The Volokh Conspiracy

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

Members of the Texas National Guard assemble at the Army Reserve Training Center in Elwood, Illinois — Texas National Guard members in Illinois (Brian Cassella/TNS/Newscom)

On Monday, in Trump v. Illinois, the Supreme Court ruled against Donald Trump in an important case involving his use of the National Guard for domestic law enforcement. The ruling is not a final decision on the merits; it is just a rejection of Trump's motion for a stay of the lower court ruling against him. But the Supreme Court decision strongly suggests the majority believes Trump's actions are illegal, and will rule against him when and if the Court considers the case more fully. In the meantime, Trump's use of the National Guard in Illinois remains blocked. I think the Court got this key issue right, though I might have preferred they rely on somewhat different reasoning.

The official rationale for Trump's use of the National Guard here is the supposed need to counter anti-ICE protests in the Chicago area, some of which had allegedly included elements of violence. In order to deploy the Guard, Trump invoked 10 U.S.C. Section 12406, which can only be used to federalize state National Guard forces and employ them for law enforcement in one of the following situations:

1) the United States, or any of the Commonwealths or possessions, is invaded or is in danger of invasion by a foreign nation;

(2) there is a rebellion or danger of a rebellion against the authority of the Government of the United States; or

(3) the President is unable with the regular forces to execute the laws of the United States

No one claims Illinois has been invaded, and - as the Seventh Circuit explained, there is pretty obviously no "rebellion or danger of a rebellion" in Chicago. Thus, Trump primarily relies on the argument that he is "unable with the regular forces to execute the laws of the United States." In an unsigned per curiam opinion, the Supreme Court majority rejected that claim:

The Government asked this Court to stay the District Court's order…. We directed the parties to file supplemental letter briefs on an issue that the District Court had addressed but the parties' initial briefs had not: the meaning of the term "regular forces" in §12406(3). In its supplemental brief, the Government argues that the term refers to civilian law enforcement officers, such as those employed by Immigration and
Customs Enforcement or the Federal Protective Service.

Respondents, echoing the District Court, maintain that the term refers to the regular forces of the United States military. We conclude that the term "regular forces" in §12406(3) likely refers to the regular forces of the United States military. This interpretation means that to call the Guard into active federal service under §12406(3), the President must be "unable" with the regular military "to execute the laws of the United States." Because the statute requires an assessment of the military's ability to execute the laws, it likely applies only where the military could legally execute the laws. Such circumstances are exceptional: Under the Posse Comitatus Act, the military is prohibited from "execut[ing] the laws" "except in cases and under circumstances expressly authorized by the Constitution or Act of Congress." 18 U. S. C. §1385. So before the President can federalize the Guard under §12406(3), he likely must have statutory or constitutional authority to execute the laws with the regular military and must be "unable" with those forces to perform that function.

At this preliminary stage, the Government has failed to identify a source of authority that would allow the military to execute the laws in Illinois. The President has not invoked a statute that provides an exception to the Posse Comitatus Act. Instead, he relies on inherent constitutional authority that, according to the Government, allows him to use the military to protect federal personnel and property. But the Government also claims—consistent with the longstanding view of the Executive Branch—that performing such protective functions does not constitute "execut[ing] the laws" within the meaning of the Posse Comitatus Act. See Supp. Letter Reply Brief for Applicants 8; 1 Supp. Op. OLC 343, n. 1 (1971) (collecting sources). If that is correct, it is hard to see how performing those functions could constitute "execut[ing] the laws" under
§12406(3).

This seems right to me. The term "regular forces" is one usually used in a military context, not one dealing with civilian law enforcement. For a more detailed defense of this position, see the excellent amicus brief by Georgetown law Prof. Marty Lederman, which may have influenced the Court. At the same time, I think the stronger and more straightforward rationale for the Court's ruling would have been to simply endorse the district court's and the Seventh Circuit's conclusion that there was no breakdown of law and order sufficient to qualify as an "inability" to enforce the law, regardless of whether the term "regular forces" exclusively refers to the military or not. There is less ambiguity about this than about the meaning of "regular forces."

