The Volokh Conspiracy

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

The Volokh Conspiracy

Immigration

How to Abolish ICE

Recent events in Minnesota bolster the already strong case for abolishing ICE - and for the plan of doing so by transferring its funds to ordinary state and local police.

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Recent Immigration and Customs Enforcement (ICE)  depredations in Minnesota further strengthen the already compelling case for abolishing the agency. A recent federal district court ruling outlines in detail ICE's extensive use of force against peaceful protestors, violations of a variety of constitutional rights, and other cruel, unjust and illegal actions.  Moreover, it is clear that these wrongs are not just the fault of a few rogue agents, but structural defects in the agency and its mission, exacerbated by the Trump administration's enormous expansion of it, and hiring of numerous dubious new recruits. The agency doesn't even follow its own supposed safety guidelines, which neglect was one of the reasons for the indefensible killing of Renee Good.

These widespread abuses have turned already skeptical public opinion further against ICE, to the point where a substantial majority of Americans disapprove of the agency, and - for the first time - a narrow plurality want to see it abolished.

Abolition is indeed the right approach. In an August 2025 article in The Hill, I outlined how to do it: by shutting down the agency and transferring its funds to state and local police. This strategy would have the virtue of  simultaneously further expanding political support for abolition,  reducing crime, and ending ICE abuses. Here is a brief excerpt:

The Immigration and Customs Enforcement agency has become notorious for its cruelty, abuses of civil liberties and racial profiling. As a result, the agency and the Trump administration's deportation policies generally have become increasingly unpopular…..

[M]ost Democrats have hesitated to call for the agency's abolition, probably for fear of seeming to be soft on crime…. But opponents can avoid such accusations by combining abolition of ICE with reallocation of its funds to ordinary police, which would undercut accusations of being pro-criminal or anti-law enforcement. This could greatly expand support for abolition….

In my 2022 book "Free to Move," I proposed dismantling ICE and giving the money to ordinary police, perhaps in the form of federal grants to state and local law enforcement. Recipient agencies should be required to use the funds to target violent and property crime, and abjure ICE-style abuses.

Putting more ordinary police on the streets is an effective way to reduce crime rates, according to a long line of studies….

Focusing on undocumented immigrants is a poor use of law enforcement resources…. Transferring ICE funds to state and local police would allow a greater focus on violent and property crime, regardless of the perpetrators' background….

Abolishing ICE would not end all deportations. State and local authorities could still, in many cases, turn illegal migrants over to the federal government for removal… But abolishing ICE would make deportation much more dependent on state and local cooperation and would empower jurisdictions to make their own choices.

This strategy is even more viable today than might have been the case a few months ago. Events in Minnesota have further turned public opinion against ICE, and the idea of transferring its funds to real cops can provide an additional boost for abolition, by neutralizing fears that doing so would somehow increase crime. In addition, transferring the money to state and local cops could draw support from law enforcement interest groups that would stand to benefit.

In the August article, I also outlined how ICE abuses - including illegal violence, racial profiling, and horrific detention conditions - were already ubiquitous, even before the outrages in Minnesota. Recent events are an expansion of these evils, not a singular aberration. In that article, and a follow-up piece for the Boston Globe, (non-paywalled version here), I addressed a number of possible objections, such as concerns that local police also engage in various abuses. Here is an excerpt from that second article:

Many studies show that putting more police on the streets can reduce crime. Indeed, diverting law enforcement resources from deportation to ordinary policing can help focus more effort on the violent and property crimes that most harm residents of high-crime areas. Deportation efforts, by contrast, target a population with a lower crime rate than others…..

Some progressives might nonetheless oppose transferring funds to conventional police. The latter, too, sometimes engage in abusive practices, including racial profiling. I share some of these concerns and am a longtime advocate of increased efforts to combat racial profiling. But comparative assessment is vital here. Despite flaws, conventional police are much better in these respects than ICE, with its ingrained culture of brutality and massive profiling. They have stronger incentives to maintain good relations with local communities and don't need to rely on racial profiling nearly as much to find suspects. A shift of law enforcement funds from ICE to conventional police would mean a major overall reduction in racial profiling and other abuses.

Survey data show most Black people (the biggest victims of profiling) actually want to maintain or increase police presence in their neighborhoods, even as they (understandably) abhor racial profiling. Grant money transferred from ICE could potentially be conditioned on stronger efforts to curb racial profiling and related abuses, thereby further reducing the problem. It should also be conditioned on spending it on combatting violent and property crime, and structured in a way that prevents excessive dependence on federal funding.

If ICE can be abolished without transferring the funds to local and state police, I would still support doing so. But the strategy I outline offers the most likely pathway to political success, and could simultaneously reduce criminality in high-crime neighborhoods.

I first outlined this general approach to immigration and crime issues in Chapter 6 of my 2022 book "Free to Move: Foot Voting, Migration, and Political Freedom," where I also make other points on why crime control is a poor justification for deportation and immigration restrictions. See also my more recent discussion of these broader issues here.

