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    US supreme court allows Trump to block passport sex markers for trans and non-binary people

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    The supreme court on Thursday allowed Donald Trump’s administration to enforce a policy blocking transgender and non-binary people from choosing passport sex markers that align with their gender identity.The decision by the high court’s conservative majority is Trump’s latest win on the high court’s emergency docket, and it means his administration can enforce the policy while a lawsuit over it plays out. It halts a lower-court order requiring the government to keep letting people choose male, female or X on their passport to line up with their gender identity on new or renewed passports.Pam Bondi, the US attorney general, hailed the decision, saying in a post on X: “Today’s stay allows the government to require citizens to list their biological sex on their passport. In other words: there are two sexes, and our attorneys will continue fighting for that simple truth.”Meanwhile, the court’s three liberal justices dissented, with Justice Ketanji Brown Jackson calling the decision a “pointless but painful perversion”.She added: “Such senseless sidestepping of the obvious equitable out-come has become an unfortunate pattern. So, too, has my own refusal to look the other way when basic principles are selectively discarded. This Court has once again paved the way for the immediate infliction of injury without adequate (or, really, any) justification.“What the Government needs (and what it does not have) is an explanation for why it faces harm unless the President’s chosen policy is implemented now. It suggests that there is an urgent foreign policy interest in dictating sex markers on passports, but does not elaborate as to what that interest might possibly be,” Jackson wrote.“As is also becoming routine, this court misunderstands the assignment,” she added.The state department changed its passport rules after Trump, a Republican, handed down an executive order in January declaring the United States would “recognize two sexes, male and female”, based on birth certificates and “biological classification”.Transgender actor Hunter Schafer, for example, said in February that her new passport had been issued with a male gender marker, even though she’s marked female on her driver’s license and passport for years.The plaintiffs argue that passports limited to the sex listed on a birth certificate can spark harassment or even violence for transgender people.“By classifying people based on sex assigned at birth and exclusively issuing sex markers on passports based on that sex classification, the State Department deprives plaintiffs of a usable identification document and the ability to travel safely,” attorneys wrote in court documents.Sex markers began appearing on passports in the mid-1970s and the federal government started allowing them to be changed with medical documentation in the early 1990s, the plaintiffs said in court documents. A 2021 change under Joe Biden, a Democrat, removed documentation requirements and allowed non-binary people to choose an X gender marker after years of litigation.A judge blocked the Trump administration policy in June after a lawsuit from non-binary and transgender people, some of whom said they were afraid to submit applications. An appeals court left the judge’s order in place.Solicitor general D John Sauer then turned to the supreme court, pointing to its recent ruling upholding a ban on transition-related health care for transgender minors. He also argued Congress gave the president control over passports, which overlap with his authority over foreign affairs.“It is hard to imagine a system less conducive to accurate identification than one in which anyone can refuse to identify his or her sex and withhold relevant identifying information for any reason, or can rely on a mutable sense of self-identification,” Sauer wrote in court documents.Since taking office in January, Trump has ramped up attacks against LGTBQ+ communities across the country. In October, his administration threatened to pause federal funding unless states remove references to gender identity and the existence of transgender and non-binary people from a federal sex education program.At least 11 states and two territories acquiesced to Trump’s demands. Meanwhile, 16 states and Washington DC sued the administration over the demand.The Associated Press contributed reporting More

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      Trump’s supreme court strategy is to redefine ‘tariffs’. Will the justices buy it?

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      Donald Trump faced arguably the biggest test so far of his contentious use of executive power at the US supreme court on Wednesday. The stakes could not be higher – “literally, LIFE OR DEATH” for the US, at least according to the president.Trump’s signature, globe-rattling economic policy, his sweeping tariffs regime, was in the dock – specifically, the legal mechanism his administration has used to enforce it. And the man dispatched to defend the White House put forward a somewhat puzzling argument.“These are regulatory tariffs,” D John Sauer, US solicitor general, assured the court. “They are not revenue-raising tariffs. The fact that they raise revenue is only incidental.”It was a curious, and more than a little confusing, explanation – tariffs on goods from overseas might raise revenue, but are not revenue-raising – designed to counter rulings by lower courts that set the stage for this test before the highest court in the land.A federal appeals court in Washington DC ruled in August that the International Emergency Economic Powers Act (IEEPA), a 1977 law Trump invoked to impose many of his tariffs, did not grant “the power to tax” to the president.Congress is granted sole authority under the constitution to levy taxes. Trump bypassed Congress – lawfully, his aides insist – to drive through a policy estimated to equate to the largest tax hike since 1993.Thus, on Wednesday morning, the administration appeared to argue before the supreme court that these tariffs – taxes paid by myriad US companies on imported products – were not really taxes at all.Critics are not having it. “Anybody can look up in the dictionary,” Maria Cantwell, Democratic senator from Washington, told the Guardian. “Tariffs are an import tax, plain and simple. I would assume the administration understands that.”“I actually am surprised that it was so lacking,” Cantwell added, of the administration’s case.The court did not appear persuaded, either. “You want to say tariffs are not taxes,” said the liberal justice Sonia Sotomayor. “But that’s exactly what they are.”Some conservatives on the bench also sounded skeptical. “The vehicle is the imposition of taxes on Americans, and that has always been a core power of Congress,” said the chief justice John Roberts.The administration’s argument that the fact tariffs raise money is “only incidental” might be more persuasive if the president spent less time boasting about the amount of money they raised. “My tariffs are bringing in hundreds of billions of dollars,” Trump declared in a speech hours after the hearing.The president has argued – in typically binary terms – that the fate of his flagship economic strategy is aligned with that of the nation. But there are many business owners in the US, grappling with the abrupt imposition of steep tariffs, who believe the fate of their companies has been jeopardized by this regime.While official statistics (at least, those published before the government shutdown) have shown persisting inflation and a stalling jobs market, Trump continues to erroneously claim his agenda is producing stellar results. “Our Economy is BOOMING, and Costs are coming way down,” he wrote on social media during Wednesday’s hearing.It is ultimately down to voters, as some did on Tuesday, to deliver their verdict on Trump’s agenda. For now, a handful of small firms, together with a dozen states, have joined forces to challenge the way in which he has rammed it through.“We think that this case is really about executive overreach,” said Stephen Woldenberg, senior vice-president of sales at Learning Resources, a toy company based near Chicago that sued the administration to invalidate Trump’s tariffs as exceeding his authority.At the heart of this case is really a “broader issue”, according to Woldenberg, of who sets taxes – and how – across the US. “We weren’t really willing to let politicians, and really a single politician, decide our fate,” he said.That fate is now in the hands of a court Trump has shaped. The justices have pledged to fast-track their decision. On Wednesday, at least, most sounded unpersuaded by the administration’s defense. More

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      US supreme court to hear oral arguments on legality of Trump imposing tariffs

