Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
New case! The Texas Constitution says that "monopolies are contrary to the genius of a free government, and shall never be allowed." And yet! Waxahachie officials have imposed a monopoly on construction dumpster rentals, handing the market to a big national chain and outlawing honest competition from folks like IJ client American AF Dumpster Rentals. Not so genial if you ask us.
New on the Short Circuit podcast: But what if the police themselves are the emergency?
Allegation: Chinese-American IT worker for the State Department is harassed by a diplomatic security officer because of his ethnicity. It culminates in the officer coming to his home, where the officer forcefully grabbed him and then pantomimed pointing a gun at his son while calling the child a racial slur. He sues the gov't under the Federal Tort Claims Act. D.C. Circuit: That all sounds pretty assault-ey to us; lawsuit undismissed.
In January 2025, the Trump Administration expanded expedited removal of illegal aliens to the maximum extent allowed by Congress. A due process violation? D.C. Circuit: No. Concurrence: we don't even have jurisdiction. Dissent: Yes. Read More
From J.V. v. C.H., decided June 18 by New Jersey appellate judges Lisa Rose and Patrick DeAlmeida; Carl and Jane are the court's pseudonyms for the parties, which I'll also use for convenience:
Defendant C.H. (Carl) appeals from a … final protective order (FPO) issued against him and in favor of plaintiff J.V. (Jane) pursuant to the Victim's Assistance and Survivor Protection Act (VASPA)….
The parties first encountered each other in February 2023, when Jane, an assistant prosecutor, was assigned to a criminal case charging F.E., Carl's former girlfriend, with third-degree burglary and third-degree theft charges allegedly committed against Carl….
Charges against F.E. for theft were later reduced and charges for violating a final restraining order were dropped, and Carl was upset:
Carl contacted Jane and her supervisors "indicating he was highly offended by the meeting," "unhappy with how the meeting went," and dissatisfied with the manner in which the prosecution was handled…. Jane explained Carl sent emails "multiple times a day" and their tone "became more angry and more accusatory in nature." In particular, Jane testified she received "seventy-six emails in seventy-eight days, some of which were sent on multiple occasions on the same day."
In his emails, Carl said "he had no faith in [Jane's] prosecution of the case," claimed she was lying to him, and stated, "you think you're getting over, but soon you will see," which Jane perceived as a threat against her. Carl also called "[t]wo to three times a day" and thrice appeared at her office without an appointment….
Carl then posted videos on his YouTube channel, "Rescuing Our Communities," that
made general claims of racism against "these prosecutorial and law enforcement systems" and specific disparaging remarks against Jane. For example, in the first video, Carl referred to Jane as a "fat racist prosecutor chick rival to [him] for over a year"; "dumb-ass chick" who was "fucking pathetic"; and "the worst excuse for a prosecutor I'm going after (inaudible)."
In the videos, Carl said, among other things,
Do this to an innocent man (inaudible) and any group of people that would help him, you don't deserve any type of political position. You should pray that I don't get to check on you because anybody who was involved in this, you have made an enemy out of me. You should have left me alone. You should not have violated my rights. You should not have gone after my daughter. If you are involved in this, you can look in my eyes and you will know what I am saying to be true. You and I will have a day….
This prosecutor lied. This by definition is prosecutorial misconduct. If I can prove that I sent her these text messages that a defense attorney cross-examined me to incompleteness and she purposely withheld them, she has a problem. They're mad at me. I don't give a fuck, people. I'm going to get this lady's job. She should not have done this….
So, … over the last couple of days I have cited misconduct by the prosecutor who is allegedly charging [F.E.] in the events that she committed against me. For anyone who has watched that video and watched the evidence I put up, you see definitively that that prosecutor lied.
I have audio of her admitting to it. I have emails. People this lady is done…..
This woman has lied through her teeth and now she's afraid because I have proof that could cost her her job. But people I'm not going to stop. I'm going to file more litigation. I'm going to file the grievances.
The appellate court added that Carl had indeed "filed grievances with state and federal authorities" and had unsuccessfully "asked [Jane's] office to replace her with another prosecutor" fourteen times.
The trial court issued a protective order under VASPA, which allows protective order requests to be filed by (among others) people who allege they were victims of "cyber-harassment," defined to include
conduct that occurs, while making one or more communications in an online capacity … with the purpose to harass another … threatening to inflict injury or physical harm to any person or the property of any person ….
The order, among other things, required defendant to "delete all posts on his YouTube site that refer to Plaintiff" and barred him from "posting, false, derogatory, harassing statements in any form or in any online forum or platform that refer to Plaintiff … by name." (Note that there was no finding by the court that defendant's allegations about Plaintiff were indeed false or libelous.) And the appellate court upheld the order:
[The trial] court first addressed Carl's claim that his statements in the YouTube videos were protected speech under the First Amendment…. Notably, the court … found "[Carl]'s videos [we]re designed to attack [Jane's] property right … her job."
The court thus found … Carl's videos "serve[d] no legitimate purpose," but rather "sought to impugn [Jane]'s character, integrity[,] and professionalism not simply out of spite, but specifically to bring about the end of her employment." The court thus concluded, "Because [Carl]'s videotapes regarding [Jane] served no legitimate purpose, were made and disseminated with the purpose to harass [Jane] and designed to threaten her job, [Carl could] not avail himself of the cloak that is First Amendment protection." …
[T]he court noted for more than one hundred years, our courts have repeatedly recognized "a calling, business or profession chosen and followed[,] is property." Pursuant to its detailed analysis, the court therefore concluded Jane proved the predicate act of cyber-harassment under VASPA….
[T]he [trial] court cited Jane's testimony and found, after viewing the first video, "[Jane] felt harassed and had safety concerns." Further, in its credibility findings, the court noted "[Jane] conveyed a sense of anxiety." The record supports Jane's ongoing fear of Carl at the time of her testimony….
The crux of Carl's argument … is the court erroneously determined Jane possessed a property right in her employment because she was a public "at-will" employee…. [W]e have recently reiterated [that] "[a] calling, business or profession, chosen and followed, is property." …
And though Carl argued that "the trial court's decision violates [his] First Amendment rights by restricting lawful speech on a matter of public concern," the court concluded this "contention[] lack[s] sufficient merit to warrant further discussion in a written opinion."