Guns

Arkansas Case on Zoning Laws Being Used to Exclude Gun Shops

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In yesterday's Arkansas Supreme Court decision in Eureka Gun & Pawn, LLC v. City of Eureka Springs, the majority dismissed Eureka Gun & Pawn's appeal on procedural grounds. But three of the seven Justices opined on the substantive issue; from Justice Shawn Womack's concurrence, joined by Justices Barbara Webb and Nicholas Bronni:

[H]ad the matter proceeded in its proper posture, Eureka Gun should have prevailed on the merits…. Eureka Gun presented substantial evidence—including from the City's own planning-commission members and nearby commercial owners—that its application satisfied the ordinance's factors and that the proposed use was compatible with the surrounding district. And, other than testimony from City officials that they would not approve a CUP [Conditional Use Permit] for any business to sell firearms anywhere in the city, there was no real evidence identifying an ordinance factor that weighed against the CUP….

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Politics

Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal

Bad aim, conjugal visits, and a cavalier gun dealer.

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Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

Hot dang! Today, the Michigan Supreme Court agreed to hear an IJ case of keen interest to state constitutional mavens: whether there's an implied cause of action to bring constitutional-tort claims against local governments and local officials who behave very, very poorly. (We say yes.)

And speaking of state constitutions, if you're a fan of courts interpreting them as something other than carbon copies of the federal Constitution, IJ's Rob Peccola has a heartening tale about Pennsylvania's search-and-seizure provision for you over at the Brennan Center's State Court Report.

New on the Short Circuit podcast: If someone bails you out make sure you get a receipt.

  1. In which the Second Circuit finds that Cavalier Knight has standing to challenge New York's gun-dealer licensing law but somehow spends 14 pages on legal analysis instead of just acknowledging that a guy named "Cavalier Knight" really has no choice but to become a gun dealer.
  2. Federal officials arrest lawful permanent resident to avert "potentially serious adverse foreign policy consequences." Permanent resident: That's bogus, this is all retaliation for my pro-Palestinian speech. D.N.J.: Release him. Third Circuit (over a dissent): Vacated. He can pursue his claims later in the removal process, and if he's wrongfully imprisoned in the meantime, well, that happens all the time.
  3. In the days following 9/11, co-founder of Falls Church, Va. Islamic Center tells followers they should repent, leave the U.S., join the mujahideen, go to Pakistan for combat training, and otherwise help Muslims defend Afghanistan. He's convicted of a slew of offenses in 2005, including soliciting others to levy war against the U.S. (It's on direct appeal some two decades later following a series of intervening appeals about the man's access to relevant documents.) Fourth Circuit: As inflammatory, disturbing, and deeply offensive as his words may have been, they did not urge a concrete criminal plan or provide operational assistance for the commission of any particular offense. Thus, his speech was protected by the First Amendment and his convictions vacated. Read More

AI in Court

Business Is Apparently Selling AI-Hallucination-Filled Documents to Unwary Litigants, Court Says

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From Judge Michael Liburdi (D. Ariz.) last Friday in Gardner v. Nationstar Mortgage LLC:

Through these proceedings, brought by Plaintiff to halt a foreclosure of her home, the Court learned of non-party document preparers seeming to hold themselves out as attorneys and using undisclosed artificial intelligence platforms ("AI") to draft documents used in this litigation on Plaintiff's behalf. By all appearances, these document preparers purported to help her prevent foreclosure of her home while diverting funds she could have used towards the mortgage payment it and preparing claims without legal basis for Plaintiff to file.

Thus, the Court brings the matter to the attention of the State Bar of Arizona and the Attorney General of Arizona. The Court instructs the Clerk of Court to provide a copy of this order to each for investigation, if appropriate, and such further action as these entities deem necessary….

After the death of her husband, Plaintiff took over the financial responsibilities of her household; as a result, she faced foreclosure and initiated this action. A recognized title company referred Plaintiff to Clearpoint. Fearful of losing her home, Plaintiff hired Clearpoint to prepare her legal documents.

Plaintiff did not understand any of the legal documents she submitted to the Court and followed instructions from Clearpoint throughout the litigation process because her contacts called themselves the "Litigation Team." … After removing the case [to federal court], Nationstar filed responsive pleadings, in which it highlighted over sixty instances of inapplicable law, nonexistent cases or legal principles, and misconstrued holdings and quotations in Plaintiff's Complaint and Amended Motion for Preliminary Injunction.

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Free Speech

Year in Prison for Role in Hate Crime Hoax

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So Judge Regina M. Rodriguez (D. Colo.) decided yesterday in U.S. v. Blackcloud; for more on the case, see this November 2024 press release by the U.S. Attorney's office in Colorado:

The United States Attorney's Office for the District of Colorado announces that Derrick Bernard Jr., 35, [Ashley] Blackcloud, 40, and Deanna West, 38, were indicted by a federal grand jury for maliciously conveying false information about a threat made by means of fire: a burning cross in front of a campaign sign defaced with a racial slur.

