The Will of the People and Nationwide Injunctions

Martin E. Gold

President Trump and members of his administration have been hurling insults at federal judges whose opinions they dislike since early in his first administration. One particular condemnation, which has been used most frequently in immigration cases, is uniquely disquieting—the accusation that judges are not adhering to “the will of the people.” Among others, the American Bar Association has strongly objected to this admonition, saying: “Judges swear oaths to follow the law, not public opinion, or political chatter, or what someone contends is the will of the people.” The ABA believes these claims are intended to undermine the courts and the legal profession.

Invoking the “will of the people,” as an attack line against the judiciary comes from the idea, mostly found in autocracies, that the last election overrides any existing law that conflicts with the views of the winner. The Nazi government in Germany did not rewrite or repeal existing laws, it just ignored or overrode them in accordance with the will of the leader. This view is totally inconsistent with our concept of the Rule of Law.

These admonitions, however, have not stopped. On July 12, U.S. Central District of California Judge Maame E. Frimpong issued a restraining order against federal immigration raids that lacked reasonable suspicion. The court found that arrests based on race, accent, or location violated Fourth Amendment rights. The White House responded by saying that Judge Frimpong was “undermining the will of the American people.”

One of the problems with adhering to popular opinion (which forms the core of political populism) is that popular opinion can be a blade of grass that sways with the wind, ever-shifting, -sometimes on a dime. It may be based on breaking news, which may be misinformation (especially true with today’s social media) or a single charismatic leader who lacks character. Emotions of the moment can turn out to be a dangerous source for decision making. In comparison, the slow but thoughtful development of laws by legislatures and by the courts, each having an historical perspective (that the general population lacks) and a wider breadth of knowledge, yields a quilt which is woven from more reliable threads, a carefully constructed whole, called the Rule of Law.

Not only is the White House’s charge that judges are ignoring the will of the people inappropriately leveraging highly partisan pressure, based on our norms and culture, but the actual will of the people with respect to immigration, based on current polls, has shifted dramatically over the past year. It no longer supports the MAGA demand that judges adhere to their views. Gallup polls conducted in June show that the percentage of Americans who want a decrease in immigration has dropped from 55% to 30%. Sixty-two percent of Americans now disapprove of Trump’s handling of immigration, with 45% strongly disapproving and only 21% strongly approving. Significant changes in the views of Republicans, and to a lesser extent independents, are the major reason for the shift. Two out of three Republicans now say immigration is “a good thing,” in contrast to only 39% who said that a year ago; 80% of independents agree.

Interesting as well is that approval for providing a pathway to citizenship for children brought to the U.S. illegally has risen to 85%, including 71% of Republicans. These are the DACA kids, the Dreamers, who have now grown-up.

Today people appear to be much less concerned about border security, with most Americans no longer supporting further construction of the wall along the U.S.-Mexico border.  But the public is increasingly unhappy with the mass deportations now underway. The reasons for this shift may include Immigration and Custom Enforcement’s (ICE) aggressive enforcement, characterized by entry into courtrooms and other public buildings, forceable arrests, sometimes behind masks, the terrible conditions in many of the holding camps, the deportation to hidden and deplorable foreign prison facilities (from which they may never emerge, even if they never committed a crime), together with the administration’s general disregard for due process. So, when Attorney General Bondi, DHS Secretary Noem, White House Border Czar Homan, and others, demand that the courts follow the “will of the people” rather than the law, they are not just violating long-held judicial norms, they are totally off-base given the actual will of the American people currently. Labelling a judge as “rogue” is just another way this administration has of saying he or she is not in concert with the will of the people as embodied in President Trump and his administration. The administration, and particularly Trump himself, also have some other ways of saying they are not in concert. In March, Trump attacked Judge James Boasberg, the chief judge of the U.S. District Court for the District of Columbia, calling him on social media a “Radical Left Lunatic of a Judge, a troublemaker and agitator. “This judge, like many of the Crooked Judges’ I am forced to appear before, should be IMPEACHED!” (The Senate confirmed Judge Boasberg by a vote of 96-0.) Federal judges say that words like these are leading to increasing amounts of harassment and to frightening threats of violence. 

Nationwide Injunctions

One area in which MAGA member critics have been strongest in decrying judges who ignore the “will of the people” is in the use of nationwide injunctions. These injunctions, issued by district court judges, halted the implementation of Trump administration programs that they found to be unconstitutional or otherwise illegal. They have been applied to policies with national impact such as denial of birthright citizenship and programs like the mass deportation of immigrants without due process or adherence to other controlling laws that are on the books. Such injunctions are a relatively recent phenomenon. There were almost none until Reagan became president. Then twelve were issued during the George W. Bush presidency and nineteen during Obama’s two terms. The number then jumped quite noticeably during Trump’s first term. He averaged approximately sixteen per year. During the Biden administration the number fell back. Just fourteen were counted during his first three years. Trump and his supporters praised the injunctions against the Biden administration, calling them “brilliant” and “great news,” but they turned 180 degrees when they started being issued against him during his second term.

