The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002

Earlier today, in the case of California v. Mullin, the US District Court for the District of Massachusetts issued a decision striking down the Trump Administration's $100,000 fee on applications for H-1B visas (which are used by tech firms, research institutions, and other organizations to hire immigrant workers and researchers with a variety of specialized skills). Judge Leo Sarokin ruled that the plan is illegal because it usurps Congress's power to tax. He relies in part on the Supreme Court's recent decision in Learning Resources, Inc. v. Trump, the tariff case I helped litigate:

The Court begins with Plaintiffs' assertion that the Policy intrudes upon Congress's
taxing power. The first inquiry is whether the $100,000 payment requirement constitutes a tax. The parties quibble about whether the requirement resembles a tax or a "penalty," as characterized by two Supreme Court precedents: Bailey v. Drexel Furniture Company and National Federation of Independent Business v. Sebelius….

Here, the $100,000 payment requirement for all H-1B petitions does not aim to establish that hiring H-1B workers is illegal. The payment is not a penalty, just as the IRS fee in Sebelius was not, because it is not "punishment for an unlawful act or omission." Id. at 567. Hiring workers pursuant to the H-1B program is plainly lawful. Of course, rendering the hiring of H-1B workers "unlawful" would eliminate the program established by Congress through the statute, which would raise a different separation-of-powers concern…

Furthermore, Defendants claim that the $100,000 payment requirement is "a regulatory
payment," which is "not the same as a tax…" This is mere ipse dixit. Defendants offer no definition for what constitutes "a regulatory payment," cite no cases or statutes employing the term, and advance no reasoned argument explaining how this term encompasses something different than a tax or a penalty….

That does not end the Court's analysis. While the Constitution exclusively vests
Congress with the "Power To lay and collect Taxes, Duties, Imposts, and Excises," U.S. Const. art. 1, § 8, cl. 1, Congress can delegate the taxing power to the executive branch so long as it "clearly" indicates "its intention to delegate." Skinner v. Mid-Am. Pipeline Co., 490 U.S. 212, 224 (1989). Thus, the relevant inquiry here is whether the provisions of the INA granting the President discretionary powers to regulate the entry of noncitizens reflect a delegation of Congress's taxing power. Under INA § 212(f), the President has the authority to "impose on the entry of aliens any restrictions he may deem to be appropriate." 8 U.S.C. § 1182(f). INA § 215(a) additionally grants the President the power to impose "reasonable rules, regulations, and orders" as well as "limitations and exceptions" to the entry of noncitizens. Id. § 1185(a)(1).

Plaintiffs argue that these provisions do not confer the power to impose taxes, relying on the Supreme Court's recent guidance in Learning Resources. That case involved a challenge to the President's imposition of tariffs under the IEEPA….. The
IEEPA permits the President to "investigate, block during the pendency of an investigation, regulate, direct and compel, nullify, void, prevent or prohibit, any . . . importation or exploration of . . . any property in which any foreign country or a national thereof has any interest" when responding to a national emergency. Id. at 636. The Court found that the IEEPA does not delegate taxing powers to the President, noting that the specific powers listed in the IEEPA do not include "any mention of tariffs or duties." Id. at 642. The Court further noted that the power to "regulate . . . importation" does not encompass the power to tax, because the term "regulate" "means to 'fix, establish, or control; to adjust by rule, method, or established mode; to direct by rule to restriction; to subject to governing principles or laws'"—none of which captures the power to tax. Id. at 642-43…

Applying Learning Resources to the case at hand, the Court finds that INA §§ 212(f) and 215(a) do not delegate taxing power to the President. These sections allow the President to impose "restrictions," "rules," "regulations," "orders," "limitations," and "exceptions" to the entry of noncitizens to the United States. Like the powers delineated in the IEEPA, none of these terms, by their ordinary meaning, include the power to tax.

I agree with the court's analysis, and am glad the tariff case turned out be a useful precedent here. The court also ruled the imposition of the $100,000 fee violates the Administrative Procedure Act.

I have previously criticized the $100,000 H-1B fee on both legal and policy grounds here, here, and here.

Obviously, today's decision will almost certainly be appealed, and the legal battle will continue. But, especially after Learning Resources, I am guardedly hopeful the various groups challenging the fee will prevail.

NOTE: In the original version of this post, I misidentified Judge Leo Sarokin as the late Judge H. Lee Sarokin. I apologize for the error, which has now been fixed.

Bloomberg Law published an unusual Op-Ed by retired Judge Diane Wood of the Seventh Circuit. Judge Wood discusses the Judge Ross situation, but leaves much out. I think what Wood did not say is far more important than what she did say.

First, here is how Judge Wood describes the facts:

The misconduct was of a personal nature: Judge Ross was engaged in a sexual relationship with a law-enforcement officer whose department regularly appeared before that judge.

If a student at the University of Chicago offered that summary of the case, she would be failed. Judge Ross's sexual activity was appalling, but the most severe transgression was lying to the Chief Judge of the Circuit and the Chief Judge of the District. The closest Judge Wood got to acknowledging the dishonesty was this sentence:

Because Ross ultimately confessed everything and expressed what the committee regarded as genuine remorse…

This is a very roundabout way of saying she confessed to the sex and confessed to lying.

Second, Judge Wood offers no comment about the Eleventh Circuit Judicial Council's decision to issue a private reprimand. The most she will say is that the Judicial Conduct & Disability Committee did not err in affirming that decision.

The JC&D Committee had to decide what would most likely produce the desired result—permanent cessation of that kind of behavior. It also had to decide whether it believed that the judge's remorse and willingness to mend her ways were genuine. Others may have decided differently, but I see nothing here that casts doubt on the genuineness or integrity of the decisions the JC&D Committee made.

Why wouldn't the decision be genuine or have integrity? The relevant question is whether it is correct as a matter of law. But even this question is constrained, as the JC&D Committee's review was limited to a deferential standard. Here is the entirety of the analysis:

In light of our review for errors of law, clear errors of fact, or abuse of discretion, and in deference to the Circuit Judicial Council's consideration of the special committee's review of the evidence, we affirm the Circuit Judicial Council's unanimous decision concluding that the subject judge's actions constituted judicial misconduct. The special committee conducted a thorough investigation and afforded the subject judge all the process that was due under the JC&D Act and the Rules. Accordingly, we find no error of law or abuse of discretion in the special committee's investigatory process. And we conclude that the remedial measures ordered by the Judicial Council under 28 U.S.C. § 354(a)(2)(A) are appropriate and proportionate to the Judicial Council's findings in relation to the seriousness of the misconduct, balanced against the subject judge's correction of the prior false statements and subsequent candor with the special committee, the special committee's assessment that the subject judge is unlikely to engage in similar misconduct in the future, and the subject judge's otherwise exemplary service to the court.