According to the indictment, the three defendants were charged for their alleged roles in a conspiracy to spread disinformation about the threat. The 2023 Colorado Springs mayoral run-off election involved Candidate 1, who was Black, and Candidate 2, who was white.  After the initial election but before the run-off, Bernard sent a message to the other defendants in which he explained he was "mobilizing my squad in defense. Black ops style big brother." He also sent messages referencing a desire to prevent "the klan" from gaining political control of the city. Bernard then worked with Blackcloud and West to stage, at an intersection in the City of Colorado Springs in the early hours of April 23, 2023, a cross burning in front of a campaign sign for Candidate 1 defaced with a racial slur. The three then allegedly spread false information about the event through an email from an anonymous source to various news and civic organizations.

And from the indictment:

During the election, supporters of CANDIDATE 1 placed a campaign sign encouraging others to vote for CANDIDATE 1 in a grassy area on the northwest corner of the intersection of North Union Boulevard and East Fillmore Street, two of Colorado Springs's major traffic arteries. On or about April 23, 2023, between approximately 2:30 a.m. and 3:30 a.m. BERNARD, BLACKCLOUD, and WEST worked together to place a wooden cross in front of that campaign sign. Red spray paint, similar in kind to a can later found in the passenger compartment of BLACKCLOUD's car, was used to write the word "nigger" on the sign. The wooden cross was then set on fire….

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Affirmative Action

"The Waning of Racial Preferences at American Law Schools, 2021-2025," by My UCLA Colleague Rick Sander

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From this new draft, cowritten by Prof. Sander and Henry Kim:

In June 2023, the Supreme Court broadly held that colleges and universities could not confer an admissions advantage to an applicant on the basis of the applicant's race. The ruling was fairly clear, but its likely effects were not. There were two major uncertainties. Would the institutions that had been using large racial preferences for decades actually change their practices in a substantive way? And if they did, would Black and Hispanic enrollments at elite colleges and professional schools crash?

The schools themselves were not forthcoming about their plans, aside from generally expressing a determination to preserve diversity. Higher education leaders had long maintained two conflicting precepts: first, that their admissions officers took account of race to only a modest degree, but second, that prohibiting these modest preferences would have a catastrophic effect on minority enrollments. They did not willingly share any data on actual admissions processes that would demonstrate whether either of these claims were true.

Journalists and education scholars thus watched closely when colleges and professional schools began to release enrollment data in the fall of 2024. The picture remained muddy: some schools, such as MIT and Amherst, reported large drops in undergraduate minority (especially in Black) enrollment; other schools, such as Yale and Princeton, reported either small drops or actual increases. Among professional schools, few reported large drops in minority enrollment. So, what was happening? Were elite colleges and universities generally ignoring the law? Had they found some way around the Court's decisions? No small part of the Trump Administration's offensive against many schools in 2025 seemed motivated by this perception. But pretty much everyone, including higher education leaders themselves, has had few real clues about how much actual practices were changing.

This article provides the first systematic analysis of how, in an important realm of higher education, the use of race in admissions has changed over the past few years. We focus on the two hundred accredited law schools in the United States, partly because the past patterns of racial preferences in law schools are particularly well understood. We make use of a new data source—a website on which applicants themselves report the outcomes of their law school applications—that allows us to draw credible conclusions about the operation of law school admissions in each of the past five admissions cycles. Over twenty thousand applicants have used the website "lsd.law" over the past five years to self-report their academic credentials, their race, and the outcomes of their law school applications.

This data is subject to a few caveats, and it is noisier—that is, it has more inaccuracies—than data directly reported by law schools, but we find that it nonetheless provides highly credible estimates of law school admissions practices. (See Section 2 for a more detailed assessment of the data.) In particular, we have enough observations to estimate accurately the average size of racial preferences across each of six "tiers" of law school, ranked by admissions selectivity, for each of the five admissions cycles from 2020-21 through 2024-25.

We find that racial preferences at elite law schools were much the same in 2021 and 2022 as they had been for decades—that is to say, very large and very widespread for Black applicants; about half as large, and less consistently applied, for Hispanic applicants. By the 2024-25 admissions cycle, however, the size of racial preferences for Black applicants had fallen by about half, and preferences for Hispanic students had similarly fallen by half in some tiers, and in others had fallen to levels too small to be detected in our data. Presumably because of the decline in preferences, longstanding credential disparities between Black students and their white and Asian classmates fell as well—indeed, perhaps fell even more sharply. But despite the diminished use of preferences (and possibly, because of the diminished use of preferences) Black and Hispanic applications to law schools rose in 2023-24 and 2024-25, and, minority enrollments in law schools as a whole rose in absolute numbers while falling only modestly in relative terms.

Six Key Findings

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Politics

Zen and the Art of Persuasive Writing, Abstract to Concrete: Analogies and Metaphors. 