Then, on June 27, 2025, the Supreme Court in Trump v. CASA, Inc. ruled that federal district court injunctions can only apply to the specific plaintiffs in a case and not nationwide to everyone that might be affected. So nationwide injunctions (except in rare circumstances) can no longer be used in immigration cases or other claims against the President for actions that have nationwide impact. But Justice Amy Coney Barrett in her opinion for the majority noted that class actions (which let people facing a common problem join together in a single lawsuit to obtain relief) may be available nationwide to all those in a certified class. Class actions are an established legal mechanism under the Federal Rules of Civil Procedure. In contrast, nationwide injunctions issued by district court judges were mostly blocked in this decision because the Court found such power was not granted in the Judiciary Act of 1789 or any act applicable to the powers of the lower federal courts since then. In addition no such powers were traditionally accorded to courts of equity at the time of the founding of the United States.

Less than a week later, on July 2, D.C. District Judge Randolph D. Moss enjoined (with a 14 day pause) a Trump proclamation that there has been an “invasion” on the border and invoking “emergency presidential powers” to deport migrants without allowing them to apply for any relief. The judge found that the administration was attempting to create “an alternative immigrations system.” As part of his ruling, he certified all asylum seekers “currently present in the United States” as a legal class action.  Trump administration officials immediately called Judge Moss a “rogue” judge.

Then on July 10, New Hampshire District Court Judge Normand Laplante certified another class action lawsuit against President Trump, challenging his executive order restricting birthright citizenship. Judge Laplante granted class action status and issued an injunction temporarily stopping Trump’s executive order from taking effect nationwide. The class certified will include individuals born on or after February 20, 2025, whose mother was unlawfully present in the U.S. and father was not a U.S. citizen or lawful permanent resident, or whose mother's presence was temporary and father was not a U.S. citizen or lawful permanent resident at the time of birth.

The quick action by these two district courts in certifying class actions suggests (strongly) that Trump’s win in the CASA case may turn out to be less significant than initially thought. Judge Laplante said he had "no difficulty" determining an injunction was appropriate for what he described as an executive order of "highly questionable constitutionality that would deny citizenship to many thousands of individuals."  A White House spokesman called the judge’s ruling “an obvious and unlawful attempt to circumvent the Supreme Court’s clear order against universal relief.” That statement is clearly untrue. Justice Barrett specifically noted that class actions are an alternative and gave claimants thirty days to pursue such an action, or other options.

The rule of law is one of the cornerstones of democracy. Maintaining it requires that there be well-crafted protections that are steadily guarded and applied when the need arises. There must be the means of preventing a popular president or prime minister from wrapping themselves in the then-current version of the “will of the people” and harnessing the combination so as to turn themselves into a king. Thomas Paine, in 1776 at the birth of the nation, advised in his pamphlet Common Sense that “in absolute governments the King is law . . . in free countries the law ought to be king.”

Limiting Legal Remedies for Medicaid Prioritizes Politics over Access to Care

In the first U.S. Supreme Court case involving access to abortion after the 2024 election, a 6-3 majority allowed states to block Medicaid patients from choosing their own health care provider. Medina v. Planned Parenthood South Atlantic involved a diabetic Medicaid patient seeking comprehensive health care at Planned Parenthood South Atlantic (PPSA). In 2018, South Carolina blocked PPSA from Medicaid unless it would agree not to provide any abortions. Under federal law, Medicaid already only pays for abortions in cases of rape, incest, or to save the life or health of the patient. But that wasn’t enough for South Carolina policymakers, who in 2022 also voted to severely restrict abortion access.

Medina shows that states are emboldened to limit access to medical care after the Dobbs decision overturned the right to access abortion. At the same time, this decision allows states to defy safeguards for people enrolled in federal spending programs, like Medicaid, reflecting a long campaign to weaken the American safety net. Together, the implications for access to medical care across different states cannot be overstated.

Congress protected patients’ right to choose their own health care provider in the Medicaid Act to shield access to care and patient autonomy. But after Medina, more states will feel free to limit funding despite these federal protections.

Medicaid’s rules mainstream patients into medical care wherever they live. The free choice of provider provision, also called the “any willing provider” or “any qualified provider” rule, was a 1967 response to states’ overly restrictive implementation of Medicaid, obligating states to allow patients to pick their own doctor. Until Medina, the vast majority of lower federal courts held that providers and patients could enforce the free choice of provider rule in federal court, but that will no longer be the case.

South Carolina’s barring PPSA from Medicaid was part of a larger state movement, including Texas, Louisiana, Missouri, and Arkansas, to limit Planned Parenthood’s role in health care for low-income populations by “defunding” it. Nationwide, Planned Parenthood makes medical care available for people that have limited access, including primary care services, such as breast and cervical cancer screenings; sexually transmitted disease screening and care; and contraceptives. No one disputed that South Carolina excluded PPSA solely because it sometimes offers abortions.

In holding for South Carolina, the Court effectively closed federal courthouse doors to patients trying to protect their own access to care. This will affect the roughly 79 million low-income people who rely on Medicaid’s public health insurance coverage, which pays for over 40% of all U.S. births, as well as medical needs for children, pregnant patients, elderly people, people with disabilities, and two-thirds of long-term care.

