Sorry about that: Didn't properly schedule it, and then was traveling much of the day.
The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
Two Free Speech/Gender Identity/Sexual Orientation Cert. Petitions that the Court Will Consider Friday
[1.] In L.M. v. Town of Middleborough (briefs at link, if you're interested), the question presented is:
L.M. is a student whose public school promoted the viewpoint that sex and gender are limitless, based on personal identity, and have no biological foundation. The school invited students to voice their support for this view. But L.M. disagreed and responded by wearing a t-shirt to class that said "There are only two genders." After the school censored him, he wore a protest t-shirt that said "There are [censored] genders." Despite no past or present disruption, the school district prohibited both t-shirts.
The district court upheld this censorship based on the rights-of-others prong in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969). The First Circuit affirmed based on Tinker's substantial-disruption prong, though it said L.M.'s t-shirts likely failed the rights-of-others prong too, applying a novel test for ideological speech alleged to demean characteristics of personal identity.
The First Circuit's novel legal standard and analysis conflicts with this Court's decisions and those of ten other circuits in a multitude of ways. The question presented is:
The Crime Victims' Rights Movement's Past, Present, and Future (Part II - the Present)
The modern crime victims' rights movement has been remarkably successful in inserting the victim's voice into criminal justice processes.
This post is the second of three posts, serializing my comprehensive law review article on the crime victims' rights movement. In yesterday's post, I described the movement's roots in the history of private prosecution. This post describes the movement's last several decades, during which the movement has successfully created participatory rights for victims throughout America's criminal justice system.
The modern victims' rights movement began to stir in the late 1960s, coalesced in the 1970s, and gained momentum in the early 1980s. The movement has continued ever since "as one of the most significant and successful forces for reshaping the criminal justice process." The movement's birth can be traced to the confluence of five developments: (1) the creation of an academic field of victimology; (2) the introduction of state victim compensation programs; (3) the rise of the women's movement; (4) an increase in crime and an accompanying dissatisfaction with the criminal justice system; and (5) the growth of victim activism.
In late 1982, the President's Task Force on Victims of Crime published a report, calling for victims' rights to be enshrined in criminal justice—and also for adoption of a federal constitutional amendment protecting victims' rights. The Task Force's report catalyzed crime victims' rights efforts across the country. Indeed, the Task Force Report and other similar recognitions of victims triggered "a literal explosion of federal and state action to increase crime victim access to and participation in the criminal justice process."
In 1986, four years after the Task Force released its report, the Justice Department surveyed changes in the criminal justice landscape concerning victims. The Department found that nearly 75 percent of the Task Force's proposals had been implemented to some degree, including the creation of a new Office for Victims of Crime in the Department to help implement the reforms.
Perhaps the most important change sparked by the President's Task Force was the creation of specific crime victims' rights in criminal justice processes. Before 1982, the victims' rights movement had spoken generally about protecting victims' "rights" in criminal cases. Beginning in 1980, states began establishing specific victims' rights by enacting statutory and constitutional victims' bills of rights. Wisconsin was the first state to create a specific list of victims' rights. In 1981, four more states followed suit, and, by 1989, 42 states had enacted statutes called a "victim bill of rights" and most of the remaining states had adopted similar statutory protections.
States also began to add protection for victims' rights in their own constitutions. In 1982, California passed Proposition 8, which was the first state constitutional victims' bill of rights. In a 1984, an ad-hoc gathering of national victim's rights groups decided to first seek constitutional protection for victims' rights in the states before undertaking the significant effort that would be required to pass a federal constitutional amendment—a "states-first approach." The next six amendments that were adopted came from Rhode Island (1986), Florida and Michigan (1988), Texas and Washington (1989), and, perhaps most important, Arizona (1990). These six amendments exhibit a trend from largely aspirational language (Rhode Island's) to more specific guarantees of rights for victims (Arizona's).
These early victims' rights amendments seemed to spur other states to action. In 1991, New Jersey added a state constitutional amendment. In 1992, Colorado, Illinois, Kansas, Missouri, and New Mexico followed suit. In 1993, Wisconsin joined. In 1994, Alabama, Alaska, Idaho, Maryland, Ohio, and Utah added amendments. In 1996, Connecticut, Indiana, Nebraska, Nevada, North Carolina, Oklahoma, South Carolina, and Virginia also added amendments. Oregon passed an amendment that same year, only to see the Oregon Supreme Court overturn it on technical grounds surrounding the initiative process. The court ruling lead Oregon's voters to swiftly reenact an amendment in 1999. In 1998, Louisiana, Mississippi, Montana, and Tennessee approved amendments. Thus, at the turn of the century, 32 states had state constitutional amendments protecting crime victims' rights. As victims' rights advocates had hoped, the state amendments had set the stage for a push to amend the United States Constitution to add a victims' rights provision.
To place victims' rights into the federal Constitution, the National Victims Constitutional Amendment Network and other advocates approached the President and Congress. In 1996, Senators Jon Kyl (a Republican from Arizona) and Dianne Feinstein (a Democrat from California) introduced a federal victims' rights amendment, with the backing of President Clinton. The Amendment was designed to "restore, preserve, and protect, as a matter of right for the victims of violent crimes, the practice of victim participation in the administration of criminal justice that was the birthright of every American at the founding of our Nation." Read More
No Quid Pro Quo. So?
With a deferred prosecution and a dismissal without prejudice, who needs a quid pro quo?
Paul Cassell notes here that the lawyers for Eric Adams have denied, and have offered to make their denial under oath, that there was any prior negotiated quid pro quo involved in the deal under which the DOJ has moved for a dismissal of criminal charges against Mayor Adams. The lawyers wrote:
What we never said or suggested to anyone was that Mayor Adams would do X in exchange for Y, and no one said or suggested to us that they would do Y in exchange for X.
