Month: May 2026

Donald Trump’s “settlement” of his claims relating to the leak of his tax returns is outrageous on many levels.^[1]See, e.g., here, here, here, and here.  One is that the financing scheme for the settlement’s “anti-weaponization fund” is unconstitutional. The proposed source, the Judgment Fund, clearly is not available for this purpose nor is there any other legitimate source. Consequently, payments by the anti-weaponization fund would violate Article I, § 9, Clause 7 of the Constitution, which provides:

“No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” 

Such payments would also run afoul of the Antideficiency Act (31 U.S.C. § 1341), which carries criminal penalties for knowing and willful violations (31 U.S.C. § 1350).

Like all federal expenditures, payments to satisfy court judgments against the United States or settlements of claims potentially leading to judgments require a congressional appropriation. To avoid having to review each individual judgment and settlement, Congress enacted a permanent, indefinite appropriation known as the Judgment Fund (31 U.S.C. § 1304).^[2]See also 28 U.S.C. § 2414 with reference to compromise settlements. However, the Justice Department’s attempt to use the Judgment Fund in this case is manifestly illegal for two reasons.

First, to be payable from the Judgment Fund a compromise settlement must result from the resolution of a genuine dispute between opposing parties.^[3]See, e.g., U.S. Government Accountability Office (GAO), 3 Principles of Federal Appropriations Law (3d ed., 2008) at 14-35, citing GAO and Justice Department opinions. The settlement here gives every indication of being a sham. Trump initially sued a federal agency of the executive branch he heads. He dropped the lawsuit as (and probably because) the judge questioned whether it involved a sufficiently adversarial relationship between the parties to constitute a case or controversy amenable to judicial resolution. Trump described the ensuing negotiations as “work[ing] out a settlement with myself.”  The Justice Department apparently offered no opposition to Trump’s claims at any stage although it had strong defenses, most notably that the claims were barred by the statute of limitations.   

Second, even if this is somehow regarded as a bona fide compromise settlement, it does not qualify for payment from the Judgment Fund. The Judgment Fund is available for the payment of money damages to identifiable parties to final judgments and compromise settlements.^[4]Id. at 14-38 and decisions cited. Consistent with many other precedents, a 1989 opinion by the Justice Department’s Office of Legal Counsel holds that the Judgment Fund can be used only for judgments and settlements “to pay specified sums of money to certain parties.”^[5]More broadly, a memo issued by former Attorney General Bondi strongly discourages settlements from including payments to individuals or entities that weren’t parties or victims in a case.

Under the terms of this settlement, none of the proposed $1.776 billion anti-weaponization fund goes to the parties or to any specifically identifiable recipients. Moreover, the stated purposes of the fund are wholly unrelated to the leaked tax return claims on which the settlement is supposedly based. Even the amount appears symbolic rather than a credible measure of damages related to the underlying claims. In essence, the settlement has nothing to do with the claims it purports to settle.

Acting Attorney General Blanche cites Keepseagle v. Vilsack as precedent for use of the Judgment Fund here. Keepseagle involved a class action settlement of discrimination claims by Native Americans. Using the Judgment Fund, the court-approved settlement established a fund to pay claims by class members but further provided that any amounts left over after paying class members would be paid to non-profit organizations that supported Native Americans.

When it turned out after five years that class member claims were far less than anticipated and over half the settlement would go to non-profits, some class members sought to reopen the settlement. One of their arguments was that payments to non-profits violated the Judgment Fund. A federal district court and a court of appeals rejected this argument but not on its merits; rather, they ruled only that it was too late to raise the issue.

None of the four judges in Keepseagle endorsed use of the Judgment Fund for payments to non-parties. Indeed, the district judge expressed doubt that the Judgment Fund could be used for this purpose. One appellate judge wrote a lengthy dissent asserting emphatically that the non-party payments were a clear misuse of the Judgment Fund that the court should correct.^[6]The dissent (p. 36) was prescient in predicting the abuse that could result from allowing Judgment Fund payments to non-parties. It offered as a hypothetical an executive branch settlement of $1 … Continue reading Thus, Keepseagle provides no legal support for the settlement here, and if anything, cuts in the opposite direction.^[7]Furthermore, the settlement in Keepseagle is readily distinguishable from the Trump settlement in many ways. It was an arms-length, court-approved resolution of a real dispute between adverse parties … Continue reading

In sum, it seems clear beyond reasonable doubt that the settlement here is a charade that ignores the claimants and has nothing to do with their claims. Rather, it’s merely a cover to illegally use the Judgment Fund to bypass Congress and raid the federal treasury to finance a large unauthorized spending program. The key players in this farce surely understand its illegality and potential criminal implications. It’s probably no coincidence that the general counsel of the Treasury Department, which is responsible for certifying payments from the Judgment Fund, resigned on the same day the settlement was announced.

