In a July 16 letter to California Secretary of State Shirley Weber, the Department of Homeland Security (DHS) said a "preliminary review" suggested there "may be as many as 190,832 non-citizens registered to vote" in her state. Weber was skeptical—for good reason, it turned out. Three months later, the Trump administration reduced that estimate by nearly 90 percent, saying about 20,000 "likely noncitizens" had received California vote-by-mail ballots.

The Justice Department gave Weber and Dean Logan, Los Angeles County's top election official, 48 hours to determine whether any of the people on the government's list were in fact citizens. Otherwise, it said, Weber and Logan should segregate those ballots and refrain from processing them until citizenship could be verified. After Weber and Logan declined to comply with the Justice Department's demands, it asked a federal judge for a temporary restraining order (TRO) requiring them to do so—a request that he rejected in a scathing opinion on Wednesday.

"Never before in American history has the federal government, on the eve of an election, sought to coerce a state and local government to abandon their own Constitutional elections procedures and bend to the will of the Executive Branch," writes U.S. District Judge David O. Carter, a Bill Clinton appointee. "This request violates longstanding constitutional principles mandating that states have control over their elections. If Plaintiff's last-minute request for relief were granted, either party could create chaos for their own political purposes to disrupt the election process. Over 20,000 registered Californians would potentially lose the right that generations of Americans have fought to preserve."

The Justice Department delivered its list of "likely noncitizens" to Logan three weeks before Election Day. At that point, Los Angeles County already had sent ballots to 5.9 million voters and processed 331,000 of them. Logan said he was "legally prohibited" from doing what the Justice Department wanted because it had failed to explain the methodology used to compile the list, raising the possibility that citizens would be denied their voting rights.

There was ample reason for that concern. On July 17, DHS Secretary Markwayne Mullin averred that "as many as" 15,903 noncitizens were registered to vote in Nevada. The following month, when the DHS submitted a list of allegedly illegal voters to Nevada election officials, the number had fallen to 185—99 percent lower than Mullin's original figure. It turned out that every one of those 185 voters was a U.S. citizen.

"DHS has identified over 250,000 potential non-citizens illegally registered to vote" in California, New Jersey, Nevada, and Pennsylvania, Mullin said in July. He was echoing President Donald Trump, who for years has grossly exaggerated the extent of illegal voting by noncitizens, often in service of his own vanity.

Trump has repeatedly claimed, for example, that he would have won the popular vote in 2016 but for "the millions of people who voted illegally," and in January 2024 he warned that noncitizen voters "could very well affect the next election." In a speech the night before Mullin's announcement, Trump asserted that the DHS had "identified approximately 278,000 non-citizens who are registered to vote in federal elections."

Judging from Nevada's experience, the actual number may be closer to zero. It is hard to say, because the methods used by the DHS remain hazy.

In the California case, Carter says, the DHS "purchased a voter file that appeared to reflect 'the actual voter rolls in California, that as of August 2025, may be used for the 2026 federal election.'" It "then 'enhance[d]' the voter data through a 'reliable third-party data analytics'" and used records maintained by U.S. Citizenship and Immigration Services (USCIS) to find "an internal USCIS immigration number" that "may" correspond to each registered voter. "The matches are scored," Carter notes, "because 'the resulting data may be incomplete, outdated, or mismatched.'"

The DHS "then compared the potential identity matches to Department of State and Social Security Administration data to screen out U.S. citizens," Carter adds. "In the next step, a confidence level was assigned (where a high score supported a 'strong identity link') and a manual review was conducted for each match to 'determine which registered voters'" were "likely to be aliens." Then came "a 'quality review' to identify issues such as 'duplicate entries' and 'incomplete records,'" followed by "an 'enrichment process' that utilized 'additional unique identifiers' to 'improv[e]' the matching process."