As a consequence, Cassell writes, "the argument that the dismissal motion is inappropriate because a quid pro quo was negotiated has effectively collapsed. Period." (emphasis added). [Though Cassell adds: "To be sure, as noted in my earlier post, one can still legitimately debate whether the dismissal motion was appropriate."]
There's an air of unreality to all of this discussion about whether or not there was a prior negotiated quid pro quo, when in fact it makes no difference whatsoever. Who needs a prior express quid pro quo when you have a deferred prosecution and a dismissal without prejudice?!
Adams doesn't have to agree beforehand to anything for this to be entirely inappropriate. The threat of re-instituting prosecution does all of the work that a prior negotiated agreement would do - it gets Adams to do what the President wants him to do, because everyone involved understands that if he doesn't, the charges will be re-filed and he probably goes to jail. Whether the conversation in which the Attorney General tells Adams that the President would like it if ICE agents could freely enter NYC detention centers, schools, playgrounds, etc. takes place before the motion to dismiss is filed or after the motion to dismiss is filed is entirely immaterial. The result is precisely the same: Adams will take official action as Mayor that he would not otherwise take, not because it is in the interest of New Yorkers, but because of his personal interest in avoiding jail time.
Why else has the DOJ chosen to dismiss these charges without prejudice? What do they think might happen to get them to re-institute the prosecution down the road besides "he didn't play ball"?
And notice, by the way, that, as a coercive tool, the dismissal without prejudice route is far more efficient and effective than a prior negotiated quid pro quo deal. In the latter, you need to specify in advance what actions you want Adams to take; with the former, you can wait and see what you'd like him to do as things move along.
This is not just business as usual. I refer again - for the last time, I promise - to my earlier hypothetical, which needs no express quid pro quo to be effective, and chilling: the Attorney General calls up Justice Barrett, and the following one-sided conversation ensues:
Attorney General: "Justice Barrett, we have information that you have cheated on your taxes, information sufficient to bring forth an indictment against you. We're not going to do that now - but we reserve the right to do so in the future. And surely you know how interested President Trump is in the outcome of X v. Y, now coming before the Court. We know you'll do the right thing."
No quid pro quo needed. Justice Barrett doesn't have to say a word or agree to anything for this to work just fine as a kind of blackmail. [According to Robert Caro's LBJ biography, this was J. Edgar Hoover's preferred modus operandi when he was FBI Director; if the FBI had turned up damaging personal information about a high-ranking political figure, Hoover would dispatch his assistant Clyde Jenkins to speak to the official; Jenkins would inform him that they had the information, and then say something to the effect of "Don't worry; we're keeping it secret." At which point High-Ranking Official was, thereafter, in Hoover's pocket.]
You're free to believe that this is not what Trump is up to here, but I'm quite certain that it is.
How Should the District Court Evaluate the Motion to Dismiss the Charges Against Mayor Adams?
Under existing Second Circuit caselaw, the district court will almost certainly need to approve the motion to dismiss. But existing Circuit law fails to take into account the Crime Victims Rights Act. And there may be a "victim" who rights are being ignored: New York City.
Yesterday, I blogged about the Justice Department's pending motion to dismiss in the criminal case against Mayor Adams. My argument was that the dismissal motion was easy to justify, particularly given the new Administration's change in priorities for law enforcement. I also noted that the Department's dismissal motion would be subject district court review under a deferential "public interest" standard. I also criticized those who argued that the dismissal motion was a negotiated quid pro quo between the Justice Department and Adams—a position that was unequivocally corroborated by a letter to the court from Adams's defense attorneys.
In another development yesterday, the district judge in S.D.N.Y. handling the matter (Judge Dale E. Ho) entered an order directing the parties (the Justice Department and Adams) to appear before him today to "address, inter alia, the reasons for the Government's motion, the scope and effect of Mayor Adams's 'consent in writing,' and the procedure for resolution of the motion."
In this post, I discuss what standard Judge Ho should apply in evaluating the pending dismissal motion, making three points: (1) existing Second Circuit case law is very deferential on issues relating to prosecutorial priorities, which would seem to dictate approval of the dismissal; (2) existing Second Circuit caselaw appears to improperly ignore the possibility that crime victims might exercise their congressionally protected right to be reasonable heard on dismissal motions; and (3) while some parts of the Adams prosecution appear to involve "victimless" crimes, at least one of the counts appears to involve a "victim"—specifically New York City, which has (allegedly) been defrauded of "matching funds" during the election process. If my analysis is correct, the judicial procedures for determining the dismissal will need to include the crime victim's right to confer and to be heard under the federal Crime Victims' Rights Act.
I. The Deferential Standard for Reviewing Dismissal Motions in the Second Circuit.
Turning first to the issue of what standard the district court applies in reviewing a motion to dismiss filed under Federal Rule of Criminal Procedure 48(a), let's start with the rule's text: "The government may, with leave of court, dismiss an indictment, information, or complaint" (emphasis added). The key issue that arises, of course, is how to interpret the "leave of court" requirement. The Advisory Committee Notes to the 1944 Amendment adding this language indicate that this requirement was a "change [in] existing law. The common-law rule that the public prosecutor may enter a nolle prosequi in his discretion, without any action by the court, prevails in the Federal courts."