The finding was affirmed based on no "abuse of discretion" or "error of law." This is not exactly a ringing endorsement of the Eleventh Circuit's ruling, which I'll note had no noted dissents--the only name on the document was Chief Judge Pryor. Does Judge Wood think the Eleventh Circuit Judicial Council made the right decision in the first instance? We don't know.

Third, Judge Wood suggested that there are limits on how judges can be reprimanded. She suggests that taking away cases from a judge amounts may be unconstitutional:

Some have argued that this system is unduly solicitous of judges who engage in behavior so obviously unbecoming a federal judge. They contend that, at a minimum, this kind of misbehavior should always be made public. But there is only so far that the Conduct Act can go before it bumps into the constitutional protections for a judge's tenure in office.

Indeed, some think that depriving the judge of her caseload is a de facto temporary removal from office and thus beyond the power of the judiciary. Critically, however, the judge is actually not removed and continues to receive her salary.

Where has Diane Wood been on the Pauline Newman case? Has she published any op-eds criticizing Chief Judge Kimberly Moore? Why did she not join former-Judge Paul Cassell's amicus brief in support of Judge Newman's cert petition?

Fourth, Judge Wood makes it seem like no other punishments were possible. She doesn't state the obvious: the reprimand should have been made public. Judge Ross could have kept her cases, but she would have faced litigants who perceive a plausible conflict of interest. That act would have been punishment by itself.

Fifth, Judge Wood reflects on her own tenure:

As chief judge of the US Court of Appeals for the Seventh Circuit for nearly seven years, I well appreciate the constitutional tight-rope that these cases present.

Chief Judge Wood helmed the Seventh Circuit during the final years of Richard Posner's decline. I think an entire book could be written about how Judge Posner flouted the rules of judicial conduct, yet his colleagues took no actions against him. Maybe he should have been given the Pauline Newman treatment so he could spend all of his efforts on writing books. Indeed, Judge Posner's final act before resigning was to publish a bizarre book that attacked his colleagues based on confidential information. I do not think Judge Wood was the right person to comment on failing to take adequate action against a misbehaving judge.

Finally, I mention one last point, with some hesitation. Arthur, Gabe, and I pitched our essay to Bloomberg Law. The editor promptly got back to us and wrote "I don't think this fits into our coverage." Apparently, Judge Wood's non-defense of the courts does fit into the coverage. Go figure.

This entire piece feels forced. I think someone in the judicial apparatus asked a well-regarded, retired judge to defend the handiwork of the Eleventh Circuit. But she couldn't quite do that. She said very little, and reinforced how indefensible the Eleventh Circuit's private reprimand was. I'm not buying it. I've yet to talk to an actual judge who thinks the Eleventh Circuit got it right. If someone wants to defend what the Eleventh Circuit did here, they will actually have to discuss in detail.

I would hope that one of the law clerks who initially blew the whistle opts to appeal this matter to the full Judicial Conference. Chief Justice Roberts cannot simply turn this matter over like a couch cushion.

Update: A colleague wrote, "I just read Judge Wood's op-ed again, and I realized what it reads like: the hostage statement of someone who has been kidnapped." Yes, I agree. Also, how can Judge Wood say with certainty the subject judge was Eleanor Ross, and not even mention the reprimand was private. This situation seems like a fix.

Professor Paul Finkelman has asked me to post the following guest post, and I am more than happy to do so. Prof. Finkelman is a leading legal scholar and legal historian, and is the President William McKinley Distinguished Professor of Law and Public Policy, emeritus at Albany Law School.

For my part, I will note that I agree with most of his analysis. As a general rule, the government should not be in the business of promoting or discouraging religious observances. But the military presents a special case, because the lives of members of the armed forces (while on duty) are under government control to such an extent, that - in many situations - there is no way for them to practice their faiths unless the government facilitates it in various ways. When the government does that, it should not discriminate between adherents of different religions. What follows is written by Prof. Finkelman, and not me (Ilya Somin):

The Trump administration recently announced that it is removing about 180 religions from those recognized by the Pentagon. This is an obvious violation of the First Amendment's protection of religious liberty. In essence, the Administration has "established" 31 religions as acceptable to the U.S. government and denied religious freedom to members of many other faiths. Plausibly, the Pentagon could decide not to have military chaplains, and not to have religious symbols on military graves, and no longer provide a color guard for veterans buried in cemeteries tied to particular faiths. It could prohibit military personnel from giving last rites to when those in the military die in combat or a military hospital. Members of the armed services would no longer have their religion on the dog tags. This would presumably not violate the First Amendment because the government would be taking a complete "hands off" policy to religion.

Such a policy would run counter to the history of the American military starting with the Revolution. It would also undermine the morale of those who put their lives on the line for the nation. In our 250 years as a nation, we have increasingly expanded the range of religions recognized by the military. Initially, all chaplains were Protestant ministers. During the Mexican-American War President James K. Polk appointed two Catholic chaplains, reflecting the changing demographics of the nation. During the Civil War, the Lincoln administration intervened to allow rabbis to serve as chaplains. Today chaplains, whatever their background, are trained to serve members of all faiths. But, with this new rule, policies will change. Dog tags will no longer recognize the faiths of many service personnel. Chaplains may not respect the religious concerns of those who serve. Chaplains, trained to serve people of all faiths, may no longer be able to do so.

The message of the administration is that some faiths matter, and many do not. There seems to be some politics involved here. The "liberal" Unitarian/Universalist Church, which is as old as the nation itself, is no longer officially a church. Nor are churches tied to minorities, such as the Native American Church or the African Methodist Episcopal Church (AME).

This policy is in conflict with the First Amendment, because the President and Secretary of Defense have in fact "established" 31 religions as being legitimate and worthy of government support, and asserted that about 180 are not either "real" religions or worthy of support.

Ironically, the Pentagon announced this on the anniversary of the D-Day invasion in World War II, when about 2,500 American men (and another 2,000 allies from Canada, Great Britain, and other allies) died. Some of those who died were probably members of faiths that the Pentagon no longer recognizes as "real" religions.

This slap in the face to Americans of minority faiths (and their families) who have died for our country is a direct assault on the Constitution. Among those religions that have now been cancelled by the administration (making it the leader of cancel culture in America,) are some of our most venerable faiths including Congregational Churches, the United Church of Christ, Unitarian/Universalist, Disciples of Christ, Mennonite, Moravian, Dutch Reformed, Adventist churches (other than Seventh Day Adventists), African Methodist Episcopal (AME), AME-Zion, the Native American Church, traditional tribal religions, and Deists In addition, religions practiced by many people who landed on our shores from the mid-Nineteenth to the present, such as Confucianism, Coptic, Druze, Zoroastrianism, and Santeria, which are no longer recognized as religions.