The government did not initially specify the source of the "reliable third-party data analytics." But it later revealed that "the third-party platform it relied on was
Lexis Nexis," Carter notes. "It remains unknown how Lexis Nexis performed its analysis, such as how it 'linked names to Social Security numbers not available on the California public voter file.' Plaintiff likewise did not explain what its 'enrichment process' entailed or how it occurred. Plaintiff also provided 'no error rates' or 'validation against a reliable benchmark' that would enable a determination of the accuracy of its findings. Omissions of this critical information prevent an evaluation of Plaintiff's procedure, including how Plaintiff reduced its initial claim of nearly 200,000 alleged noncitizens to 20,000 individuals."

Potential sources of error include conflating people with similar or identical names and outdated records that do not reflect recent naturalization. Because it is unclear how the DHS tried to address such problems, it is not surprising that Weber and Logan did not want to rely on the Trump administration's list, especially given its pattern of dramatically reducing the putative number of illegally registered voters.

"It is well-documented that matching voter registration records with data from other
administrative databases 'presents numerous challenges,'" Carter writes. And given the potential for error, he says, "Plaintiff's allegations are not credible." He adds that the TRO sought by the Justice Department "would likely lead to voter disenfranchisement" and "would create a significant administrative burden for Defendants, leading to chaos and upending the election."

In any event, Carter says, the Trump administration does not have legal standing to seek such an order. The government's main argument was that California officials, by refusing to segregate ballots from people on its list, were interfering with its enforcement of 18 USC 611, which makes it a misdemeanor for "any alien to vote" in a federal election.

"Defendants do not 'interfere' with the United States' ability to enforce Section 611 by
administering an ongoing election in accordance with established State and Federal law, rather than assuming new obligations pursuant to a federal criminal law they are not responsible for enforcing," Carter writes. It is well established that state officials have no obligation to enforce federal law, he notes, and that they cannot be "commandeered" to do so.

Nor does the federal government need such assistance to enforce Section 611. "The very same day the United States filed its TRO [application] in this Court, the Department of Justice brought charges against 28 individuals" in California under that law, Carter notes. It is not clear how many of those defendants, who represent 0.0001 percent of California's 23 million registered voters, actually cast ballots. But "if fraudulent voting occurs," Carter says, "the United States should uphold the law and bring additional Section 611 indictments against those non-citizens it believes actually voted illegally in the current—or a prior—election."

The Constitution gives states the primary responsibility for conducting elections, subject to explicit limits imposed by Congress. But the Justice Department's actions in this case "are indicative of a broad, ongoing pattern of attempted election interference by federal officials," Carter writes. The department "has filed at least thirty-one lawsuits in federal district courts across the country seeking complete voter rolls from the States. Out of the twenty-six decided cases, the DOJ has prevailed in precisely zero."

In addition to "its failed attempt to seek State voter rolls," Carter notes, "the United States has also requested that States act based on the Executive's own lists." But "sister district courts across the country have cast doubt" on the reliability of those lists for the same reasons that Carter cites in this case.

On October 23, the Justice Department "sent letters to every county in California requiring them to set aside the votes of alleged non-citizens," Carter notes. "The letters stated that election officials 'risk significant federal scrutiny' if they failed to comply with the Government's demands. The government reiterated its threat in open court yesterday, stating that State and County election officials who do not comply with their letter risk federal charges under 18 U.S.C. § 2, which criminalizes aiding and abetting the commission of a criminal offense. The court reiterates what it said yesterday: these threats must stop."

The post Trump's Claims About Noncitizen Voting Are 'Not Credible,' a Federal Judge Says in a Scathing Decision appeared first on Reason Magazine.

On October 23, in the case of Newsom v. Trump, the US Court of Appeals for the Ninth Circuit ruled Donald Trump's June 2025 federalization of the National Guard in Los Angeles was likely illegal. This decision has little immediate effect, because the National Guard deployment ended months ago, after the Supreme Court ruled against Trump in a related Illinois case. But it has important implications for judicial review of executive invocation of emergency powers to use the military domestically. Among other things, it emphasizes that such actions are reviewable, and the president should get only limited deference. It also adopts a properly restrictive definition of "rebellion" (which is one of the conditions that might justify federalization of the National Guard).