Sixty years of partnership between the Department of Health and Human Services (HHS) and states show Medicaid can cause federal-state conflict, because states do not always implement Medicaid as federal law requires. HHS has power to withhold all or a part of a state’s Medicaid funding for noncompliance, a potentially problematic remedy that can weaken the program and hurt beneficiaries and providers. Given how much they rely on Medicaid funds to balance their budgets, states are harmed too if funding is withdrawn.

When providers or patients needed to stop a state from violating the Medicaid Act, they relied on “section 1983,” a Civil War-era law that allows for suing individuals “acting under color of law” who violate constitutional or statutory rights. These lawsuits allow courts to issue more precise decisions that directly address state actions, while HHS’s power to withhold funding is blunt. The Court reiterated that section 1983 is available to enforce Medicaid rules against noncompliant states just two years ago. Why hear another case so soon? Under the surface is a bigger issue, that states have been making these kinds of claims – unfettered power over regulation of medicine – regularly since Dobbs. South Carolina has been acting as part of a pattern of states challenging federal authority over health care programs, which could undermine the social safety net for everyone, not just people relying on Medicaid.

In the ruling, Justice Gorsuch wrote that HHS could enforce Medicaid rules, but not health care providers or patients, because Medicaid is a federal spending program and the federal government should enforce its own conditions. Most social programs rely on this kind of structure – federal spending offered to states with rules for using the money – and this decision cannot be limited to just Medicaid. Temporary Assistance for Needy Families (TANF), Supplemental Nutrition Assistance Program (SNAP), Special Supplemental Nutrition Program for Women, Infants, and Children (WIC), education, public health, and more could be affected. Despite HHS having power to enforce Medicaid requirements by withholding funds, this is not feasible, not only because withdrawal could be harmful for funding recipients but also because HHS does not have enough staff to police each state’s actions for compliance; HHS relies on section 1983 lawsuits to know when states are noncompliant. So, Medina hands states more power, because they have been able to exploit HHS’s understaffing, as well as HHS’s underenforcement of Medicaid rules that do not align with a presidential administration’s policy preferences.

The Court’s extreme deference to state regulation of medicine was also displayed in the Skrmetti decision, which allowed Tennessee to ban gender-affirming care for adolescents because the legislature wanted minors to “appreciate their sex.” Taken together, these cases mean that states may not only “defund Planned Parenthood,” but that they may impose policy preferences on medical care with little fear of federal court oversight. Not only will this curtail patient autonomy, but other politically disfavored kinds of care, such as vaccines, may be on the chopping block. States could go so far as to exclude providers who support firearm safety, or wearing bicycle helmets, with little concern for legal consequences.

Congress created a protected right in Medicaid so that states would not have unfettered power over medical decisions for low-income patients. The ruling for South Carolina does more than ignore Congress’s purpose in adding the free choice of provider provision to Medicaid. It gives states significant leeway to regulate medical care beyond abortion. If states can exclude providers regardless of clinical qualifications, health care quality and access for millions of Americans could be jeopardized.

Nicole Huberfeld is Edward R. Utley Professor of Health Law at Boston University School of Law and School of Public Health, Chair of the BU Health Law Program, and Co-Director of the BU Program on Reproductive Justice.

When ICE Agents Break the Law, Can Victims Sue? The Supreme Court Hints Yes. Will the Eleventh Circuit Listen?

Over the past five months, Immigration and Customs Enforcement (“ICE”) agents have arrested and deported U.S. citizens,  caused car crashes during reckless pursuits, brandished weapons on unarmed children, and unnecessarily used force against elected officials. These are just a few of the egregious acts that federal law enforcement officers have committed since the Trump administration has ramped up its smash and grab deportation tactics. As an increasing number of people are injured by ICE and other federal law enforcement agents, clarity around pathways to accountability is more important than ever. Unfortunately, the U.S. Supreme Court opted to gently nudge—rather than clearly direct—the Eleventh Circuit to join the rest of the country in allowing victims of federal police abuse to sue when they are injured.

This term, the Court issued an opinion in Martin v. United States, a case filed by a family that was terrorized by a Federal Bureau of Investigations (FBI) SWAT team during a wrong house raid. The Court’s main holding was relatively uncontroversial: reversing the Eleventh Circuit’s outlier position that the supremacy clause shields the federal government from suit when its law enforcement officers violate state laws. However, the Court sent back to the Eleventh Circuit for “careful reexamination” what should have been an equally clear issue—whether the Federal Tort Claims Act’s (“FTCA”) discretionary function exception prohibits lawsuits for officer conduct that is not directly prescribed by federal law or policy. How the courts ultimately define the scope of the FTCA’s discretionary function exception could determine whether ICE agents face any consequences for their increasingly unhinged and illegal actions.

On its face, the FTCA is a hyper-technical statute that governs a relatively small number of the nation’s cops. However, the FTCA will be the primary vehicle to seek justice in court for people harmed by the Trump administration’s mass deportation agenda. The statute provides one of the only methods for a person injured by federal officers to sue for damages. Accordingly, the FTCA will be the litigation vehicle for people injured by ICE as well as the federal militarized response to protests opposing immigration raids.