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Make the important interesting.  —James Fallows

We have plumbed the depths of abstract words, but what about abstract ideas? Abstractions are a fact of professional life. The law is littered with them. Think of the legislative process, intellectual property and apportionment of congressional seats. These concepts or ideas are hard to understand because readers cannot see, touch, taste, hear or smell them. Readers cannot grasp or shape them in the mind's eye.

Concrete renditions of abstract material give respite to weary readers who must hurdle abstraction after abstraction like it's a track and field event. A visual image or concrete example anchors your ideas in the physical world. Research and my experience show the elixir for abstractions is analogies, pictures, charts and rhetorical figures.

A. Analogies, Metaphors and Similes

First is analogies, metaphors, and similes, each a figurative device. They broadcast a high-definition picture straight to the human brain. Readers can practically see and touch your point because these devices appeal to physical senses. And again, this is particularly important in persuasive writing because the writer has room to develop the point.

Persuasive writers use analogies, metaphors, and similes to revive a reader's flagging attention and increase the likelihood of comprehension. Words and images are processed on parallel pathways of the brain, and readers can better process and recall new points when presented both verbally and visually.

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When a Justice Shares The Name With The Party

Justice Barrett did not write Barrett v. United States, but other Justices wrote the majority opinion who shared a name with a party.

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On Wednesday, the Court announced the opinion in Barrett v. United States. It would have been fitting if Justice Barrett wrote the majority opinion, but it was not meant to be. Justice Jackson got the assignment.

Just out of curiosity, I searched opinions where the Justice who wrote the majority opinion shared a name with a party. For example, advanced: TI(Kennedy) & JU(Kennedy)

Going back to the 1930s, I found about a dozen examples. I excluded examples where a corporation had a name in it; I only focused on a person's name.

  1. Justice Kennedy wrote the majority opinion in Kennedy v. Louisiana (2008).
  2. Justice Thomas wrote the majority opinion in Peacock v. Thomas (1996).
  3. Justice White wrote the majority opinion in Alabama v. White (1990).
  4. Justice O'Connor wrote the majority opinion in O'Connor v. Ortega (1987).
  5. Justice White wrote the majority opinion in Cory v. White (1982).
  6. Justice Marshall wrote the majority opinion in Marshall v. Jerrico, Inc. (1980).
  7. Justice Powell wrote the majority opinion in Stone v. Powell (1976).
  8. Justice White wrote the majority opinion in American Party of Texas v. White (1974).
  9. Justice White wrote the majority opinion in White v. Regester (1973).
  10. Justice White wrote the majority opinion in White v. Weiser (1973).
  11. Justice White wrote the majority opinion in United States v. White (1971).
  12. Justice Douglas wrote the majority opinion in Douglas v. People of the State of California (1963).
  13. Justice Stone wrote the majority opinion in Stone v. White (1937).

I wonder if the namesakes had anything to do with the assignments--especially the White cases. Justice White had six majority opinions where the party's name was White. No other Justice had more than one. Most had zero.

Fun fact for the evening.

Hecox May Still Hide In Justice Kennedy's Shadow

There is nothing originalist about Footnote Four, animus, and suspect classes. Let it go already.

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When Skrmetti was decided, I was critical of Justice Barrett's concurrence. She rehabilitated Footnote 4, gave credence to Justice Kennedy's animus jurisprudence, and all but wrote that gays who were affected by a "legacy of de jure discrimination" are a suspect class. None of these doctrines are consistent with original meaning. Yet, Justice Barrett seemed intent on fitting the transgender case into Justice Kennedy's framework. As I wrote in Civitas, "the Court remains in the shadow of Justice Anthony Kennedy." And regrettably, Justice Thomas joined this opinion, even as he previously joined Justice Scalia in repudiating the Footnote 4 dictum.

Regrettably, like a groundhog, the Justices in Hecox appear to still be hiding in Justice Kennedy's shadow. Let's start with Justice Gorsuch.

JUSTICE GORSUCH: There's another way to think about the case that your friends on the other side posit, and that is that transgender status should be conceived of as a discrete and insular class subject to scrutiny, heightened scrutiny, in and of itself given the history of de jure discrimination against transgender individuals in this country over history in immigration and family law, cross-dressing statutes, they get a long laundry list. And I'd like you to respond to that.

Justice Gorsuch seems absolutely intent on recognizing transgender people as a suspect or quasi-suspect class. He said nothing at all about the issue in Skrmetti, because he didn't have to. The Chief dodged the status issue altogether by finding non-suspect classifications based on age and medical treatment. It was a typical Robertsian dodge, that merely postponed the day of reckoning.

Perhaps the best conservative defense of Bostock is that Gorsuch was simply persuaded by the hyper-technical textualist argument he adopted (I was not), but he was agnostic about the underlying merits issue.  But this question suggest that Gorsuch was also moved by the LGBT policy arguments underlying the case. Remember, an argument that cut against Gorsuch's Bostock analysis was that it would be preposterous for the Congress in 1964 to have inadvertently prohibited discrimination against transgender people. Here, Gorsuch states clearly there is a history of de jure discrimination against those people. If governments banned cross-dressing, then would Congress prohibit employers from firing cross-dressers? Wouldn't that argument undermine Gorsuch's reading of Title VII?