Earlier this week, the Cato Institute hosted a podcast building on my idea of a potential alliance between libertarians and "abundance liberals." I took part along with Jeremiah Johnson of the Center for New Liberalism. My Cato colleague Ryan Bourne moderated. Beforehand, I thought I might agree with perhaps 70-80% of what Jeremiah would say. But it turned out to be more like 90-95%! I particularly agree with his points about how libertarians should prioritize issues (given that we are unlikely to achieve a fully libertarian state anytime soon, if ever).
I embed the audio below:
Cato also posted links to several pieces relevant to this discussion. I reprint them below:
Happy June 26th everyone, or as I call it, Justice Anthony M. Kennedy Day. On this day in history, Justice Kennedy decided Lawrence, Windsor, and Obergefell. This is a fitting moment to reflect back on the first decade of Obergefell, and look ahead to that precedent's future. My new essay in Law & Liberty is titled Obergefell's Second Decade.
Here is the introduction:
It has become received wisdom by the legal intelligentsia that the Supreme Court is illegitimate. They charge that the conservative justices are engaging in politicized decisions that advance Republican causes, which have no grounding in law. Critics blast the Court for not following procedural regularity and deciding important issues on the so-called "shadow" docket. This mantra is repeated so often that jurisdiction stripping, Court packing, or worse seems like a fait accompli when progressives regain power. Yet, these Court critics seem to have forgotten much of the past century. During the most convulsive days of the Warren Court, progressive elites raised no alarms. Rather, they celebrated as Chief Justice Earl Warren and his colleagues rewrote virtually every aspect of our legal order, from criminal law to religion to sexual privacy to election law and more. And all of this was done without even the slightest pretense of legal justification, beyond the justices' personal preference for what would make a more just society.
Perhaps it is unfair to attack contemporary critics on this front, as they simply were not around during that bygone era. But a ten-year time horizon is fair game. Just over a decade ago, Obergefell v. Hodges (2015) invented a constitutional right to same-sex marriage, without even the slightest pretense of legal justification. To be sure, there were legal arguments that marriage laws amounted to unconstitutional forms of sex discrimination. But Justice Anthony Kennedy, the author of that decision, was never one for legal formalism.
When Obergefell was decided, the same legal intelligentsia that excoriates the present-day Court celebrated Justice Kennedy's ruling, while ignoring the countless faults used to get the case there. Their failure to even acknowledge these problems disqualifies such critics from charging the present-day Court with illegitimacy. This double standard is especially apt for Justices Sonia Sotomayor and Elena Kagan. They joined Justice Kennedy's majority opinion, yet now they have the audacity to criticize their colleagues for opinions that aren't even in the same realm as Obergefell.
The journey to Obergefell took seven fateful steps. First, before there was Obergefell, the Supreme Court was asked to strike down the Defense of Marriage Act (DOMA). But the entire case was a setup. The Obama Administration agreed that DOMA was unconstitutional, but still insisted on enforcing the law so as not to moot the legal challenge. Second, given the lack of adversity between the challengers and the government, the federal courts had no business deciding the case. Yet, the Supreme Court plowed through all procedural hurdles, even while promising the public that this case did not disturb marriage laws. Third, almost immediately after DOMA was gone, federal courts began to strike down state marriage laws. Moreover, these judges did not put their rulings on hold to permit an appeal, so there was a simultaneous race to the altar and to the Supreme Court. Fourth, after some delay, the Supreme Court put same-sex marriage rulings on hold, only temporarily. But the Justices silently allowed marriage laws to fall in a dozen states through the "shadow" docket without the benefit of oral argument or a reasoned decision. Fifth, when the issue finally arrived on the Supreme Court's merits docket, the focus was not on the law, but instead on an issue that was not presented: how children would feel if their gay parents could not get married. The original meaning of the Fourteenth Amendment, ratified in 1868, was irrelevant, as the Justices wielded the greatest act of judicial hubris in American history. Sixth, the outcome in Obergefell was never in doubt. Justice Kennedy had single-handedly built an entire judicial edifice for gay rights on his conception of "dignity." Kennedy issued the three leading decisions about gay rights on the same day over the course of twelve years: June 26. Obergefell was almost certainly timed to coincide with Pride Weekend 2015.
The entire progressive public and private ecosystem united with a single purpose: to bring this case to the Supreme Court's door while making it as hard as possible for a defense to be mounted.
Seventh, and finally, the Court took all of these actions without regard for stare decisis, the venerable principle that the Court should stand by precedent. Justice Kennedy blithely dismissed a ruling from 1971 that (correctly) recognized that the Constitution was silent about same-sex marriage. The precedential value of this case was in doubt, but the deeply rooted tradition of traditional marriage was universal. The Court rejected the received wisdom of countless civilizations from every corner of the globe over the course of millennia. Why? Because of insights revealed over the past two decades by the legal intelligentsia. Stare decisis, apparently, is for suckers.
In Obergefell's first decade, the decision stood as a tribute to judicial supremacy. But in its second decade, Obergefell should be seen as a low-water mark of judicial craft and the measuring stick by which all other decisions should be compared. Anything the post-Trump Roberts Court has done pales in comparison with the contrived legal arguments and procedural shenanigans to constitutionalize same-sex marriage.
And the conclusion:
As we enter Obergefell's second decade, I do not yet see the sort of groundswell of opposition that could lead to the decision's reversal. There is nothing like the five-decade-long backlash to Roe v. Wade, which culminated in the Dobbs decision. On the current Court, only Justice Thomas seems willing to revisit the decision, and even he did not publicly vote to grant review in Kim Davis's challenge to Obergefell. But my purpose here in recounting the path to Obergefell is not to make the case for overruling the precedent. Indeed, even if Obergefell were overruled, the positive laws in nearly every state would continue to protect same-sex marriage. Plus, with virtual wedding officiants, gay couples in all fifty states could easily get married. Despite the fear-mongering from the Court's progressive wing, the world would not look much different in a post-Obergefell world.
Rather, my purpose here is to highlight a painful double standard. When progressives can effect a revolution through the courts, no procedural or substantive rule will stand in the way. Cultural elites will celebrate that ruling and rebut any charges of illegitimacy. And conservatives, perhaps due to their Burkean nature, never even considered retaliation with remedies like jurisdiction stripping or court expansion. But starting in 2018, before the Court issued any landmark conservative decisions, liberals preemptively felt compelled to delegitimize the Court. So when conservative decisions came, the Court was already tainted with the brush of corruption.