Trump federalized the Guard in response to anti-ICE protests. The district court ruled his action was illegal and issued an injunction blocking it. But the Ninth Circuit lifted the preliminary injunction, in a decision I criticized at the time.

The relevant statute 10 U.S.C. Section 12406, can only be used to federalize state forces in one of the following situations:

1) the United States, or any of the Commonwealths or possessions, is invaded or is in danger of invasion by a foreign nation;

(2) there is a rebellion or danger of a rebellion against the authority of the Government of the United States; or

(3) the President is unable with the regular forces to execute the laws of the United States

Last year, the Ninth Circuit ruled (incorrectly, I think) that Trump's action might have been permissible under Subsection 3: a situation where "the President is unable with the regular forces to execute the laws of the United States." As the Ninth Circuit acknowledges in their most recent decision, this basis for Trump's actions was undermined by the Supreme Court's December ruling in the related case of Trump v. Illinois, which held that Subsection 3 can only be invoked when the president is authorized to use regular federal military forces to enforce the law, and those forces are inadequate. These circumstances do not apply to the anti-ICE protests in Los Angeles and Chicago.

No one claims that the situation in Los Angeles amounted to an "invasion" by a "foreign nation." Thus, in its most recent decision the Ninth Circuit considered whether Trump's actions were authorized by Subsection 2, which allows federalization of the guard when "there is a rebellion or danger of a rebellion against the authority of the Government of the United States."

The majority opinion by Judge Jennifer Sung holds that the determination that there is a "rebellion" is subject to judicial review and can be invalidated " if it "did not reflect a colorable assessment within a range of honest judgment." I think this is overly deferential. For reasons I outlined in an article published last year, there should be little or no deference when the executive invokes extraordinary emergency powers. Still, the Ninth Circuit standard is far from a blank check, and does allow invalidation of executive actions where the claim of rebellion is blatantly wrong - as it was here.

Following the district court, the Ninth Circuit defined  "rebellion" as "a violent, armed, organized, open and avowed uprising against the government as a whole." This differentiates "rebellion" from smaller-scale violence or other violations of law. I think that definition is largely correct. The court summarizes a wide range of historical evidence supporting it.

The Ninth Circuit also concluded that events in Los Angeles did not even come close to meeting that standard. There were some violations of law by protestors, and some small-scale violence. But no systematic effort to overthrow the government or anything close to it. If anything, both this issue and the definition of "rebellion" are easier calls than the court suggests.

Judge Sung, author of the majority opinion, is a liberal Biden appointee. But her opinion was joined by Judge Eric Miller, a conservative Trump appointee and onetime clerk for Supreme Court Justice Clarence Thomas. This suggests the issue here cuts across ideological and jurisprudential lines. Judge Mark Bennett, another Trump appointee, dissented, but mostly on procedural grounds.

Judge Bennett did also take issue with the majority's conclusion that if Trump's federalization of the National Guard exceeded his statutory authority, it also violated the Tenth Amendment, which reserves to the states or to "the people," those "powers not delegated to the United States by the Constitution." He argues that the power to call forth the National Guard is delegated to Congress by the Calling Forth Clause of the Constitution, which gives Congress power "[t]o provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions." This is true enough. But in situations where Congress has not exercised that authority, states retain total control over their militia (of which the National Guard is the principal modern example), and that control is protected by the Tenth Amendment. Indeed, such control over state military forces is a central element of state sovereignty. Overriding it without proper constitutional authority qualifies as unconstitutional "commandeering" of state government forces. As the majority explains:

The federal government—whether the President or Congress—violates the Tenth Amendment by commandeering state personnel to enforce or administer federal law. Printz v. United States, 521 U.S. 898, 925 (1997) (Under the Tenth Amendment, "the Federal Government may not compel the States to implement, by legislation or executive action, federal regulatory programs."). If, for example, the President commandeered state police to help federal officers enforce federal immigration laws, that would violate the Tenth Amendment….