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      Donald Trump’s sweeping tariffs on the world will be scrutinized by the US supreme court today, a crucial legal test of the president’s controversial economic strategy – and his power.Justices are scheduled to hear oral arguments today on the legality of using emergency powers to impose tariffs on almost every US trading partner.In a series of executive orders issued earlier this year, Trump cited the International Emergency Economic Powers Act, or IEEPA, a 1977 law which in some circumstances grants the president authority to regulate or prohibit international transactions during a national emergency, as he slapped steep duties on imports into the US.The supreme court – controlled by a rightwing supermajority that was crafted by Trump – will review whether IEEPA grants the president the authority to levy a tariff, a word not mentioned in the law. Congress is granted sole authority under the constitution to levy taxes. The court has until the end of its term, in July 2026, to issue a ruling on the case.Lower courts have ruled against Trump’s tariffs, prompting appeals from the Trump administration, setting up this latest test of Trump’s presidential power. The supreme court has largely sided with the administration through its shadow docket to overrule lower courts.Should the supreme court ultimately rule against Trump’s use of IEEPA to impose tariffs, it will force the White House to go back to the drawing board and reconsider how to enforce an aggressive economic policy which has strained global trade ties.Should the court side with the administration, however, it will embolden a president who has repeatedly claimed – despite warnings over the risk of higher prices – that tariffs will help make America great again, raising “trillions” of dollars for the federal government and revitalizing its industrial heartlands.Trump himself has argued the court’s decision is immensely important. The case is “one of the most important in the History of the Country”, he wrote on social media over the weekend, claiming that ruling against him would leave the US “defenseless”.“If we win, we will be the Richest, Most Secure Country anywhere in the World, BY FAR,” Trump claimed. “If we lose, our Country could be reduced to almost Third World status – Pray to God that that doesn’t happen!”But some of his senior officials have suggested that, if the court rules against their current strategy, they will find another way to impose tariffs. Treasury secretary Scott Bessent, who plans to attend the oral arguments in the case, has said the administration has “lots of other authorities” to do so.According to the non-partisan Tax Foundation, Trump’s tariffs amount to an average tax increase per US household of $1,200 in 2025 and $1,600 in 2026.A coalition of 12 states and small businesses, Arizona, Colorado, Connecticut, Delaware, Illinois, Maine, Minnesota, Nevada, New Mexico, New York, Oregon and Vermont, have sued the Trump administration to block the tariffs.skip past newsletter promotionafter newsletter promotionSeveral other small businesses also filed suit against the Trump administration to block the tariffs. The cases, Learning Resources, Inc v Trump and Trump v VOS Selections, were consolidated by the court.“No one person should have the power to impose taxes that have such vast global economic consequences,” Jeffrey Schwab, Liberty Justice Center’s senior counsel, said in a statement on the lawsuit filed on behalf of small businesses against the tariffs. “The Constitution gives the power to set tax rates – including tariffs – to Congress, not the President.”About 40 legal briefs have been filed in opposition to the tariffs, including from the US Chamber of Commerce, the largest business lobby group in the US.The US Chamber has urged Congress to reclaim its constitutional role in setting tariffs, stating in a letter on 27 October to the US Senate: “American families are facing thousands of dollars in higher prices as a result of these increased taxes. Small businesses, manufacturers, and ranchers are struggling with higher costs, with additional economic pain likely in the coming months.”The US Senate voted 51 to 47 last week to nullify Trump’s so-called reciprocal tariffs, with four Republicans joining Democrats in the vote, though the House is not expected to take similar action.But despite opposition in the Senate, the House of Representatives is unlikely to take similar action. House Republicans created a rule earlier this year that will block resolutions on the tariffs from getting a floor vote. More

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      The ghost of Ronald Reagan has spooked Trump over tariffs | Sidney Blumenthal