Interesting history underlies the 1944 Amendment, usefully recounted by (now-Virginia law professor) Thomas Frampton. In his June 2020 Stanford Law Review Online article, entitled "Why Do Rule 48(a) Dismissals Require 'Leave of Court'?", Frampton recounts forty-year-old old dicta in the "sole Supreme Court case interpreting Rule 48(a)," Rinaldi v. United States, 434 U.S. 22 (1977) (per curiam). As Frampton explains, there the Court stated that the "leave of court" language was added to Rule 48(a) "without explanation," but "apparently" this verbiage had as its "principal object …. to protect a defendant against prosecutorial harassment." Frampton's article argues that this position is simply wrong: "In fact, the 'principal object' of Rule 48(a)'s 'leave of court' requirement was not to protect the interests of individual defendants, but rather to guard against dubious dismissals of criminal cases that would benefit powerful and well-connected defendants."
Perhaps the most famous case interpreting the "leave of court" requirement is the 2020 case involving Michael Flynn. There, the Justice Department moved to dismiss criminal charges against Flynn, and the district judge handling the matter, Judge Sullivan, appointed an amicus to argue against dismissal. I blogged about the case at that time--taking the position that the "victimless" crime alleged against Flynn was "a curious one for close judicial scrutiny of a Government motion to dismiss--closer scrutiny should be reserved for cases in which crime victims have a clear interest." Because what I wrote then appears to have some application to the Adams case, I recount some of my analysis about the Flynn case here.
In the Flynn case, the standard that the district judge was to apply in reviewing a motion to dismiss was generally understood to give considerable deference to prosecutors. For example, the D.C. Circuit (the appellate court which had authority over Judge Sullivan) had previously explained the limited role that trial judges have in reviewing motions to dismiss:
Rule 48(a) of the Federal Rules of Criminal Procedure requires a prosecutor to obtain "leave of court" before dismissing charges against a criminal defendant. Fed. R. Crim. P. 48(a). That language could conceivably be read to allow for considerable judicial involvement in the determination to dismiss criminal charges. But decisions to dismiss pending criminal charges—no less than decisions to initiate charges and to identify which charges to bring—lie squarely within the ken of prosecutorial discretion. See e.g., Newman, 382 F.2d at 480. To that end, the Supreme Court has declined to construe Rule 48(a)'s "leave of court" requirement to confer any substantial role for courts in the determination whether to dismiss charges. Rather, the "principal object of the 'leave of court' requirement" has been understood to be a narrow one—"to protect a defendant against prosecutorial harassment … when the [g]overnment moves to dismiss an indictment over the defendant's objection." Rinaldi v. United States, 434 U.S. 22, 29 n. 15 (1977).…
So understood, the "leave of court" authority gives no power to a district court to deny a prosecutor's Rule 48(a) motion to dismiss charges based on a disagreement with the prosecution's exercise of charging authority. For instance, a court cannot deny leave of court because of a view that the defendant should stand trial notwithstanding the prosecution's desire to dismiss the charges, or a view that any remaining charges fail adequately to redress the gravity of the defendant's alleged conduct.
United States v. Fokker Servs. B.V., 818 F.3d 733, 742 (D.C. Cir. 2016). Read More
Claim That Minnesota Agency Retaliated Against Rancher for Petitioning Legislature to Change Law …
can go forward, the Eighth Circuit rules.
From Wagner v. Scheirer, decided last week by Eighth Circuit Judge Bobby Shepherd, joined by Judges Jane Kelly and David Stras:
Wagner owns two separate cattle farming operations in Minnesota. The first is a cow/calf operation aimed at breeding, and the second is an animal feedlot operation aimed at raising cows until they can be sold for processing. Wagner's cow/calf operation takes place in several pastures around Minnesota, while his feedlot operation takes place in feedlots in Minnesota.
Notably, animal feedlots and pastures are not the same under Minnesota law. Feedlots generally use lots and buildings to house animals, while pastures are open grazing areas. The key distinction between the two is the amount of vegetative cover; feedlots are not required to maintain any vegetative cover, while pastures must generally maintain vegetative cover during the growing season.
This distinction is significant because Minnesota feedlots are subject to stricter regulations than pastures. Under Minnesota law, the MPCA [Minnesota Pollution Control Agency] has the authority to adopt permitting requirements for feedlots, but not for pastures. Permitting requirements for feedlots are intended to minimize manure runoff into water sources; pastures are exempt from the rules that feedlots are subject to because the vegetative cover of pastures slows the discharge of manure into water.
The distinction between feedlots and pastures under Minnesota law has been at the center of multiple feuds between Wagner and the Appellees (collectively Scheirer). In two instances in 2014 and 2015, Scheirer accused Wagner of violating certain laws and regulations applicable to animal feedlots and imposed penalties on him. Both times, Wagner denied the violations and disputed Scheirer's authority to regulate the properties—maintaining that they were pastures, not feedlots—but ultimately entered into agreements with Scheirer and paid a portion of the penalties to avoid costly legal fees….
Class Action Not Allowed in Suit Alleging Psychological Harm to TikTok Content Moderators
From yesterday's Order Denying Motion for Class Certification, by Judge Vince Chhabria (N.D. Cal.) in Young v. ByteDance Inc.:
[1.] The primary relief sought by Young on behalf of the class is forward-looking: he wants the Court to order TikTok to institute various protective measures to mitigate the risk that content moderators will suffer psychological harm from reviewing disturbing videos and photos. But Young has no standing to seek such relief in federal court. He is no longer employed as a TikTok moderator and has no intention of returning to that work. He had already left his job by the time he sued TikTok, so the "capable of repetition" doctrine is not available to him. Furthermore, even if Young had quit after he filed suit, he has not submitted sufficient evidence to support his assertion that no monitor would remain in the job long enough to pursue a class action.