Alan Hurst, the Idaho Solicitor General, responded to the de jure discrimination point:

MR. HURST: Certainly, the de jure discrimination point specifically. There has been some discrimination against transgender people, significant discrimination against transgender people in the history of this country. The same can be said of many groups. The same could have been said of the mentally disabled in Cleburne, et cetera, et cetera. I think Justice Alito's concurrence in Skrmetti is helpful to this in saying this quasi-suspect class or suspect class process, what we're really looking for is classes that look like race or like sex. And if you compare the discrimination in this case, where not one of the laws they cite actually classifies expressly on the basis of transgender status, if we look at that history and we compare it to the history of African Americans and women who were not able to vote, who were not able to own property, who had express classifications based on their status written into the law for most of this country's history, these things don't compare. They're just not alike.

The simple answer is Hecox does not require the Court to address whether transgender status is a suspect class. The statute at issue makes no reference to transgender status at all. It is a sex-based classification, and sex is defined based on biology. But even if the Court were to go down that road, this status would not be quasi-suspect or suspect. Discrimination against transgender people is not comparable to racial discrimination and sex-based discrimination.

Prior to the ratification of the Nineteenth Amendment, biological males who may have identified as women were still allowed to vote. Prior to the ratification of the Fourteenth Amendment, biological females who may have identified as men were still able to own property. Jim Crow and the laws of coverture did not discriminate on the basis of gender identity. America fought a civil war over racial oppression. The suffrage movement spread from coast-to-coast to persuade people that women deserved the vote.

Moreover, as Justice Kennedy's opinion in Lawrence demonstrates, it is not even clear how vigorously sodomy laws were enforced against consensual gay relations. (That's not to say such relations were a "fundamental" right protected by law, anymore than abortion was a "fundamental" right.) Even in 2003 when Lawrence was decided, the number of sodomy prosecutions nationwide was close to zero. There is good reason why racial discrimination is subject to strict scrutiny and sex-based discrimination is subject to intermediate scrutiny. Of course, none of these tiers of scrutiny are supported by original meaning. The Court really needs to let this doctrine go, and stop trying to apply it in new contexts.

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Second Amendment Roundup: Hawaii's Ban on Firearms on Property Open to the Public

In Wolford, the Supreme Court should clarify the facial/as-applied issue.

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As we have been posting, on January 20, the Supreme Court will hear oral argument in Wolford v. Lopez, where the question presented is: "Whether the Ninth Circuit erred in holding, in direct conflict with the Second Circuit, that Hawaii may presumptively prohibit the carry of handguns by licensed concealed carry permit holders on private property open to the public unless the property owner affirmatively gives express permission to the handgun carrier?"

Hawaii's Act 52 provides that a licensee may not "enter or remain on private property of another person while carrying a loaded or unloaded firearm … unless the person has been given express authority."  It applies regardless of whether the property is open to the public.  Since the challengers disown contesting the constitutionality of the ban on private property not open to the public, can it be said that the law is not unconstitutional in all applications?  No, because one part of a law may be facially unconstitutional, and another part of the law may not be.

Moreover, although plaintiffs formally state that their challenge is both facial and as applied, is there any real difference here?  "As applied" normally refers to application to specific plaintiffs, and if their claim is valid here, the law is unconstitutional as applied to everyone.  (By contrast, there was a reason Mr. Rahimi, a bad dude, forewent a challenge as applied to himself.)

In Respondent's Brief, Hawaii argues that the petitioners have "made an all-or-nothing argument akin to a facial challenge and, having done so, they cannot succeed unless 'no set of circumstances exists under which the [law] would be valid' as applied to private property open to the public."  The quoted wording is from Rahimi and derived from Salerno.  (That apparently refers to the separate "sensitive places" bans that would apply to places open to the public.)  While Hawaii did not make a full-fledged argument on that basis, this would be a good opportunity for the Court to clarify the issue, as the law here poses the same question on which other courts have been grappling.

In particular, as I posted here, the Fourth Circuit held in LaFave v. Fairfax County, Va. (2025), that a ban on firearms in the public parks, which are mostly wooded and twice the size of Manhattan, is not facially unconstitutional because of the existence of four preschools on a tiny portion of the parkland.  No matter that no element of the offense pertains to schools or that state law separately bans firearms in schools.

Similarly, as posted here, in oral argument before the Second Circuit about another park ban, Christian v. James, 25-384-cv, New York's attorney argued that "if 99% of a law is unconstitutional, but is 1% ok," it is valid because it has a constitutional application.  While that case has not yet been decided, in Antonyuk v. James (2024) the Second Circuit held that because (supposedly) "the law has a plainly legitimate sweep as to urban parks, the facial challenge fails notwithstanding doubt that there is historical support for the regulation of firearms in wilderness parks, forests, and reserves."  Despite that concession, the court did not enjoin enforcement in such rural areas.