The FTCA doesn’t allow lawsuits for all federal officer misconduct and contains several exceptions—most notably, the discretionary function exception. In a nutshell, the discretionary function exception shields officers from FTCA lawsuits when they are engaged in conduct for which they are exercising discretion. In the past, the Eleventh Circuit has endorsed a uniquely expansive reading of the exception, holding that any actions not specifically addressed in a federal statute, policy, or regulation are discretionary and an officer cannot be sued for them. Law enforcement officers rarely receive written bright line rules outlining every permissible or prohibited action. Federal law enforcement policies are no different. Under the Eleventh Circuit’s uncorrected standard, ICE agents and other federal officers could dodge accountability for a broad range of reprehensible, dangerous, and illegal actions simply because a victim couldn’t cite a specific statute, policy, or regulation banning their actions.

For instance, Leonardo Garcia Venegas, the U.S. citizen that was violently arrested in Alabama because ICE agents thought his REAL ID was fake, would need to point to a formal policy, statute, or regulation to bring a case under the Eleventh Circuit’s rule. While some of the agents’ actions might be prescribed, it is unlikely that all the illegal conduct that occurred during Mr. Garcia Venegas’s hours long detention would be explicitly regulated.

Negligent conduct may be even harder to challenge in court if the Eleventh Circuit declines to reconsider its position. As Justice Sotomayor noted in her concurrence, under the Eleventh Circuit’s standard, a person could only sue a federal officer that severely injured them in a car accident “if federal law or policy specifically prescribed an officer’s permissible maneuvers on the road.” This scenario is not just a hypothetical concern. Just last month, an ICE agent caused a major car crash while fleeing a failed raid attempt at a school in New York. In Texas, immigration-related vehicle pursuits have led to hundreds of deaths.

Given the Court’s increasing hostility to federal law enforcement accountability, the Martin majority opinion’s gentle suggestion to “think again” is a relative success story. While the Supreme Court did not directly overturn the Eleventh Circuit’s misreading of the discretionary function exception, its subtle directive to “carefully reexamine” the exception’s application may prompt the Eleventh Circuit to join the rest of the country in permitting lawsuits in cases even when there is no specific federal policy addressing the conduct in question.

But at a time when ICE and other federal law enforcement agents are violating people’s rights at unprecedented rates, it is disappointing for victims and their advocates in Alabama, Florida, and Georgia to have to wait and see what the Eleventh Circuit will do. It is hard to overstate the importance of the FTCA and the scope of its protections for the millions of people living in the Eleventh Circuit.  Florida currently leads the country in ICE cooperation and is one of the states where federal military troops have been deployed to assist with ICE raids. Alabama and Georgia have also increased their participation in federal immigration enforcement. As a result, abhorrent abuses are already happening, and more are inevitable.

Given all that is at stake and the clear legal precedent at issue, it would have been nice for the Court to have fixed the misinterpretation. Hopefully the Eleventh Circuit will be able to take the hint.

Don’t Let Trump Erase Immigrants from the Citizenship Clause

What does it mean to be born free? How did the drafters of the U.S. Constitution’s Citizenship Clause think about it? And how should their vision of freedom at birth inform today’s debates over birthright citizenship? 

When defending his plans to deny citizenship to children of immigrants, President Trump has repeatedly claimed that birthright citizenship is about the “the babies of slaves” and “not immigration.” While Trump is (shockingly) correct that redressing the horrors and injustices of slavery was the core purpose of the citizenship clause, he distorts history when he claims that immigrants weren’t included in that conversation. Congress saw clearly the danger of new status-based caste systems arising in the United States, and when they rewrote the Constitution, they intentionally included immigrants.  

In the 1800s, the guarantee of freedom at birth was, perhaps more than anything, what Black parents who escaped from slavery in the South wanted for their children. In 1832, Margaret Morgan, a Black woman, fled from Maryland (a slave state) to Pennsylvania (a free state) with her husband, a free Black man. Margaret had been verbally freed by her enslaver, John Ashmore, 20 years prior, but he did not issue her a written “deed of manumission.” In other words, she was an undocumented free person. When Margaret and her husband had children in Pennsylvania, they surely believed that, her status aside, their Pennsylvania children would be born free from slavery’s shadow.  

Sadly, Margaret’s enslavers and the courts had other plans. When John Ashmore died, his widow hired slave catchers to bring Margaret and her children back to Maryland and force them into bondage. The slave catchers argued that the Fugitive Slave Law outweighed any state-based protections to which Margaret may be entitled. In a case that eventually came before the U.S. Supreme Court, Prigg v. Pennsylvania, eight justices ruled in favor of the slave catchers, allowing Margaret and her freeborn children to be enslaved without due process. 

After the Civil War, cases like Prigg and the similarly heinous Dred Scott decision a few years later motivated Congress to pass an Amendment guaranteeing citizenship to “all persons born or naturalized in the United States.” But some senators, like Edgard Cowan, argued that its broad language should be narrowed to prevent the nation from being “invaded” by a “flood of immigration” from Chinese people, “Gypsies,” and other undesirable groups. The bill was passed in its current form despite these objections because a majority in Congress saw the connection between the institution of slavery and emerging systems designed to exploit and oppress immigrants.  

