would pursue mid-decade redraws of state legislative districts. Redistricting typically occurs every 10 years following the census.

At the federal level, a previous analysis by Fair Fight Action and Black Voters Matter Fund projected Republicans could draw an additional 19 U.S. House seats if Section 2 protections were removed.

While a few states have passed new congressional maps already this year, those efforts have proven highly controversial. Some states, such as Indiana and Kansas, have abandoned or rejected them for now.

Stateline reporter Jonathan Shorman can be reached at jshorman@stateline.org.

Dr. Martin Makary testifies during his confirmation hearing to lead the Food and Drug Administration before the Senate Committee on Health, Education, Labor, and Pensions Committee at the Dirksen Senate Office Building on March 06, 2025 in Washington, DC.  (Photo by Kayla Bartkowski/Getty Images)

WASHINGTON — Two of the country’s largest anti-abortion organizations want President Donald Trump to fire U.S. Food and Drug Administration Commissioner Marty Makary over access to medication abortion. 

Marjorie Dannenfelser, president of Susan B. Anthony Pro-Life America, expressed frustration Tuesday that the FDA hasn’t completed a review of the prescription drug mifepristone.

“The FDA needs a new commissioner who will immediately reinstate in-person dispensing as it existed under President Trump’s first term and immediately conduct a comprehensive study,” she wrote in a statement. “Commissioner Makary is severely undermining President Trump and Vice President Vance’s pro-life credentials and their position that states should have the right to enact and enforce pro-life protections. Makary must go.”

A spokesperson for the Department of Health and Human Services, which houses the FDA, wrote in a statement that “FDA’s comprehensive scientific reviews take the time necessary to get the science right, and that is what Dr. Makary is ensuring as part of the Department’s commitment to gold-standard science and evidence-based reviews.”

White House spokesman Kush Desai wrote in an email to States Newsroom that “Makary is working diligently to ensure that Americans have the best possible, Gold Standard Science study of mifepristone.”

“The White House maintains the utmost confidence in Commissioner Makary, whose leadership at the FDA has delivered and continues to deliver one landmark victory for the American people after another, from cracking down on artificial ingredients in our food supply to conducting the first safety review of baby formula in decades,” Desai added. “Uninformed attacks against Commissioner Makary from individuals outside the Administration will not change these facts.”

FDA approval 

Mifepristone is one of two pharmaceuticals used in medication abortion. It is FDA-approved for up to 10 weeks gestation and can be prescribed via telehealth and shipped to patients remotely. 

About 63% of the abortions in 2023 were medication, as opposed to procedural, according to the Guttmacher Institute. 

The U.S. Supreme Court rejected an attempt by anti-abortion medical organizations to overturn the FDA’s current prescribing guidelines for mifepristone in 2024. 

Numerous medical organizations, including the American College of Obstetricians and Gynecologists and the American Medical Association, filed briefs to the justices in that case attesting to the safety and efficacy of medication abortion. 

“The scientific evidence is overwhelming: major adverse events occur in less than 0.32% of patients,” the groups wrote. “The risk of death is almost non-existent.”

‘No preconceived plans’

Makary testified before a Senate committee in March as part of his confirmation process that he planned to review data on mifepristone and follow the research where it led him.

“I have no preconceived plans on mifepristone policy except to take a solid, hard look at the data and to meet with the professional career scientists who have reviewed the data at the FDA,” Makary said at the time.

Lila Rose, founder of the anti-abortion group Live Action, also called for Makary to be fired, writing in a social media post that his request to delay the results of the review until after the November 2026 midterm elections, which was reported by Bloomberg Law, was unacceptable. 

“If Dr Makary will not act as head of the FDA to protect children and mothers he should be fired,” Rose wrote, later adding the administration should, “Ban the abortion pill now!”

Americans United for Life CEO John Mize released a statement after meeting with Makary, saying it “is glaringly obvious that flawed political calculations” have stalled the FDA’s review of mifepristone. 

“To avoid political backlash in the upcoming midterm elections, advisors within the Administration are acting on a false premise, that emphasizing the importance of women’s safety and direct in-person consultation with her clinician is a political liability,” Mize wrote. 