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      Halloween came early for Donald Trump. Ronald Reagan spooked him. Trump had a startled reaction to the TV ad that appeared during the first game of the World Series, placed by the provincial government of Ontario, featuring excerpts from President Reagan’s radio talk in April 1987 in which he explained the danger of trade wars. “Their Advertisement was to be taken down, IMMEDIATELY, but they let it run last night during the World Series, knowing that it was a FRAUD,” Trump posted. It was, he falsely claimed, a “serious misrepresentation of the facts, and hostile act”. In retaliation, he slapped an additional 10% tariff on Canada.Trump was apparently horrified at the sudden presence of the ghost of conservatism past, who had kept the outlandish bounder at arm’s length and whom Trump regarded warily if not nervously. Reagan was the original, bigger and more successful performer, whose appeal was as the harbinger of morning in America, not the grim reaper of a zombie nightfall. Canada is being punished for Trump’s fright.Trump seemingly fears Reagan’s image might be taken as a warning to the supreme court to rule against him in the impending case of Trump v VOS, in which the basis of his tariff regime is at stake. “Canada is trying to illegally influence the United States Supreme Court in one of the most important rulings in the history of our Country,” Trump claimed.Two courts have already ruled against Trump for his invocation of national security under the International Emergency Economic Powers Act (IEEPA) to impose tariffs on whomever he wishes without the approval of the Congress. In late May, the US court of international trade held that most of Trump’s tariffs were “contrary to law”. He appealed to the US court of appeals for the federal circuit, which on 29 August affirmed the CIT ruling. The appeals court observed that “tariffs are a core Congressional power”. The IEEPA does not explicitly grant the president the authority to impose tariffs. Even if the IEEPA were interpreted to allow tariffs, it would represent an unconstitutional delegation of Congress’s power to the president.Twice rebuffed, Trump has appealed to the supreme court. The argument is scheduled for 5 November. Trump’s hair-trigger response to the sudden appearance of Reagan’s shade revealed his deep unease with how the court might rule. Even though the court has permitted many of his policies to proceed temporarily without legal justification through the “shadow docket”, he seems to know he might be on shaky ground here. In the tariff case, the amicus briefs against Trump were filed by some of the leading lights of the conservative legal world. Trump accused the appeals court judges of “hatred” and called Leonard Leo, the co-chair of the Federalist Society, which provided Trump with the lists of nominees for judgeships, a “sleazebag”. Trump is clearly afraid.On 15 October Trump announced that he might attend the oral arguments in person, to become the first sitting president ever to witness a supreme court case. Trump apparently has no concern about tainting the perception of the court’s objectivity or legitimacy. Either the court works for him or it does not; the justices fall in line or they are among the enemies within. To Trump, the Republican court should be no different from the Department of Justice under his thumb. He evidently views the separation of powers as a personal affront, unfairly stealing from him. Everything is a zero-sum game, not just international trade. “I’m the speaker and the president,” Trump has joked, according to the New York Times.Trump’s appearance in the sanctum of the court would let them know who’s the real chief. Just as the attorney general, Pam Bondi, and her deputy, Todd Blanche, sat behind Emil Bove, Trump’s henchman and nominee for the federal appeals bench, as Bove faced the senators at his confirmation hearing, Trump could sit behind his solicitor general, D John Sauer, to glower at the black-robed justices. His presence would threaten to strip away the veneer of the court’s independence as well as show his distrust for his own lawyer’s ability to prevail on the merits. Whether he wins or loses the case, he has personalized it. Winning would be interpreted as a victory for intimidation; losing would be flouting him rather than ruling on the merits. Either way, he would be poison and the decision would be, as it is said in the law, the fruit of the poisonous tree.Trump has been losing his case so far because of his transparently weak and sham argument, part economic illiteracy and part glaring cynicism, though there is a blurred line with Trump. Granting Trump his boneheaded economics, assuming he’s just a crude real estate operator who does not know the most basic things about international trade, may lend his primitivism a patina of dumb clumsy earnestness. Contrary to Trump’s stubborn ignorance, however, trade deficits are not a mercantilist zero-sum game and tariffs are not a tax on foreign countries. His complementary point that he must be able to impose universal tariffs by fiat whenever he likes without congressional authority, the only president ever to grab power for himself unilaterally under the statute in its 50-year history, because of the non sequitur of fentanyl trafficking, is so ridiculously phoney that it colors his whole case as typically dishonest.Trump’s snap imposition of 50% tariffs on Brazil for its supreme court’s judgment convicting his ally the former president Jair Bolsonaro of an attempted coup and Trump’s additional 10% tariff on Canada in his fit of pique at the Reagan TV ad may only serve to undermine his already tenuous argument that he is compelled to usurp sole power based on the IEEPA in the interest of national security. His tantrums are gifts to the opposing attorney, who may well hold them up as obvious refutations of his claims.In advance of Trump’s date with the court, he has raced around Asia tossing concessions which he hails as victories. Dropping the tariff rates for Japan, South Korea and China, while Beijing lifted its retaliatory threats to withhold rare earth minerals and stop purchasing American soybeans, he has to that extent reduced the harm he alone has been responsible for inflicting.The previously perfectly submissive Republican Congress has begun to crack up in reaction to the stress that Trump’s policies have placed on the rural Republican base. In symbolic votes, five GOP senators joined Democrats to oppose Trump’s tariffs on Brazil and four voted against his tariffs on Canada. The Republicans are in an uproar, following American ranchers, over his approval of importation of more Argentinian beef, apparently as a favor to his rightwing ally Javier Milei, to whom he has also authorized the payment of $20bn in support of the waning Argentinian currency. While Trump has grudgingly acknowledged that he cannot run for a third term, the Republican members of the Congress still have to face the music.The illegality of his tariffs aside, Trump’s retreat reveals the lasting damage he has already done to the US economy, his enhancement of Chinese power and his alienation of our allies, and it exposes his performance as a pantomime strongman on the world stage. Though some of his tariffs will be reduced, even those that remain stand at an unprecedented level in living memory.“Consumers face an overall average effective tariff rate of 17.9%, the highest since 1934,” the Yale Budget Lab reports. For small businesses, which account for one-third of US trade, 78% expect higher costs, and, unable to absorb them, 71% anticipate needing to pass them on as price increases. The Organization of Economic Co-operation and Development projects that as a result of Trump’s tariffs the US Gross Domestic Product growth rate will fall from 2.8% in 2024 to 1.5% in 2026 – a decline of nearly half.Trump’s atavistic return to the Republican protectionism of the 1930s, which deepened the Great Depression, rejects the lessons that Ronald Reagan sought to teach. “The memory of all this occurring back in the 30s made me determined when I came to Washington to spare the American people the protectionist legislation that destroys prosperity,” Reagan, the former New Dealer, said in the speech that enraged Trump enough to punish Canada for reviving it.Reagan’s talk was a prophetic warning of the peril of Trump’s tariffs: “You see, at first, when someone says, ‘Let’s impose tariffs on foreign imports,’ it looks like they’re doing the patriotic thing by protecting American products and jobs. And sometimes for a short while it works – but only for a short time … High tariffs inevitably lead to retaliation by foreign countries and the triggering of fierce trade wars … Then the worst happens: markets shrink and collapse; businesses and industries shut down; and millions of people lose their jobs.”skip past newsletter promotionafter newsletter promotionTrump’s relationship with Reagan was always uneasy. Throughout the 1980s, he sought Reagan’s imprimatur. In 1983, Reagan was asked to send a congratulatory telegram on the opening of Trump Tower. A few years later, Trump invited the president to attend a LaToya Jackson concert at his Taj Mahal Hotel and Casino at Atlantic City. Several attempts to edge close to Reagan were rejected, according to the Washington Post. The White House counsel’s office wrote “NO” on the telegram request. Offering advice on calling Trump, Reagan’s political director advised, “He has a large ego” – “large” was underlined.Nancy and Ronald Reagan lavished attention on the wealthy, but Trump was apparently too vulgar. It seems not even Trump’s lawyer, Roy Cohn, who was close to Nancy Reagan, could gain him access. Finally, Trump got himself invited to a social event at the White House, stood in the photo line and took a standard picture shaking hands with the president, and received the signed picture. Unfortunately, it was signed from “Reagan Reagan”. A corrected photo was sent, but Trump featured the original image as a token of his significance in The Art of the Deal.In that book, published in 1987, Trump suggested that Reagan was a hollow construct, “so smooth, so effective a performer” that “only now, seven years later, are people beginning to question whether there’s anything beneath that smile”. That year Trump briefly considered his first run for the presidency. He made a foray into New Hampshire and bought full-page ads in the New York Times, Washington Post and Boston Globe scathingly attacking Reagan for weakness. His “Open Letter” stated, “There’s nothing wrong with America’s Foreign Defense Policy that a little backbone can’t cure.” He blamed the federal deficit on our alliances. “Make Japan, Saudi Arabia, and others pay for the protection we extend to allies,” he wrote. “Let’s not let our great country be laughed at anymore.” It was the complaint he would retail for decades regardless of the circumstances. At the bottom, the ads reproduced his squiggly signature, nearly identical to the one on the lewd birthday card to Jeffrey Epstein that he denies he ever wrote. Now, “Reagan Reagan” has returned to haunt him.There’s a twist characteristic of the Trump era. If Trump loses his tariff case, the duties collected from companies will have to be refunded. The Wall Street financial firm of Cantor Fitzgerald reportedly anticipates a market on the rights to the tariff refunds. Its former head Howard Lutnick is the secretary of commerce, and his sons now run the firm. A Cantor Fitzgerald subsidiary is offering 20% to 30% in cash upfront rather than wait for litigation to resolve the claims, according to Wired magazine. In exchange, the company would eventually get the full refund. But if Trump prevails, the claims would be worthless. A spokesperson for Cantor Fitzgerald calls the report “absolutely false”, saying in a statement that it is “not in the business of positioning any risk, taking views or facilitating business in litigation claims involving the legality of US tariffs”.In August, however, the senators Ron Wyden and Elizabeth Warren sent a letter on 13 August to Brandon Lutnick, Cantor Fitzgerald’s CEO, seeking information. “Given that one of the purported architects of President Trump’s tariff policy is Commerce Secretary Howard Lutnick, your father and the former Chairman and CEO of Cantor Fitzgerald, LP, the firm’s actions raise obvious conflict-of-interest and insider dealing concerns.”The senators inquired: “Has anyone at Cantor or Cantor Fitzgerald, LP communicated with any individual representing the Administration’s interest or working on the court cases on these matters? If so, please provide a list of all such conversations, including the date, the individuals involved, and the nature of the conversation.”A spokesperson for the commerce department stated in an email to Wired, “Secretary Lutnick knows nothing about this decision because he has no insight or strategic control over Cantor Fitzgerald.” He remains busy working on Trump’s tariffs. This article was amended on 4 November 2025 to add a response from Cantor Fitzgerald to the Wired report.