As California Sen. James Conness pointed out in his rebuttal to Sen. Cowan, before the Civil War (under the influence of its “southern brethren”) California had laws preventing both Black people and Chinese people from testifying in court. After the law was repealed in 1862 for Black people but not for Chinese people, confederate sympathizers “robbed, plundered and murdered” Chinese people with impunity because Chinese people could not testify to the acts committed against them. As a result of his historical experience, Sen. Conness was “very glad indeed that we have determined at length that every human being may relate what he heard and saw in court” and “entirely ready to accept that the children born here of [Chinese] parents shall be . . . entitled to civil rights and to equal protection before the law with other.” Sen. Conness’ arguments carried the day, and the 14th Amendment was passed in its current form, without anti-immigrant restrictions. 

Today, many commentators see echoes of the Fugitive Slave Laws in growing federal efforts to arrest and detain immigrants without due process, to deny citizenship to their American born children, and to strip citizenship from those deemed undeserving. Just as Margaret Morgan’s inability to prove her legal status shaped her and her children’s outcomes 200 years ago, today immigration status is a key deciding factor in determining access to dignified work, health, safety, and a whole suite of rights and privileges which define what it means to be a full member of society.  

People without legal status work some of the lowest paid, most difficult jobs in our society. They are uniquely vulnerable to wage theft, sexual assault and other forms of exploitation precisely because they are often reluctant to testify to the crimes committed against them. As the Trump administration expands deportation efforts in sensitive places, like courtrooms, hospitals and schools, these forms of exploitation are only likely to get worse.  

Now, as in the 1800s, the Supreme Court is playing an active role in the erection and maintenance of this immoral caste system. Until last Friday, undocumented mothers could assume that even if they might be arbitrarily arrested, detained and deported without due process, their children could grow up secure in their status as citizens. Though it did not address the underlying constitutional challenge to Trump’s unilateral attempt to end birthright citizenship, after Friday’s ruling, experts predict that litigation may produce a patchwork of protection, where babies born in some states are rendered stateless and ineligible for benefits, with no ties or guarantees of protection in another country, but no security in their lives here. In short, the President, with the Court’s help, is erecting precisely the kind of caste system that the Framers of the 14th Amendment wished to avoid.  

These are difficult days for immigrants’ rights. But just as the past provides warnings about how government can distort democracy and trample human rights, it also provides examples of how the people can resist. Even after a new Fugitive Slave Act made it a federal crime to assist Black people fleeing slavery in 1850, people continued to stand up for freedom. Journalists like William Lloyd Garrison relentlessly highlighted the illegitimacy of the Supreme Court’s racist rulings. State officials refused to assist federal slave catchers. Neighbors sheltered fugitives in their homes. And everyday people physically resisted attempts to arrest formerly enslaved people.  

Today, similar efforts are underway to resist immigration status-based caste systems. Progressive state officials are working to protect immigrant rights through a mix of litigation, legislation and administrative efforts. Journalists and thought leaders continue to explain how undermining rights and due process for immigrants makes all of us less free. And organizers in cities like Los Angeles have shown the power of direct resistance to immigration raids.  

The Court that condemned Margaret and her children to slavery didn’t get the final say because people resisted and, in some cases, disobeyed unjust laws and fought fiercely for what they knew to be right. That all people have value and no one deserves to live in fear. And that caste systems should have no place in our democracy.  

Ranked Choice Voting: Lessons in Democracy Reform from New York

In just a few weeks, on June 24, 2025, voters in New York City’s primary elections will use the ranked choice voting (RCV) method to select their parties’ nominees for the general elections later in the fall. This will mark the second time that the residents of America’s largest city will utilize this new system which was adopted in 2019.

In a typical ranked choice voting scenario, when no candidate wins more than 50 percent of the votes, the least scoring candidate is eliminated and their vote is awarded to their second-choice candidate and the process is repeated until someone scores more than 50 percent of the votes. In New York City, voters are allowed to rank up to five candidates on their ballot.

This system itself has become fodder for partisan disagreement: over the past three years, ten Republican states have banned the use of ranked choice voting in their jurisdictions and at a recent rally in Michigan to mark his first 100 days in office, Donald Trump sternly admonished his supporters never to accept the ranked choice voting method. Earlier, in January 2023, the Republican National Committee (RNC) officially adopted a resolution to oppose ranked choice voting.

The Critics’ Beef with Ranked Choice Voting

A recurring line of attack against ranked choice voting by its critics is the idea that the process creates confusion among the voters, a situation they claim could depress voter turnout, as insufficiently informed voters lose their enthusiasm for participation. Notably, this sentiment seems to be shared by both the official GOP and the smattering of Democrats who have publicly opposed the voting system, including local New York City politicians like Laurie Cumbo and John Liu, who expressed their criticism in the lead-up to the adoption of ranked choice voting for the city’s primaries in 2019. Indeed, during that adoption debate, Sid Davidoff, a prominent lawyer and lobbyist in New York City, further stoked the flames of opposition by reportedly deriding ranked choice voting as “truly trying to fix a system that wasn’t broken.”