Some of the designations on the list seem utterly weird and arbitrary. The list of acceptable faiths includes many that are designated "Christian," with the name of a denomination after that term. However, the list does not designate the Church of Jesus Christ of Latter-day Saints (LDS) as Christian. That would probably come as a great surprise to the more than six-and-a-half million members of the Utah based Church. As the Church notes on its website: "Members of The Church of Jesus Christ of Latter-day Saints unequivocally affirm themselves to be Christians."

By denying that members of the LDS Church are Christians, the administration is taking sides in a complicated theological debate between some Christian theologians and LDS theologians. This is emphatically not a debate in which the Pentagon, the President, or the federal government should take sides. This decision has also infuriated political leaders and LDS Church leaders in Utah.

However, even as it recognizes the LDS Church based in Utah, the list does not include the Reorganized Church of Jesus Christ of Latter Day Saints, which for last quarter century has called itself Community of Christ, based in Missouri. Thus, Secretary Hegseth and President Trump have not only declared that Mormons are not Christians but have also decided which is the "real" Mormon Church. This is a type of establishment determination that the First Amendment prohibits.

This new policy is being implemented while the President and his administration are gearing up to celebrate the 250th anniversary of the Declaration of Independence. The policy is a direct refutation of the American Founding and insult to the memory of many of the most important Founders of our nation. At least a dozen of the signers of the Declaration of Independence, including its most important co-authors, practiced faiths that the Secretary of Defense and the President have decided are not "real" religions, or at least religions worth of respect.

In 1776 the Continental Congress appointed a five person committee to write the Declaration of Independence. Three were members of faiths that Donald Trump and his minion, Pete Hegseth, have just cancelled. John Adams was a Unitarian and Thomas Jefferson and Benjamin Franklin were Deists. The President and his Secretary of Defense want to cancel other signers as well. Benjamin Rush was a Deist, like Franklin and Jefferson. John Bartlett, a signer from New Hampshire, is buried in a Universalist graveyard. At least seven signers were members of Congregational Churches, including such significant founders as Roger Sherman, Oliver Wolcott, and Robert Treat Paine. These denominations can still be found in the United States, but not in the new Trump/Hegseth military. Most Congregational Churches morphed into the United Church of Christ (UCC) in the late twentieth century which today has more than 4,600 churches, but the President and Secretary of Defense have also canceled that. [Secretary Hegseth does list the "Church of Christ" as an acceptable religion, but that is a different denomination from the UCC.]

After the Declaration of Independence was signed, Americans of all faiths fought for the cause. The current administration has cancelled the faith of Major General Philip Schuyler, the commanding officer of the New York militia (and the father-in-law of Alexander Hamilton), because he was Dutch Reformed. Major General Israel Putnam, a New Englander, could not have a dog tag that states his faith, because he was a Congregationalist.

Trump and Hegseth want to cancel numerous presidents because of their faith. In addition to John Adams and his son John Quincy Adams, Millard Fillmore and William Howard Taft were also Unitarians. Taft, a conservative Republican, was Secretary of War (when that was actually the real name of the department) and then President. He later served as Chief Justice of the United States. He is buried in Arlington National Cemetery. It is not clear if that could happen today since the military no longer recognizes the Unitarian faith. Nor does it recognize the Dutch Reformed faith of Presidents Martin Van Buren and Theodore Roosevelt. Col. Roosevelt is remembered for leading a regiment he organized, the Rough Riders, in the Spanish American War. Today Secretary Hegseth might let him command troops, but the Army would not recognize his faith as a "real" religion. President James A. Garfield, who was also a major general in the Civil War (and led troops at Shiloh and Chickamauga) was a member of the Disciples of Christ. Lyndon B. Johnson, who was a Commander in the Navy in World War II and a reserve officer for more than two decades after the War, was also a member of the Disciples of Christ. But you won't find a minister from that faith in today's Army, Navy, Air Force, Marines, and Coast Guard. Trump and Hegseth have cancelled it.

During World War II the Navajo Code Talkers risked their lives as Marines, providing real time intelligence of Japanese troop movements, while speaking on radios in Navajo. Many code talkers were members of the Native American Church or a traditional Navajo faith. In Europe, about 10,000 American soldiers of Japanese ancestry served the Nisei Brigade, the most decorated unit in American military history. More than 4,000 of these Japanese-American soldiers were awarded purple hearts for their combat wounds and more than 4,000 also earned a bronze star and other medals for valor, including the Congressional Medal of Honor. Some of these courageous soldiers followed the Shinto faith. At the same time, the separate unites of the Tuskegee airmen earned three Distinguished Unit Citations while individual Tuskegee airmen earned more ninety-five distinguished Flying Crosses, many purple hearts, and more than 750 other medals for their heroism. The Tuskegee fighter escorts lost, on average, about half as many bombers as other escort units. Many of these airmen were members AME and AME-Z churches. But, the faiths of the code talkers, the Nisei Brigade and the Tuskegee airmen are now verboten by orders of Trump and Hegseth.

The Hegseth/Trump announcement – on the anniversary of D-Day – loops us back to the insult to followers of religions that the United States no longer honors or recognizes. Among those landing at Normandy was 56 year old Brigadier General Theodore Roosevelt, Jr., the son of the President Teddy Roosevelt. He was the oldest soldier, and the only general, to land at Normandy on D-Day. Although suffering from arthritis and heart disease he led his troops with distinction until he died of heart failure in July. He received the Congressional Medal Honor, posthumously, for his incredible leadership at Normandy. But today, the historic religion of his family—the Dutch Reformed Church—along with the faiths of tens of thousands of other veterans, has been removed from our military.

We honor Ben Franklin, John Adams, and Thomas Jefferson, Presidents John Quincy Adams, Van Buren, Fillmore, Garfield, Teddy Roosevent, and Taft, the Navajo Code talkers, the Niese Brigade, the Tuskegee Airmen, and General Teddy Roosevelt, Jr., for their patriotism and courage. It is a sad day that the President and his Secretary of Defense dishonor their religions and their faith.

Media reports indicate that Brown University Professor Gordon Wood passed away at the age of 92 yesterday, apparently killed by a passing car while walking. Wood was the greatest historian of the Founding era and the ideology of the American Revolution, author of such seminal works as The Creation of the American Republic and The Radicalism of the American Revolution, among many other important works. He had an enormous influence on generations of historians, legal scholars and many others.

In addition, his work on the universalist Enlightenment liberal political ideals of the Revolution and the Founding is a compelling antidote to both right-wing ethno-nationalists (who envision the US as a nation based on ties of race, ethnicity, and culture), and far-left claims that the Founding was primarily about promoting slavery and white supremacy.