      Sidney Blumenthal, former senior adviser to Bill Clinton and Hillary Clinton, has published three books of a projected five-volume political life of Abraham Lincoln: A Self-Made Man, Wrestling With His Angel and All the Powers of Earth. He is a Guardian US columnist More

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      Trump is toying with a third term. Don’t expect the constitution to stop him | Moira Donegan

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      The news cycle has continued in a predictable arc. Last week, Steve Bannon, the far-right provocateur and one-time Donald Trump adviser, said in an interview with the Economist that the president would seek an unconstitutional third term. “Trump is going to be president in 28, and people ought to just get accommodated with that,” Bannon said. (He seemed to be referring to Trump winning the presidential election in 2028 – Trump’s current term will last through 20 January 2029.) “At the appropriate time, we’ll lay out what the plan is.”Like clockwork, Trump commented on the idea soon after, telling reporters following him on Air Force One as he flew from Kuala Lumpur to Tokyo: “I would love to do it.”Initially, he said: “I haven’t really thought about it. But I have the best poll numbers I’ve ever had.” (This is not true; Trump’s approval has sunk considerably, with a new poll released this week showing him at a net -19 point approval rating, the lowest of his second term.) Still, Trump said he would be legally able to run again in a scheme in which he was placed on the ticket as a vice-presidential nominee, only for the puppet placed in the presidential slot to resign once taking office, thereby granting him the presidency. But he suggested that he would prefer to run himself, casting aspersion on the vice-presidential campaign option. “I don’t think people would like that,” he said. “It would be too cute, it wouldn’t be right.” In fact, it would also be unconstitutional, violating the 12th amendment’s prohibition on anyone ineligible for the presidency to be elected as vice-president.In a notable departure from his being loath to disagree with the president about anything at all, the House speaker, Mike Johnson, on Tuesday seemed to pour water on the idea of a third Trump term, noting, correctly, that such an outcome is barred by the constitution. “Well, there’s the 22nd amendment,” he noted. Johnson said that Trump was “trolling” his political enemies; analysis at CNN and the New York Times suggests that Trump is using the third-term comments in part to mute awareness of his own lame-duck status.Johnson is correct that the plain language of the constitution prevents Trump from getting what he says he wants in a third term. But we are in a moment when the plain language of the constitution is being subverted, ignored and read with shocking bad faith by the rightwing legal establishment, from law professors to justices of the supreme court, who have seemed eager to nullify parts of the constitution in order to expand Trump’s prerogatives and indulge his whims. How else but as an attack on the constitutional order are we supposed to understand, to cite just one example, the supreme court’s decision to allow Trump to proceed with his dismantling of the Department of Education – a body created by Congress, which only Congress has the power to dissolve? The prohibition posed by the constitution against a third Trump term does not seem like an especially robust defense in an era when the constitution is effectively being rewritten to grant Trump ever more power, with ever fewer opportunities for accountability. The constitution, after all, is just a piece of paper. And of the nine jurists tasked with settling on its authoritative interpretation, six of them are in the tank for a man hostile to its principles.If obviating the plain and obvious language of the 22nd amendment seems like too embarrassing a move even for this degraded and servile supreme court, consider what the court is already looking to do to the 14th amendment. The plain reading of the amendment, which has been understood and implemented in exactly one way for the past 157 years, is that the constitution confers citizenship to all persons born within the United States – what is called birthright citizenship. But after the Trump administration issued an executive order purporting to nullify this constitutional provision, the supreme court intervened to allow the order to go into effect, and made an unprecedented move to prevent lower courts from easily blocking it.The justices were provided cover, and a degree of plausible deniability, by right-leaning law professors, who had responded to the Maga movement’s calls to end birthright citizenship by assembling a legal literature that claims – through strained, misstated, far-fetched and outright wrong readings of the historical and legal record – that there is a longstanding controversy about the meaning of the 14th amendment’s citizenship clause. There is not. But their papers have created a veneer of intellectual credibility and a pretext for the Trump administration to do what it wants to do anyway: ignore the constitution. (In a briefing filed to the supreme court, asking it to sanction Trump’s attack on citizenship, the Trump administration alludes to “[a] growing body of modern scholarship”, and cites Trump-aligned scholars whose work claiming to limit birthright citizenship the administration’s own actions had provoked.) When the supreme court finally rules on the constitutionality of Trump’s order and the future of birthright citizenship is determined, what these law professors say may well matter more than what the constitution does.And this is why the notion that Trump “can’t” run for a third term, merely because such a thing is unconstitutional, may be a bit naive, or insufficiently alert to the degree to which the American constitutional order has already collapsed. What is and is not constitutional is determined, in effect, by Trump loyalists on the court; they already have an infrastructure of bad-faith enablers who will help them launder their efforts to empower him with flimsy pretenses of legal justifiability. And we already know, too, what happens when the law says that Trump must leave office, but he doesn’t want to. Events have long since made clear that the law is no check on Trump’s power. He’ll have to be stopped by the people instead: not with a lawsuit, but with a movement.

      Moira Donegan is a Guardian US columnist More

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      ‘Rogue president’: growing number of US judges push back against Trump

