Today’s 6–3 decision involved an especially tortured effort at reading federal law in a way that would restrain Donald Trump, and the Court’s conservative majority rejected it.
Another Friday afternoon, another Supreme Court decision on the ground rules for the midterm elections. Today’s 6–3 decision in Department of Homeland Security v. League of Women Voters involved an especially tortured effort at reading federal law in a way that would restrain Donald Trump, and the Court’s conservative majority rejected it.
The Court has walked a fine line in parsing the legality of Trump’s executive orders aimed at noncitizen voting. It has been compelled by the calendar to reach all of these rulings on the emergency docket. To recap: First, in Alabama v. California, the Court ruled 6–3 that Trump could legally direct the Department of Homeland Security to develop citizenship lists for use in checking voter citizenship; could legally direct the Department of Justice to prioritize prosecutions of noncitizen voting; and could direct the U.S. Postal Service to develop regulations on election mail. When those USPS regulations came before the Court in United States Postal Service v. California, the Court ruled 7–2 that the new rules couldn’t be used for this election cycle. Chief Justice John Roberts and Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett all joined both rulings; the only explanation of the latter came from Kavanaugh, who opined that “applying the rule in the 2026 elections would be arbitrary and capricious in violation of the Administrative Procedure Act because state and local election officials do not have sufficient time to reasonably implement the rule before the elections.”
This time, the familiar 6–3 alignment has returned. The Court, in another unsigned per curiam opinion, ruled that the Systematic Alien Verification for Entitlements (SAVE) program could draw on Social Security numbers and other Social Security Administration data — and provide that data to DHS — for purposes of verifying citizenship for voting. Like the two prior rulings, this is likely to be of far less practical importance than the headlines it generates, but it’s an incremental victory for Trump.
The sole legal issue in the case was whether federal law prevents different parts of the federal government from communicating with one another. The SAVE system has been around for 40 years, and it uses DHS data as well as information from the Justice and State Departments to verify citizenship and immigration status for purposes of limiting who can legally receive public welfare benefits. Since 2005, states have also been checking SAVE’s database to verify voter citizenship — something they’re legally allowed to do only as expressly permitted by federal law, under Arizona v. Inter Tribal Council of Arizona (2013). Trump has expanded the SAVE database to include Social Security information, and “if the modified SAVE program is unable to confirm that an individual is a citizen, the agency is required to contact the individual and request that he provide proof of citizenship to register or remain registered to vote.”
Notably, today’s opinion addresses only a challenge to the inclusion of Social Security data in SAVE, and not to what any state or local agency can legally do with that information as far as voter registration or counting ballots. The Court pointedly notes that the National Voter Registration Act prevents states from purging their voter rolls within 90 days of an election, a rule whose sweep is before the Court in another case (Republican National Committee v. Mi Familia Vota). The Court did, however, note that the district court order in this case “prevents the Federal Government from using the modified SAVE program to conduct individualized inquiries, which are permitted under federal law during this period.” In the majority’s view, this means that the federal government had a sufficient stake in the enforcement of Trump’s order to justify the Court deciding the case, given that the Court often weighs in even at the emergency-stay stage when “a lower court has set aside an important federal program.”
The actual legal dispute is whether the Privacy Act and data-sharing restrictions in the Social Security Act are overridden by two provisions of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA):
The first, section 1373(a), provides:
“Notwithstanding any other provision of Federal,State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the [DHS] information regardingthe citizenship or immigration status, lawful or unlawful, of any individual.”
The second, section 1373(b), which is captioned “Additional authority of government entities,” similarly provides:
“Notwithstanding any other provision of Federal,State, or local law, no person or agency may prohibit, or in any way restrict, a Federal, State, or local government entity from doing any of the following with respect to information regarding the immigration status, lawful or unlawful, of any individual.”
The “following” activities include “[s]ending such information to, or requesting or receiving such information from, the [DHS].” §1373(b)(1).
This is fairly straightforward, and while its conclusion had divided the lower courts, the majority did not find this a difficult case:
By prohibiting interference with the disclosure of information regarding citizenship status to DHS— “[n]otwithstanding any other provision of Federal, State, or local law”—Congress necessarily authorized DHS to request and receive that information. Otherwise, agencies, entities, and officials could find themselves in the impossible predicament of either disclosing information consistent with section 1373 but in violation of legislation like the Social Security Act and Privacy Act or withholding that information consistent with those Acts but in violation of section 1373. It is improbable that Congress intended to place officials in such a bind when it passed IIRIRA, so section 1373 likely supersedes restrictions on disclosure elsewhere in the Code…section 1373(c) requires DHS to respond to inquiries from state and local agencies “seeking to verify or ascertain the citizenship or immigration status of any individual.” Considered alongside section 1373’s “notwithstanding” clauses, section 1373(c) appears to contemplate an information-sharing regime like the modified SAVE program.
The dissent, written by Justice Ketanji Brown Jackson for the three liberals, was forced to grasp at straws. Jackson’s best point was that DHS had, until 2025, treated the SAVE program as being covered by the Privacy Act. But, of course, the agency’s interpretation of the law isn’t binding on the courts, which have an independent obligation to read the law. Jackson’s main argument needs to be read to be believed:
Subsections 1373(a) and (b) bar “government entit[ies] or official[s]” (in §1373(a)) and “person[s] or agenc[ies]” (in§1373(b)) from “prohibit[ing], or in any way restrict[ing],”the exchange of citizenship information with DHS, “notwithstanding any other provision” of law. These provisions do not affirmatively grant any power. Nor do they override any explicit statutory limits on information-sharing. Rather, both provisions bar government entities or employees from interfering with otherwise lawful exchanges of citizenship information, notwithstanding that such interference may be permitted under some other law. When a law imposes an express restriction on disclosure, it is that law— not an “entity,” “official,” “person,” or “agency”—that is doing the “prohibit[ing]” or “restrict[ing].”
The majority’s incredulous response to this nonsense: “The distinction the dissent draws between laws and those tasked with enforcing them is illusory. Sections 1373(a) and (b) prohibit any ‘entity,’ ‘official,’ ‘person,’ or ‘agency’ from ‘prohibit[ing]’ or ‘in any way restrict[ing]’ the request for or receipt of information regarding immigration status. . . . Those prohibitions necessarily include invoking a law to deny a request for or transfer of such information” (emphasis is the Court’s). Laws do not enforce themselves.
Moreover, Jackson’s reading would be circular, because if these clauses do not actually remove any legal restrictions on information-sharing, they would be meaningless. She argued that the 1996 Congress was concerned about non-cooperation from state and local officials, but that doesn’t explain what she concedes Congress did: expand the provision to include the removal of federal obstacles. Jackson also tried to fortify this reading by pointing to a different provision of IIRIRA that restricted the use of data, but if anything, that strengthens the majority’s case: Congress in 1996 knew that it was bulldozing prior statutory limits on information-sharing, so it wrote one of its own into the same statute. It is notable that this is Jackson’s only example.