I had a slight acquaintance with Wood, whom I met at a couple of academic conferences. I wish I had known him better. He will be greatly missed.

In Prof. Wood's honor, I repost an excerpt from one of his last public speeches, a talk he gave at the American Enterprise Institute last fall (I previously wrote about the speech and its significance here). Wood's message is vitally needed today, as much as ever:

I want to say something about the Declaration of Independence and why it is so important to us Americans.

There has been some talk recently that we are not and should not be a credo nation, that beliefs in a creed are too permissive, too weak a basis for citizenship and that we need to realize that citizens who have ancestors that go back several generations have a stronger stake in the country than more recent immigrants.

This is a position that I reject as passionately as I can. We have had these blood-and soil-efforts before, in the 1890s when we also had a crisis over immigration. Some Americans tried to claim that because they had ancestors who fought in the Revolution or who came here on the Mayflower, they were more American than the recent immigrants….

The United States is not a nation like other nations, and it never has been. There is at present no American ethnicity to back up the state called the United States, and there was no such distinctive ethnicity even in 1776 when the United States was created….

Because of extensive immigration, America already had a diverse society. In addition to seven hundred thousand people of African descent and tens of thousands of native Indians, nearly all the peoples of Western Europe were present in the country. In the census of 1790 only sixty percent of the white population of well over three million remained English in ancestry…

When Lincoln declared in 1858 "all honor to Jefferson," he paid homage to the Founder who he knew could explain why the United States was one nation, and why it should remain so. Half the American people, said Lincoln, had no direct blood connection to the revolutionaries of 1776. These German, Irish, French, and Scandinavian citizens either had come from Europe themselves or their ancestors had, and they had settled in America, "finding themselves our equals in all things." Although these immigrants may have had no actual connection in blood with the revolutionary generation that could make them feel part of the rest of the nation, they had, said Lincoln, "that old Declaration of Independence" with its expression of the moral principle of equality to draw upon. This moral principle, which was "applicable to all men and all times," made all these different peoples one with the Founders, "as though they were blood of the blood and flesh of the flesh of the men who wrote that Declaration…." This emphasis on liberty and equality, Lincoln said, shifting images, was "the electric cord. . . that links the hearts of patriotic and liberty-loving men together, that will link those patriotic hearts as long as the love of freedom exists in the minds of men throughout the world."

In Jefferson's Declaration Lincoln found a solution to the great problem of American identity: how the great variety of individuals in America with all their diverse ethnicities, races, and religions could be brought together into a single nation. As Lincoln grasped better than anyone ever has, the Revolution and its Declaration of Independence offered us a set of beliefs that through the generations has supplied a bond that holds together the most diverse nation that history has ever known.

Since now the whole world is in the United States, nothing but the ideals coming out of the Revolution and their subsequent rich and contentious history can turn such an assortment of different individuals into the "one people" that the Declaration says we are. To be an American is not to be someone, but to believe in something. That is why we are at heart a [creedal] nation, and that is why the 250th anniversary of the Declaration next year is so important.

I extend my condolences to such of Professor Wood's family, friends, and colleagues as may read this post. His passing is a terrible loss.

Yesterday's lead story in the NY Times is headlined:

Trump Keeps Immunity from I.R.S., a Victory in a Long-Running Feud

Subhead: "Even as they rebelled against a $1.8 billion fund for President Trump's allies, Republicans looked the other way as his administration granted him potentially lucrative tax protections."

The article notes that plans for the Trump-Blanche $1.776 billion Slush Fund were abandoned due to "Republican anger," but:

"Not so for the sweeping protections from I.R.S. audits that Mr. Blanche also ordered up for Mr. Trump and his family. On that front, Republican reaction has been much more muted, and Mr. Blanche said the audit shield would stay in place. . . . The result is that an apparently unprecedented and enormously valuable public benefit for the president has, so far, flown under the radar in Congress and passed into Mr. Trump's hands without much protest from members of his own party."

It is indeed a shame that the Republicans have not spoken out against this part of the Trump-Blanche deal.

But we should not fall into the trap of talking as though Blanche has already conferred some kind of "immunity" – or an "audit shield" – on Trump. He has not. He's certainly been trying to do so, but because he is not authorized to do so, his attempt is of no force and effect.

Take a close look at the document that purports to give Trump and his family a shield against IRS actions. It is dated (and was publicly posted) on May 19th – the day after the parties in Trump v IRS executed their so-called "Settlement Agreement," which contains no mention of any waiver of IRS claims, or immunity, or "audit shield," or anything remotely similar.

The May 19th document, signed by Todd Blanche, the Acting A.G., states two facts in the first paragraph: that the May 18th Settlement Agreement (1) "has created the Anti-Weaponization Fund," and (2) has "directed the Attorney General to issue an order establishing funding and any other relevant requirements for the Fund."

Both are correct; the May 18th Settlement Agreement, by its express terms, did both of those things.

Then, after declaring that capitalized terms in the May 19th order have the same meaning as in the Settlement Agreement, the entirety of the document reads as follows (I have broken up the single sentence of the waiver provision into its component parts, just for ease of comprehension; any omitted text is marked by ellipses):

The United States

RELEASES, WAIVES, ACQUITS, and FOREVER DISCHARGES each of the Plaintiffs [i.e., President Trump, his sons, and the Trump Organization] from,

and is hereby FOREVER BARRED AND PRECLUDED from prosecuting or pursuing,

any and all claims . . . or requests for any relief . . . whether presently known or unknown, that . . . have been or could have been asserted by [the IRS] against any of the plaintiffs . . . by reason of, in connection with, or which arise out of …

any matters currently pending or that could be pending (including tax returns filed before the Effective Date) before [the I.R.S.] or other agencies or departments. [Emphases added]

Well!

Where does Todd Blanche get the authorization to grant a waiver like this?! To anyone, let alone to his boss, the President of the United States?

From Texas Supreme Court Justice Evan Young's majority opinion Friday in In the Interest of H.S.:

Few principles in our history and traditions are as deeply rooted as the sanctity of the family. Fit parents, and not the government or anyone else, have the right and the corresponding responsibility to direct their children's upbringing and to be their children's primary source of protection and guidance.

At the same time, a parent's inability or unwillingness to satisfy basic, minimum standards of care can lead to abuse or neglect, which justifies governmental intervention to protect the children. The desired outcome of that intervention is a family's rehabilitation, the restoration of wayward parents to their proper roles, and the government's exit from the family's affairs.

In extreme cases, however, parents can forfeit their parental status altogether. When that happens, the government invokes the judicial process to pursue the termination of parental rights, after which parents and their children become strangers in the eyes of the law.