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      US district and appeals courts are increasingly rebuking Donald Trump’s radical moves on tackling crime, illegal immigration and other actions where administration lawyers or Trump have made sweeping claims of emergencies that judges have bluntly rejected as erroneous and undermining the rule of law in America.Legal scholars and ex-judges note that strong court pushback has come from judges appointed by Republicans, including Trump himself, and Democrats, and signify that the administration’s factual claims and expanding executive powers face stiff challenges that have slowed some extreme policies.Among the toughest rulings were ones this month by Judge Karin Immergut in Oregon and Judge April Perry in Chicago. Both district judges sharply challenged Trump’s plans to deploy national guard troops to deal with minimal violence that Trump had portrayed as akin to “war” zones, spurring the judges to impose temporary restraining orders.Immergut, whom Trump nominated for the court in his first term, rejected Trump’s depiction of Portland as “war-ravaged”, and in need of saving from “Antifa and other domestic terrorists” concluding that the “president’s determination was simply untethered to the facts”. But a court of appeals ruled on 20 October that Trump could send national guard troops to the city.Elsewhere, district judge William Young in Boston issued a scathing 161-page ruling last month calling some of Trump’s deportation policies illegal efforts to deport non-citizen activists at colleges in violation of their first amendment rights “under the cover of an unconstitutionally broad definition of antisemitism”. Young was nominated by Ronald Reagan.Some former appeals court judges say that the district courts and courts of appeals are responding appropriately to a pattern of unlawful conduct by Trump and his top deputies.“The president and attorney general are openly contemptuous of the constitution and laws of the United States and of the federal courts, and the arguments they make to the courts mirror that personal contempt,” said retired court of appeals judge J Michael Luttig. “The federal district courts and the courts of appeals well understand that and they are going to have none of it.”View image in fullscreenRecent court rulings reveal a pattern of strong judicial rebukes to the Trump administration from district and appeals courts on multiple issues since Trump took office again, which the legal news and analysis site Just Security has documented.A Just Security study, which was spearheaded by New York University law professor Ryan Goodman, revealed that courts’ distrust of government information and representations hit over 40 cases as of 15 October versus 35 cases in mid-September. Similarly, it noted that courts’ findings of “arbitrary and capricious” administrative action totaled 58 cases on 15 October versus 52 in mid-September. The study showed courts’ concerns over noncompliance with judicial orders totaled over 20 cases as of 15 October up from 15 cases a month before.But despite the growing number of strong lower court rulings against the administration, some may well get reversed by the supreme court given its 6-3 conservative majority, and its rulings that have markedly expanded presidential powers.Nonetheless, legal scholars and ex-federal judges stress that recent district court rulings against Trump’s radical policies are grounded in fact and reveal profound scepticism about a number of the administration’s sweeping legal claims.“US district judges have the responsibility to determine the relevant facts before applying the law. Accordingly, the credibility of a party and its counsel are immensely important,” said former federal judge John Jones, who is now president of Dickinson College.“Simply put, the president’s reputation for hyperbole that lapses into outright lies precedes him in these cases, and judges are increasingly refusing to take the administration’s rationale for its actions at face value.”For example, Perry called the Department of Homeland Security’s depiction of events in Chicago “simply unreliable” with a “lack of credibility”. She noted that state and local law enforcement contradicted the case for deploying the national guard and Trump’s assertion that it was a “war zone”, and warned that using the guard could fuel “civil unrest”.Days later, the seventh circuit court of appeals upheld Perry’s ruling that denied a White House request to deploy national guard troops on Chicago streets in response to a lawsuit brought by the city of Chicago and Illinois.But on Friday the Trump administration asked the supreme court to pause those rulings and permit Trump to deploy troops in Illinois, boosting efforts to send the national guard into the Chicago area.Elsewhere, on Monday a three-judge appeals court panel ruled 2-1 that the Trump administration can send the national guard to Portland, lifting Immergut’s ruling and allowing some 200 federalized guard troops to be sent to the city to protect federal buildings.Responding to the ruling, Oregon’s attorney general said if the decision is allowed to stand Trump would have “unilateral power to put Oregon soldiers on our streets with almost no justification”.More broadly, scholars and other experts voice strong criticism of the administration’s legal claims.“Trump is abusing the laws that authorize domestic military deployment in a crisis, and the courts are starting to push back,” said Liza Goitein, the Brennan Center’s senior director of liberty and national security.“In the United States, federal armed forces cannot be used to execute the law except when civilian authorities have been completely overwhelmed. As judges in Oregon and Illinois have recognized, the facts on the ground simply don’t justify deployment of the military.“A court could reach the opposite conclusion only by extending a dangerous level of deference to the president, effectively giving him free rein to use the military as a domestic police force. That would be contrary to American principles and traditions, and it would pose a grave threat to democracy and individual liberty.”Not surprisingly, some recent rulings by district judges have outraged Maga world and top Trump officials, who have decried them in incendiary terms. The White House deputy chief of staff, Stephen Miller, called Immergut’s ruling “legal insurrection”, which some analysts worry could incite violence.Trump, too, fired back at Immergut’s ruling. “I wasn’t served well by the people who pick judges,” Trump told reporters soon after the ruling, seemingly forgetting he had nominated her, and then misidentifying her sex. “Portland is burning to the ground … That judge ought to be ashamed of himself.”Trump’s attacks on Immergut and earlier dust-ups with judges who ruled against the administration were advanced this month by El Salvador’s authoritarian leader Nayib Bukele, who urged the Trump administration to emulate his policies and impeach “corrupt judges”.“If you don’t impeach the corrupt judges, you CANNOT fix the country,” Bukele tweeted, sparking multi-billionaire and Maga ally Elon Musk to retweet it as “essential”.But legal experts say the ruling by Immergut and other district judges who have pushed back hard against administration policies are fully warranted and reasonable, given extreme moves by Trump on immigration, crime and other fronts they deem unjustified or illegal.“I think the strong district court response in these contexts is striking,” said Columbia law professor Gillian Metzger. “It’s occurring in other Trump contexts as well – for example, the administration’s efforts to deny appropriated funding or target law firms – but immigration enforcement and calling out the national guard are traditional executive areas where you’d expect the president to get deference.”Metzger said: “Judges are perceiving an administration that is asserting power in novel ways and at odds with basic norms and longstanding practices – eg, employing the national guard in a partisan fashion over the objections of state and local leaders, deploying Ice officers in aggressive ways, etc – and at times violating governing statutes.”Other legal scholars go further.“The problem is not rogue judges, but a rogue president. The problem is not what judges are doing but what the president is doing,” said former Massachusetts judge Nancy Gertner, who now teaches law at Harvard.Gertner pointed in particular to Young’s ruling in a deportation case involving efforts by the Department of State and the Department of Homeland Security to deport pro-Palestinian non-citizen students and professors who protested against Israel’s actions in Gaza.In his ruling, Young wrote that Trump’s conduct violated his oath to “preserve, protect and defend the constitution of the United States” and the actions of his administration represented a “full-throated assault on the first amendment”.Gertner noted that the “case involved sending people to countries without due process. We gave due process to people involved with the September 11 attacks. Sending people to countries where they had no relatives, NO TIES, was a flagrant violation of law.“What the Trump administration has been doing is so unprecedented and so far from normal and so illegal it makes sense that judges have issued injunctions stopping them.”Luttig stressed: “The judges of the United States will not be threatened and intimidated by this president and this attorney general. They will continue to honor their oaths to the constitution, which means the president and attorney general can expect loss after loss after loss, at least before the nation’s lower federal courts.” More

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      The US supreme court appears ready to nullify the Voting Rights Act | Moira Donegan

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      The last remaining piece of the 1965 Voting Rights Act – section 2, which empowers the federal government to protect voters from racial gerrymandering meant to dilute Black political power – appears headed for an untimely end. At oral arguments in Louisiana v Callais on Wednesday, the US supreme court appeared ready to strike down section 2, effectively completing the gradual nullification of the Voting Rights Act that it has pursued for over a decade.The case stems from new congressional districting maps that were drawn in Louisiana after the 2020 census, which found both that the state was eligible for six seats in the House of Representatives and that its population was about one-third Black. The state initially drew maps that featured only one majority-Black congressional district, rejecting seven more racially fair maps; voters sued, and federal courts ordered Louisiana to comply with the Voting Rights Act by drawing new maps in which Black voters would be a majority in a second district, thereby reflecting their share of the population and giving Black Louisianans an equal opportunity to elect representatives of their choice.But now, a group of people identifying themselves as “non-African-American voters” have sued to get those racially proportionate maps thrown out, arguing that enforcement of the VRA violates their own rights under the 14th and 15th amendments. They claim the maps drawn to remedy racial discrimination against Black people in fact constitute racial discrimination against non-Black (read: white) people. The court seems likely to side with them.If they do, it will mark the end of the Voting Rights Act, widely considered the crowning achievement of the civil right movement, which the supreme court, under John Roberts, has been dismantling for years. In 2013’s Shelby county v Holder, the court struck down much of section 5, which had required jurisdictions with a history of racial discrimination in voting to get federal preclearance for changes to its voting laws.In subsequent cases, the court has repeatedly narrowed the conditions under which litigants can bring voting rights claims and expanded states’ leeway to make voting laws that would have previously been deemed discriminatory. Writing for the majority in Shelby, Chief Justice Roberts claimed that racial animus and inequality had diminished enough that such a regime was not necessary, and indeed violated the rights of states. As states imposed a slew of new voting restrictions in the aftermath, the gap between Black and white voter participation rates grew dramatically. It expanded twice as much in districts that had previously been subjected to the section 5 preclearance regime.On Wednesday, the court seemed determined to apply the same logic that it used in Shelby county to section 2, demanding that Janai Nelson, the head of the NAACP’s Legal Defense Fund, justify why section 2 should still be efficacious and should not be considered to have somehow expired. Justices Kavanaugh and Alito asserted that the racial gerrymander was justified if it was intended as a partisan gerrymander – that is, that the lawmakers’ stated or professed intentions was what mattered, and not the racially discriminatory impact of the gerrymander.Previous supreme court precedent, as well as ample evidence from the congressional record, has said that discriminatory impact, rather than intent, is sufficient to constitute illegal racial discrimination – but at oral argument, the Republicans on the court, along with those representing the litigants, did not seem to think that this should matter. As she rebutted these arguments in the guise of asking questions from the bench, one could hear the exhaustion in Ketanji Brown Jackson’s voice. The remedies, she sputtered, “are so tied up with race, because race is the initial problem!” Jackson has been the court’s most passionate and articulate advocate for the Reconstruction amendments and for the legacy of the civil rights movement, but she seemed to know that her colleagues were not listening to her.The case reflects two major trends of the Roberts court: hostility to racial justice claims brought by minorities, and a willingness to invert civil rights law and the Reconstruction amendments alike to create interpretations in which these legal traditions function to entrench, rather than challenge, historical hierarchies of race and gender. Louisiana’s attorney general – who has switched sides in the case since it was initially argued last year, joining an opposition to the Voting Rights Act – claimed that to assume that Black voters would vote differently than white voters – which in Louisiana, they overwhelmingly do – would be to unconstitutionally impose a racial stereotype. This facile fiction elicited exasperation from Justice Kagan.But the attorney general knew his audience. Roberts has long been an enemy of practices that attempt to remedy historical and ongoing racial discrimination, claiming that the law mandates that state and private actors alike take no interest in such projects and attempt facially race-blind policies in everything from voting rights enforcement to college admissions – no matter how racially discriminatory against Black Americans such practices prove to be in reality. “The way to stop discriminating on the basis of race,” he once memorably said, “is to stop discriminating on the basis of race” – that is, to stop trying to account for or combat racism with official policy. The result will be that if the court rules in Louisiana’s favor, it will no longer be illegal, in practice, to racially gerrymander congressional districts to minimize and dilute Black voter power. But it will be illegal to use race to redistrict in such a way that restores Black voter power.It is apparently through this fanciful and motivated reasoning that Roberts and his colleagues have decided that any move to secure Black Americans’ voting rights and equality in fact violates the very constitutional amendments that were meant to secure their voting rights and equality. The Voting Rights Act does not violate the 15th amendment; it enforces it, and gave the United States, during the 60 years or so of its enactment, its only plausible claim to being a real democracy. To say that the VRA contradicts the 15th amendment is more than just bad reasoning. It is bad faith. But bad faith, increasingly, is what the supreme court operates under.If the supreme court rules in favor of the “non-African-American” voters and vacates what is left of the Voting Rights Act, as they are expected to, then a decision will probably come down sometime in June, just a few months before the November 2026 midterms. The resulting racial gerrymanders are expected to net Republicans 19 House seats.