This is not the first time the Trump administration has flouted the Constitution and the Antideficiency Act to spend taxpayer funds without the requisite congressional appropriation. It paid TSA and other Homeland Security Department employees during the recent partial government shutdown although no appropriation for their salaries was legally available. That action drew little scrutiny since it was popular with the public and politically expedient for both parties. This far more egregious abuse is already attracting much greater attention and skepticism.

What if anything will be done about this travesty remains to be seen. Two police officers who served during the January 6 Capitol riot have sued to stop it; however, their suit (and probably any others) will face major standing challenges. Perhaps this blatant affront to Congress will finally rekindle some interest by its members in performing their constitutional duties. But Congress will also face a steep climb since it would presumably take veto-proof majorities to overturn the settlement. Perhaps the best hope is that public and political pushback will become sufficiently intense to force Trump to do a TACO.

 

       

It shouldn’t be too surprising that the Virginia Supreme Court invalidated the state’s travesty of a gerrymander. Attorneys apparently warned that the process by which the Virginia General Assembly developed a constitutional amendment to enable the gerrymander posed legal risks. Even as the Supreme Court initially declined to stop an April 21 referendum on the proposed amendment it acknowledged that the challengers presented “weighty assertions of invalidity against the process” that “are of grave concern to the Court.”  

The Court’s eventual 4-3 decision held that the General Assembly violated the Virginia Constitution’s multi-step process for enacting constitutional amendments. The Constitution requires the General Assembly to pass proposed amendments in two consecutive legislative sessions with an intervening election. The intervening election gives citizens an opportunity to factor their views of the amendment into their votes for legislators who will act on it for the second and final time. The last step in the process is a referendum on the proposed amendment.

In this case, the first General Assembly session passed the gerrymandering amendment on October 31, 2025. Election day for the next session was November 4, 2025, but early voting for that session started on September 19. Thus, the “intervening” election was well underway before the first passage of the proposed amendment took place; about 40 percent of the electorate had already voted by October 31. The Court held that this sequence of events failed to comply with the constitutional framework. It rejected the state’s argument, embraced by the dissent, that the term “election” as used in the constitutional provision governing amendments referred only to the single election day of November 4.

While the issue is technical and perhaps reasonably debatable, the Court’s conclusion seems consistent with the constitutional text and structure and certainly aligns better with its underlying purpose. Notably, because the Court held that the process was unconstitutional, it declined to address several statutory challenges to the proposed amendment that had also been raised. One of these was that the referendum ballot description of the amendment’s purpose “to restore fairness in the upcoming elections” was misleading. Clearly, it was not just misleading but patently false.

While Virginia Democrats of course expressed disappointment at the decision, few had much to say about its substantive legal merits. Some chose to attack the Court’s integrity. Virginia Attorney General Jay Jones described the decision as politically motivated and accused the Court of elevating “politics over the rule of law.” He appealed the decision to the U.S. Supreme Court although the case presents no apparent federal question.^[1]Contrary to the SCOTUS appeal, the Virginia decision is not “predicated” on federal law; rather, it’s based exclusively on provisions of the Virginia Constitution. It cites several federal … Continue reading  

Congressman Don Beyer was either uninformed or disingenuous in condemning the Court’s “indefensible decision to release [the decision] after the referendum was held.” In fact, Virginia lawyers defending the amendment argued that the Court lacked authority to enjoin the referendum and could rule on the amendment’s legality only after the referendum was held. Reportedly a few Democrats are exploring a wild scheme to undo the decision by replacing the entire Virginia Supreme Court.