The Empirical Evidence from New York City

However, the idea that ranked choice voting will confuse the voters and thereby depress their enthusiasm for the process has been clearly dispelled by the empirical evidence from the 2021 municipal primaries in New York City. In short, the fears have turned out to be rather overblown. According to figures released in May 2022 by the New York City Campaign Finance Board (CFB) in its 2021-2022 , voter participation surged by 29 percent in the mayoral election of 2021 at nearly one million voters compared to the 772,000 figure in 2013 (when ranked choice voting did not exist) with turnout increasing in 41 out of 44 contested races. Also, nearly 90 percent of city voters ranked more than one candidate in at least one race in their primary ballot.

During a forum on ranked choice voting, Joan Alexander-Bakriddin, the president of the Brooklyn chapter of the NAACP, acknowledged the voter confusion problem but noted that the use of ranked choice voting in 2021 not only increased voter turnout but also resulted in greater diversity in the people elected to office. For instance, women now hold a majority of seats on the 51-member New York City Council, thanks to the 2021 election. On voter confusion, Alexander-Bakridden suggested that the problem could be remedied by a “significant investment in outreach” measures to address such factors as an aging voter pool that was accustomed to the old method of voting as well as the language barriers that exist among the highly diverse New York City electorate.

The other less-talked-about benefit of ranked choice voting is the cost savings from not having to conduct run-off elections in a ranked choice voting regime. Thus, just because none of the candidates in an election scored more than 50 percent on the first ballot does not thereby doom the electorate to return to the polls for a re-do between the two top vote-getters. Nor will the said two top candidates have to go back on the hustings in search of run-off votes, as happens in a typical election as we know it. The “one-and-done” feature of ranked choice voting is a win-win for the candidates, the voters, and the public till. Eric Friedman, a senior public affairs official at the New York City Campaign Finance Board and moderator of the aforementioned forum, noted in remarks after the event that the cost savings from not holding a run-off were considerable. He also noted that the one-off election feature of ranked choice voting helped avoid the danger of voter fatigue, which could arise from having to ask voters to come back and vote again.

However, the City should not consider the job complete. In the interest of securing optimal results for healthier politics New York City should also adopting open primaries as a complement to ranked choice voting.

Conclusion

For all its benefits, it is worth noting that ranked choice voting is currently in use for various local races in just 52 jurisdictions across the country, with Alaska and Maine alone using it for statewide races. However, the positive experience of New Yorkers with ranked choice voting is particularly instructive given New York City’s position as the largest city and one of the most diverse in an increasingly diversifying country. Accordingly, the ranked choice voting formula has certainly earned the right to be tested more broadly in American elections, beginning with expanding its use to cover more than just New York City’s primary elections.

Thus, it well behooves democracy reform advocates in the progressive community nationwide to promote this promising electoral innovation across the country to give more Americans an opportunity to assess its benefits for themselves. Chances are they will like what they see.

Carl Unegbu, a lawyer and journalist, serves as a vice chair of the New York Chapter of the American Constitution Society. He can be reached at ocarls@yahoo.com.

The Sinking Fund Precedent: An Originalist Defense of Regulatory Independence

“The executive Power shall be vested in a President of the United States." With these words from Article II, President Trump has launched a constitutional revolution that threatens the structure of American governance. In a breathtaking display of executive power, Trump has summarily dismissed Federal Trade Commission Commissioner Rebecca Slaughter, National Labor Relations Board Chair Gwynne Wilcox, and Merit Systems Protection Board Chair Cathy Harris—officials who, by statutory design and longstanding practice, were protected from precisely such political removals.

This is no mere bureaucratic reshuffling. It represents nothing less than a frontal assault on the constitutional architecture that has structured our government for generations. What's at stake? The President's ability to manipulate interest rates before elections by firing Federal Reserve governors. The power to punish media companies by removing FCC commissioners who don't favor the President's allies. The capacity to neuter election enforcement by dismissing FEC commissioners who insist on applying campaign finance laws to the President's supporters.

This constitutional crisis arrives with a supreme irony: the architects of this "unitary executive" revolution claim the mantle of originalism while ignoring or dismissing compelling evidence from the founding era itself. The Constitution they invoke bears little resemblance to the document ratified in 1789 or the government established under it. Far from commanding absolute presidential control over all administration, America's founding texts and practices tell a far more nuanced story—one that legitimizes meaningful limits on presidential control over certain regulatory functions.

Let us unfold this constitutional tale, one that begins not with modern bureaucrats but with the Framers themselves.

Originalism and the Weakly Unitary Executive

Advocates of a "strong unitary" executive branch insist that Article II's vesting of executive power in "a President of the United States" and the Take Care Clause command absolute presidential control over all executive functions, including plenary removal authority over every official exercising administrative power. Under this view, any congressional attempt to insulate an official from at-will removal by the President is presumptively unconstitutional.

But this absolutist reading is more spider's web than constitutional bedrock, a selective rather than faithful reading of what the Constitution requires, as Justice Holmes feared. Originalist interpretation demands we examine not just isolated constitutional phrases, but how the founding generation interpreted and implemented them. And here, the historical record offers compelling evidence for what I call a "weakly unitary" executive—one where Congress has meaningful authority under the Necessary and Proper Clause to structure administration in ways that secure good governance while respecting presidential authority.