Federal Trade Commissioner Rebecca Slaughter participates in a privacy roundtable at CES 2020 at the Las Vegas Convention Center on Jan. 7, 2020 in Las Vegas, Nevada. (Photo by David Becker/Getty Images)

WASHINGTON — The U.S. Supreme Court appeared ready to expand presidential power after hearing a case Monday on whether President Donald Trump can hire and fire members of independent federal agencies without cause.

The high court’s decision, expected by the end of the term in late June, could heighten presidential influence over agencies created by Congress that oversee monetary policy, nuclear safety, consumer advocacy and trade, among other major policy areas.

The court’s conservative supermajority speculated that Congress could wield more and more power over the executive branch regarding how independent multimember agencies are structured, for example establishing term limits for commissioners.

Oral arguments centered on a 90-year-old Supreme Court precedent protecting the five-member panel atop the Federal Trade Commission from being fired for reasons other than “inefficiency, neglect of duty, or malfeasance.” 

The 1935 decision, referred to by its short title Humphrey’s executor, upheld the Federal Trade Commission Act’s removal protection provision after President Franklin D. Roosevelt fired FTC Commissioner William Humphrey before his seven-year term ended. He died shortly after, and his executor sued and won.

Slaughter fired in March

Monday’s case stems from Trump’s March firing of Rebecca Slaughter, an FTC commissioner since 2018, when she was named during Trump’s first term. President Joe Biden reappointed her and the Senate unanimously confirmed her for a second term in 2023.

Trump fired Slaughter on March 28 in an email that said her “continued service on the FTC is inconsistent with my administration’s priorities.” Slaughter sued and won in federal district court and at the Court of Appeals for the D.C. Circuit.

U.S. Solicitor General John Sauer argued to the justices Monday that Congress is “shaving away from the president’s control.”

The conservative justices homed in on Sauer’s argument.

In an exchange between Justice Amy Coney Barrett and Slaughter’s counsel, Amit Agarwal, Barrett said, “If we decide this case in your favor, we don’t know what a Congress in 15 or 20 or 30 years might do.”

Agarwal responded, “We haven’t seen this problem materializing at all.”

“The real world danger that is imminent right now, that we know will happen, and that is that if petitioners get their way, everything is on the chopping block,” he said.

A few minutes later, Justice Brett Kavanaugh challenged Agarwal’s argument that if the president wants a structural change to an independent agency, he or she can work with Congress.

“You’ve mentioned many times, you can just go to Congress to fix this. Well, once the power is taken away from the president, it’s very hard to get it back in the legislative process,” Kavanaugh said.

Agarwal disagreed and argued that “exactly the opposite” has happened, in that Congress has ceded power to the executive branch over time.

Debate over stability in agencies

Kavanaugh also took issue with Agarwal’s argument that statutory guardrails baked into laws that govern independent agencies provide stability across administrations.

Agarwal pressed back, calling it “a problem on steroids” if independent agencies were completely shaken up every time a presidential administration changes and staggered terms were ignored.

“The whole point of this structure is to guarantee a modicum of stability that private, regulated entities can depend upon, and that is jeopardized by at-will presidential removal,” Agarwal said.

Justice Ketanji Brown Jackson, one of three liberal justices, said the administration’s appeal to justices could “open the door for the president to come in, each new president, and clean house in terms of all of the individuals who are running that agency.”

“Notwithstanding their expertise and knowledge and experience and the things that they are doing to promote the mission of the agency,” Jackson said. “And presumably the president could install whoever he wanted in those positions.”

Argawal responded: “Think about it in terms of commissions like the Federal Elections Commission. Would anyone want those sensitive election-related determinations to be under the plenary control of a political actor? 

“Think about the Nuclear Regulatory Commission. Can’t Congress and the president come together and say those types of technical determinations that could have massive implications for the public in all kinds of ways, should be made by a multimember body of experts?” he continued.

But during his rebuttal, Sauer warned of a scenario where “Congress could reconstruct virtually the entire executive branch outside the president’s control.”

Fed firing up next

The arguments lasted two-and-a-half hours and could be a preview of oral arguments in January that will center on Trump’s firing of Federal Reserve Board governor Lisa Cook.