Did progressives simply contract a case of selective amnesia, such that the entire run-up to Obergefell was simply forgotten? Or is "legitimacy" merely a function of who stands to benefit from a ruling? The left insists that Roe and Obergefell, which removed contentious issues from the political process, were legitimate. But the left maintains that Dobbs, which restored the contentious issue of abortion to the political process, was not legitimate. In the end, charges of illegitimacy are artificial and merely serve as a means to an end. Obergefell should be held up not only as a tribute to judicial supremacy and hubris, but as the measuring stick for all exercises of judicial legitimacy. Nothing the Roberts Court has done comes even remotely close to what the Kennedy Court did in Obergefell.
There is a lot here, which I hope you take the time to consider. I am also thankful to Law & Liberty for publishing this piece, which takes a strong issue on a contentious issue of social concern.
Its distinction between a voting recommendation "that aligns with the views of company management" and one that "recommends a vote against company management" is unconstitutionally viewpoint-based, a court holds.
SB 375 is known as the Proxy Advisory Transparency Act. Under SB 375, a "proxy advisor" is "a person who, for compensation, provides a proxy advisory service to shareholders of a company or to other persons with authority to vote on behalf of the shareholders of a company." "Proxy advisory service" is defined as certain "services that are provided in connection with or in relation to a company, or are provided to any person in this state." This includes "[a]dvice or a recommendation on how to vote on a company proposal or proxy proposal." Charitable organizations and banks that meet certain criteria are excluded from the definition of proxy advisory service….
If a proxy advisor makes a voting recommendation that aligns with the views of company management, SB 375 does not require any action. If a proxy advisor recommends a vote "against company management," whether specifically or as default policy, and that recommendation is not based on a "written financial analysis," the proxy advisor must:
(1) Concurrently with providing the proxy advisory service, include a clear and conspicuous disclosure to each shareholder, or entity or other person acting on behalf of a shareholder, receiving the proxy advisory service that:
(A) Identifies the service being provided;
(B) identifies the recommendation or policy at issue; and
(C) states that the proxy advisor has made the recommendation or policy without basing such recommendation on a written financial analysis regarding the impact of such recommended action on company investors that:
(i) Analyzes the expected short-term and long-term financial benefits and costs to the company regarding the implementation of the company proposal or proxy proposal;
(ii) concludes what vote or course of action is most likely to positively affect shareholder value; and
(iii) explains the methods and processes used to prepare the analysis, including the experience and geographic location of the personnel who formed the recommendation;
On June 25, the Supreme Court decidedWolford v. Lopez, holding 6-3 that Hawaii may not "prohibit licensed concealed-carry permit holders from carrying handguns on private property open to the public unless the property owner gives express permission." Justice Alito delivered the opinion of the Court, joined by Chief Justice Roberts and Justices Thomas, Gorsuch, Kavanaugh, and Barrett. Justice Kagan dissented, as did Justice Jackson, joined by Justice Sotomayor.
The Court calls out both lower courts and states that have resisted its Second Amendment jurisprudence. In the dozen years between McDonald and Bruen, "lower courts rejected nearly all Second Amendment claims based on reasoning that resembled that in Justice Breyer's Heller dissent." "After Bruen, Hawaii and four of the other five States called out by our decision adopted a new method of restricting law-abiding citizens from carrying firearms for self-defense by flipping the default rule on private property open to the public." They enacted what has become known as the "Vampire Rule," under which guns are banned on private property open to the public unless a "Guns Welcome" sign is posted or other affirmative consent is given. As to such signage: "Some proprietors who do not themselves object to entry by carry-permit holders may be reluctant to post a sign welcoming such individuals for fear of alienating other customers."
The same states also enacted "sensitive place" bans in public parks, assemblies, and certain establishments. As Wolford notes about Hawaii, "On a large portion of the land within the State's boundaries, possession of a firearm is now flatly prohibited." While these absolute bans have been challenged, the Court's comments do not bode well for them should they reach the Court. (On the Second Circuit's false historical narrative in Antonyuk upholding New York's place bans, see my exposé here.)
To consider the overwhelming impact of Hawaii's Vampire Rule, the Court lists places that people routinely visit on a daily basis where they cannot be armed, such as gas stations, convenience stores, restaurants, coffee shops, drug stores, grocery stores, "big box" stores, home improvement stores, barber shops or hair salons, dry cleaners, and laundromats. A day in the life of a hypothetical Ms. Caetano (based on Justice Alito's concurrence in Caetano) is traced to show the impossibility of asking for actual consent to enter one place after another when armed – the person is already in violation when in the parking lot and when looking for someone with authority to give consent.
At the jurisprudential level, Wolford starkly clarifies the methodology of text first and history second, which are often flipped to uphold infringements. In determining whether a law clashes with the plain text, three questions arise:
First, does the law apply to "the people"—which is to say, to "all members of the political community"? …. Second, does it concern any form of "Arms," i.e., any weapon customarily used for offensive or defensive purposes? … Third, does the law place any restrictions on either the "keep[ing]" (i.e., possession) or the "bear[ing]" (i.e., carrying) of arms?
Regarding "the people," in the Court's recent decision in Hemani, the Court referred to "the right of 'all Americans' to keep and bear firearms for self-defense." Curiously, the summary of prior precedents in Wolford does not mention Hemani. Maybe that's of no significance, as Hemani tested purported historical analogues as applied to the ban on firearm possession by pot users (see my post here) without introducing any new doctrines. It has also been suggested that Wolford was finalized before Hemani but simply not handed down before it.
Arms "customarily used" for offense or defense, the Court elsewhere noted, "refers to implements used for offense or defense," such as handguns that are (quoting Heller) "overwhelmingly chosen by American society" for self-defense. Perhaps next Term the Court will grant cert in a case that will confirm how the American people customarily and overwhelmingly choose semiautomatic rifles for self-defense.
Given that Hawaii banned activity that is clearly within the text – "the people" are "bearing arms" – the burden is on the state to justify it by historical tradition. That entails consideration of the number of jurisdictions that adopted analogous laws, the extent to which they were well-accepted (such as being judicially upheld or being "open, widespread, and unchallenged"), and whether the analogues are "relevantly similar" to the modern law. That last factor entails "how" and "why" the analogue restricted the right.