In Knife Rights v. Bondi, pending in the Fifth Circuit, the United States argues that the federal Switchblade Knife Act is not facially unconstitutional because it can be validly applied on military bases and courthouses, even though it does not mention such places.  Its ban on crossing state lines with such arms operates essentially as a ban on them.  (If truth be told, the law was a silly reaction to use by fictional gangs of push-button knives in movies like Rebel Without a Cause and West Side Story.)

Such decisions and arguments are completely adverse to how the Supreme Court decides Second Amendment cases.  Heller declared D.C.'s handgun ban unconstitutional even though it said in dicta that bans on handguns in felons' possession or in schools were presumptively valid.  The Court confirmed in City of Los Angeles v. Patel (2015) that Heller involved a "facial challenge."  And in Bruen, the Court wrote that "there is no historical basis for New York to effectively declare the island of Manhattan a 'sensitive place' simply because it is crowded and protected generally by the New York City Police Department."  Or because it is filled with courts and schools, where firearms may not be carried.

By contrast, Rahimi held that the ban on gun possession by a person found by a court to represent a credible threat to the physical safety of an intimate partner or child is not facially unconstitutional.  Nor was the Bail Reform Act upheld in Salerno, because it required the court to find with clear and convincing evidence that no release conditions of an arrestee will reasonably assure the safety of any other person and the community.  Both laws require a judicial finding of specific persons of dangerousness.  In other words, in both cases the laws required a finding of the key constitutional facts.

By contrast, some lower courts have invented hypothetical statutes and then assert that because the hypothetical statute that the legislature could have enacted (but did not) would be constitutional under the Second Amendment, then the actual, real-world statute is also constitutional for the same reasons. Not only is this not what Salerno or Rahimi said, but it also violates the separation of powers because such courts purport to rewrite a statute into a new one that does not exist.

At bottom, whether a firearm prohibition facially violates the Second Amendment raises two questions.  First, what are the elements of the offense of the law at issue?  Second, does the crime as defined survive Second Amendment scrutiny as decided by Heller, Bruen, and Rahimi?  Conjuring up a parade of horribles of activities beyond what the statute encompasses is not part of that exercise.

Dismissal of Second Amendment challenges based on an overly-formal dichotomy between facial and as-applied characterizations misunderstands how the Supreme Court sees the differences.  As the Court explained in Citizens United v. Federal Election Comm'n (2010), "the distinction between facial and as-applied challenges is not so well defined that it has some automatic effect or that it must always control the pleadings and disposition in every case involving a constitutional challenge." Instead, "it goes to the breadth of the remedy employed by the Court, not what must be pleaded in a complaint."  Wolford poses an appropriate opportunity for the Court to bring lower courts in line with its Second Amendment jurisprudence.

For further analysis explaining why cases like Antonyuk and Lafave have erred in their approach to facial challenges, see Peter A. Patterson, Facial Confusion: Lower Court Misapplication of the Facial/As-Applied Distinction in Second Amendment Cases, 19 Harv. J. L. & Pub. Pol'y Per Curiam 1, 2 (2025).  Mr. Patterson is my co-counsel on a cert petition being filed in LaFave.

Opinion Allowing Elon Musk's Claims Against OpenAI to Go Forward, Partly Allowing Claims Against Microsoft

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The opinion by Judge Yvonne Gonzalez Rogers (N.D. Cal.) in Musk v. Altman was just posted.

Musk's breach of charitable trust, constructive fraud, fraud, and unjust enrichment claims against OpenAI can go forward, as can Musk's claim against Microsoft for aiding and abetting breach of fiduciary duty. Musk's tortious interference with contract claim against Microsoft was thrown out. Musk's unjust enrichment claim against Microsoft was also thrown out, but on the grounds that he "may 'pursue [unjust enrichment] as an equitable remedy' for aiding and abetting 'rather than [as] a separate cause of action.'"

Recall that "This action arises from a contentious dispute between Elon Musk and Samuel Altman (and their respective companies) over large, charitable donations that Musk made to OpenAI, Inc. during the company's infancy and Microsoft's later investments in OpenAI, Inc.'s for-profit ventures." I haven't followed the case closely enough to opine (though I was local counsel for Larry Lessig on an amicus brief he filed). But I thought some of our readers might be interested in the opinion.

Supreme Court

When Is a Corporation Also New Jersey?

A few thoughts on the oral argument in Galette v. N.J. Transit Corp.

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The Supreme Court heard argument yesterday in Galette v. New Jersey Transit Corporation, a pair of consolidated cases asking whether the New Jersey Transit Corporation shares in the State of New Jersey's sovereign immunity. The plaintiffs, who were hit by N.J. Transit buses in Pennsylvania and in New York, argue no. Sovereign immunity is for sovereigns, and New Jersey deliberately created the Corporation as a separate legal person—with separate capacity to sue and be sued, separate wins and losses in court, and separate assets and liabilities.