The seven-member board governing the central bank sets U.S. policy, including interest rates. Trump has slammed Federal Reserve leadership for months for not lowering interest rates at a faster pace.

The case comes on the heels of a federal appeals court decision Friday that Trump “permissibly removed” members earlier this year from the National Labor Relations Board and the Merit Systems Protection Board.

The FTC was established in 1914 under President Woodrow Wilson to protect consumers from unfair business practices.

Sauer, formerly the Missouri solicitor general, was previously the president’s own defense lawyer and argued on Trump’s behalf before the Supreme Court last year on the question of presidential immunity. 

The U.S. Supreme Court on Oct. 9, 2024. (Photo by Jane Norman/States Newsroom)

The U.S. Supreme Court said Friday justices will hear a case to decide if President Donald Trump’s order to end birthright citizenship is constitutional.

The court agreed to hear a case, before it is decided in a lower court, that deals with the Constitution’s 14th Amendment, which grants citizenship to almost everyone born in the United States. The amendment’s birthright citizenship clause has been used to give citizenship to the children of immigrants in the country without legal authorization or on a temporary basis.

While a schedule for arguments has not yet been released by the court, it’s likely the case would be heard sometime in early 2026.

The Trump administration argued in its petition to the court that the amendment, which was adopted in 1868, was meant to apply to newly freed slaves. It was not meant to provide citizenship to the children of immigrants without legal status, Solicitor General D. John Sauer wrote.

“Long after the Clause’s adoption, the mistaken view that birth on U.S. territory confers citizenship on anyone subject to the regulatory reach of U.S. law became pervasive, with destructive consequences,” Sauer wrote in the September petition.

The petition also sought Supreme Court review of a related challenge to the order by the states of Washington, Arizona, Illinois and Oregon. Friday’s court order did not grant a hearing on that case.

Trump signed an executive order on Jan. 20 seeking to redefine the birthright citizenship clause to exclude the children of immigrants in the country without legal authority or only temporarily. Democratic-led states and advocacy groups swiftly sued.

Courts have largely blocked enforcement of the order, although the Supreme Court in June allowed it to go into effect in the states that had not sued to preserve the right.

In a Friday afternoon statement, the American Civil Liberties Union, a leading civil rights group, noted that several federal judges had blocked enforcement and predicted the Supreme Court would preserve birthright citizenship.

“No president can change the 14th Amendment’s fundamental promise of citizenship,” Cecillia Wang, ACLU’s national legal director, said. “For over 150 years, it has been the law and our national tradition that everyone born on U.S. soil is a citizen from birth. The federal courts have unanimously held that President Trump’s executive order is contrary to the Constitution, a Supreme Court decision from 1898, and a law enacted by Congress. We look forward to putting this issue to rest once and for all in the Supreme Court this term.”

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Elections in Wisconsin are setting new spending records every year, but the U.S. Supreme Court appears set to allow even more money into political races across the country if it rules the way experts expect it to in a pending case.

A case brought to the court by Republican plaintiffs in December seeks to abolish limits on coordinated campaign expenditures – money political parties spend in collaboration with candidates. The court’s June decision to hear a challenge to its decades-old precedent speaks to the conservative majority’s distaste for regulating campaign finance, experts say.

“We know where this thing is going because of how the (Chief Justice John) Roberts’ court has dealt with campaign finance restrictions,” said Anthony Chergosky, a political science professor at UW-La Crosse.

The Supreme Court will reconsider its 2001 decision, which ruled that limits on coordinated campaign expenditures are constitutional. The limits apply to shared expenses between party and candidate, such as advertising costs.

Undoing these limits “would open a new, significant way for political parties to spend in direct support of their candidates’ campaigns,” Chergosky said.

In Wisconsin, parties coordinating with U.S. Senate candidates can spend up to about $600,000 in a general election campaign before the limits kick in, according to the Federal Elections Commission. Nationwide, limits vary from $127,200 to $3,946,100 based on the state’s voting age population. For U.S. House nominees in states with more than one representative, which includes Wisconsin, the spending cap is about $63,000.

The Republican plaintiffs – which include the National Republican Congressional Committee, Vice President J.D. Vance and former Rep. Steve Chabot – filed their case in 2022 and went to the Supreme Court after a federal appeals court upheld the spending limits.