In the final analysis, Virginia legislators have only themselves to blame for the outcome. They cut corners in rushing to push through the proposed amendment with little regard for the legal details and paid the price for it. So did supporters of the amendment, who reportedly spent more than $60 million on it mainly from dark money sources.

Moving beyond the decision itself, what are its consequences?

First and foremost, Virginia will keep its current eminently fair congressional district map—at least for now.^[2]One interesting side note is that this map was actually put in place by none other than the Virginia Supreme Court after the state’s bipartisan commission failed to reach an agreement. However, the General Assembly may well take another shot at bypassing the state’s constitutionally mandated bipartisan redistricting process given national gerrymandering trends. (See below.) If so, presumably it will adhere more scrupulously to the constitutional and statutory requirements next time.

The political impact is uncertain. Democrats won’t be favored to gain the four House seats they hoped to flip in 2026 by their gerrymander. However, prognosticators think they may still pick up one or more of these seats fair and square if 2026 proves to be as strong a year for Democrats as many predict.

Looking beyond Virginia, the decision is obviously a negative in terms of Democratic hopes to gain control of the House in the 2026 elections, but it’s not likely to be a major factor. Its impact will probably be eclipsed by the fallout from the U.S. Supreme Court’s also very recent Voting Rights Act decision in Louisiana v. Callais. This decision has already unleashed a new wave of gerrymandering potentially more significant than the initial wave Trump launched last year that led to the Virginia gerrymander. (See here.)

Both waves are bad news for our politics. Until recently, the grossly anti-democratic practice of gerrymandering seemed to be on the wane. Redistricting typically occurred only once every decade as required by the decennial census; a number of states adopted nonpartisan or bipartisan redistricting processes like Virginia’s; and state courts occasionally overturned partisan gerrymanders. However, we are now entering what has been described as an “era of perpetual redistricting” in which politicians of both parties engage in partisan gerrymandering whenever and wherever they can as they accelerate their race to the bottom.

How it all ends, if it ever does, remains to be seen but the consequences for the overall health of our political system are grim. Most if not all independent redistricting systems are likely to fall victim to the politicians at some point. And, of course, tens of millions of Americans of all races, backgrounds, and political leanings will see their constitutional voting rights diminished.  

Much of this would have been avoided if the Supreme Court hadn’t shirked its responsibilities in its unfortunate 2019 Rucho v. Common Cause decision, which foreclosed federal judicial review of partisan gerrymanders no matter how blatant or extreme.

 

 

The Supreme Court’s recent decision in Louisiana v. Callais prompted strong reactions, mainly intense criticism on the left. It deals with the controversial subject of racial gerrymandering and the Voting Rights Act (VRA) on which the Court’s jurisprudence is complex and often confusing.

The case is complicated factually, legally, and procedurally. Adding to its perplexity, the majority opinion and dissent have very different takes on the decision’s significance. The majority opinion by Justice Alito claims to be faithful to existing precedents and merely “update” their interpretations of the VRA. Justice Kagan’s fierce 48-page dissent counters that the decision effectively overrules existing precedents and fundamentally changes how the VRA is interpreted and applied, “eviscerating” it in the process.

Despite the confusion, the bottom-line holdings of Callais are clear:

• • • The Fourteenth Amendment prohibits race-conscious electoral districting unless required by the VRA to remedy race discrimination.
    • The VRA “as properly construed” prohibits only intentional race discrimination in districting and does not reach actions that have discriminatory effects but lack provable racist motives.
    • To establish the necessary “strong inference” of intentional race discrimination in districting, challengers must “disentangle” race from all “legitimate” alternative motives, including partisan politics.
    • Applying the foregoing principles, the race-based majority-minority electoral district at issue in Callais was not required by the VRA and therefore constituted a racial gerrymander prohibited by the Fourteenth Amendment.

The decision’s practical consequences are likewise clear. First, since African Americans (and some other minorities) vote heavily Democratic, it’s very challenging to “disentangle” race from politics in modern day gerrymandering. Finding evidence of overt racism is also very difficult in this day and age.^[1]Whether this is because racism has in fact receded or just gone underground is debatable. Therefore, it will now be virtually impossible to successfully invoke the VRA to overturn a gerrymander no matter how much it may adversely impact minority voters.