Taken literally, an "inability" to fully enforce the law always exists. In virtually every community there are people who get away with violating federal law. For example, over 50% of adult Americans admit to having used marijuana at some point in their lives; marijuana possession is a federal crime. Many have also violated other federal laws and regulations without getting caught. Moreover, if "inability" exists anytime federal law isn't fully enforced, it makes the "invasion" and "rebellion" prongs of Section 10246 redundant, since those circumstances virtually inevitably create situations where federal law cannot be fully enforced. Thus, I think Section 3 applies only when there is a general breakdown of law and order, as may happen when there is large-scale rioting or the like.

Justice Kavanaugh concurred in the result, making it a 6-3 decision. But he argues the majority's reasoning went too far. He does, however, seem to agree with the basic point that the "regular forces" referred to in Section 3 are regular military forces, and that Section 3 therefore can only be used invoked in situations where the president is authorized to use the military.

In a dissent joined by Justice Thomas, Justice Alito argues that the court violated the "party presentation" rule, which requires decisions to consider only issues raised by the parties. I am no expert on party presentation, so perhaps I am missing something here. But it seems to me that the issue of what qualifies as inability to "execute the laws" with "regular forces" clearly was raised, and that's enough for the Court to be able to consider whether "regular forces" are limited to the military or not. In addition, as the majority notes, the Supreme Court actually asked for additional briefing on this very issue. At SCOTUSblog, Dan Epps offers additional considerations that weigh against Alito's position.

Alito also argues that the disturbances caused by the anti-ICE protests were more substantial than the district court ruling indicates. I think the district court is much more persuasive on this issue. In addition, appellate courts are not allowed to overturn trial court factual findings unless the latter are "clearly erroneous," and there is no such blatant error here.

Justice Gorsuch wrote a separate dissent in which he partially agreed with Alito's analysis, such as on the party presentation question. But - much more than Alito and Thomas - he leaves open the possibility that he might ultimately decide the case in favor of Illinois, including on both statutory and constitutional grounds.

As Dan Epps points out, a footnote in Justice Kavanaugh's concurring opinion seems to backtrack on his previous endorsement of the use of racial profiling in immigration enforcement. In footnote 4, Kavanaugh states the following:

The Fourth Amendment requires that immigration stops must be based on reasonable suspicion of illegal presence, stops must be brief, arrests must be based on probable cause, and officers must not employ excessive force. Moreover, the officers must not make interior immigration stops or arrests based on race or ethnicity. Cf. Whren v. United States, 517 U. S. 806, 813 (1996) ("[T]he Constitution prohibits selective enforcement of the law based on considerations such as race").

By contrast, in his much-criticized concurrence in Noem v. Vasquez Perdomo, he said racial profiling is acceptable, so long as race isn't the only factor considered:

To be clear, apparent ethnicity alone cannot furnish reasonable suspicion [for an immigration stop]; under this Court's case law regarding immigration stops, however, it can be a "relevant factor" when considered along with other salient factors.

As Epps notes, "the two statements are reconcilable if one interprets based on' as 'based on alone,' but in my view a more natural sense of that phrase is that a decision is 'based on' a fact if that fact is a relevant (and perhaps decisive) factor in the decision." Epps speculates Kavanaugh might be trying to "walk back" position on this issue, as a result of the widespread criticism it attracted. I hope Epps is right! For reasons I outlined in my critique of the Perdomo ruling, Kavanaugh's approach in that case was badly wrong, and should be rejected by anyone committed to the constitutional principle of color-blindness in government policy.

As Jack Goldsmith notes in his analysis of the Supreme Court's rejection of the stay, this decision may not end Trump's efforts to use the military for law enforcement. He could instead resort to the Insurrection Act. Conventional wisdom suggests the president is supposed to get great, possibly preclusive deference when invoking that law, though I think that conventional wisdom is significantly overblown. For reasons I outline here, when the executive invokes sweeping emergency powers, courts should carefully scrutinize whether the type of emergency needed to trigger their use actually exists. I may have more to say about that issue later.

