To Defeat Authoritarianism, We Need Labor

This Labor Day, institutional leaders contemplating how to stand up to arbitrary power should reflect on the old IWW slogan: an injury to one is an injury to all. In other words, a collective problem calls for a collective response. Institutions should look to the labor movement, in part for organizing and advocacy strategies, but also because any coalition to defend democracy must include organized labor.

Less than one year into his second term, President Trump’s most consistent priority seems to be imposing costs on anyone who disagrees with the administration’s views, while rewarding and empowering his favorites: “tough on crime” rhetoric notwithstanding, January 6 rioters got pardons; the people who prosecuted them got fired. Harnessing the executive branch and his own bully pulpit, Trump aims to force institutions to choose between their wallets, and their integrity. These ultimatums should be understood as assertions of power; while couched in legal language, they bear at most tenuous relationships to law.

Understandably, institutions have struggled to respond to these threats. One reason: they have mostly been going it alone. This is partly because the Trump administration has tended to set its sights on one news outlet, university, law firm, or city at a time; others may have hoped that by keeping quiet, they’d avoid being next. (The less said about law firms that tried to gain a competitive advantage by poaching lawyers or clients from firms targeted by the Trump administration, the better.)

In building coalitions to protect their own independence and democracy more generally, institutions should view organized labor as a partner, rather than an adversary. Research by political scientists confirms that labor unions are important to healthy democracies for several mutually reinforcing reasons. Among them, unions help reduce income inequality, which corrodes democracy. As democratically run organizations, unions are “schools for democracy,” with members developing political skills that they then bring to electoral politics as voters, volunteers, and candidates. They effectively amplify their members’ concerns in the political process, while also increasing their members’ knowledge about politics. And union representation tends to decrease white workers’ racial resentment, which is an important vector of authoritarianism.

For similar reasons, the historian Joseph McCartin recently called for “a labor-led democracy movement.” This requires at least two things. First, for unions to embrace this role, directing even more of their limited resources to educating and mobilizing their own members and nonunion workers in defense of democracy. To be clear, most unions are already robustly engaged in this work—though a small handful have recently failed important tests of inter-union solidarity. Second, other institutions – especially those that depend on democracy – must view unions first as allies in the fight against authoritarianism. To put it more concretely: a university, non-profit, or media outlet that engages in union-busting in 2025 is making a strategic mistake, prioritizing limited short-term benefits over the big picture.

Unions are already on the front lines of organizing resistance to anti-democratic policies. To start with some recent examples, unions (together with other groups) have organized protests against draconian immigration policies, the deployment of militarized forces in US cities, and mass firings of federal workers. And by naming apprentice Kilmar Abrego Garcia as their union brother, the leadership of the Sheet Metal Workers union made it harder for the Trump administration to claim to be acting in the interests of and with the support of the (white) working class.

Unions also push employers to defend workers’ safety and professional integrity, and they act on their own (or with other movement groups) when employers fall short. Within a workplace, unions can urge employers to show backbone when faced with an unlawful demand by the Trump administration. They can also raise the costs to employers of capitulation or cooperation, as in the case of a striking Teamsters local’s demand that the employer not over-comply with ICE. Outside of workplaces, unions call public attention to how Trump administration policies will harm their members or the public. And unions litigate on behalf of their members. For example, the NewsGuild was part of a coalition of plaintiffs that sued the Department of Homeland Security over officers’ use of force against both protestors and reporters covering ICE raids in Southern California. The American Association of University Professors, has filed several lawsuits over threats to academic freedom; these include challenges to the administration’s revocations of student or employment visas because of protected speech, and threats to yank federal funding over DEI programs. And unions representing public employees are litigating over the administration’s many efforts to close entire federal agencies despite statutory mandates, engage in mass layoffs and push federal workers to resign, and muzzle federal workers who might express dissent. It may be that private employers who are also harmed by the subjects of these cases either openly or tacitly support them, though in at least one case – an AAUP suit challenging funding cuts at Columbia – litigation highlighted that workers wanted to fight for their institution’s independence, despite leadership’s decision to seek a settlement with the Trump administration.

In a sense, the Trump administration seems to agree with this analysis—its actions to date suggest that it views the labor movement as another institution to be either co-opted or retaliated against. It recently invoked “national security” to suspend collective bargaining rights for hundreds of thousands of workers at agencies ranging from the Social Security Administration to the EPA. As the unions argued in a lawsuit challenging the first of these orders, the list of covered agencies makes little sense when viewed through the lens of national security – but it does track unions’ opposition to Trump administration policies.

President Trump also fired NLRB Member Gwynne Wilcox, despite statutory language that Board members may be removed only for “neglect of duty or malfeasance in office.” This had the immediate effect of depriving the Board of a quorum, and preventing it from deciding unfair labor practice cases. (Trump later nominated two management-side lawyers to the Board; they are awaiting Senate confirmation.) And two Trump-appointed Fifth Circuit judges recently barred the NLRB from proceeding with three unfair labor practice cases at all, pending adjudication of this and other challenges to the Board’s structure. This interim order is remarkable because it goes further than the likely remedy if the plaintiffs ultimately succeed – in previous similar cases, courts have excised good-cause protections from statutes without striking those statutes down altogether – and because it effectively makes compliance with labor law optional within the Fifth Circuit. While this may all seem like good news for employers who dislike the NLRA’s protections for workers’ concerted activity, it should alarm both employers and unions that a President bent on rewarding his friends and punishing his enemies would be able to manipulate the Board’s composition at will.

There are already some excellent examples of collective action to defend institutional independence and democratic values. For one, hundreds of law firms joined amicus briefs in defense of the firms targeted by executive orders; the list included plenty of plaintiff- and union-side firms, speaking up in defense of firms that are normally adversaries. Showing a united front, even symbolically, can make a difference – but institutions should also consider making more tangible commitments to defending themselves and each other. Numerous university faculty senates, including at the University of Minnesota where I teach, have urged their administrations to establish a mutual legal defense compact. (Such a compact might even deter the administration from targeting individual schools, much like a robust strike fund might motivate an employer to reach an agreement.) Law firms can join with unions and civil rights groups to provide pro bono representation for federal workers and other individuals targeted by the administration. The point is not that any one of these efforts will save the day on its own, but instead that institutions, unions, and other civil society groups should strategize and experiment.

When universities cede their academic freedom, it becomes harder for researchers anywhere to work collaboratively and without fear; when law firms agree to provide free legal services to the government and refrain from taking up disfavored causes, it chips away at the rule of law on which lawyers and clients alike rely. These institutions, along with the media, civil society groups, unions, and others, depend on democracy and the rule of law, and vice-versa. Recognizing this fundamental shared value suggests a path forward – at least for now, we’re all in it together.

Charlotte Garden is a professor at the University of Minnesota Law School; the views expressed in this essay are hers alone.

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.