California National Guard members are state personnel, unless properly federalized… The President purported to convert the Guard into federal personnel by issuing federalization orders. If those federalization orders had been valid, then the President would have deployed federal officers in Los Angeles, and no commandeering of state personnel would have occurred. But because the President lacked authority to federalize the California National Guard, the federalization orders were invalid, and the deployed Guard members remained state personnel….

In other words, because the deployed members of the California National Guard were not properly federalized, they remained the legal equivalent (for Tenth Amendment purposes) of the state police. And because the challenged executive orders compelled those state officers to help federal officers enforce federal law, the orders violated the Tenth Amendment….

The Tenth Amendment protects States against overreach by the "Federal Government," whether "by legislation or executive action." Printz, 521 U.S. at 925, 935. The President cannot command state officials to enforce federal law even if a federal statute would authorize him, under some other circumstances, to call those officials into federal service. If the statute did not authorize the President to federalize the California Guard members here…, then the federalization orders were invalid, the Guard members remained state personnel, and Defendants violated the Tenth Amendment by commandeering those state personnel to administer federal immigration laws.

Exactly so. The majority and dissent  consider a number of procedural issues, which I will not try to address. The majority also parses a variety of relevant precedents in detail. I may have more to say about some of them in future writings.

For the moment, this decision has little immediate effect. But it sets an important precedent in favor of judicial review of executive invocation of emergency powers, and on the meaning of "rebellion."

The post Ninth Circuit Rules Trump Illegally Federalized National Guard in Los Angeles appeared first on Reason Magazine.

Yesterday, in United States v. City of New York, yet another federal court ruled against the Trump administration in a sanctuary city case. "Sanctuary" jurisdictions are state and local governments that restrict their law enforcement agencies and other employees from assisting federal immigration enforcement and deportation efforts in various ways. In this case,  Judge Reyes of the US District Court for the Eastern District of New York upheld New York City laws restricting local law enforcement information-sharing and other assistance to federal immigration enforcers.

The court ruled that federal law does not preempt these policies, and that if if it did, there would be a violation of the anti-commandeering requirements of the Tenth Amendment:

Even were the Court to find that the United States has standing and the challenged provisions are preempted—both answered in the negative above—United States' claims would still fail because the anticommandeering doctrine of the Tenth Amendment to the Constitution of the United States precludes relief.

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." U.S. Const. amend. X….

The United States argues it is "not seeking to compel participation in immigration enforcement … but rather to remove Defendants' express and implicit obstacles to the Executive's duty to carry out its immigration enforcement duties…." New York City replies "if accepted, [the United States' claims] would require the City to affirmatively assist the federal government in enforcing immigration laws in violation of the Tenth Amendment's anticommandeering doctrine…." New York City is correct, at least partially.

The United States seeks injunctive and declaratory relief to preempt the challenged provisions… If the challenged provisions were struck, while New York City would not be obligated to carry out federal immigration enforcement, they would be barred from prohibiting their agencies and employees from engaging in federal immigration enforcement by expending personnel, property, and other resources to (1) detain individuals and (2) implement inter-agency information-sharing, including disclosing personally identifiable information, all potentially in violation of state law. And of course, there is nothing within federal law that obligates states to participate in federal immigration enforcement or compels states to comply therewith.

The United States' preemption arguments amount to nothing more than a backdoor around the Tenth Amendment and rest on a false distinction between (a) compelling local governments' participation in federal immigration enforcement and (b) prohibiting local governments from dictating how their personnel and other resources may be utilized towards federal immigration enforcement….. "

The basic principle—that Congress cannot issue direct orders to state legislatures—applies" to commands for "affirmative action" and the imposition of "prohibitions." Murphy [v. NCAA], 584 U.S. at 455 (citation modified). If states cannot remain free to control their agencies and employees to resist federal immigration enforcement, which is within states' constitutional prerogatives, the Tenth Amendment anticommandeering doctrine means nothing.