For analogues, Hawaii "recounts its long history of antipathy to the private possession of firearms. It tells us that one of the very first written laws of the Kingdom of Hawaii, issued in 1833 by King Kamehameha III, prohibited the possession of all deadly weapons." That fell flat with the Court, as "the Second Amendment has the same meaning in all parts of the United States…. It cannot give way to 'the spirit of Aloha' in Hawaii [citing State v. Wilson (Haw. 2024)], any more than it can yield to the spirit of the Big Apple (Bruen) or the Windy City (McDonald)."
But most of Hawaii's analogues were colonial or founding laws that prohibited unauthorized hunting of deer or small game on someone else's private property, which flunked both the "how" and "why" tests. They are not "relevantly similar" to Hawaii's law because prohibiting unauthorized hunting on private land has no relation to banning the carrying of a handgun for self-defense at a gas station or other private property open to the public without express consent.
But "the State's most remarkable analogue" is the 1865 Louisiana statute that made it unlawful "for any person or persons to carry fire-arms on the premises or plantations of any citizen, without the consent of the owner or proprietor…." Not only was that law "neither widespread nor widely accepted," it was "part of Louisiana's Black Code" that "provided a tool for disarming blacks and thus leaving them defenseless against attacks." "Unless we put history entirely out of our minds, Hawaii's claim that this tainted artifact illuminates the original understanding of the right to keep and bear arms cannot be taken seriously." (For more details, see my amicus brief for the National African American Gun Ass'n.)
Justice Barrett, joined in part by Justice Thomas and Justice Gorsuch, doubled down on the discrepancy between the purported analogues and Hawaii's law, which "does not target any particular abuse of firearms at all. Rather than identifying a specific threat to public peace and safety, Hawaii admits that it enacted the rule because many of its citizens oppose the public carry of guns." However, "Mere disapproval of protected conduct is not a valid reason to severely restrict it."
Justice Kagan's brief dissent simply asserts that the historical laws cited by Hawaii sufficed as proper analogues, which "is enough for me to resolve this case, without addressing Bruen's step-one inquiry or the use at step two of Louisiana's Black Code." Good way to avoid two of the case's sticking points.
Finally, Justice Jackson, with whom Justice Sotomayor joins, dissenting, reminds us once again that, "For what it is worth, I think Bruen was wrongly decided." As to the analogues, Louisiana's 1865 law and the other Black Code provisions violated the antidiscrimination portion of the Fourteenth Amendment (although the words "equal protection" don't appear in her dissent), but did not violate the Second Amendment.
In so arguing, Justice Jackson quotes General Sickles' 1866 order rescinding South Carolia's Black Code where he stated, "The constitutional rights of all loyal and well-disposed inhabitants to bear arms will not be infringed." She adds that "in his view, no person (of any race) had the right to carry a firearm onto private land without consent." But Sickles actually said that the right to bear arms "did not "authorize any person to enter with arms on the premises of another against his consent." That expressed the traditional common-law rule that Wolford upholds, namely that private property open to the public implies a license to enter, absent notice otherwise.
Extensive evidence indicates that the decision to end Temporary Protected Status for Haitian migrants was motivated by unconstitutional racial and ethnic discrimination. The Court's ruling on statutory issues also has flaws.
In my last post, I explained why today's Supreme Court Second Amendment ruling was right. In this one, I explain why its decision in Mullin v. Doe, the Haitian Temporary Protected Status case, is badly wrong. This case involves a challenge to the Trump Administration's decision to terminate Temporary Protected Status (TPS) for hundreds of thousands of Haitian and Syrian migrants in the US. TPS status protects from deportation migrants who entered the US from countries where conditions such as war, violence, or natural disaster make it dangerous for them to return home.
The Haitian and Syrian plaintiffs argued (and lower courts agreed) that the Trump administration violated various procedural requirements in terminating their status. The Haitians also contended (correctly, as well shall see) that the withdrawal of TPS status in their case was motivated by racial and ethnic bigotry, and thus a violation of the Constitution for that reason.
The constitutional question here is somewhat similar to that in Trump v. Hawaii (2018), where the Court upheld Trump's first-term travel ban barring residents of Muslim-majority nations, despite extensive evidence Trump was motivated by anti-Muslim prejudice and discrimination. But, in that case, the Court ruled that a much lower standard of review applied than would normally be the case, because the context was a policy excluding non-citizens from entering the United States (in previous writings, I have explained why the Court was wrong to apply such a low standard; see here and here).
In this instance, the majority did not address the issue of whether a lower standard of review applies to withdrawal of legal status from migrants already in the US. Instead, Justice Alito's majority opinion concludes the plaintiffs should lose even under normal standards applicable to facially neutral laws and regulations that may have been enacted for unconstitutional discriminatory reasons. This conclusion is badly wrong.
Evidence of anti-Haitian bigotry motivating Trump and other officials involved in the decision is overwhelming. Justice Elena Kagan summarizes some of it in her dissent:
[T]he Haiti plaintiffs have carried their burden. The evidence they have offered includes statements by the President so repellent and racially inflected that the majority declines to put them in print….
So here are some of those statements. Haitians are "eating the dogs . . . . They're eating the cats. They're eating—they're eating the pets of the people that live [in Springfield, Ohio]." 2 App. 802; see id., at 644. And: Haitians are also eating "other things too that they're not supposed to be." Id., at 698–699. And: Haitians in the United States "probably have AIDS." Id., at 698. And: Haiti is a "shithole country," which is "filthy, dirty, [and] disgusting." Id., at 698–699. And: Haitian immigration is "like a death wish for our country." Id., at 698. And: Haitians, along with some others, are "poisoning the blood" of our country. Id., at 698. And: "Why is it we only take people from shithole countries" like "Haiti [and] Somalia"? "Why cannot we have some people from Norway [and] Sweden?" Id., at 699. The majority briefly replies that those remarks are not "overtly racial," ante, at 21, but it is hard to know what that means. Haitians are Black. (Norwegians and Swedes not so much.) The references—of filth, disease, and primitiveness—are shot through with racial stereotypes and tropes.
I would add that even if these statements evidence ethnic rather than racial prejudice, the same result follows. Ethnic discrimination is unconstitutional for much the same reason as the racial kind. For example, it is unconstitutional for the government to discriminate against Hispanics, Jews, or Irish, even though these are ethnic rather than racial categories.