[2.] The secondary form of relief Young seeks is something he calls a "medical monitoring fund." There is no mention of this proposed fund in the motion for class certification, much less an explanation of how it would work. On reply, Young makes general reference to it, but still doesn't really explain it. At the hearing, Young's counsel explained that TikTok should be ordered to put money in a fund that would be used to benefit the class in two ways: to monitor all class members for signs of emotional distress, and to provide people treatment (for example, therapy) in the event they need it.
Even after this explanation, the Court lacks the information necessary to assess whether such a fund would be feasible. For example, while Young uses the phrase "medical monitoring," he seems to be asking for more than that: by saying it's for treatment in addition to monitoring, he's proposing to provide compensation for injuries that have been or will be suffered by class members. In the same breath, Young says that this is "not a personal injury case," even though he is proposing that class members receive at least partial compensation for their personal injuries. Nor has Young explained how fund administrators would be able to determine whether any mental health condition suffered by a class member was caused by watching disturbing videos or by something else in their life, or some combination of both. It's not even clear, based on the parties' briefs, that this proposed fund should be considered retrospective relief or prospective relief, or a combination of the two. This is not to suggest that a fund could never be a proper remedy in a case like this, but Young has not adequately explained how it would work.
The Battle over Judge Newman's Unconstitutional "Stealth Impeachment" Continues
Judge Newman files a powerful reply to the unprecedented claim of the Federal Circuit's Judicial Council that she can be suspended from her duties indefinitely. And the Judicial Council's recent hiring of adversarial experts raises new questions about bias against Judge Newman.
I've previously blogged about the "stealth impeachment" of Judge Pauline Newman of the Federal Circuit. This post reviews Judge Newman's recently filed reply brief and the Federal Circuit's recent hiring of adversarial experts against Judge Newman. The whole process continues to raise troubling constitutional questions.
Some quick background: Judge Newman has been "temporarily" suspended by the Federal Circuit's Judicial Council due to her alleged failure to cooperate with a Special Committee of the Circuit. The Committee was investigating Judge Newman's alleged declining mental capacities. Judge Newman has sought federal judicial review of whether her indefinite suspension violates her constitutional rights. But a judge on the D.C. District Court dismissed many of her claims as not subject to judicial review and rejected her facial constitutional challenges to the Judicial Conduct and Disability Act. She has appealed to the D.C. Circuit.
In December, I joined former judges Susan Braden, Janice Rogers Brown, Paul Michel, Randall Rader, and Thomas Vanaskie in an amicus brief (written by experienced appellate lawyer Richard Samp) urging the D.C. Circuit to direct that Judge Newman's claims be reviewed on their merits. And now, just last week, Judge Newman herself weighed in with a powerful reply to the Judicial Council's position that it can simply suspend her from her judicial duties under the Judicial Conduct and Disability Act, at least so long as she continues to draw her salary. Here is Judge Newman's response (some citations omitted):
Article III does require that duly-appointed judges exercise "judicial power," which is "the power to make authoritative and final judgments in individual cases." William Baude, The Judgment Power, 96 Geo. L.J. 1807, 1815 (2008).
[The Judicial Council's] argument that a judge "subject to a temporary suspension who still holds her commission and is still entitled to draw her salary has not been dismissed from her office" must fail. First, entitlement to salary is a guarantee that is separate and apart from the guarantee that office will be held "during good Behaviour." Nat'l Comm'n on Judicial Discipline and Removal, Report, 152 F.R.D. 265, 287 (1993). Second, there is nothing "temporary" about Judge Newman's suspension. This is recognized even by neutral commentators. See Dennis Crouch, Is Google Simply Asking for More Efficient Infringement?, Patently-O (Jan.29, 2025), https://tinyurl.com/5bushudm ("I put 'temp' in scare quotes because it appears that [Judge Newman's] suspension is—in fact—permanent."). And third, having a framed commission on the wall while being unable to exercise any powers granted by that very commission, is meaningless. Judge Newman's commission, like commissions of Defendants-Appellees and of every judge of this Court, "empower[s] her to execute and fulfil the duties of [her] Office … and to Hold the said Office with all the powers … to the same of right appertaining …." Judge Newman's suspension from her judicial office deprived her of the effects of the very commission upon which Defendants-Appellees rely as evidence that she continues to hold office. While it is true that as a literal matter Judge Newman's seat on the Court is not vacant, the Constitution "deals with substance, not shadows." Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 325 (1867). A functional removal runs afoul of Article III's protections no less than a formal removal would. Ergo, any act of Congress other than impeachment and removal that divests a judge of "the power to make authoritative and final judgments" violates Article III's guarantee that judges "shall hold their Offices during good Behaviour." U.S. Const. art. III, § 1. Such a divestment is a removal from office (whether permanently or temporarily) in all effects.
You can read Judge Newman's entire brief here.
Judge Newman's on-going suspension has the potential to interfere with many other cases. For example, with Judge Newman suspended, it would seem that en banc proceedings in the Federal Circuit could be improperly constituted—and later en banc decisions could be invalidated—because Judge Newman has been barred from participating. The New Civil Liberties Alliance (which is representing Judge Newman in the suspension proceedings) recently made this point in an amicus brief in an important en banc case currently before the Federal Circuit. En banc proceedings must be conducted before all judges in "regular active service." And yet Judge Newman is not being allowed to participate.
H/T to my co-blogger, Josh Blackman, for coming up with a pithy phrase that captures exactly what is happening here: "stealth impeachment." Of course, the Constitution does not permit stealth impeachment. That should be the end of the matter.
BTW: If you want to see the (supposedly mentally disabled) Judge Newman speaking just a few months ago, you can watch her cogently defending her legacy—and her right to serve—in a 49-minute video here. Frankly, she seems to be on the ball and "with it." Watching the video prompts one to wonder if her suspension has anything to do with the fact that she has long been a powerful critic of the judicial opinions of other members of the Federal Circuit?