      Moira Donegan is a Guardian US columnist More

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      Trump says US looking at land attacks in Venezuela after lethal strikes on boats – live

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      Asked in the Oval Office if the US is considering strikes on suspected drug cartels inside Venezuela, after lethal strikes on suspected drug smugglers at sea, Donald Trump just said that the administration is “looking at land”.The president also claimed, without citing evidence, that every strike on a suspected drug smuggling speedboat saves thousands of lives in the US. “Every boat that we knock out, we save 25,000 lives,” Trump said.Gavin Newsom, the Democratic governor of California, on Wednesday urged the Republican-led House oversight committee to launch an investigation into the “vile and offensive” text messages exchanged between leaders of Young Republican groups.The request follows a report in Politico that revealed more than 28,000 Telegram messages sent between Young Republican leaders over the course of seven months, in which they refer to Black people as monkeys, praise Hitler, and repeatedly make glib remarks about gas chambers, slavery and rape.“Calling for gas chambers. Expressing love for Hitler. Endorsing rape. Using racist slurs. This is not a ‘joke’, and it is not fringe,” Newsom said in a statement. “If Congress can investigate universities for failing to stop antisemitism, it must also investigate politicians’ own allies who are openly celebrating it.”With Republicans in control of the House, the oversight committee is unlikely to act.In the letter addressed to James Comer, the Republican committee chair and an ally of the president, Newsom notes that while House Republicans have made combating antisemitism a priority, few party leaders have publicly condemned the messages revealed in the report.Democrats such as the New York governor, Kathy Hochul, expressed outrage over the messages, and some GOP groups, like the Young Republican National Federation, have called for resignations.But the vice-president, JD Vance, said that he refused to “join the pearl clutching” over what he inaccurately described as “a college group chat”.Vance recently expressed support for the effort to track down, intimidate and harass people who voiced criticism of Charlie Kirk after his assassination.Donald Trump told reporters in the Oval Office on Wednesday that he might go to the supreme court next month when it hears his administration’s appeal of two prior court rulings against his imposition of sweeping tariffs under an economic emergency that appears to exist only in his mind.A trade court and an appeals court have both found that Trump exceeded his authority by imposing global tariffs citing provisions of the International Emergency Economic Powers Act.On Wednesday, Trump also claimed that he had used the threat of tariffs to stop the escalation of fighting this year between India and Pakistan, two nuclear-armed nations.Indian officials have said that Trump’s intervention had nothing to do with the end of hostilities.Donald Trump has finished speaking in the Oval Office. After he recited a long series of previously aired grievances, he confirmed, for the first time, that he authorized the CIA to conduct covert operations in Venezuela, marking a sharp escalation in the administration’s apparent effort to drive the country’s president, Nicolás Maduro, from power.Donald Trump just claimed that the number of Hamas fighters killed by Israel, with US support, exceeds the entire estimated death toll in the Gaza Strip in the past two years.“We, meaning Israel, but I knew everything they were doing, pretty much, I knew most of the things they were doing,” Trump told reporters in the Oval Office, “they’ve killed probably 70,000 of these people, Hamas.”As the United Nations reported last week, there have been 67,183 fatalities and 169,841 injuries reported to the Gaza ministry of health since 7 October 2023.The dead included 20,179 children, 10,427 women, 4,813 elderly people and 31,754 adult men.In May of this year, a joint investigation by the Guardian, the Israeli-Palestinian publication +972 Magazine and the Hebrew-language outlet Local Call found that Israel’s military intelligence database of Hamas and Palestinian Islamic Jihad fighters had 47,653 names. Of them, 8,900 were marked as killed or probably killed.Trump went on to claim that Hamas had agreed to surrender its weapons, but, while Hamas leaders said earlier this year that they would consider giving up the group’s heavy weapons, such as rockets and missiles, on Saturday a senior Hamas official told Agence France-Presse that disarmament was “out of the question”, adding: “The demand that we hand over our weapons is not up for negotiation.”Nevertheless, Trump said on Wednesday: “We want the weapons to be given up, sacrificed, and they’ve agreed to do it. Now they have to do it, and if they don’t do it, we’ll do it.”Asked by a reporter if that meant the US military might be directly involved in disarming the Palestinian militants, Trump replied, again apparently referring to US support for Israel’s military: “We won’t need the US military … because we’re very much involved.”To defend lethal US military strikes on suspected drug smugglers, Donald Trump just repeated his familiar but baseless claim that Venezuela “emptied” its prisons and “insane asylums” by sending incarcerated people into the United States as undocumented immigrants during the Biden administration.“Many countries have done it,” Trump claimed.As the Marshall Project reported a year ago, before the 2024 election, Trump had already made this claim more than 500 times without a shred of evidence.Asked in the Oval Office if the US is considering strikes on suspected drug cartels inside Venezuela, after lethal strikes on suspected drug smugglers at sea, Donald Trump just said that the administration is “looking at land”.The president also claimed, without citing evidence, that every strike on a suspected drug smuggling speedboat saves thousands of lives in the US. “Every boat that we knock out, we save 25,000 lives,” Trump said.Kash Patel, the FBI director, is speaking to members of the press now.“In just a three-month span, you had 8,700 arrests of violent criminals. You had 2,200 firearms seized off the streets permanently, to safeguard our communities. You had 421kg of fentanyl seized. Just to put that in perspective, that’s enough to kill 55 million Americans alone,” Patel said.He then compared the number of arrests since Trump returned to the White House with the yearly arrests of violent criminals during the Biden administration.“You have 28,600 arrests of violent criminals in just seven months alone, because of your leadership,” Patel said, praising the president in the process.“It’s a mess, and we have great support in San Francisco,” Trump said of the city and California governor Gavin Newsom’s home town.“Every American deserves to live in a community where they’re not afraid of being mugged, murdered, robbed, raped, assaulted or shot, and that’s exactly what our administration is working to deliver.”Trump touted the success of federal law enforcement in Washington DC.“It’s been so nice because so many people, they’re going out to dinner, and they’re having dinners they wouldn’t, they didn’t go out for four years, and now they’re going out three times a week,” he said.He went on to complain that the only thing in his way in other major cities is “radical left governors”.The president begins his press conference saying that he’s here to talk about “Operation Summer Heat”. He’s flanked by the FBI director, Kash Patel.“Over the past few months, FBI offices in all 50 states made crushing violent crime a top enforcement priority. That’s what they did, rounding up and arresting thousands of the most violent and dangerous criminals,” Trump said.Brown University is the latest institution to reject the White House’s offer to join a “Compact of Academic Excellence” – the controversial agreement which would provide preferential treatment to colleges that carry out several of the administration’s education policies, including ending diversity initiatives and capping international student enrollment.In a letter to the education secretary, Linda McMahon, Brown’s president. Christina H Paxson, said she’s concerned the compact would “restrict academic freedom and undermine the autonomy of Brown’s governance”.She added:
      A fundamental part of academic excellence is awarding research funding on the merits of the research being proposed. The cover letter describing the compact contemplates funding research on criteria other than the soundness and likely impact of research, which would ultimately damage the health and prosperity of Americans.
      The Massachusetts Institute of Technology (MIT) became the first university to reject the invitation to join the compact, before the White House extended the option to all higher education institutes across the country.The Senate has rejected a House-passed funding bill to reopen the federal government, as the shutdown enters its 15th day.With a vote of 51-44, this is the ninth time that the funding extension has failed to meet the 60-member threshold needed to advance in the upper chamber.According to Pentagon spokesperson Sean Parnell, the plane carrying the US defense secretary, Pete Hegseth, back from a meeting of Nato ministers in the UK had to make an unscheduled landing “due to a crack in the aircraft windshield”.Parnell added: “The plane landed based on standard procedures and everyone onboard, including Secretary Hegseth, is safe.”