Will Baude and I agree, as we wrote in an amicus brief: States retain the immunity from suit they had at the Founding, and that immunity extended to the sovereign States themselves, not to their political subdivisions or public corporations. But there were four questions that came up at argument that deserve further attention.

The first question is whether corporate separateness needs to be assessed de jure or de facto. As a matter of law, the Corporation has its own assets and liabilities, and a loss for the Corporation in court doesn't necessarily have any impact on the rights and obligations of the State of New Jersey. In practice, of course, New Jersey routinely subsidizes the Corporation and contributes to its budget. So if the Corporation has to pay Cedric Galette's medical bills after its bus hits Galette's car, that might eventually impose some minor burden on the state fisc. But whether an entity is amenable to judicial process and to being sued without its consent doesn't depend on whether a sovereign government will eventually choose to bail you out. Everyone agrees that New York City lacks sovereign immunity and is a separate legal person from New York State, even though NYC going bankrupt would be a major headache for New York's balance sheet; everyone agrees the "Greenspan put" or Fannie Mae's implicit government guarantee doesn't turn "too big to fail" banks and mortgage guarantors into sovereigns with immunity from suit. Another defendant here, N.J. Transit Bus Operations Inc. was created as a separate corporation even from N.J. Transit, with even less of an argument for immunity; yet if Bus Operations had to pay a plaintiff's medical bills, the fact that the Corporation might bail it out rather than give up on running buses wouldn't make subsidiary and parent the same legal person. (A de facto test might also create strange results in future cases, when the facto's might have changed. If NJ Transit ridership ​goes through the roof, turning it from a cost center into a major cash cow for New Jersey, will the courts then have to overrule any decisions finding the Corporation immune, depending on its budgetary prospects this year?)

A second question involved two civil procedure doctrines, the "real party in interest" doctrine and the required joinder of parties. Normally, under Civil Rule 17, a lawsuit has to be brought by or against the "real party in interest." And when a remedy sought against Party A actually affects the rights and obligations of Party B—say, by rescinding a three-sided contract to which plaintiff, A, and B are all parties—Rule 19 sometimes requires that B be made a defendant too, as a necessary or indispensable party. And when B has sovereign immunity, as in Republic of the Philippines v. Pimentel, sometimes that might require dismissing the whole action at once. This can often muddy the sovereign-immunity waters, because arguing that "this lawsuit naming a separate legal person is really seeking relief against the State" sounds a lot like arguing that "the person who's named here is really just the State, and not a separate legal person at all." But as the Court has made clear in past cases—such as Hopkins v. Clemson Agricultural College of South Carolina, which was filed against a separate legal person but sought removal of a State-owned dyke on State land—these are two very different arguments: one concerns the named defendant's amenability to process, and the other concerns the permissible types of relief. Fortunately, here these confusions don't come up. By state law, the N.J. Transit Corporation's liabilities aren't liabilities of the State, so a money damage award against the Corporation can't make New Jersey the real party in interest.

A third question was about the "blast radius" of the plaintiffs' position. The Corporation noted that various States have labeled their agencies as corporations—especially some important parts of the government of Louisiana. We're not experts in Louisiana law (which, being rooted in civil law rather than common law, is famously opaque to outsiders), but we'd be surprised to learn that Louisiana cabinet departments were really separate legal persons from the State, with their own separate capacities to sue and be sued, their own separate courtroom wins and losses not binding the State's rights and obligations, and their own separate legal assets and liabilities. So the blast radius of a separate-legal-person test is likely smaller than it might appear. But suppose that for some reason Louisiana really did decide to set up its prison system (or what have you) as a separate corporation, with the corporation owning the prison buildings and such outright, and with the State not legally answering for its debts or being estopped by its courtroom losses—the way Fannie Mae might guarantee mortgages not guaranteed by the United States. That might seem a very strange thing to do, but if it's what the State chose, would it be so strange to say that its choice might have consequences for the corporation's suability too?

Finally, a fourth point concerned the Court's decision in Biden v. Nebraska, which centered on the Missouri Higher Education Loan Authority, a Missouri public corporation. MOHELA has the independent capacity to sue and be sued, but the Court still found that a financial injury to MOHELA was enough of an injury to Missouri to support the State's Article III standing. But Article III injury-in-fact is a different (and more capacious) concept than legal personhood; a parkgoer can be injured in her "[a]esthetic and environmental well-being" without having to be the same legal person as Sequoia National Park. As one of us noted in an amicus brief in Biden, the authorities were divided on whether MOHELA was an arm of the state for sovereign immunity purposes. But the Biden majority elected not to resolve such questions, instead responding that "a public corporation can count as part of the State for some but not 'other purposes.'" If Biden decided that the arm-of-the-state inquiry didn't determine the standing issue there, it'd be unusual (to say the least) for the Court to treat Biden's standing holding as determining the arm-of-the-state-inquiry here.