The court will likely hear the case in the fall and release a decision in 2026 just as U.S. midterm elections kick into gear, according to a SCOTUSblog analysis. All eight of Wisconsin’s U.S. House members will face reelection, though neither senator will.

The limits the court will review only apply to federal elections for president or Congress, said Brendan Glavin, the research director for OpenSecrets, a Washington-based watchdog that tracks lobbying and campaign finance data. The limits do not apply to state-level candidates.

But “even with the limit, people can still give quite a lot of money to the party, and the party is still allowed to make independent expenditures,” Glavin said. “It’s not like anybody’s being shut down.”

Even if the Supreme Court struck down these limits, federal contribution caps would still apply. This year and next, the federal limits on how much an individual can give to a candidate committee is $3,500 per election. Individuals are also limited to a yearly donation of about $44,000 to a national party committee, according to the FEC.

But the coordinated campaign expenditure limits seal a loophole, Glavin said. The limits prevent donors from circumventing individual contribution caps by donating to a party that can essentially earmark the money for a specific candidate.

“When you take these coordinated limits away, then you’re essentially providing a bit of an end run around the contribution limits for an individual,” said Glavin. However, the Republican challenge “does fit into a broader trend of what we’ve seen over time.”

Campaign finance reform, including limits on coordinated campaign expenditures, were taken up in the 1970s and expanded in 2002, Glavin said. Since then, the reforms have been incrementally rolled back through court decisions like Citizens United v. F.E.C., the 2010 Supreme Court case that paved the way for unlimited political spending organizations called Super PACs.

Reversing the law isn’t likely to affect dark money or Super PAC spending, Glavin said. But you’d likely see more candidates and parties approaching a donor together.

“One ask, one check, that’s an easier way to get the donor,” Glavin said.

Thus, overruling precedent in this case would “tilt the balance of power back in favor of party committees,” Chergosky said. Though partisan loyalty is strong, Chergosky explained, party organizations have seen their influence weaken in light of outside groups like Super PACs.

Though none of Wisconsin’s U.S. Senate seats will be in play next year, Wisconsin’s 3rd Congressional District is set to be one of the most expensive House races in the 2026 cycle, Chergosky said.

The race will likely be a rematch between Republican incumbent Rep. Derrick Van Orden of Prairie du Chien and Democratic challenger Rebecca Cooke of Eau Claire, both of whom are “exceptional fundraisers,” Chergosky said.

As the number of competitive seats continues to decline, an “enormous amount of money gets funneled into fewer and fewer districts,” Chergosky said. But regardless of the Supreme Court’s decision, there won’t be a shortage of money spent in the 3rd District, he said.

Wisconsin law provides an interesting contrast, Chergosky said. Here, state law limits how much individuals can give directly to candidates, but it does not limit the amount individuals can give to parties, nor does it limit how much party committees can give to state-level candidates.

“The comparison to the Wisconsin law is interesting because that has really motivated donors to give to state parties in a way that we just haven’t seen at the national level,” Chergosky said.

The piles of cash that fuel state and national politics has encouraged some Wisconsin legislators to propose resolutions amending the U.S. Constitution.

A Republican-backed proposal calls for an amendment that would also allow states to regulate spending in elections. A Democratic proposal calls for an advisory referendum to appear on Wisconsin ballots; it would ask voters whether they approve of amending the Constitution in order to reverse the Supreme Court’s decision in Citizens United.

If two-thirds of the state legislatures in the country request it, Congress can convene to consider amending the Constitution. The joint resolutions, if successful, are necessary if Wisconsin wants Congress to convene a constitutional convention. A joint resolution must pass both chambers of the state Legislature; the governor’s signature is not required.

Lawmakers last acted on the Democrats’ proposal in May, and the most recent action on the Republican proposal was in June.

This article first appeared on The Badger Project and is republished here under a Creative Commons license.

The Badger Project is a nonpartisan, citizen-supported journalism nonprofit in Wisconsin.

Wisconsin’s cash-flooded elections could get even more expensive is a post from Wisconsin Watch, a non-profit investigative news site covering Wisconsin since 2009. Please consider making a contribution to support our journalism.