Speaking of other members of the Federal Circuit, one curious thing about the Judge Newman's suspension is that it appears to have been orchestrated by the Chief Judge of the Federal Circuit, and then agreed to by other members of the Circuit. It is not unusual for issues of judicial conduct to be resolved by referrals to judges in a different Circuit from the one involved, who would have a more detached point of view. Josh Blackman made this point powerfully when the suspension proceedings started, explaining that the decision not to refer the issues to a different circuit
is especially problematic due to the nature of the allegations. Here, we are not dealing with a misconduct complaint from a litigant, or private citizen, who objects to something the judge did on bench, or in public. Rather, the allegations here concern actions that Judge Newman has taken during the opinion writing process. Other than the final date on which an opinion is actually published, the public has no knowledge about how the sausage is made. We do not know when drafts were circulated. We do not know how long judges took to make and revise edits. And we do not know whether complicated legal issues made the process take longer. The only people who have this evidence would be the fellow judges of the circuit, including [the Chief Judge], and court staff. Yet, [the Chief Judge] purports to decide whether there was misconduct. She is the fact-witness, the fact-finder, and the adjudicator. There is an apparent conflict of interest.
In its brief, the Judicial Council responds that it has given Judge Newman due process and that this is not a case that would be better handled by judges outside the Federal Circuit. But Josh's point about an apparent conflict of interest seems even more salient given recent events in the case, namely the Federal Circuit's hiring of adversarial experts against Judge Newman. Read More
Today in Supreme Court History: February 19, 1942
2/19/1942: President Roosevelt issues Executive Order 9066. The Supreme Court would consider the constitutionality of this Executive Order in Korematsu v. U.S. (1944).
President Trump's Executive Order on Birthright Citizenship is Unconstitutional
Trump is doing many great things but trying to get rid of birthright citizenship is not one of them
Section 1 of the 14th Amendment says that "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." Trump's defenders argue that children born of illegal immigrants in the United States have never entered into a social compact that makes them citizens of the United States protected by U.S. law.
Samarth Desai, a second year law student at Yale Law School, has a devastating response to this claim, which was recently argued for by Georgetown Law Professor Randy Barnett and University of Minnesota Law Professor Ilan Wurman in an op-ed in the New York Times. Desai's article, with which I totally agree, appears below.
Birthright Citizenship: A Test Case
Samarth Desai
President Trump's birthright-citizenship executive order is illegal and unconstitutional, and no "allegiance-for-protection theory" can save it.
No one doubts that children born on American soil to unauthorized migrants were "born … in the United States." So if these children are not birthright citizens, it must be because they were not "born … subject to the jurisdiction" of the United States despite being born under the American flag.
Two prominent scholars claim, in the New York Times and elsewhere, that the children of unauthorized migrants were not born "subject to the jurisdiction" of the United States because their parents disobeyed the laws by entering illegally. According to these scholars, (1) jurisdiction depends on obedience (as a condition of a theoretical social compact), and (2) the disobedience of a parent can be imputed to a child. Unauthorized migrants "gave no obedience or allegiance to the country when they entered," these scholars say. "[T]hey and their children are therefore not under the protection or 'subject to the jurisdiction' of the nation."
This allegiance-as-obedience theory has an obvious and simple test case: Confederate rebels and their children.
If Professors Barnett and Wurman are right, then Confederate rebels and their children would also not have been "subject to the jurisdiction" of the United States, and it would have been perfectly constitutional to deny or revoke their birthright citizenship. Confederate rebels were, after all, paradigmatically disobedient. In the words of the Prize Cases (1863), they had "declared their independence," "cast off their allegiance," "organized armies," and "commenced hostilities" against the United States. True, Confederate rebels, unlike unauthorized migrants, were at one point citizens, but this distinction is irrelevant if jurisdiction requires the existence of a social compact conditioned on obedience to the laws.
There Was No Quid Pro Quo in the Mayor Adams Case. Period.
So say Mayor Adams's distinguished defense attorneys in a letter to the district court filed earlier today. And they offer to say so under oath.
I blogged this morning about the Justice Department's motion to dismiss the pending federal charges against Mayor Adams. In my post, I criticized those who argued that there was a "quid pro quo" for the dismissal motion. See, e.g., this VC post by David Post. I explained that the Department's motion to dismiss did not provide any conditions on the dismissal. And I argued that there was no proof of a quid pro quo, and any such deal seemed unlikely.
In breaking news, powerful new support for my conclusion was just filed today on the docket of the criminal case. In a letter to Judge Ho, Mayor Adams's well-regarded criminal defense attorneys—Alex Spiro and William A. Burck of the well-regarded national law firm, Quinn Emanuel—have denied any quid pro quo directly. Discussing the January 31, 2025, presentation made by the defense, they state unequivocally:
At no time prior to, during, or after the meeting did we, Mayor Adams, or anyone else acting on behalf of Mayor Adams offer anything to the Department, or anyone else, in exchange for dismissal of the case. Nor did the Department, or anyone else, ever ask anything of us or the Mayor in exchange for dismissing the case. There was no quid pro quo. Period.
(Emphasis added.)
As recounted in their letter, the defense attorneys explained that Acting Deputy Attorney General Bove invited them to a meeting, where he asked the defense attorneys how the case might be affecting Mayor Adams's ability to do his job and whether there was any evidence of politicization. At the meeting, the defense attorneys explained that "the indictment and upcoming trial were impeding Mayor Adams in myriad ways, including as to enforcement of federal immigration laws, and that Damian Williams's post-SDNY conduct raised serious concerns about his motives in authorizing the prosecution." They were asked to memorialize their position, which they did in a letter. (Found here as Exhibit A.)