      A federal judge temporarily blocked the Trump administration from carrying out layoffs during the ongoing government shutdown. In a lawsuit brought by the American Federation of Government Employees (AFGE) challenging the reductions in force that the Trump administration enacted last week, Judge Susan Illston said that the mass firings across agencies, which amounted to more than 4,000 layoffs, are an example of the administration taking “advantage of the lapse in government spending, in government functioning, to assume that that all bets are off, that the laws don’t apply to them any more”. Illston blocked the administration from laying off any federal employees because of, or during, the shutdown, and has stopped them from taking action on the already issued reductions in force for at least two weeks.

      While that hearing was under way, the White House budget director maintained that the firings are far from over. Russell Vought, the director of the office of management and budget – has said that the current reductions in force are just a “snapshot”. He added that the total amount could end up being about 10,000.

      The supreme court heard two and a half hours of oral arguments today in a case that could thwart a key provision of the Voting Rights Act (VRA). The conservative majority on the bench seemed sympathetic to the case, made by lawyers for Louisiana, a group of “non-African American voters” and the Trump administration. They all argue that a 2024 congressional map, which created a second majority-Black district in Louisiana, violates the constitution. If the court rules in their favor, it could ultimately diminish section 2 of the VRA, which prohibits electoral practices that dilute the voting power of minority groups. It would also limit the ability of legislatures from drawing maps with racial demographics in mind, and could cost Democrats several House seats in Republican-led states.

      Also in Washington, the government shutdown enters day 15, with no end in sight. Republicans and Democrats in Congress held press conferences at the US Capitol, and continued to exchange barbs – blaming the other party for the lapse in funding. The House speaker, Mike Johnson, said that he spoke with Donald Trump on Tuesday, adding that Republicans are “forlorn” and not taking “any pleasure” in the length of the shutdown and the mass layoffs implemented by the White House budget office. Meanwhile, Hakeem Jeffries slammed the administration for offering a $20bn cash bailout to Argentina, but not “spending a dime on affordable healthcare for Americans”. CSPAN also reported that Johnson and Jeffries have both accepted an invitation to debate on the network. The date has yet to be announced.

      Today, Johnson also accused a group of Democrats of “storming” his office, showing “disdain for law enforcement” and playing “political games”. On Tuesday evening, a group of Democrats including Adelita Grijalva, the Democratic representative-elect for Arizona, marched to Johnson’s office, chanting “swear her in” and demanding that she be seated after she won a special election in her state over three weeks ago. Arizona’s attorney general, Kris Mayes, has threatened legal action against Johnson for failing to seat Grijalva, and Grijalva said she has also been exploring her legal options for officially claiming her seat.
      In her order, Judge Illston has temporarily blocked the administration from laying off any federal employees because of or during the shutdown, and has stopped them from taking action on the already issued reductions in force for at least two weeks.She’ll lay out further details in her written ruling later today, but said that the administration will need to provide a plan outlining how they have complied with her order within two business days. Illston said that she will schedule a preliminary injunction hearing in roughly two weeks’ time. “It would be wonderful to know what the government’s position is on the merits of this case,” Illston added. “My breath is bated until we find that.”Judge Susan Illston has issued a temporary restraining order, blocking the firing of federal workers during the ongoing government shutdown. More

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      ‘The stakes are quite large’: US supreme court case could gut Voting Rights Act