Under the Arlington Heights test, which Kagan and the majority both apply, once there is evidence that racial or ethnic prejudice motivated the policy in question, the burden of proof shifts to to government, requiring them to prove they would have adopted the same policy even aside from the these unconstitutional motives. Here, such proof will be difficult to come by, because the evidence is overwhelming that Haiti continues to be wracked by violence, thus making it unsafe for migrants to return there. Thus, there is no good reason to conclude things have actually changed there in a way that makes the TPS designation no longer necessary.
Justice Alito acknowledges that "[p]olitical discourse by prominent public figures is increasingly couched in terms that would have scandalized the public just a short time ago, and the statements cited by Miot respondents—especially those concerning Haiti and Haitian immigrants to this country—exemplify this development." But he nonetheless claims that there is "a strong, race-neutral explanation of these officials' statements: the present administration's general stance on immigration" and its general opposition to the use of the TPS program.
The problem here is that this "general stance" is itself heavily infected with racial and ethnic bigotry. Trump and other high-ranking officials have repeatedly engaged in racial and ethnic discrimination in their immigration policies, for example in limiting refugee admissions almost exclusively to white South Africans (an absurd decision that has no plausible non-racial explanation), and in promoting massive racial profiling in immigration enforcement. And it is notable that the President himself repeatedly condemns migrants based on their ethnic and cultural groups. Thus, the "general stance" actually accentuates rather than mitigates suspicions that the Haiti decision was based on discriminatory motives. At the very least, the Court should have recognized there is more than enough evidence to shift the burden of proof to the government.
On the statutory question, the majority relies on a provision of the TPS statute stating that "[t]here is no judicial review of any determination of the [Secretary of Homeland Security] with respect to the designation, or termination or extension of a designation, of a foreign state under this subsection." The majority claims this means there can be no judicial review of any statutory issue here, at all. Justice Kagan's dissent argues that "determination" only covers factual conclusions about the need for TPS status or lack thereof, but not procedural requirements. The latter, she contends, are not really "determinations."
I am not entirely sure who is right on this point, and will not go into this debate in detail. But I will note that, at the very least, both sides have plausible arguments. Under the majority's approach, the executive would have totally unconstrained power to grant or withdraw TPS status to migrants from any country in the world, completely without limit - potentially tens or even hundreds of millions of people! That triggers the major questions doctrine (MQD), which requires Congress to "speak clearly" when authorizing the executive to make "decisions of vast economic and political significance." The unlimited power to grant and withdraw TPS status to millions of people is obviously of "vast economic and political significance." And here, it is at the very least not completely clear whether the statute actually does that. Thus, MQD required the Court to rule that there are at least some constraints on the power in question.
If the statute really does give the president such unlimited powers, that raises constitutional nondelegation problems. There are at least some constitutional limits to Congress' power to delegate its authority to the president. And if there are any meaningful limits at all, unconstrained power to grant or deny residency and work rights to migrants from anywhere in the world surely breaches those limits. Elsewhere, I have explained why nondelegation principles apply in the immigration context, in part because the Supreme Court has ruled that immigration restriction is a congressional power.
At the very least, the Trump administrations' interpretation of the law raises serious constitutional problems. And that should have triggered the constitutional avoidance canon, which requires courts to interpret federal statutes in ways that avoid constitutional problems whenever it is "fairly possible" to do so.
As far as I can tell, the plaintiffs in the case did not raise major questions and nondelegation issues, though maybe the courts should have addressed them of their own accord (as they do bear on the statutory interpretation issues the plaintiffs did raise). Perhaps they can be addressed in a future case.
For supporters of expanded immigration rights, there is this silver lining to the Court's statutory ruling: under the approach adopted by the majority, future presidents will have virtually unlimited authority to grant TPS status to any and all migrants - totally unconstrained by either procedural or substantive rules.
In a solo concurring opinion Justice Clarence Thomas argues that the Equal Protection Clause of the Fourteenth Amendment only applies to state governments, and thus its protections against racial discrimination don't apply to federal government actions. He further argues that protections against racial discrimination generally do not apply to immigration policy. These points have radical implications that go far beyond the present case. Among other things, they would give the federal government a blank check to engage in racial and ethnic discrimination in immigration policy, and even beyond it. Thomas claims that federal racial discrimination against US citizens is still barred by the Citizenship Clause of the Fourteenth Amendment. But the dominant view at the time the amendment was enacted was that a wide range of racially discriminatory policies were still permissible, even as to citizens. That's one of the reasons why the Fourteenth Amendment had to be adopted in the first place. Merely granting citizenship was not enough to protect Blacks (or any minority group) against racial and ethnic discrimination.
Sometimes, when Thomas advocates unorthodox ideas unsupported by other justices, he makes excellent points, as with his positions on a number of federalism and property rights issues. Other times, not so much. This is one of the latter cases. If time allows, I may have more to say about Thomas's opinion later.
In sum, this is a bad decision that is likely to have bad real-world effects, at least in the short run. In the long run, some of the effects might cut the opposite way - giving more pro-immigration administrations an opportunity to grant TPS status without any limitations. But that possibility doesn't justify what the Court has done.
The government cannot force private property owners to allow guns on their land. But the Supreme Court rightly ruled today that it also cannot impose a presumption of exclusion.
I am one of the few people who believe the Supreme Court was very right in its Second Amendment ruling today, in Wolford v. Lopez, but badly wrong in its ruling allowing abolition of TPS status for Haitian migrants in Mullin v. Doe. Both majority opinions were written by Justice Alito; but he did a way better job in one than in the other. In this post, I assess Wolford. I will try to cover Mullin v. Doe later.
In Wolford, the Court struck down a Hawaii law that barred people carrying guns from entering private property "held open to the public" unless they had specific permission from the owner. In a 6-3 decision divided along ideological lines, the Court held the law violates the Second Amendment right to keep and bear arms. The conclusion is right.
Elsewhere, I have argued that red-state laws requiring property owners to allow guns on their land violate the Takings Clause of the Fifth Amendment (see here and here). Private property owners have every right to exclude people who carry guns from their property, just as they also have a right to exclude people for any number of other reasons. But the Hawaii law goes far beyond merely allowing property owners to exclude bearers of guns. It singles out the exercise of a constitutional right for a legal presumption of exclusion. And here I would emphasize that the Second Amendment protects not only the right to own arms, but also the right to "bear" them. Such bearing is often useful for self-defense, particularly in high-crime areas.