The strong presumption is that termination is not in a child's best interest, so a parental-termination order must always be a last resort and never a first impulse. Such an order risks offending the laws of nature and is impermissible under the laws of the United States and of Texas absent clear and convincing evidence both that the parent failed to discharge his obligations to his child and that the termination of parental rights is in the child's best interest. These heightened standards are required because termination affects the fundamental rights of all involved—not just of parents to their children but also of children to their parents.

This case requires us to apply these principles with respect to a married couple with three children. The government sought termination of both parents' rights to each child. A jury determined that the requisite grounds for termination had been proven as to both parents, and the trial court rendered judgment accordingly. The court of appeals affirmed. We likewise affirm as to Father, but we hold as a matter of law that the government has failed to establish that termination of Mother's rights is in the children's best interest. As to Mother, therefore, we reverse and render.

There's a lot going on in the opinion, which is nearly 10K words long, but here's a quick summary of the argument as to mother, with an interesting discussion related to divorce:

Parental Rights Children's Rights

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From Life Mastery Network LLC v. Haygarth, decided May 22 by Judge Jill Otake (D. Haw.), but just posted on Westlaw:

Liane, who goes by Liana Shanti, founded her company, LMN, which is used to operate online educational courses that aim to improve students' businesses, lifestyles, and overall wellness. On Plaintiffs' website, Liane markets herself as a "world renowned thought leader in quantum energy healing, spiritual psychology, nutrition, emotional transformation, and feminine wealth[.]" She has more than 35,000 social media followers and more than 100,000 customers in 90 countries….

Defamatory statements about Plaintiffs started surfacing online around April 2022 after Haley began to speak out on her own social media accounts about abuse she allegedly experienced. Plaintiffs allege that Defendants have made false and damaging factual statements about Plaintiffs, including accusations of running a cult, human trafficking, extortion, fraud, and other misconduct. The statements that Plaintiffs claim are defamatory can be organized into three categories as described below. Specific statements will be included within the Court's analysis.

There's a lot going on in the opinion, which is >15K words long. But here's one particular item that's a bit out of the ordinary for a libel case; it's about defendant Paula Haygarth's counterclaims against plaintiff, on which Haygarth sought summary judgment:

[A]n Instagram account username, @lianashanti, posted the following statements, verbatim {emphases added}:

"MEET PAULA HAYGARTH. WE HAVEN'T FORGOTTEN ABOUT HER. SHE'S ONE OF THE LEAD PEOPLE TRACED DIRECTLY THROUGH IP ADDRESES AND KNOWN EMAILS TO REDDIT AND THE OTHER FRAUD WEBSITES IN THE 30+ PAGE INVESTIGATIVE REPORT. SHE IS A DARK REIKI PRACTITIONER WHO HAS PRACTICED EXTENSIVE BLACK WITCHCRAFT ON MALIE'S DAUGHTHER'S SHE – NOT SURPRISINGLY – HAS THE SAME ATTORNEY AS BYRON HORVATH. THEY ARE NOT FRIENDS, JUST AN UNHOLY ALLIANCE."

"Jesus, we ask you to DELETE AND DESTROY all toxic lies from this satan servant – PAULA HAYGARTH – who is campaigning to invalidate truths of #childabuse to cover up her own misery. She is hateful and envious, and in her hatred and envy, she cannot bring herself to acknowledge the pain of all the children who have been harmed by their parents. She abandoned her own son Austin, and her guilt and shame have turned her into a soldier of satan."

"What WE are doing – this JESUS LED community calling out THESE people … Paula Haygarth … This vile group of PEDOS[;] PEDO SUPPORTERS[;] PEDO ALIGNERS[;] VICTIM BLAMERS … Paula Haygarth."

[i.] Dark Reiki Practitioner/Witch

Free Speech Libel

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For those following litigation over AI output, here's the consolidation order, together with the motion that led to it. (The motion, in the nature of things, is a partisan presentation, but still seems potentially helpful.) Of the eight cases discussed in the motion, the motion says,

5 of the cases involve wrongful death claims, as follows, Raine (age 16), Lacey (age 17), Shamblin (age 23), Enneking (age 26), Ceccanti (age 48).

2 of the cases involve minors, as follows, Raine (age 16) and Lacey (age 17).

4 of the cases involve negligence claims based on negligence per se theories.

All of these (Lacey, Shamblin, Enneking, and Ceccanti) allege violation of California Penal Code § 401(a) (deliberate aid and encouragement of suicide); and

1 of these (Shamblin) alleges violation of California Penal Code § 192(b) (manslaughter).

The motion lays out some of the general theories, and gives more details on each of the eight cases. (Presumably the other four cases were added on separately; the motion was filed Nov. 14, 2025, and the coordination hearing was on Jan. 30, 2026.)

Free Speech Artificial Intelligence

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Excerpts from an order issued May 19 by Tarrant County District Court Judge Megan Fahey, in CTC Property LLC v. Shulgin:

On August 15, 2025, this Court entered a Temporary Injunction Order enjoining Mr. Shulgin from using, uploading, disclosing, or transferring CTC Confidential Information—defined as photographs or videos of, or other information describing, the construction or design of any of CTC's artificial-intelligence data facilities—and ordering him to submit his devices for forensic imaging….

The Court finds that CTC will suffer ongoing, irreparable harm as long as CTC Confidential Information remains publicly accessible on the internet, as such disclosure deprives CTC of a competitive advantage regarding the construction of its artificial-intelligence data facilities, for which no adequate remedy at law exists.

Based on the foregoing findings, IT IS ORDERED that any and all photographs, videos, or other CTC Confidential Information posted by or at the direction of Defendant to Google Maps, or to any other publicly accessible internet platform, shall be removed. Plaintiff CTC Property LLC is authorized to serve a certified copy of this Order on Google LLC and/or any other internet service provider or platform hosting CTC Confidential Information posted by or at the direction of Defendant, and such entities shall comply with this Order.

Google LLC, its subsidiaries and affiliates, and any other person or entity with notice of this Order who is in possession of, or has the ability to remove, the CTC Confidential Information identified herein, are directed to remove such materials upon service of this Order and identification of the specific content by Plaintiff within 72 hours of service of this Order.

The Complaint alleges that "Shulgin – with both a Russian and U.S. online presence – used his former position as a technician subcontractor to misappropriate CTC's confidential information to take photos … of the inside workings of a data center CTC is building in Memphis, Tennessee." Seems pretty clearly unconstitutional and otherwise improper as to Google, who wasn't made a party to the case (see here for more on the general legal questions raised by such orders aimed at third parties). But in any event, it struck me as worth noting.