Consider the text itself. Article II vests "the executive Power" in a President but tells us precious little about what constitutes "executive power" or how it must be exercised. The Opinion in Writing Clause explicitly gives the President authority to "require the Opinion, in writing, of the principal Officer in each of the executive Departments," but if the President already possessed absolute control over all executive officers, why would the Framers specify this particular power? The Constitution's explicit enumeration of this presidential prerogative strongly suggests the President's authority over administration was understood to have meaningful limits.

The Sinking Fund Commission: America's Original Independent Agency

The smoking gun in this constitutional debate—one that advocates of the strong unitary executive theory consistently underplay—is the Sinking Fund Commission established in 1790 by the First Congress and signed by President George Washington. This early institution, created to manage the repayment of Revolutionary War debt, represents nothing less than an originalist precedent for administrative independence.

What was the Sinking Fund Commission? Created by statute in August 1790, it constituted a five-member board that included the Secretary of the Treasury (Alexander Hamilton), the Secretary of State (Thomas Jefferson), the Attorney General (Edmund Randolph), Vice President John Adams, and Chief Justice John Jay. This Commission controlled the disbursement of funds that Congress had already allocated to repay the national debt.

The historical context is crucial. In England, sinking funds had a poor track record because political actors routinely raided them for other spending purposes. Hamilton's writings explicitly acknowledged this concern and emphasized the need for "inviolable application" of funds set aside for debt redemption. To achieve this independence from potential executive interference, Congress deliberately structured the Commission with ex officio members that the President could not unilaterally remove from their underlying positions.

This matters immensely. The President had no constitutional authority to remove the Chief Justice or the Vice President from their offices and therefore had no power to replace these officials on the Commission. This was a deliberate feature, not a bug—the Commission was intentionally structured to prevent the President from unilaterally controlling the disbursement of these congressionally-allocated funds.

Consider the practical implications: If the President wished to divert these funds for other purposes (perhaps to fund a war or meet some other emergency), he could not simply replace Commission members until he found those who would approve his preferred expenditures. The Commission's independent structure ensured that money allocated for debt reduction would actually be used for that purpose.

This structure bears a striking resemblance to modern independent agencies. Just as the Federal Reserve's independence enables monetary policy to function without short-term political interference, the Sinking Fund's independence protected fiscal policy from presidential pressure. In both cases, the core constitutional value at stake is preventing the consolidation of too much financial power in presidential hands—a concern deeply rooted in republican principles dating to 1790.

Importantly, this wasn't some minor experiment or constitutional aberration. Washington signed this law without constitutional objection. John Marshall and James Madison served on the Commission in later years without raising constitutional concerns. The Sinking Fund remained a core institution of American governance for decades, with its basic independence-protecting structure intact.

Beyond the Sinking Fund: A Pattern of Early Administrative Experimentation

The Sinking Fund Commission was not an isolated case but part of a broader pattern of administrative experimentation in the early republic that belies the strongly unitary executive theory.

Consider the Post Office under President Washington. Established by the Post Office Act of 1792, this institution became one of early America's largest and most important administrative agencies. Crucially, while the Postmaster General served at the pleasure of the President, the vast network of local postmasters enjoyed a significant degree of practical independence. The Act contained detailed instructions for postmasters and postal operations that constrained presidential discretion. Local postmasters were understood to have protection from politically-motivated interference, as they performed functions requiring neutrality and trustworthiness. Washington himself recognized these constraints, never asserting unlimited control over postal operations.

The First Bank of the United States, championed by Hamilton and approved by Washington, likewise operated with meaningful independence from direct presidential control. Its directors, while nominated by the President, functioned with significant autonomy in making monetary and fiscal decisions—an arrangement that resembles modern financial regulatory agencies.

During the Civil War and Reconstruction, this pattern of administrative experimentation continued. The Freedmen's Bureau, established in 1865, represents another historical precedent for independent administration. Created to assist formerly enslaved people's transition to freedom, the Bureau exercised a remarkable range of functions—distributing food and medical supplies, establishing schools, supervising labor contracts, and even adjudicating disputes. While nominally within the War Department, the Bureau operated with considerable autonomy to fulfill its humanitarian and administrative mission.

As legal historian Jerry Mashaw has meticulously documented in his book "Creating the Administrative Constitution," the early republic witnessed a diverse array of administrative structures that didn't conform to a strong unitary model. The First Congress routinely enlisted judges and private parties to check executive officers' conduct in various capacities.

These historical practices reveal that the Constitution's original public meaning allowed for substantive congressional structuring of administration, including independence-protecting features in certain contexts. This doesn't mean Congress could create unlimited obstacles to presidential control—the Constitution clearly establishes a single chief executive with broad supervisory powers. But it does mean the Constitution's framers understood executive power in more nuanced ways than modern unitary executive proponents suggest.

Humphrey's Executor and Constitutional Evolution

The Supreme Court's 1935 decision in Humphrey's Executor v. United States, upholding the independence of the Federal Trade Commission, is often portrayed by unitary executive theorists as a radical departure from original understanding. But in light of the historical evidence, it's more accurately understood as a recognition of constitutional practices dating to the founding.