Most people would readily agree such a targeted presumption of exclusion is us unconstitutional when it comes to other constitutional rights. As Justice Amy Coney Barrett points out in her excellent concurring opinion, "What if a State made it a crime to wear religious head garb (say, a hijab) onto private property open to the public without obtaining express authorization? Could that statute evade constitutional scrutiny?" We can easily extend the analogy. If the state enacted a law barring people who criticize the president or the state's governor from private property without specific permission from the owner, that would be a violation of the Free Speech Clause. If the state barred the use of contraception on private property (e.g. - hotel rooms) without getting specific permission from the owner, that would be a violation of the right to contraception protected by Griswold v. Connecticut(1965). And so on.
As Barrett notes, this point disposes of Justice Ketanji Brown Jackson's main argument in the principal dissenting opinion (joined by Justice Sotomayor): "that Hawaii's law does not restrict the right to carry a gun at all. Instead, its law vindicates its resident's property rights by operating on the scope of the implied license to enter." The state cannot manipulate those default rules to deliberately disfavor the exercise of a constitutional right. If a state law banned critics of the president or people wearing religious garb from entering private property without specific permission, I doubt Justice Jackson would such a law "does not restrict First Amendment rights at all."
There is also an extensive debate between the majority and the dissent about whether the Hawaii law meets the "history and tradition" test outlined in the Court's 2022 ruling in the Bruen case, which held that gun control regulations can be upheld if they are sufficiently analogous to historically prevalent laws. On balance, I think the majority and Justice Barrett are right to emphasize that most of these laws were narrower than the Hawaii law, and had narrower purposes (e.g. - controlling poaching). But I agree with Justice Jackson that this whole exchange demonstrates - yet again- that the "history and tradition" test is badly flawed, and too easily manipulable. While she thinks the manipulation goes only towards invalidating too many regulations, I think it could just as easily go the other way (or would, if the Court had a liberal majority). Indeed, her own arguments in this case demonstrate how that could happen.
As I explained in my post about the recent Hemani case, the best solution to this problem is to junk the history and tradition test, and replace it with one focused on the text, original meaning, and purpose of the Second Amendment. On that approach, a categorical presumption against bringing guns into any private property "open to the public" pretty obviously has to be struck down. Note that the presumption applies regardless of the type of gun, regardless of whether the owner is doing anything dangerous with it, and regardless of the type of property. That makes it a severe imposition on the core constitutional right to bear arms, and not one that can be justified by any kind of narrowly targeted safety concerns. Things might be different if the law were limited to, e.g., situations where the owner brandished the gun in a dangerous manner.
Part of the debate between the majority and dissent focuses on the notorious Black Codes enacted by southern states after the Civil War, for the purpose of oppressing recently freed slaves and other Blacks, which in this case included restrictions on carrying guns, so as to disarm Black people and render them more vulnerable to coercion by whites. Hawaii and Justice Jackson argue that these laws are appropriate analogues to the current Hawaii law, thereby justifying the latter.
I think it obvious that laws which are themselves unconstitutional (because engaging in blatant racial discrimination) cannot serve as justifying analogues for anything. Indeed Justice Jackson recognizes the Black Codes were unconstitutional, but argues that they might still serve as part of the relevant "history and tradition," because racial discrimination has a long history and was traditional, and because the unconstitutionality here may have been under the anti-discrimination provisions of the Fourteenth Amendment, not the Second Amendment.
I think a law intended to disarm a racial minority pretty obviously violates the Second Amendment, as well as other constitutional provisions. If the mere fact that many states enacted such laws makes them permissible under the "history and tradition" test, that's just another strike against that test. But even within the framework of that test, there is every reason to exclude regulations that are unconstitutional under other provisions of the Constitution (and therefore should never have been allowed to become "traditional" in the first place). Ditto for regulations intended to undermine the central purposes of the Second Amendment, by making people more vulnerable to government and private oppression.
A good rule of thumb is that if defending the constitutionality of a law requires arguing that it is similar to the Black Codes, that probably means the law is actually unconstitutional! And if your test for determining constitutionality gives positive (rather than negative) weight to similarity to the Black Codes, you should junk that test and use a different one.
On June 18, the Supreme Court decided United States v. Hemani. The case was 9-0, though was fragmented. Justice Thomas concurred, finding that possession statute exceeded Congress's powers under the Commerce Clause. Justices Jackson and Sotomayor repeated their view that Bruen was wrongly decided. And Justices Alito and Kagan concurred in judgment, though I still am not entirely sure what they disagreed with the majority about.
Today, the Supreme Court decided Wolford v. Lopez. There was a time when we had to wait more than a decade for the Supreme Court to decide a Second Amendment case. This year, we get two victories in the span of a week! Here, the Court split 6-3, finding that Hawaii's "vampire" law violates the Second Amendment.
Justice Alito, who did not join Hemani, wrote the majority opinion in Wolford. Part I of Alito's opinion offers an extremely thorough, nine-page discussion of Heller, McDonald, Bruen, and Rahimi. This is a perfect capsule summary to teach students about how the doctrine has developed since 2008. But something very significant is missing: Hemani. Indeed, Justice Alito writes that Rahimi was "our most recent Second Amendment case." What about Hemani, decided seven days ago? Alito does not cite Hemaniat all. But Justice Barrett's concurrence and Justice Jackson's dissent does cite Hemani.
What's even stranger is the sequencing. Justice Alito's opinion should have been released first, as it laid out all of the Second Amendment doctrine, and then Justice Gorsuch's opinion could have come out second, and cited back to Alito. But Hemani came out first.
Something feels off here. Maybe Wolford was supposed to come out first, but the Chief wanted to force out the 9-0 Hemani to send a signal of bipartisanship, so the ordering was flipped? I don't like that theory as there were no other blockbusters last Friday. I don't think the majority opinion flipped in Hemani. The only person who didn't write from that sitting was Justice Thomas, and his view on the Commerce Clause was never going to command a majority.
I can't quite put my finger on it, but something happened with Hemani and Wolford.