Free Speech Right of Access

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6/8/1925: Gitlow v. People of the State of New York decided.

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On June 2, the Fifth Circuit decided United States v. Squire, which posed "a novel question about whether the Second Amendment protects a convicted drug trafficker from being dispossessed of a firearm inside his home based on our Nation's historical tradition of firearm regulation." As Senior Judge Edith Brown Clement wrote in the opinion, "our historical tradition supports disarming drug traffickers based on their dangerousness…."

Suspecting him of involvement in a shooting in New Orleans, police secured a warrant to search the home of Curtis Squire, where they found a handgun. While the handgun was not found to have been used in the shooting, Squire was charged with felon-in-possession, 18 U.S.C. § 922(g)(1), based on his prior convictions of conspiracy and substantive counts of possession with the intent to distribute heroin, possession of a firearm with a controlled dangerous substance, and obstruction of justice. In the same case, he had been convicted of a conspiracy count to possess stolen things, and in another case, burglary and unauthorized use of a motor vehicle.

Fifth Circuit precedent recognized § 922(g)(1) to be unconstitutional as applied to some felons, as "[s]imply classifying a crime as a felony does not meet the level of historical rigor required by Bruen and its progeny." Non-violent felonies such as marijuana possession without evidence of present intoxication were subject to as-applied challenges. As the court wisely wrote, "If Congress could escape Bruen's reach by simply classifying a crime as a felony, we would be confined to uncritically rubber-stamping class-based determinations, subjecting disarmament laws to a form of rational-basis, government-always-wins, type of review." Those words are worth their weight in gold.

By contrast, predicate offenses involving a dangerous or violent crime justified disarmament. For that proposition, the court saw no need to make out an empirical case for the fact that heroin trafficking while armed is dangerous and involves violence. Drug gangs wage war with each other and with law enforcement. Drug traffickers use threats of violence and violence to enforce their illegal dealings as well as to protect their turf. And heroin is a type of poison on which users often overdose and die. One who traffics in heroin poses a physical danger to others.

Instead, the Squire court conducted the usual Bruen analysis of looking at historical analogues, having already concluded that Mr. Squire's ability to have a firearm in his home was covered by the Second Amendment's plain text. The English Militia Act of 1662 directed the disarming of "dangerous and disaffected persons," even though, as Rahimi notes, the Glorious Revolution reduced the Crown's power to do so. Catholics were disarmed as not having loyalty to the government. In the American Revolution, persons refusing to swear an oath of allegiance were disarmed.

Native Americans and African Americans were also disarmed. While use of these analogues is problematic, the court explains: "Granted, these repugnant laws classifying people as dangerous simply on the basis of their race or religion are wrong and unconstitutional under the Fourteenth Amendment…. Nevertheless, these laws give us a glimpse into how early Americans understood their right to bear arms, how the legislature could determine classes of people to be dangerous, and the scope of their disarmament."

The Supreme Court should use the opportunity in Wolford, which concerns Hawaii's "vampire rule" banning exercise of Second Amendment rights in most public places, to disown the use of racist historical analogues. My amicus brief in Wolford on behalf of the African American Gun Association makes that point in detail about an 1865 Louisiana black code provision. And as Justice Kavanaugh wrote in his Rahimi concurrence: "Ratified in 1868, [the Equal Protection] Clause sought to reject the Nation's history of racial discrimination, not to backdoor incorporate racially discriminatory and oppressive historical practices and laws into the Constitution."

Squire sought to distinguish his situation by the fact that he possessed the handgun at home, but the court found that argument to be "mugged by the reality that our historical laws support his disarmament, even in the special confines of his home." (I guess "mugged" is a term Squire would readily understand.) As the court concluded, "§ 922(g)(1) as applied to drug traffickers permits arms dispossession based on dangerousness, not location." That is a narrow holding, as "We do not decide whether the Second Amendment allows Congress to disarm individuals in the home based on convictions lacking a relevantly similar historical analogue to dangerousness, violence, or threats to public order."

The panel distinguished other courts that have refused to recognize any as-applied challenge to the felon-in-possession ban by postulating the basic difference between dangerous and violent crimes from mala prohibita, victimless crimes such as mere possession of marijuana. We'll see what the Supreme Court says about that when it decides Hemani, which presents the question, "Whether 18 U.S.C. § 922(g)(3), the federal statute that prohibits the possession of firearms by a person who 'is an unlawful user of or addicted to any controlled substance,' violates the Second Amendment as applied to respondent." See my post here.

* * *

In footnote 1 of Squire, Judge Clement rejected the argument that the ban exceeds Congress's power under the Commerce Clause as foreclosed by circuit precedent. Unsuccessful attempts to rein in Congress on the issue included U.S. v. McFarland (2002), in which the evenly-divided, en banc Fifth Circuit left a district court decision in place upholding the constitutionality of the Hobbs Act, 18 U.S.C. § 1951, to a defendant who robbed local convenience stores with utterly no interstate-commerce nexus. Based on the Supreme Court's decisions in Lopez and Morrison, Judge Clement joined with half of the other judges in dissent. Query whether the Supreme Court will ever return to the premise that local crime is not interstate commerce.

Stephen Halbrook is a Senior Fellow with the Independent Institute. His latest books are America's Rifle: The Case for the AR-15 and The Right to Bear Arms: A Constitutional Right of the People or a Privilege of the Ruling Class? He is also author of The Founders' Second Amendment, Securing Civil Rights, Gun Control in the Third Reich, and Gun Control in Nazi-Occupied France. He has written over 30 law review articles and has testified in Congressional hearings on firearm law bills. He has also litigated extensively in the field, often representing groups such as the NRA, National African American Gun Association, Western States Sheriffs' Association, Congress of Racial Equality, National Association of Criminal Defense Lawyers, and more. He has argued before the U.S. Supreme Court in Castillo v. U.S. (2000), Printz v. U.S. (1997), and U.S. v. Thompson/Center Arms Co. (1992), as well as in front of many other courts. In D.C. v. Heller, he filed an amici curiae brief on behalf of a majority of members of Congress.

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I am happy to pass along this post from Professor Arthur Hellman, concerning Judge Ryan Nelson's parking lot altercation, which I wrote about here:

Over the weekend, Bloomberg Law reported that Judge Ryan D. Nelson of the Ninth Circuit Court of Appeals has been charged with misdemeanor battery for his actions in an April 2 altercation with a man in a parking lot in Idaho Falls, Idaho. Judge Nelson has also been charged with malicious injury to property – the "property" being the glasses of the other man, which Judge Nelson allegedly knocked off and stomped on. The altercation apparently began when the other man said (twice) to Judge Nelson: "Learn how to park."