The legal struggle over Trump's domestic use of military forces is by no means over. But Monday's ruling is a significant victory for opponents of this egregious abuse of power. As Goldsmith also points out, the ruling is likely to impact not just the Illinois litigation but similar ongoing cases in California and Oregon. I summarized those cases in my post about the Seventh Circuit ruling in the Illinois case.

A few weeks ago, the Free Press published a remarkable story about legal developments in Canada. In short, a judge ruled that the indigenous Cowichan Nation holds superior title over an 800 acre plot of land, based on claims from the 19th century. People who previously owned that land in fee simple now hold it subject to a servitude by the Nation.

After an 11-year legal battle and a 513-day trial that is the longest in Canadian history, a judge ruled in August that the indigenous Cowichan Nation holds "Aboriginal title" over 800 acres of land—including a swath along Road No. 6 that includes Batth's house and fields. The decision was a seismic shift in Canadian property law, declaring for the first time that indigenous land rights are greater than the rights held by private owners like Batth. It seemed unimaginable, but it was real.

Let me pause right there. How can a trial possible last 513 days? Here, I will invoke Jeff Brown's Law.

The longer these trials go on, and the more evidence presented, the more the brain's ability to discern reality falters.

Does anyone think a single judge could possible keep nearly two years of evidence in mind? Such a proceeding, at a certain point, is no longer judicial, but instead becomes political. In related news, the NAACP is put on trial the question of whether naming a school after Robert E. Lee is inherently racist.

The trial, in the U.S. District Court for the Western District of Virginia, was ostensibly about whether a school board violated the rights of Black students when it reinstated the names of two schools that once honored the Confederate generals Robert E. Lee and Stonewall Jackson after they'd been replaced in of 2020.

But when arguments ended last week, it was clear that the case, Virginia State Conference N.A.A.C.P. et al. v. County School Board of Shenandoah County, represented something much larger. Hanging over five days of proceedings was the question of how the nation moved from the racial reckoning of 2020, when Confederate memorials were purged from the public square, to 2025, when President Trump led the Confederacy's historical retrenchment — and whether the fight over historical awareness still has life in it.

That's because part of the plaintiffs' strategy for assailing the renamed Stonewall Jackson High School and Ashby-Lee Elementary was to put the Confederacy itself on trial, not on the usual culture war battlefields of social media or television, but in a court of law. (Turner Ashby was also a Confederate commander.)

Does anyone think this case can be decided based on neutral principles of law?

Back to the Free Press Story:

According to the judge, land grants to British settlers by the government about 150 years ago never erased the previous indigenous ownership, and the sections of provincial law that bestow and protect land titles do not apply when Aboriginal title is in force. She ordered British Columbia to spend the next 18 months figuring out what to do about the ownership collision. . . .

The plaintiffs didn't ask the judge, Barbara Young of the Supreme Court of British Columbia, to seize anyone's house or land. But she wound up going far beyond what they did ask for. . . .

As a result, all of this property now has a servitude over it.

David Rosenberg, senior litigation counsel for the Cowichan Nation, tried to assure me that the current owners have nothing to worry about—as long as they don't try to build anything or get a renovation permit, or sell their land. If they do any of those things, Rosenberg said, then the government might have to consult with or even secure consent from the Cowichan Nation, because Aboriginal title now gives the Cowichan a constitutional say over what happens on that land.

Professor Dwight Newman explains:

Dwight Newman, a law professor at the University of Saskatchewan who studies indigenous rights, said the idea that Aboriginal title and private property can "coexist," as the judge put it in her ruling, doesn't really make sense, because both are supposed to be "exclusive" forms of ownership. Each one claims the full right to control the land.