In their letter today, the defense attorneys further explain that they heard nothing more until they learned from the press a few days ago that the Justice Department had decided to dismiss the case:
We heard nothing further until February 10, 2025, when we learned from the press that the Department had decided to dismiss the case. We had no heads up or prior notice. We never coordinated with the Department or anyone else. We never offered anything to the Department, or anyone else, for the dismissal. And neither the Department, nor anyone else, ever asked anything of us for the dismissal. We told the Department that ending the case would lift a legal and practical burden that impeded Mayor Adams in his official duties. And that it was the just thing to do because the case was exceptionally weak on the merits and very likely had been championed by Mr. Williams for what appeared to be self-interested reasons. We believe we were right and stand by what we said. What we never said or suggested to anyone was that Mayor Adams would do X in exchange for Y, and no one said or suggested to us that they would do Y in exchange for X.
The distinguished defense attorneys offers to confirm all these points "under oath in sworn declarations."
This new statement should put to rest any argument that there was a negotiated quid pro quo between the Justice Department and Mayor Adams. I have not seen any reason to doubt what the distinguished defense attorneys say. To be sure, as noted in my earlier post, one can still legitimately debate whether the dismissal motion was appropriate. But the argument that the dismissal motion is inappropriate because a quid pro quo was negotiated has effectively collapsed. Period.
Court Declines to Block Federal Government's New "Government-Wide Email System"
The employees who claimed adoption of the system violated the E-Government Act of 2002 lacked standing to bring the challenge, a federal judge concluded.
From yesterday's decision by Judge Randolph Moss (D.D.C.) in Doe v. Office of Personnel Mgmt.:
In late January 2025, the Office of Personnel Management ("OPM") began to test "'a new capability allowing it to send important communications to ALL civilian federal employees from a single email address,'" and OPM subsequently began using this new system to send messages "to most if not all individuals with Government email addresses." That new system uses the email address HR@opm.gov and is known as the "Government-Wide Email System" or "GWES." This putative class action challenges the process by which OPM implemented this new system.
Plaintiffs are two federal executive branch employees and five other individuals who have ".gov" email addresses but are not executive branch employees. They contend that in the rush to adopt this new system, OPM at first entirely failed to comply with Section 208 of the E-Government Act of 2002, which requires the preparation of a Privacy Impact Assessment ("PIA") before "initiating a new collection of [certain] information … using information technology," and, then, when confronted with that omission, immediately threw together an inaccurate, insufficient, and unconsidered PIA in the hope of mooting the case. According to Plaintiffs, OPM's failure to prepare a meaningful Privacy Impact Assessment has left vast amounts of private information, including the government email addresses of millions of individuals (which reveal their names and, at least in some cases, their employers) at risk of disclosure in the event that the GWES is hacked.
OPM, for its part, contends that it was not required to prepare a PIA because, on OPM's reading, Section 208 does not apply to the collection of information about government employees, as opposed to about members of the public. And, even if that contention is wrong—either because it has misread the statute or because OPM inadvertently collected email addresses from individuals who do not work for the federal government but nonetheless use .gov or .mil email addresses—OPM, in any event, has now prepared a PIA. That is all that is required, on OPM's telling, and the Court lacks the authority to examine the "substance and accuracy" of the PIA that the agency prepared….
Chris Christie on the Eric Adams Controversy
Since my cobloggers have been discussing this, on both sides of the question, I thought I'd also pass along Chris Christie's column on this in the Free Press. (Before becoming Governor of New Jersey, Christie had been a federal prosecutor, culminating in heading the federal prosecutorial office for the District of New Jersey.) His conclusion:
Finally, as to Mayor Adams, I have reached no judgment on his guilt. How could I? Like every American, he is presumed innocent, and an indictment contains allegations by the DOJ that have to be proved beyond a reasonable doubt. His job now is to prove to the citizens of New York City that he serves the people who elected him and has not become a tool of any other force in order to save himself personally from having to face these charges. The oath he took requires nothing less from him.
The administration has an obligation to work as hard as they can to implement the policies the American people voted for in November. They also have an obligation to assure the public that the criminal law will be administered fairly and not used as a carrot or a stick to achieve any goal other than to have the guilty held to account for their conduct and the innocent free of unwarranted criminal charges.
This is an embarrassing episode for the Department of Justice and further undercuts the public confidence in our system of justice. Congress and the courts must play their constitutional role as well and not sit as idle bystanders while our system of justice is not de-weaponized, but just weaponized in a different direction. Either dismiss forever an indictment Mr. Bove characterizes as politicized and tainted, or let the charges proceed and let a jury of his peers judge the allegations against Mayor Adams.
Again, I have no well-informed view on the subject, but I agree that it's an important issue, and thought Christie's perspective was worth passing along.
The Crime Victims' Rights Movement's Past, Present, and Future (Part I - the Past)
The victims' rights movement is rooted in America's long tradition of private prosecution, in which crime victims were able to initiate and pursue their own criminal prosecutions.
I've just posted on SSRN my comprehensive law review article on the crime victims' rights movement's past, present, and future. This is the first of three posts this week, summarizing my article. This post discusses the roots of the movement. Historically, crime victims played a central role in criminal justice processes through private prosecutions—i.e., the ability of victims to initiate or participate in criminal prosecutions. In light of this history, the recent efforts to protect victims' interests in the criminal justice system are a throwback to times past.