This reasoning is correct. And it is notable that this ruling - like many others protecting sanctuary cities - relies heavily on the Supreme Court's 2018 anti-commandeering decision in Murphy v. NCAA, written by Justice Samuel Alito (probably the Court's most conservative justice), and joined by all the other conservatives then on the Court. In that case, the Court emphasized that the anti-commandeering doctrine bars Congress from dictating the actions of state and local legislatures, regardless of whether the dictation takes the form of an affirmative mandate, or a prohibition against legalizing or barring something under state law.

Judge Reyes also rejects the administration's argument under the "intergovernmental immunity" doctrine, which bars states and localities from directly regulating federal agencies or "discriminating" against them. Like the court in the recent case of United States v. New Jersey, he correctly emphasizes that there can be no discrimination when there is no other comparable activity that gets more favorable treatment under the sanctuary jurisdiction's policies:

"Differential treatment is critical to a discrimination-based intergovernmental immunity claim." New York, 814 F. Supp. 3d at 282….; "[A] comparator is necessary." New York, 810 F. Supp. 3d at 353. The United States discrimination claim fails for lack of a comparator.

The United States does not and cannot identify a similarly situated entity. State and local agencies and their officers do not enforce immigration law, nor do members of the public…  As the United States concedes, the Federal Government holds the "exclusive charge of enforcing immigration law…."  Not only are other federal law enforcement agencies with different charges differently situated, "[f]or a state law to unconstitutionally discriminate against the federal government, it must treat comparable classes of federal and non-federal employees differently, not different classes of federal employees." Illinois, 796 F. Supp. 3d at 534

I would add that, as I explained in a recent post, the entire antidiscrimination element of the intergovernmental immunity doctrine is dubious, and should probably be overturned by the Supreme Court:

[T]he whole doctrine of intergovernmental immunity strikes me as bogus, judge-made law. There is no provision in the Constitution requiring it. And the federal government is not some historically oppressed minority group protected by the antidiscrimination provisions Fourteenth Amendment. Where state and local governments are otherwise free to refuse to help the feds, that autonomy should not be forfeited merely because they choose to support potentially similar activities by state or local governments, or by the private sector. Obviously, a district court cannot refuse to obey Supreme Court precedent in this field. But I hope the Supreme Court might someday reevaluate that precedent.

This is just the most recent of a long line of defeats for Trump in sanctuary city cases, in both his first and second administration. Judge Reyes cites close to a dozen such cases over the last year alone.  I summarized this jurisprudence more fully in a post covering three other recent sanctuary cases, last month:

In cases where the administration has tried to directly coerce states and localities into cooperating, courts have rightly ruled this violates the Supreme Court's "anti-commandeering" precedents, a series of decisions reached primarily by conservative justices, which hold that the federal government may not force state and local governments to help enforce federal law or carry out under federal purposes. In cases where Trump has sought to withhold federal funds from sanctuary jurisdictions, courts have (also rightly) ruled that the executive cannot impose conditions on federal grants that were not authorized by Congress and (in some cases) that the Trump conditions are unconstitutionally coercive. For my analyses of Trump II court decisions on these issues, see here, here, and here.

My 2019 Texas Law Review article surveying and assessing litigation arising from Trump's first-term attacks on sanctuary jurisdictions. There and in other writings, I also explain why immigration sanctuaries (and conservative gun sanctuaries) are beneficial, and help protect our constitutional system. See also my February 2026 Dispatch article, "In Defense of Sanctuary Cities," which provides an overview of these issues, and defends sanctuary jurisdictions on both constitutional and policy grounds.

Yesterday's ruling may be appealed. But if so, it is unlikely to be overturned.

Trump has posted a few rare wins in sanctuary cases with unusual facts, such as in the Contracts Clause case I analyzed in the September post. But, such cases are highly exceptional. And, as explained in the September post, the Contracts Clause decision has various flaws, and would not greatly impede sanctuary jurisdictions even if it survives on appeal.

Overall, Trump has been losing these kinds of cases so much that he might even get tired of losing.

The post Trump Loses Yet Another Sanctuary City Case—This Time Against New York City appeared first on Reason Magazine.