"If you have two owners with exclusive rights, one of them will always have to give way. In practice, that means private homeowners will end up having to defer, at least in part, to Aboriginal title," Newman told me. While the appeals drag on, "uncertainty around mortgage financing, land titles, and investment is likely to grow."

Another expert explains that the judge used 19th century Indian law to rewrite modern property law:

Tom Isaac, a well-known expert in indigenous law who advises businesses and governments, said that the judge's ruling "erased 99 percent of the words" on property titles held by the current owners in the black zone. "It makes us the only jurisdiction in the Western Hemisphere where a supposedly guaranteed and indefeasible land title is defeasible." . . .

"By reaching back to what the Cowichan were doing on the land in 1846, the judge essentially used a 19th-century snapshot to rewrite 21st-century property rights," said Isaac, the lawyer. The ruling triggered the most "profound political and legal reckoning" of his career, he added. Many of the people he speaks to are wondering if Canada's approach to land rights and reconciliation is sustainable at all. . . .

The Free Press article highlights the danger of vapid land acknowledgments. They are not so harmless when activist judges take them to their logical conclusion.

Nothing like this has ever happened in Canada. Because of the judge's ruling, all those land acknowledgments that are only half-listened-to at school assemblies and hockey games actually have extremely complicated consequences, at least in British Columbia—and perhaps all across the country someday.

"I never really gave land acknowledgments much thought, but now I do," Batth told me.

… Many Canadians sleepwalked through every step, never imagining that they could lead to a court ruling that literally shifts the legal ground beneath them. Now, land acknowledgments and broader settler-colonist narratives are starting to encounter more skepticism, at least on the political right. Last month, Dallas Brodie, the leader of breakaway conservative party OneBC, introduced a bill in the Legislative Assembly of British Columbia to eliminate Truth and Reconciliation Day as a provincial holiday.

The logical consequence of enforcing Indigenous treaties is restoring land claims.

12/25/2009: Justice Elena Kagan "was probably at a Chinese restaurant."

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In federal district court in Washington, DC, Judge Colleen Kollar-Kotelly handed down two opinions in the last two weeks in a case involving Daniel Richman, a friend and occasional advisor to former FBI Director James Comey. In the first opinion, dated December 12, the Judge ordered the government to return to Richman digital copies of the contents of his computers. In the second opinion, released yesterday, Judge Kollar-Kotelly clarified her first order and addressed government objections.

There's a lot going on in these cases. But the opinions happen to raise important questions of how the Fourth Amendment and the Federal Rules of Criminal Procedure apply to searching and seizing computers. Given my academic focus on those legal issues, I thought I would blog about them and offer some thoughts for the law nerds hoping to learn more about those legal issues and how this new set of opinions deals with them.

Here's the basic problem. When the government gets a warrant to search a computer, it generally seizes the physical device, copies all the data, and then searches the government's copy of the data for the evidence sought. Put another way, investigators make a copy of the digital haystack and then search the copy for the needle that the warrant described as the evidence to be sought.

All of this has an important implication: When the case is over, either charged or uncharged, the government still has a copy of that digital haystack. And if you're the government, you might want to keep that digital haystack. Storage is cheap, so it's not like you need to free the space. And having that haystack might come in handy some day. Maybe someday, maybe even in an unrelated case, you'll have an investigative need that can be met by going back to that digital haystack and looking for a whole new set of needles.

The key question now is, what are the rules for dealing with that haystack years later? Can the government search that already-previously-seized data again, this time for new evidence, either without a warrant—or even with one? And if the owner of the haystack wants the haystack back, can he get it back—and what does getting it back mean?

(1) Introducing the Richman Case

Daniel Richman is a lawyer and law professor who is a close friend of James Comey. Richman has sometimes acted as Comey's counsel, both informally and in the legal sense. During the first Trump Administration, DOJ obtained warrants to search Richman's computers and online accounts for evidence of unlawful disclosure of classified information that had been obtained through Comey. No charges were brought, and the case was closed in 2021. But the government retained copies of Richman's digital files.