The Idaho State Journal published video of the incident and also a more detailed account of the episode. A pretrial conference is scheduled for June 18.

In the Judicial Conduct and Disability Act of 1980 (JCDA), Congress established a process for dealing with complaints that a federal judge "has engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts, or alleging that such judge is unable to discharge all the duties of office by reason of mental or physical disability." Judge Nelson's alleged conduct would arguably support a finding of misconduct under the JCDA; it may also implicate the provision dealing with disability. How should the judiciary respond to this report?

Under the Act, complaints against judges may be filed by "any person" and thereafter reviewed by the Chief Judge of the Circuit. But the Chief Judge need not wait for the filing of a complaint before initiating the process. She may "identify" a complaint with the same effect. I have argued that "when reports of possible misconduct have become public, the chief judge should be required to identify a complaint." This will reassure the public that the judiciary is truly committed to policing misconduct within its ranks. And if the judge is exonerated, the process will help to remove the cloud that would otherwise hang over the judge's reputation.

So the first step is for Ninth Circuit Chief Judge Mary Murguia to identify a complaint. What next? The law allows Judge Murguia to conduct a "limited inquiry," but not to "make findings of fact about any matter that is reasonably in dispute." If there are disputed facts relevant to the complaint, she must appoint a Special Committee similar to the one that recently investigated the allegations against Judge Eleanor Ross of Atlanta.

I'll skip now to the question: does Judge Nelson's conduct fall within the statutory definition of misconduct quoted above? After all, in contrast to Judge Ross, all of Judge Nelson's conduct took place outside the court and was unrelated to his judicial role.

The most extensive discussion of that question in the decisions under the Act is found in a misconduct order issued by Chief Judge Dennis Jacobs of the Second Circuit almost 20 years ago. The proceeding involved an altercation at a campfire on a beach. The principal allegation of the complaint was that the subject judge engaged in misconduct by intentionally striking the complainant without justification and, as a result, was charged with a criminal offense. The similarity to the allegations against Judge Nelson is striking.

Chief Judge Jacobs assumed that extrajudicial conduct could fall within the Act, but after careful analysis (which should be read in full), he concluded that the alleged assault at the beach did not. He summed up by saying that "this was a one-time private dispute between private citizens, one of whom happens to be a judge. At worst, the Judge used physical force to terminate a private confrontation in which the Complainant was using obscenities in the presence of the Judge's small children."

As the second quoted sentence indicates, there were mitigating circumstances in the case before Judge Jacobs that appear to have no close counterpart in the episode involving Judge Nelson. But there may be other mitigating circumstances here. Josh Blackman has ascertained that the parking lot adjoins a hospice center; it is possible that something was going on in Judge Nelson's life that caused him to "snap."

If this was an isolated episode related to a serious medical concern, that might be reason to conclude that the conduct was not misconduct under the Act. Indeed, if Judge Nelson apologizes to the individual involved (which I hope he will do in any event), the Chief Judge or the Judicial Council might "conclude the proceeding" (as the Act authorizes) upon finding that "appropriate corrective action has been taken." That would avoid the need to determine whether Judge Nelson's actions constituted misconduct.

The hospice center setting also raises the possibility that Judge Nelson's conduct reflects a disability or the effect of medications. That too is something that the Chief Judge and the Judicial Council should investigate and take into account.

On the other side of the ledger, shortly after Judge Nelson's confirmation in 2018, the Wall Street Journal reported that in the two decades before his appointment, he had compiled an extensive record of traffic citations. "He's gotten tickets for speeding, disobeying traffic lights and signs, illegal turns, seat-belt violations, not carrying proof of insurance, skipping an auto inspection and not registering his vehicle. He's been cited on his boat as well."

If that behavior stopped after his appointment as a judge, it should not preclude a finding that the parking lot altercation was an isolated event in his life. But if it has continued, that would raise questions about whether the altercation reflects a temperament inconsistent with the judicial temperament. And that might even raise questions about his fitness for judicial office, parallel to those that have been raised with respect to Judge Ross. (My own view is that the most serious finding of misconduct by Judge Ross is the one that involves false statements to the judges who were investigating her misconduct. That finding corresponds closely to conduct that was one basis for impeaching District Judge Samuel B. Kent in 2009. No such conduct has been alleged here.)

But it is far too early to condemn Judge Nelson. The criminal proceeding should take its course; so should the processes under the Judicial Conduct and Disability Act and the rules that the judiciary has promulgated to implement it. When all of those investigations have concluded, there will be time enough to make judgments about Judge Nelson's future as a federal judge.

There are different ways we learn about judges who misbehave. In some cases, we learn about the misconduct after all of the proceeding are complete, and a public reprimand is issued. In other cases, we learn about the misconduct but not the judge who committed the misconduct, following a private reprimand. Such was the case with Judge Ross, although we figured out her identity pretty quickly. And then there are the cases where we learn about the misconduct before the proceedings were completed, or even began. Such is the case with Judge Ryan Nelson of the Ninth Circuit.

Eugene blogged about the incident last night. Bloomberg Law had additional coverage. (As an aside, Bloomberg Law has some of the most thorough coverage of the lower courts today; they consistently outperform other outlets.)

Here, I'll offer a few preliminary thoughts.

First, while I have never met Judge Ross, I do know Judge Nelson. All of my interactions with him over the years have been very cordial. The person I saw in that video was not the person I have come to know and like. As a general rule, we should not be judged at our worst moment, though in life and law, sometimes we are.

Second, I was able to figure out where the incident happened. The surveillance footage was labeled "Front Parking F Street." And the State Journal article referenced the location was on Memorial Drive. Google Maps quickly allowed me to find the intersection in Idaho Falls, Idaho. That parking lot belongs to a Home & Hospice Center. You can see the same blue column that appears in the video.

Third, this location may be relevant. One can imagine that attending to a loved one in hospice may be an emotional experience that could have put Judge Nelson, and the other person, in difficult emotional stages. Also, rushing to a hospice center may explain the judge's failure to pull into a single spot, though the lot was wide open.

Fourth, both Judge Nelson and the other person behaved poorly. Again, the lot had many empty spots. Why did the guy in the white truck pull up right next to Judge Nelson's car? And it wasn't necessary to say anything about the parking job. But then Judge Nelson lost his temper and behaved in an awful fashion. The situation escalated so quickly, it might seem there was history between these two men.

Fifth, Judge Nelson, like all criminal defendants, is entitled to the presumption of innocence. Yet, his attorney does not seem to dispute the underlying conduct--how could he, it is on camera. Here, unlike Judge Ross, Judge Nelson seems to have been truthful during the investigation.

The ethical issues here are complex. I have asked Professor Arthur Hellman to share a guest post on this matter, which I will post after mine.