Second, while devaluing the vote of African Americans based on racist motives remains illegal (at least in theory), devaluing their vote based on partisan political considerations is perfectly OK. As the Callais majority puts it, “a minority voter is entitled to nothing less and nothing more” than the same opportunity as any other voter to elect their preferred candidates. Thus, minority voters also share the same opportunity to be victimized by partisan gerrymandering.^[2]Partisan gerrymandering may still be limited or outlawed under state law. 

Third, the Callais decision severely jeopardizes many current majority-minority House districts and adds considerable fuel to the gerrymandering war that President Trump ignited last year. (More on this below.)

There’s ample room for debate over the legal merits of the Callais decision. All agree that the Fifteenth Amendment, the ultimate source outlawing race discrimination in electoral districting, prohibits only intentional race discrimination.^[3]Justice Kagan’s dissent acknowledges this point. But the Fifteenth Amendment authorizes Congress to enforce it by appropriate legislation. That’s what Congress did in the VRA. The VRA seemed to be expanded to reach actions having discriminatory effects under a 1982 amendment and was apparently so viewed in subsequent judicial decisions, including those of the Supreme Court.

Given the above, Justice Kagan makes a convincing case that the Callais majority fundamentally changed rather than just “updated” how the Act is interpreted. The majority opinion does come across as an attempt (perhaps a compromise among the majority justices) to downplay the extent to which it departs from the current understanding of the law.

Nevertheless, the fact that the majority’s explanation may be disingenuous in parts doesn’t necessarily mean its conclusions are wrong. Surely, Congress cannot rewrite the Fifteenth Amendment in the guise of enforcing it. Thus, it’s not unreasonable to maintain that Congress’s enforcement authority operates only within the parameters of the Fifteenth Amendment and doesn’t extend to enlarging the scope of what it prohibits.     

Whether one agrees with it or not, the Court’s decision in Callais seems less outrageous from a strict legal viewpoint than the liberal commentariat makes it out to be. But there’s another decision lurking in the background that is truly outrageous: Rucho v. Common Cause, the 5-4 decision in which the Court held that partisan (as opposed to racial) gerrymandering raised political questions that the federal judiciary is unable to resolve. Had the Court done its job in Rucho, the outcome in Callais would be far less concerning. No citizen, minority or majority, should be subject to the pernicious, grossly anti-democratic gerrymandering practices that Rucho effectively condoned.^[4]See, e.g., here and here.  

The majority’s reasoning in Rucho was exceptionally lame while the dissent, here also written by Justice Kagan, was far more persuasive in every respect. It begins:

     “For the first time ever, this Court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities.

     “And not just any constitutional violation. The partisan gerrymanders in these cases deprived citizens of the most fundamental of their constitutional rights: the rights to participate equally in the political process, to join with others to advance political beliefs, and to choose their political representatives.”

Justice Kagan renews her criticism of Rucho in her Callais dissent. She observes (correctly) that Rucho’s “adverse effects have never been more obvious than today, as this country’s two major parties compete in a race to the bottom.”   

The combined effect of Callais and Rucho is sure to supercharge the current gerrymandering frenzy. In fact, it already has. Southern red states are rushing to eliminate majority-minority House districts established under the VRA. Blue states will likely enact retaliatory gerrymanders. Two such states (Colorado and New York) are working to undo their independent redistricting processes so they can join in. Two others (California and Virginia) that already “temporarily” sidestepped their independent processes will probably do so again or simply repeal them.

It’s hard to know which party will come out on top when the dust settles—if it ever does. However, the losers are all too obvious. Millions of Americans of all races and political leanings will be effectively disenfranchised. Competitive House districts will become even rarer than they are now; the most extreme factions in each party will become even more dominant with primaries increasingly being the only meaningful election stage; and House members will become even more polarized, reflexively partisan, and less representative of their constituencies as a whole. In short, our politics and governance will sink even lower.

Much of this could have been avoided if the Court hadn’t washed its hands of partisan gerrymandering in Rucho. There’s no way the courts can stamp out gerrymandering completely; politics will always play a role in electoral districting. However, it’s hardly challenging to identify and overturn the blatant, openly acknowledged partisan gerrymanders that are commonplace today. Even the threat of judicial scrutiny would probably be enough to deter many of them.

Sadly, there’s little chance that the Court as now constituted will revisit this issue and “update” Rucho based on current conditions.