Now fast forward to the second Trump Administration. A lot of people have followed this way more closely than I have, and my apologies if I get some of the details wrong here. But as you know from following the news, there has been great deal of interest in the current executive branch in prosecuting James Comey. As I understand things, whereas the Trump 1.0 DOJ investigated Comey for allegedly leaking classified information, the Trump 2.0 DOJ is targeting Comey for allegedly lying to Congress about whether he had authorized Richman to act as a source for news stories.

Here's where the computers come in.

What happened, apparently, is that investigators in Trump 2.0 realized that they still had copies of Richman's digital files held over from the investigation during Trump 1.0. So they searched Richman's files again, this time searching for what Comey had authorized Richman to do. At least some of that information was then used as a basis to get an indictment against Comey. Investigators did not get a second warrant to do this new round of search. They had a copy of the files, so they searched it for what they wanted without new warrants.

Richman has now come into court, seeking a return of his property under Rule 41 of the Federal Rules of Criminal Procedure. Rule 41 gives people a limited right to return of property unlawfully seized from them. As I understand Richman's argument, he's saying that the government never had a right to get copies of all of his data, and that the continued retention of his files violated his Fourth Amendment rights, and that the remedy is to return to him all the copies of his data. Read More

From Monday's decision in McBreairty v. Brewer School Dep't by Judge John Woodcock (D. Me.):

In anticipation of trial, defendants filed a motion in limine seeking to prohibit plaintiff from introducing evidence related to Shawn McBreairty's suicide. Because the general rule holds suicide as an independent intervening factor, severing causation, and that none of the exceptions applies, the court grants the motion….

Brewer School Department's decision to allow students to use the restroom corresponding to their gender identity, rather than their biological circumstances stirred up controversy among students and members of the public. Shawn McBreairty wrote about the controversy. After reviewing evidence, speaking to witnesses, and doing research, on February 12, 2024, Mr. McBreairty published "Girl's Bathrooms are Not 'Safe Spaces' When Males are Present" on the website [your]NEWS …. In the Article, Mr. McBreairty expressed his opinions about the underlying facts and his concerns about what was happening at Brewer High School….

On February 13, 2024, Attorney Melissa Hewey, counsel for the Brewer School Department, sent Mr. McBreairty an email …:

Dear Mr. McBreairty,

I am writing on behalf of our client the Brewer School Department to demand that you remove certain content from your February 12, 2024 online post entitled "Girl's Bathrooms Are Not 'Safe Spaces' When Males are Present." If you are represented by counsel in this matter, please let me know and I will be glad to direct my correspondence to them.

Although we acknowledge that much of that post contains your opinions on matters of public concern and recognize your right to express them, there are certain portions that are not protected because they are either false or an impermissible invasion of the privacy of minors and have the effect of bullying and hazing a student and a teacher at the Brewer High School in violation of Board Policies ACAD, ACAF and JICK and Maine law. In particular:

Free Speech Torts

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From Montmouth County (N.J.) Superior Court Judge Michael Guadagno's opinion in State v. Metcalfe, decided in Oct. 2024 but just affirmed earlier this month by the New Jersey intermediate appellate court. Neither court discussed whether the speech fits within an existing First Amendment exception, such as for "fighting words" (face-to-face personal insults that are likely to cause a fight).

Asbury Park Police Officer Ahmed H. Lawson testified that … he was on foot patrol … when he observed defendant talking with a security guard, Simon, who had just escorted defendant out of the [Capitoline Restaurant]. Police Officer Joseph Swansinger was standing next to Simon [by a crowd of people waiting to enter]. When Lawson stopped to talk with Swansinger, Simon was explaining to defendant why he could not be readmitted to the Capitoline. During this conversation, defendant turned to Lawson and said he felt sorry for him because he was compromising his integrity by listening to a white police officer (Swansinger is white; Lawson and defendant are black)[:]