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      The US supreme court is set to hear a case this month that could gut what remains of the Voting Rights Act, effectively killing one of the crown jewels of the civil rights movement and the nation’s most powerful statute to prevent discrimination in voting.The court’s decision in the case, Louisiana v Callais, could be one of the most consequential rulings for the Voting Rights Act since it was enacted in 1965 and is almost certainly the biggest test for the law since its decision in Shelby county v Holder in 2013, when the justices hollowed out a provision of the law, section five, that required certain places to get voting changes approved by the federal government before they go into effect.The supreme court is considering the constitutionality of the most powerful remaining provision of the Voting Rights Act: section two. The measure outlaws election practices that are racially discriminatory and has been the tool that minority voters and voting rights advocates have frequently turned to challenge redistricting plans – from congressional districts to county commissions and school boards – that group voters in such a way to dilute the political influence of a minority group.Getting rid of section two, or severely limiting the ways in which it can be applied, would effectively kill the Voting Rights Act. It would take away the most powerful tool voters have to challenge racially discriminatory districts.“The stakes are potentially quite large,” said Sophia Lin Lakin, the director of the voting rights project at the American Civil Liberties Union. “The outcome of the case will not only determine the next steps for Louisiana’s congressional map, but may also shape the future of redistricting cases nationwide.”The dispute at the court is focused on a challenge by white voters to a majority-Black district in Louisiana that stretches from Shreveport to Baton Rouge. The justices already heard oral argument in the case in March that focused on whether Louisiana Republicans had overly relied on race when they redrew the district in response to a Section 2 lawsuit by Black voters. In an unusual move, the court did not reach a decision at the end of the court’s term this summer, and instead set the case for re-argument this fall.The justices announced in August they wanted the parties to submit briefing on whether Louisiana’s “intentional creation of a second majority-minority congressional district violates the fourteenth or fifteenth amendments to the US constitution”. The 14th amendment guarantees equal protection of law for all US citizens and the 15th amendment prohibits the government from denying someone the right to vote based on their race.The question raised the stakes of the case at the court, giving opponents of the law a chance to argue that the landmark civil rights statute should either be significantly narrowed or struck down entirely.“The challengers and the state do not limit themselves to whether conditions in Louisiana continue to justify application of the Voting Rights Act there,” said Stuart Naifeh, a lawyer with the NAACP Legal Defense and Educational Fund, which is representing voters defending the existing map. “They have attempted to expand the question beyond what the court has asked. And they argue that section two is not constitutional at all, anywhere.”There are many possibilities for how the court could rule. The justices could beat back those arguments and affirm the constitutionality of section two. The court could also say once and for all that the provision is unconstitutional, dealing a fatal blow to the Voting Rights Act. It could also rule somewhere in between, leaving section two intact, but make the test to deploy it much harder, in effect neutering it.“The two key pillars, at least since 1982, were section two and section five,” said Richard Hasen, an election law scholar at the University of California Los Angeles. “Shelby county already knocked down one of those pillars, and this case could potentially either knock it down or render it so weak that you might as well say it’s been knocked down.” He added that weakening but not killing section two might “potentially avoid some of the political cost”.The case arrives at the court after many of the court’s conservative justices have openly expressed skepticism about the continued need for section two. “The authority to conduct race-based redistricting cannot extend indefinitely into the future,” Justice Brett Kavanaugh wrote in a 2023 concurring opinion, a remark that was widely seen as an ominous sign for section two. Justice Clarence Thomas has long publicly said he thinks the statute is unconstitutional when it comes to redistricting.Congress amended section two in 1982 to clarify that it outlawed practices that resulted in discriminations – one did not need to prove intent. Working as an attorney in the justice department, John Roberts advocated strongly against those amendments.The consequences of gutting section two would be drastic, Lakin and other attorneys representing Black voters defending Louisiana’s current map wrote in a brief to the justices.“Without section two, jurisdictions could simply eliminate minority opportunity districts even where they remain necessary for voters of color to have any opportunity to elect candidates of choice, wiping out minority representation and re-segregating legislatures, city councils, and school boards – as some have recently attempted to do,” they wrote. “Districts based in obvious majority-minority communities, like Harlem or Tuskegee, could be divided along obvious racial lines without consequence.” Louisiana legislators reportedly have already been asked to hold dates for a possible special session on redistricting after the oral argument this fall.The case before the court on 15 October involves a long and twisted saga over Louisiana’s congressional map, which Linda Greenhouse, who covered the supreme court for decades for the New York Times, called “without doubt the most complicated voting rights case I have ever encountered”.After the 2020 census, the state drew a congressional map that had only one majority-Black district out of six, even though Black voters make up about a third of eligible voters in the state. Black voters sued the state under the Voting Rights Act. Two courts agreed with their claims and the state eventually drew a new map that created a second majority-minority district. Wanting to protect powerful incumbents in the state, including the House speaker, Mike Johnson, and Representative Julia Letlow, while also being majority-Black, the new district has an extremely odd-shape.But after the new maps went into effect, a group of white voters sued in a different court, arguing the new district improperly sorted voters based on their race. A court agreed with that argument in 2024, but the US supreme court allowed the redrawn map to go into effect for last fall’s election. Cleo Fields, a Black Democrat, won the district by more than 13 points.His win was a big deal for people like Martha Davis, who worked as both a teacher and administrator for 40 years. She still remembers waiting in segregated waiting rooms as a young girl and going to a segregated Catholic school, where she got used books from the white Catholic school. Now, she lives in North Baton Rouge. “It’s like the wrong side of the track. It’s like the forgotten area,” said Davis, who was one of the Black voters who sued Louisiana over its original map. “There are no hospitals nearby, no grocery stores nearby. The streets are deplorable. Nobody could care less what happens in that part of town.“The fact that we were able to choose somebody that looks like me, somebody who knows what our needs are, and fight for us – that made me overjoyed,” she said.Fields’s win also made a difference to Davante Lewis, a member of the Louisiana public service commission who represents the Baton Rouge area. He said that since Fields’s election last year, it had been easier to get help on federal issues like disaster relief.“When we need help for certain areas, you want your member of Congress to know it,” said Lewis, who was also one of the plaintiffs in the original suit challenging Louisiana’s map. “You don’t want them to be 170 miles away, who have no connection to where you are.”When the case was before the supreme court in March, Louisiana defended its redrawn map – saying it had made a good faith effort to comply with the constitution and the Voting Rights Act after judges had blocked their original plan. But after the justices invited further briefing, the state switched its position and now says that its map is unconstitutional.There isn’t the kind of ongoing discrimination that would justify bringing racial considerations into redistricting, the state’s lawyers say. They argue that the supreme court has only recognized two contexts in which it is acceptable for the government to take race-based action: remedying specific past instances of discrimination and avoiding imminent safety risks in prisons, like preventing a race riot.“Those two interests share a critical feature that section two lacks: They turn on a specific harm and permit only a correspondingly narrow, temporary remedy,” they wrote in their own brief to the court. “Race-based redistricting pursuant to section two, by contrast, is nothing of the sort. It presents no imminent danger to human safety. In its heartland application today, it also has nothing to do with remedying past intentional discrimination, let alone specific, identified instances of intentional discrimination.”The US supreme court has allowed mapmakers to use race in drawing districts if it is in service of a “compelling interest” and its use is “narrowly tailored” to that interest. Writing for the court in a 2017 case, Justice Elena Kagan noted the justices had “long assumed” that complying with the Voting Rights Act was a compelling interest.Those defending the maps argue that supreme court precedent already requires them to clear a series of high hurdles to show that race-conscious redistricting is needed in a section two case. It is difficult to win a section two case. From 2012 to 2021 there were 48 section two cases dealing with vote dilution filed and just 21 of them were successful, according to data collected by the Voting Rights Institute at the University of Michigan. Clearing those hurdles, those defending Louisiana’s map say, requires them to show that there is ongoing discrimination.“Section two’s permanent nature does not mean that its application is without limitation. Congress ensured that section two’s results test is appropriately constrained and requires a remedy only where race is already shaping political decision-making,” they wrote in their brief to the court. “Where voting is starkly racially polarized, leading to a pattern of persistent and ongoing electoral losses for candidates preferred by a cohesive minority voting bloc, as is true in Louisiana, those current conditions may give rise to the need for a race conscious remedy for unlawful racial vote dilution.”The Trump administration has filed a brief in the case siding with the white voters challenging the map and urging the supreme court to make it harder to win a section two case. Since Trump’s inauguration, the justice department has withdrawn from all of its pending section two cases and has not filed any new ones. “Too often, section two is deployed as a form of electoral race-based affirmative action to undo a state’s constitutional pursuit of political ends.”Davis, the former teacher who recalled growing up during segregation, expressed disbelief at the argument that the Voting Rights Act was no longer needed. “The fact that they want to take that away, it’s like we just keep fighting and fighting and fighting, when does it end?” More