Interestingly, while the crime victims' rights movement is often alluded to, no definitive history has yet been written. Perhaps this is because, at least among legal academics, relatively little interest exists in victims' rights. But whatever the reason, this absence of a clear description of the movement has had important consequences. With the victims' rights movement inadequately described, some critics have tried to paint it as nothing other than a "carceral rights movement"—a thinly veiled, retributive effort to lock up as many criminals as possible for as long as possible. Because the movement is broadly based, these academics have been free to cherry-pick a few victims' initiatives and argue that they prove the movement's general, punitive thrust.
My article responds to the critics who have capitalized on the void in scholarship to unfairly critique the movement's aims and policy successes. Contrary to the simplistic portrait often drawn, the movement's primary goals do not focus on substantive criminal case outcomes, such as increasing death sentences or extending prison terms. Instead, the movement is concerned with the procedural objective of ensuring that victims' voices are heard throughout the criminal justice process. The movement contends that criminal justice procedures should incorporate victims voices without regard to any outcomes that may result. And the movement can powerfully argue that, properly understood, American history supports this procedural inconclusion.
The relevant history begins with America's system of private prosecution—that is, criminal prosecutions pursued by private citizens. In a world of private prosecution, crime victims' rights become a redundancy. Because historically crime victims could initiate and pursue their own prosecutions, their rights were automatically protected.
In reviewing the history of private prosecution, we are fortunate to have four recent scholarly endeavors shedding light on the practice. First, in 2020, Professor Bennett Capers published his provocative article—"Against Prosecutors"—which critiqued the overwhelming power of prosecutors in modern criminal justice. Capers sought to show that private prosecution is "part of our collective cultural DNA." Indeed, Capers concluded that the American public prosecutor is a "historical latecomer," whose arrival was not inevitable. The public prosecutor's ascendancy meant that "[v]ictims have lost power," particularly victims who were "already disadvantaged because of gender, or race, or class, or sexuality." Capers noted that this shift of power is "all but absent from criminal law casebooks" but sheds important light of how a criminal justice system with more victim involvement might operate.
Two years later, in 2022, two comprehensive historical reviews of private prosecution were published. In an extended law review article, historian Jonathan Barth assessed what he called the "confusion and mystery surrounding the history of the office of the public prosecutor in early America." Barth noted that some historians believed that private prosecution had disappeared by the time of the Constitution's ratification. But his meticulous scholarship demonstrated that early Americans used "a hybrid system of criminal prosecution through at least the middle of the nineteenth century." Read More
More on Birthright Citizenship and Undocumented Immigrants - Rejoinder to Barnett and Wurman
Why their response to me and other critics fails to refute key objections.
In a recent blog post, Randy Barnett and Ilan Wurman have responded to my piece and others criticizing their NY Times op ed that had offered partial defense of President Trump's executive order denying birthright citizenship to children of undocumented immigrants, and migrants in the US on temporary visas. I think they fail to effectively rebut several key points, most notably that their argument - if applied consistently - would also deny birthright citizenship to recently freed slaves - the group the Citizenship Clause of the Fourteenth Amendment was principally intended to protect.
Section 1 of the Amendment grants citizenship to anyone "born … in the United States and subject to the jurisdiction thereof." Barnett and Wurman argue that only people who have exchanged "allegiance" for "protection" qualify as "subject to the jurisdiction" of the US. As pointed out in my earlier post, freed slaves did not qualify, because they had never made any such exchange. The US government sought to compel their obedience, but did not offer any meaningful protection. To the contrary, it facilitated their subjugation and oppression.
In their response, Barnett and Wurman state that " enslaved persons brought here against their will were not afforded protection of the law. But obedience and ligeance were demanded of them nonetheless." The US, they say, owed them protection in exchange. The obvious problem here is that a demand for obedience without any reciprocal provision of protection is not an "allegiance-for-protection" compact. It's just straight-out coercion in exchange for virtually nothing. One could just as easily say that a Mafia protection racket qualifies as "allegiance-for-protection." Indeed, the slavery situation was actually worse than that, since the Mafia usually doesn't impose lifelong forced labor on its victims.
If a mere demand of obedience is enough to trigger "jurisdiction," than illegal migrants also qualify. After all, the US government certainly demands their obedience to its laws. They can be prosecuted for crimes, subjected to civil suits in US courts, and so on.
At one point, if I interpret them correctly, Barnett and Wurman seem to suggest that the allegiance-for-protection exchange may have occurred when the former slaves were freed. I anticipated this kind of argument in my previous post:
This situation changed, to an extent, with the abolition of slavery through the Thirteenth Amendment. But the "subject to the jurisdiction" language of the Citizenship Clause refers to people subject to that jurisdiction at the time they were born. For example, the [US-born] child of a foreign diplomat doesn't get birthright citizenship if her parents later lose their diplomatic immunity.
By its very nature, birthright citizenship is acquired through circumstances present at the time of one's birth, not by ones that occur years later.
Barnett and Wurman also continue to err in focusing almost exclusively on materials that predate the drafting and enactment of the Fourteenth Amendment. Given that the whole purpose of the Citizenship Clause was to grant citizenship to a large class of people who didn't have it before, we cannot assume that it was merely following preexisting legal rules (even assuming that Barnett and Wurman interpret the latter correctly). Scholars who have canvassed the drafting and enactment history, and its aftermath find that the evidence supports birthright citizenship for the undocumented. See, for example, Michael Ramsey's extensive work on this subject.
The source Barnett and Wurman rely on the most is an 1862 opinion by Attorney General Edward Bates. Even assuming this opinion is relevant to the construction of the Citizenship Clause (drafted years later), Barnett and Wurman fail to effectively address Jed Shugerman's critique of their construction of it. As Shugerman points out, far from concluding that an allegiance-for-protection exchange is necessary to trigger birthright citizenship, Bates argued the exact opposite: being born in the United States creates a presumption of citizenship, which in turn triggers both allegiance and protection. As Bates put it, "nativity furnishes the rule, both of duty and of right, as between the individual and the government" (emphasis added).