{Brother I'm so sorry. I am so sorry that you have to deal with this shit. Here, here in this fucking County. I'm so sorry. Cause you know what, it's not even your fault. You literally even have to deal with his ass (pointing to Swansinger). This for you to get a fucking raise or anything like that too. It fucking makes no sense either. But you know what? I just want to let you know I apologize to you. You don't have to apologize to him. You don't have to apologize to nobody out here. It sucks though. For you to even speak up for that right because of this white motherfucker right here.}

Lawson testified that defendant had slurred speech and was "clearly intoxicated." He noticed that defendant's actions were drawing the attention of some of the people in the area because of what defendant was saying. As a result, Lawson told defendant he was being disorderly and asked him to leave. Defendant began to leave and walked across the street but came back and began to address Lawson in an "obnoxious" and "belligerent" fashion, calling him a "house nigger." {"You know what we call you back in my home? The House Nigger. Want to know why? Because whatever he does (pointing at Swansinger) it don't matter."}

Lawson again told defendant he was being disorderly and asked him to leave. Lawson testified that it was not his intention to arrest defendant, but when he refused to leave, defendant was arrested for disorderly conduct. On cross-examination, Lawson testified he was not upset when defendant called him a "house nigger." …

The relevant statute, N.J.S.A. 2C:33-2, provides

Free Speech

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From Doe v. Norwich University, decided last week by Washington County (Vermont) Superior Court Judge Daniel Richardson:

[Plaintiff seeks permission] to proceed in this case under [a] pseudonym …. She also seeks:

[3.] Entry of a permanent redaction/sealing order for:

Plaintiff's home address and location data;

Plaintiff's children's identifying information: names, ages, schools, and activities;

Plaintiff's private medical/counseling details;

Plaintiff's former campus/classroom offices, schedules, extensions, and job identifiers not germane to adjudication;

Exhibits containing any of the foregoing.

[4.] Entry of a Protective order under V.R.C.P. 26(c) prohibiting disclosure or use sealed/confidential materials beyond this litigation.

In short, she proposes to litigate this case as a completely unidentified plaintiff against named defendants, who in addition will be subject to substantial limits on their free speech rights. She asserts in her motions and a supporting affidavit that doing so will avoid "[h]assessment [sic], doxxing, embarrassment, and professional repercussions" as well as "[i]rreparable emotional harm and exposure of sensitive facts to her minor children and their peers via internet/social media search." She asserts without analysis that there is no legitimate public interest in her identity….

Free Speech Right of Access

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12/24/1798: The Virginia Resolution, authored by James Madison, is published.

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Trump v. Illinois is the kind of Supreme Court opinion written for the headlines. For example, the New York Times blared "Supreme Court Refuses to Allow National Guard Deployment in Chicago." Most people reading that headline might think that the Supreme Court struck down President Trump's exercise of executive power, or determined that there was no actual need to deploy the national guard. But none of that happened.

The actual basis of the decision has nothing to do with the President's Article II powers, or whether Trump properly found there was a valid basis to deploy the guard. The short per curiam ruling is at once narrow, yet extremely consequential. Indeed, the statutory argument the Court adopted was not advanced in the lower court by Illinois, but was raised in an eleventh hour amicus brief by Professor Marty Lederman.

In short, federal law empowers the President to federalize members of the National Guard if he is "unable with the regular forces to execute the laws of the United States." The Court finds that "regular forces" "likely refers to the regular forces of the United States military." The President did not point to any "source of authority that would allow the military to execute the laws in Illinois." Because the President has not done so, the President cannot show that those regular forces (the military) would be unable to execute the laws of the United States. QED.

If you just read the majority opinion quickly, everything seems to line up so easily and neatly. But once you peel back the shiny veneer, you realize that we have just been served another John Roberts Blue Plate Special. The Court purports to engage in minimalism: rather than deciding the difficult Article II issues, and determining how much deference the executive is owed, the Court resolves the matter on seemingly narrow statutory grounds. But any minimalism here is fake. The Court effectively neutered this statute. Because there will be very few cases where the President can use the military "regular forces" in domestic matters, it will be even rarer for the President to meet the predicate to federalize members of the National Guard. Perversely, as Justice Kavanaugh notes in his concurrence, "One apparent ramification of the Court's opinion is that it could cause the President to use the U.S. military more than the National Guard to protect federal personnel and property in the United States."