This video just seems relevant.

Update: David Lat offers this update at Original Jurisdiction:

On the subject of a bad day, the first clerk shared with me that Judge Nelson has been going through a difficult time personally right now: "His father recently had a heart attack (which he thankfully survived), and other family members have been dealing with cancer. I haven't spoken to him about the incident, so I don't know if any of this played into it, but I can certainly imagine it."

Josh Blackman did some sleuthing, and based on the surveillance footage and Google Maps, he concluded that the parking lot where the incident transpired belongs to a Home and Hospice Center. So it certainly seems at least possible that Judge Nelson wasn't in a good state of mind when he had the parking argument.

Our Journal of Free Speech Law is faculty-edited, and we have a part-time professional proofreader and bluebooker. Also, because most of our authors are full-time American law professors, they generally have research assistants who do the cite-checking.

But some of the time we do need students to help with cite-checking. We've been fortunate to have such people helping us over the years, but we'd like to add a couple more as well.

I realize that this is not like a normal law review: It will likely involve both less work and less responsibility. On the other hand, you'll get to read what we hope will be very interesting scholarship, participate in the process of publishing it (plus see your name in print on the masthead; the title is "Production Editor"), and further practice your cite-checking skills.

If you're interested, please e-mail me at volokh@stanford.edu. Just to be clear, as with other law reviews, we're looking for volunteers, though we hope that the students who participate will find this professionally valuable.

By the way, if some of you have already done this in past years, but would like to continue even while you're practicing lawyers, we'd of course be happy to have you back. I'm reluctant, though, to impose on people who have graduated and have paying jobs that take up their time unless they've affirmatively made clear that they'd enjoy doing this sort of task as well.

Free Speech

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New Iranian attacks in the Persian Gulf are being easily and successfully countered by U.S. Armed Forces. Those attacks should not obscure the fact that President Trump is pursuing a brilliant foreign policy with respect to Iran that he should absolutely stick to.

President Trump is succeeding where Presidents George H.W. Bush, Bill Clinton, George W. Bush, Barack Obama, and Joe Biden all failed. The blockade of Iran will likely produce real regime change if it is left in place for another six to eight weeks, and the new Government of Iran will surrender its nuclear stockpile and will reopen the Strait of Hormuz unconditionally.

Iran is losing $500 million a day and 90% of its trade passing through the Strait of Hormuz as a result of the blockade. No government can continue to govern and escape a revolution on the streets in this situation. Tellingly, no U.S. soldiers are dying, and President Trump is on track to win the United States' biggest foreign policy victory since the peaceful collapse of the Warsaw Pact and of the Soviet Union because of the policies of President Ronald Reagan.

President Trump has very wisely let two conditions shape his negotiations with Iran over the last two months. First, he has insisted that Iran surrender its stockpile of 60% enriched uranium and end its efforts to develop a nuclear bomb. Second, he has rebuffed Iranian demands that Iran be allowed to charge a toll on any ship passing through the Strait of Hormuz. Both demands are eminently reasonable. Yet the Iranian Revolutionary Guard Corps (IRGC), which is now the effective de facto government of Iran, is flatly rejecting both demands.

The IRGC is in a position of extreme weakness right now. It has been unable to pay its soldiers for weeks, and they are defecting in droves. The IRGC has filled all the storage tanks with oil, which it can store, and Iran may soon have to permanently shut down some oil wells, which will permanently damage them. Inflation is at record highs, especially for food; the currency has plunged to the point of being worthless; and even before the war, a super-majority of the Iranian public was furious with the regime. In six to eight weeks, the Iranian people will likely revolt in the streets, and the IRGC will have no troops to put down the popular uprising.

Steven Calabresi is the Clayton J. & Henry R. Barber Professor of Law at Northwestern Pritzker School of Law, where he specializes in constitutional law. He also teaches regularly at the Yale Law School. Before going into teaching, he worked in the Reagan White House, and was a Special Assistant for Attorney General Edwin Meese III. He has written or co-written many law review articles and several books, including The Meese Revolution: The Making of a Constitutional Moment (2024) (with Gary Lawson).

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Eli McKown-Dawson (Silver Bulletin) writes (introduced by Nate Silver):

California is notoriously slow at counting its ballots. In 2024, it took California until November 8 (three days after Election Day) to get just 70 percent of its ballots counted. Across all 50 states, the average share of the vote counted by that date was more than 95 percent, putting California squarely in last place. Rest assured, The Golden State did eventually hit that 95 percent mark … a full 10 days later….

Florida now manages to count 99 percent of its ballots within a few hours of polls closing, in part because election officials can process ballots before the polls close. And they are able to accomplish this feat of incredible speed with a sizable proportion of mail votes — about 27 percent in 2024…. Colombia held a presidential election on Sunday, and 99.98 percent of the result was in on Monday morning. Japan also counts most of its votes overnight. And in the UK (not exactly a poster child for state capacity), you can generally expect to have calls for all 650 parliamentary seats the morning after the election….

Nor is the problem inherent in California's choice to promote mail voting:

Mail-voting states such as Oregon, Washington, and Colorado count slowly relative to the US average, but they're all faster than California…. [And y]ou can make voting accessible without bending over backward to accommodate the tiny share of people affected by extending the mail ballot receipt deadline [to one week after the election, as California has]….

And slowness doesn't seem to be the price one needs to pay for accuracy:

There's no evidence that voter fraud or other election administration issues are any less prevalent in California than in faster counting states. Based on the Elections Performance Index — a project that compares election administration quality across states — California ranked 41st in 2024. So the state isn't slower and better: it's slower and (often) worse….

If you want people to be confident in your electoral system, a good first step is to build one that works properly instead of adding yet another example to the "California is a failed state" pile.

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I asked Claude, "Under the federal law clerk hiring plan, when can a recommender e-mail or call a judge to recommend a student?" Claude responded, in part,

Judges will not accept applications or recommendations before 12:00 pm EDT on Monday, June 8, 2026. (That's today — recommendations became permissible at noon Eastern today.) uscourts

For those reading this post later, note that I wrote this and asked Claude this on Sunday, June 7, 2026 (shortly after 12 noon Eastern). AI is indeed the future.

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Today in Supreme Court History: June 8, 1925

Open Thread

Second Amendment Roundup: No Protection for Heroin Trafficker

The Criminal Charges Against Judge Ryan Nelson: How Should the Judiciary Respond?

A Few Preliminary Thoughts About Judge Ryan Nelson's Parking Lot Incident

Law Students: Interested in Helping With Cite-Checking on the Journal of Free Speech Law?

Keep the Blockade of Iran in Place

"Why Can't California Count?"

AI Remember Doing the Time Warp

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