Update: Is it possible that Justice Barrett may have lost the majority opinion in Wolford? Justice Alito's majority opinion is 24 pages and avoids any major traps concerning property law. It is neat and clean, and offers a cogent summary of all the case law. Barrett's 14 page concurrence gets into the weeds of scrutiny. Barrett only brings along Thomas and Gorsuch for Part II-B. I can see Roberts thinking this opinion about property law reads like something a law professor would write (it is), and jumping ship to the safe harbor of Alito. Even now, the Barrett concurrence covers much of the same ground as the Alito majority. And she responds often to the Jackson dissent, as a majority opinion would. Barrett did not write an opinion for January when Wolford was argued. There were seven cases that sitting, so Alito may not have had an assignment.
This theory still doesn't explain why Alito didn't acknowledge Hemani. Something is up.
Update #2: Justice Alito's concurrence cites Molly Brady's Stanford Law Review Article as "forthcoming 2026" with a parenthetical of ("last revised Feb. 27, 2026") followed by a permalink, which was created on June 4, 2026 at 8:47 am. The permalink was also made private, which usually happens in the case of a copyright violation.
Alito's other permalinks were created on Monday, May 25, 2026 at 10:18 pm, 10:19 pm, 10:42 pm. Glad to see the Alito clerks are burning the midnight oil.
The reply brief was filed on January 9, and the case was argued on January 20. This citation was clearly created by the Alito chambers at some point after the case was argued. Brady's article was published in April 2026. Barrett's concurrence and Jackson's dissent both cite Brady's article in its final, paginated form. Barrett also includes permalinks, which were created in 2025, likely by the parties.
I don't know what this means, but the timeline suggests Alito's opinion was written earlier, but finalized later.
With the Birthright Citizenship case still undecided, the Trump Administration has prevailed in every other immigration case before the Court this term, and some are quite consequential.
Today the Trump Administration completed its clean sweep of the non-birthright-citizenship immigration cases at the Supreme Court. Some of these decisions are quite significant. This highlights that the current Court is quite sympathetic to aggressive executive branch action in the immigration sphere--aggressive action often expressly authorized by Congress--even if it is likely to reject the Administration's unlawful attempt to unilaterally rewrite the law of citizenship.
The first immigration decision today was Mullin v. Al Otro Lado, in which the Court held, 6-3 in an opinion by Justice Alito, that an alien seeking to enter the United States from Mexico does not "arrive in the United States" unless and until the alien actually enters the country. This matters because an alien cannot apply for asylum until arriving in the country, and thus allows the federal government to turn away potential asylum applicants before they may seek asylum.
The second immigration decision today was Mullin v. Doe, in which the Court held, again 6-3 in an opinion by Justice Alito, that the statute authorizing "Temporary Protected Status" bars judicial review of non-constitutional claims challenging the revision or rescission of such status. Finding the sole constitutional claim raised in the litigation unlikely to succeed, the Court vacated the district court order postponing the termination of temporary protected status for aliens from Syria and Haiti pending legal challenges to the termination.
On Tuesday, the Court decided Blanche v. Lau, another 6-3 decision (this one by Justice Thomas) concluding that the Immigration and Naturalization Act does not require a border officer to have "clear and convincing evidence" that a lawful permanent resident has committed a crime of moral turpitude before deeming that individual an "applicant for admission" when re-entering the country. Thus a lawful permanent resident who has committed such a crime, but has not yet been convicted, can be required to reapply for admission after temporary foreign travel. (In this case, Lau had been charged with trademark counterfeiting but was still awaiting trial.)
Not all of the Trump Administration's immigration victories were 6-3, however. Earlier this spring the Administration prevailed in Urias-Orellana v. Bondi, in a unanimous opinion written by Justice Jackson. Here the Court concluded that the INA requires application of the fairly deferential substantial-evidence standard to the government's conclusion as to whether a given set of undisputed facts rises to the level of "persecution" for asylum applicants. (The applicants had advocated for de novo review.)
The Court also sided with the Trump Administration in its per curiam opinion in Margolin v. National Association of Immigration Judges, rejecting the U.S. Court of Appeals for the Fourth Circuit's attempt to bypass the channeling requirements of the Civil Service Reform Act (based upon issues the parties had not even raised).
Taken together, these opinions show that the current Court is quite willing to embrace broad assertions of executive power over immigration policy, particularly given the expansiveness with which Congress has delegated such authority. It also shows the Court interpreting statutes narrowly, and without regard for broader policy considerations--considerations a majority of the justices believe are for Congress to resolve.
While Section 1401 echoes the language of the Fourteenth Amendment, it should be interpreted in line with the public understanding of those words at the time it was adopted (Cf. Justice Alito's Bostock dissent), and such an interpretation is wholly incompatible with that offered by the Trump Administration. Thus even if one thinks the conventional interpretation of the citizenship clause is mistaken, Section 1401 would control. So, just as the Court has hewed closely to what Congress has authorized in the immigration cases already decided this term, it should reject the Administration's birthright citizenship arguments on statutory grounds.
Today the Court decided four more cases, including three opinions by Justice Alito. How did my predictions from Tuesday fare?
There were no cases decided today from December. I still think the Chief Justice has Trump v. Slaughter. Now that Alito has six opinions for the term, I think he is done. Justice Kavanaugh almost certainly has NRSC v. FEC. But if Alito has NRSC, then my theory about his losing the majority in Hamm fails.
Today the Court decided Wolford from the January sitting. Alito wrote the majority opinion. Outstanding are the two transgender sports cases and Cook. So far, Roberts, Gorsuch, and Kavanaugh have not written from that sitting. I think Gorsuch is done for the term with seven majority. My thought on Tuesday was that Barrett, a former student athlete, would write both athletics cases while the Chief writes Cook. (Clarification: Barrett did not play college sports, but did participate in track and field in middle school.) But maybe Roberts may write the transgender cases, as he wrote Skrmetti. Then, Justice Kavanaugh may write a "The Fed is different" opinion for Cook.
The February sitting is done.
No new cases today were decided from March. I still think Roberts has Barbara. I wrote that Alito has Watson, but he wrote Al Otroe Lado from that sitting. I think it unlikely that Justice Thomas has the majority in Watson, so the election case will likely go to Justice Barrett. I'm not sure how ACB votes here, so it is a tossup.
For April, my prediction on Monsanto was completely wrong. I thought there might be a shot the plaintiffs win, but it wasn't close. They only got Gorsuch and Jackson. Justice Kagan has Chartie. It should be a fun Fourth Amendment case to read.