True, the FTC of 1935 was not identical to the Sinking Fund Commission of 1790. But both institutions reflected similar constitutional principles: that certain governmental functions benefit from insulation from direct presidential control, that Congress has authority under the Necessary and Proper Clause to structure administration accordingly, and that such structures don't fundamentally undermine the President's ability to fulfill constitutional obligations.

In Seila Law v. Consumer Financial Protection Bureau (2020), Chief Justice John Roberts attempted to distinguish Humphrey's Executor on the narrow ground that it involved a multi-member commission rather than a single director. But this distinction finds little support in constitutional text or original understanding. The Sinking Fund precedent suggests that what matters constitutionally is not the number of heads, but the nature of the function being performed and the structural needs of good governance.

The Constitutional Stakes of Today's Removal Controversy

President Trump's dismissals of independent agency officials is not merely a technical dispute over removal authority—it represents a frontal assault on the constitutional understanding that has structured American governance for generations. If validated by the courts, it would concentrate unprecedented power in presidential hands, allowing the President to exercise direct control over monetary policy, fair competition, labor relations, and election administration.

Consider the FTC specifically. Commissioner Rebecca Slaughter was dismissed not because of "inefficiency, neglect of duty, or malfeasance in office"—the statutory standard that has protected commissioners' independence for generations—but rather because her policy views diverged from the President's. If this stands, future presidents could dismiss Federal Reserve governors who refuse to lower interest rates before elections, FCC commissioners who don't favor the President's political allies in media regulation, or FEC commissioners who insist on enforcing campaign finance laws against the President's supporters.

This is precisely the concentration of power that the founding generation feared and designed institutions to prevent. The Sinking Fund Commission was created precisely because the founders understood that certain governmental functions required insulation from direct presidential control to function effectively. Modern independent agencies serve this same constitutional purpose.

Presidential Practice and Constitutional Settlement

Proponents of the strong unitary executive theory sometimes claim that presidents have consistently opposed independent agencies throughout American history. But the historical record tells a different story. Between Franklin Roosevelt (who did challenge the FTC's independence in Humphrey's Executor) and Donald Trump, no president explicitly argued that independent agencies were unconstitutional or claimed the power to remove commissioners at will.

Instead, presidents from both parties have appointed commissioners, respected statutory removal protections, and worked within the established framework of independent agencies. Even when presidents chafed at particular agency decisions, they did not assert constitutional authority to simply fire commissioners whose policy views they disliked. This consistent executive practice represents a form of constitutional settlement that deserves significant weight in constitutional interpretation.

The fact that presidents and Congress have continued to create and maintain independent agencies, within the basic framework established by Humphrey's Executor, reflects a constitutional understanding that has been woven into the fabric of American governance. This doesn't mean the Court must slavishly follow every aspect of this practice, but it does suggest that the core constitutional principle—that Congress can create agencies with meaningful independence from direct presidential control—has been accepted by all three branches of government for generations.

A Path Forward: Preserving Constitutional Balance

How should courts resolve this controversy? By recognizing that the Constitution permits varied administrative structures based on the function being performed and the needs of good governance. This approach respects both original understanding, as exemplified by the Sinking Fund Commission, and the constitutional settlements that have developed over time.

Some agencies and functions properly belong under direct presidential control. Others—particularly those involving monetary policy, market competition, or fair elections—benefit from meaningful independence. The key constitutional question isn't whether all executive power must be subject to presidential control, but rather what kinds of structural arrangements best serve constitutional values while preserving the President's ability to fulfill constitutional obligations.

This approach would uphold the independence of multi-member regulatory commissions like the FTC, FCC, SEC, and Federal Reserve, while perhaps finding more direct presidential control appropriate for certain single-headed agencies or those exercising core foreign affairs and national security functions. It would respect Congress's authority to structure administration under the Necessary and Proper Clause, while preserving the President's constitutional role as chief executive.

In the specific cases now percolating through the courts, this approach would likely find Trump's dismissal of FTC and NLRB commissioners unconstitutional, as those officials serve on multi-member bodies with statutory protection from at-will removal. For the Merit Systems Protection Board Chair, the question would turn on the specific nature of that office's functions and its structural relationship to core executive powers.

Conclusion: Constitutional Fidelity and Constitutional Balance

The debates over the unitary executive theory aren't merely academic—they go to the heart of how our constitutional democracy functions. A proper originalist approach recognizes that the Constitution's framers created a chief executive with significant powers, but did not envision a president with unfettered control over all administration. The Sinking Fund Commission stands as compelling evidence that the founding generation understood congressional authority to include the power to create administrative bodies with meaningful independence from direct presidential control.

The Constitution's core values—preventing the concentration of too much power in any one branch while enabling effective governance—are best served by preserving the constitutional balance that independent regulatory commissions represent. Courts should reject extreme claims of presidential removal power and instead reaffirm the constitutional understanding that has structured American governance since the republic's earliest days: that certain governmental functions, properly authorized by Congress, may be performed with a measure of independence that serves rather than undermines our constitutional design.

Mauni Jalali is an Associate at Quinn Emanuel Urquhart & Sullivan, LLP. A graduate of Yale Law School, Class of 2022, he previously worked for the Senate Judiciary Committee and was a law clerk for the Honorable John C. Coughenour. He is a member of the American Constitution Society.