(cross-posted from Divided Argument)

Legal Ethics

More on Lawyer Hijinks in Laura Loomer's and Bill Maher's Depositions

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From an order today by Magistrate Judge Philip Lammens in Loomer v. Maher (M.D. Fla.) (the underlying case is a defamation lawsuit over Maher's saying President Trump "might be" "fucking" Loomer):

On December 4, 2025, the Court entered an Order directing counsel for Plaintiff, Larry Klayman, and counsel for Defendants, Kate Bolger, to show cause why they should not be sanctioned for their conduct at the depositions of Bill Maher and Laura Loomer. The Court was sincerely shocked by counsel's conduct at those depositions—conduct which fell well below the standards of professionalism that this Court expects and that are mandated by the Florida Bar. In issuing its show cause Order, the Court was focused on explaining why counsel's conduct at the depositions was unacceptable, resetting the tone of this litigation (which has been unusually contentious), and ensuring that counsel would conduct themselves with civility and professionalism moving forward.

The court began by discussing Ms. Bolger's response, and concluded "its objectives in issuing the order to show cause were achieved" because "Ms. Bolger was remorseful and apologetic, she took full responsibility for her behavior, and she re-committed herself to litigating this action with civility and professionalism—standards to which she has held herself over the course of her 25-year career. Accordingly, the order to show cause is discharged as to Ms. Bolger."

The court then turned to Mr. Klayman's response:

In stark contrast, Mr. Klayman fails to acknowledge that he did anything wrong at the depositions. In fact, Mr. Klayman blatantly ignores the countless instances of unprofessional conduct identified by the Court—including name calling, bickering, improper objections, and failing to restrain Ms. Loomer's outrageous conduct—and instead, explains why he was rightfully frustrated by Ms. Bolger's conduct at the depositions, why his improper objections were well-founded, and even appears to shift blame to the Court for not granting his requests for in-person discovery conferences and for (according to Mr. Klayman, who made the suggestion "respectfully") the undersigned's purported bias towards Ms. Bolger and her clients.

Unfortunately, this is not an isolated instance of unprofessional conduct for Mr. Klayman. Indeed, over the past thirty years, Mr. Klayman repeatedly has been sanctioned and condemned for violations of court rules and professional standards, both in the Middle District and throughout the United States.

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Can You Waive A Substantive Canon?

Justice Gorsuch suggested that the West Virginia did not raise the clear statement rule, Justice Sotomayor countered that a substantive canon cannot be waived.

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I have written a few posts on Hecox, which I will come back to later. Here, I want to talk about the companion case, West Virginia v. B. P. J., which turned on Title IX.

Title IX is, at bottom, conditional spending legislation. Educational institutions that accept federal money have to comply with a host of requirements. Often, Title IX cases arise when a University fails to comply with some requirement, and the Federal government files suit. The remedy in such a case would be the withholding of federal funds, or some other injunctive relief to require compliance with the regulations. We have seen similar litigation by the Trump Administration against universities under Title VI. In such cases, the universities will often raise the defense that the statute failed to clearly spell out the requirement. This argument is basically an application of the clear statement rule: Pennhurst State Sch. & Hosp. v. Halderman (1981) requires that conditional spending requirements must be clearly stated.

Individual plaintiffs can also bring Title IX suits. They usually allege that the University failed to comply with some federal rule. For example, the University did not prohibit some form of sex discrimination or the University failed to afford the accused with adequate due process. But in these plaintiff-initiated suits, it is less likely that the University would challenge whether the regulation itself was invalid.

Justice Jackson pointed out that the Court has not had occasion to apply the clear statement rule outside the context of damages cases.

JUSTICE JACKSON: But, counsel, can I just ask you about this, though? Have we ever applied the Spending Clause's notice requirement outside of the damages context? Because, here, we're not talking about a situation in which B.P.G. is seeking damages, and I thought that was sort of a crux of the Spending Clause analysis.

MR. WILLIAMS: I will concede, Your Honor, that many of the cases that talk about this arise in the context of --or maybe even all of -

JUSTICE JACKSON: All of them.

MR. WILLIAMS: All of the cases arise in the context -

JUSTICE JACKSON: Yes. Thank you.

MR. WILLIAMS: I'll concede as much, yes, Your Honor. But I don't think the Court has ever suggested that a specific request for damages is the reason for its analysis. And I think that actually would be inconsistent -

JUSTICE JACKSON: But we would be having to address that, I guess, and extend it in the --in this context if we were to take a Spending Clause tack.

Assuming such a claim outside of the damages context is valid, was the issue waived in this case? This question arose during oral argument in West Virginia v. B. P. J.

West Virginia argues that Title IX should not be read to require universities to allow biologically male athletes to participate in female athletics. They invoke the clear statement rule, and contend that there was no clear indication when Title IX was adopted that this requirement was present.

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