There are seven remaining cases. We know there is a session on Monday, and maybe the Court will wrap up on Tuesday to avoid spilling into July.
In the new podcast episode, we discuss the mission of the university and its relationship with academic freedom, diversity initiatives in universities relating to faculty hiring and promotion, and institutional speech by university leaders and faculty bodies such as university departments. I've been on the opposite side of Brian on many of those issues, such as institutional neutrality and diversity statements. A useful and enlightening conversation. Give it a listen here.
From the Ohio State Employment Relations Board in In re City of Youngstown, decided in December by Chair W. Craig Zimpher, Vice Chair Sandra Drabik Collins, and Board Member Robert Walter, but just posted on Westlaw:
City violated RC 4117.11(A)(1) when Fire Chief yelled at, physically threatened, uttered racially oriented names (i.e., "punk ass white boys"), and accused Union President and Vice President of being "racist" when they requested information about, and demanded to bargain over, effects of offering EMT class to bargaining unit employees, constituting restraint and coercion in exercise of rights guaranteed to them.
City violated RC 4117.11(A)(1) when Mayor publicly labeled two Union leaders as being racist for engaging in lawful actions, likely causing reputational harm, and restraining their continued protected activity.
City violated RC 4117.11(A)(3) when Mayor condoned Fire Chief's conduct and ratified his views in media. More likely than not, this led to negative characterization of Captains by at least one citizen and at least one Union member. This, in turn, caused each official to have to defend his reputation for merely exercising his duty as Union officer. This reputational harm constituted a change in conditions of employment for Union President and Vice President, because Mayor's conduct specifically harmed their protected right to maintain their good reputation….
When applying Fourth Amendment doctrine, to what extent can race and ethnicity be considered? The Supreme Court denied cert on Monday in United States v. Carter, a case on this question—specifically, on whether the Fourth Amendment test for whether a person is "seized" factors in the person's race. There's an interesting connection between this issue and last fall's debate over the role of race in immigration stops, raised in Noem v. Vasquez Perdomo. I thought it might be worth flagging the potential connection, and to ask about ways to distinguish how the law approaches them.
Here's the context. Carter asked the Court to resolve a longstanding open question in Fourth Amendment law: When applying the Fourth Amendment test for when a person is seized—whether a reasonable person in that situation would feel free to terminate the encounter and leave—does the suspect's race matter? There's a split among lower courts. Some courts say that there is one reasonable person standard for people of any and all races. Other courts say that people of different races tend to have different experiences with the police, and that those different experiences can can lead to a different sense of when they are free to leave. Under the first approach, race is irrelevant; under the second approach, race is relevant.
Justice Alito dissented from the denial of certiorari, joined by Justice Thomas. Justice Alito's dissent raised the question of whether a broader commitment to a color-blind Constitution answered the question in Carter:
We have said that our "'Constitution is color-blind.'" Students for Fair Admission, Inc. v. President and Fellows of Harvard College, 600 U. S. 181, 230 (2023). It "almost never" allows government actors to treat persons differently based on their race. Louisiana v. Callais, 608 U. S. ___, ___ (2026) (slip op., at 17). And we have rejected the proposition that the Constitution permits an individual to be treated differently based on a "perception that members of the same racial group—regardless of their age, education, economic status, or the community in which they live—think alike." Shaw v. Reno, 509 U. S. 630, 647 (1993). It is dangerous to allow an individual to be treated differently based on statistics, studies, or expert testimony that purports to show that members of the racial or ethnic group to which he belongs are more likely to act in a certain way than are members of other groups. Here, the special treatment helped the individual; in other situations it will not. See Buck v. Davis, 580 U. S. 100, 119 (2017).
Perhaps the [lower court's] test has legitimate justifications. In any event, it is important, and it warrants this Court's review. I therefore respectfully dissent from the denial of certiorari.
I don't take Justice Alito to have answered the question of whether a commitment to a color-blind Constitution requires saying race is irrelevant to the seizure analysis, as he was just flagging the question as important and cert-worthy (which seems right to me). Still, Justice Alito's opinion suggests at least that it might do so. And that view has surfaced in some of the lower court caselaw, such as Judge William Pryor's opinion in United States v. Knights, 989 F.3d 1281, 1289 (11th Cir. 2021).
Which brings me to my question: If you believe that a commitment to a color-blind Constitution answers the question in Carter, does it also answer whether race can be used as a basis for cause in making a stop for immigration violations, one of the big questions debated last fall when the Court was considering in Noem v. Vasquez-Perdomo?
As you may recall from Noem, one of the issues involved in reviewing that injunction was the use of race and ethnicity to temporarily stop people for immigration violations, which was a major question in light of ICE enforcement activities. That wasn't a new issue in Fourth Amendment law, to be clear. Back in 1975, in United States v. Brignoni Ponce, the Court had held that a person's perceived Mexican ancestry was relevant to whether to stop them for a possible immigration violation but not enough cause on its own. Brignoni Ponce concluded: "The likelihood that any given person of Mexican ancestry is an alien is high enough to make Mexican appearance a relevant factor, but standing alone it does not justify stopping all Mexican-Americans to ask if they are aliens."
In Noem, last fall, that holding was relied on in parts of Justice Kavanaugh's concurrence explaining his vote in favor of the stay of the district court's injunction. That led some to treat Justice Kavanaugh's opinion as the source of that approach, although I think it goes back to 1975 and Justice Powell's opinion for the Court in Brignoni Ponce (which was joined by Justices Marshall and Brennan, among others). And although this isn't a post specifically about Justices Alito and Thomas, it's perhaps worth flagging (given their dissent on Monday in Carter) that we can't be sure that they agreed with Justice Kavanaugh's reliance on Brignoni Ponce for the stay in Noem, but that it seems at least plausible to surmise that they did.
The broad question I want to flag is whether there is a principled basis for saying that the color-blind Constitution forbids use of race in the Fourth Amendment seizure test in Carter, but that it allows use of race in Fourth Amendment doctrine in determining if there is cause to seize someone in a case like Noem. And consider the flip side of it, too: Is there a principled basis for saying that the color-blind Constitution allows use of race in the Fourth Amendment seizure test, but that it forbids use of race in Fourth Amendment doctrine in determining if there is cause to seize someone? More broadly, does the answer to whether the doctrine can account for race, and derive different answers based on race, have to be the same in these two doctrinal contexts?