Barnett and Wurman overlook this crucial point in both their original article and their response. I am not convinced the Bates opinion should be given any great weight in interpreting the Citizenship Clause. As a legal matter, it is not actually an interpretation of the Citizenship Clause, which had not yet been drafted. As a matter of political theory, I find the argument that mere birth triggers an obligation of allegiance morally repugnant. But to the extent that Bates' position matters, it actually undercuts the Barnett-Wurman thesis rather than supports it.
Finally, Barnett and Wurman continue to claim that their opponents' position cannot account for such anomalies as the denial of birthright citizenship to people born on foreign public vessels in US waters and its extension to children of American citizens born in territories occupied by an invading army. I covered both in my original post:
These aren't actually anomalies at all. As the Supreme Court ruled in 1812, foreign public vessels in US territorial waters remain under the sovereignty of their governments, and therefore are not within US jurisdiction. Citizens residing within enemy-held territory remain under an obligation to follow US law, and that duty can be enforced upon them in a way it cannot be on foreign troops (for example through prosecutions undertaken after the US recaptures the territory).
I would add that the US government retains a variety of other means of leverage over US citizens residing in temporarily occupied territories. For example, it can strip them of citizenship if they commit treason by collaborating with the enemy. Such people remain under US jurisdiction in a way invading enemy troops are not.
Finally, I think Barnett and Wurman are wrong to suggest that the phrase "subject to the jurisdiction" is ambiguous with respect to the issue at hand. In both ordinary usage and legal parlance, "jurisdiction" refers to authority. A person is subject to the jurisdiction of a government if that entity can exercise power over her by enforcing its laws against her. There may be some situations where the term is used in a non-standard or counterintuitive way. But if so, the burden of proof is on those who advocate an interpretation that deviates from ordinary usage.
In sum, I much appreciate Barnett and Wurman's thoughtful efforts to address criticisms and clarify their position. But the ultimate result does more to highlight the power of the critiques than to refute them.
UPDATE: It may be worth reiterating, as stated in my earlier post, that the Barnett-Wurman argument - even if completely sound - cannot justify the part of Trump's order denying birthright citizenship to children of migrants who legally entered the US on temporary visas.
Every #Resistance Has an Equal and Opposite Counter-Resistance
Not to defend any particular action of the counter-resistance or the resistance, but just to observe something about politics.
Supreme Court amicus briefs on gun crime in Mexico
Mexico's amici take shots at our brief in Smith and Wesson v. Mexico
In Smith & Wesson Brands, Inc. v. Estados Unidos Mexicanos, the Mexican government is suing several of the most popular American firearm manufacturers in an attempt to hold them liable for violence committed by Mexican drug cartels in Mexico. The Mexican government seeks billions of dollars in damages and the imposition of extensive gun controls in America.
This post is coauthored with Joseph Greenlee, who is a research associate at the Independence Institute (where I work) and Director of the Office of Litigation Counsel for the National Rifle Association's Institute for Legislative Action.
We filed an amicus brief on behalf of the National Rifle Association, FPC Action Foundation, and Independence Institute in support of the American manufacturers. The State of Montana, joined by 25 more states, filed a brief as well. In response to these two briefs, a group of social science, medical, and legal scholars supporting the Mexican government joined a brief filed by Crowell & Moring aimed at refuting our claims. This post addresses their arguments.
Homicides in Mexico after the 2004 repeal of the American "assault weapon" ban
Mexico's amici accuse us of denying "there has been a significant increase in gun violence in Mexico since the expiration of the U.S. assault weapons ban in 2004." They fault us for "conflat[ing] the Mexican homicide rate . . . with the overall rate of national gun violence." Actually, it was the Mexican government that argued "homicides in Mexico . . . increased dramatically beginning in 2004." Mexico Complaint at ¶ 13 (emphasis added). And the Mexican government has focused its statistical case on the number of homicides and the homicide rate. E.g., Complaint at ¶¶ 14, 279, 440, 441, 442, 444, 450, 471, 472.
Our brief provided statistics—which the amici did not dispute—that "Mexico's homicide rate was lower during each of the first three years after the ban's expiration (2005–2007) than during any year in which the ban was in effect (1995–2003)." The plaintiff, the Mexican executive branch, incorrectly told courts that Mexican homicides "increased dramatically beginning in 2004."
In later years, Mexican homicides have increases. We argued that the increases were caused by the Mexican government's military offensive against its own citizens, the militarization of public security forces, government corruption, the government's failure to punish criminal conduct, and the Mexican government's human rights violations—including unlawful killings by police and military, forced disappearance by government agents, torture committed by security forces, and violence against journalists. In other words, the homicide increase is the result of the Mexican government's own misdeeds and failures, not the American manufacturers' lawful activity.
New Episodes of the Academic Freedom Podcast
Conversations on campus free speech with Timothy Zick, Jennifer Ruth, and Michael Berube
In recent weeks, the Academic Freedom Podcast has released two new episodes focusing on campus free speech issues.
First up was a conversation with Timothy Zick, the John Marshall Professor of Government and Citizenship at William & Mary Law School. He is the author most recently of Managed Dissent: The Law of Public Protests. The episode focuses on the law surrounding public protests on and off college campuses.
Next was a conversation with Jennifer Ruth and Michael Berube about their recent book, It's Not Free Speech: Race, Democracy, and the Future of Academic Freedom. They are both long-serving leaders in the American Association of University Professors, and the book develops a provocative proposal for patrolling the acceptable boundaries of extramural speech by university faculty.
More to come.