I can criticize Chief Justice Roberts and Justice Barrett with my eyes closed. (I admit I have a propensity for calling on people named Roberts to resign.) But the other three members who joined the majority in full have some chutzpah. Justices Sotomayor, Kagan, and Jackson simply ignored all of their complaints about the shadow docket. They decided a significant issue affecting presidential power on the emergency docket with scant briefing and no oral argument.

Let's break it down.

First, this issue has been percolating for some time. There have been many decisions issued by District Courts in Illinois, California, Oregon, followed by appeals to the Seventh and Ninth Circuit. The emergency application was filed back on October 17. Circuit Justice Barrett called for a response three days later on October 20. The reply brief was filed in October 21, the same day as Professor Lederman's amicus brief. Then, on October 29, the Court requested supplemental briefing on "[w]hether the term 'regular forces' refers to the regular forces of the United States military." But this briefing schedule was a bit more relaxed. Opening briefs were due on November 10, and reply briefs were due on November 17. The Court no longer seemed to be in a hurry, and had likely already concluded that the stay would be denied. Given that the initial reply on all issues was due within three days, the Court was really pumping the breaks here for a fairly discrete issue. Those briefs were filed on November 17. Then silence for more than a month. Again, the silence can be explained with the benefit of hindsight, as the stay was ultimately denied.

On December 23, late in the afternoon the Court issues its decision. The majority opinion was about three pages long. Justice Kavanaugh wrote a four page concurrence in judgment. Justice Alito wrote a sixteen page dissent. And Justice Gorsuch wrote a two-page dissent. Did the opinions just take this long to put out? Or did the Court hold the opinion till the last minute for a slow news cycle? 'Twas the night before Christmas, when all through One First, Not a justice was stirring, they were all dispersed.

Second, given that the Justices took nearly two months to decide this case, there was more than enough time to schedule an emergency oral argument. The need for oral argument was especially acute since this case implicated core presidential powers, and there were very few precedents. It is telling the majority opinion only cites a single case from 2019 about statutory silence. Moreover, oral arguments seem especially appropriate since the Justices were poised to rule on an issue based on argument that the Plaintiffs did not advance below. Justice Kavanaugh made this point in his concurrence.

Third, in many cases, Justice Sotomayor, Kagan, and Jackson have complained that the Court decided important issues on the emergency docket. For example, in Dep't of State v. Aids Vaccine Advoc. Coal., Justice Kagan lamented that the Court decided the case "with scant briefing, no oral argument, and no opportunity to deliberate in conference." In the national guard case, there was no oral argument. Was there an opportunity to deliberate at conference? The Court did not have a regularly scheduled conference between the Lederman brief on October 21 and the request for briefing on October 28. Was the briefing here "scant"? Well, there was a call for supplemental briefing, so maybe not?

I think it is somewhat poetic that Justice Alito's dissent uses almost the same phrasing as Justice Kagan used:

To make matters worse, the Court reaches out and expresses tentative views on other highly important issues on which there is no relevant judicial precedent and on which we have received scant briefing and no oral argument.

Alito has been guilty of deciding major cases without oral argument, but Kagan and company have some explaining to do.

Perhaps the best response is here the Court denied relief, and Justice Kagan's admonition only applies when the Court grants relief. I'm not sure that argument works. An injunction and a stay are two sides of the same coin. If the district court enters an injunction, and that grant is in error, then the proper remedy is an emergency stay. If the district court declines to enter an injunction, and that denial is in error, then the proper remedy is an emergency injunction. During the past nine months (yes it has only been that long), virtually every emergency docket case that has come to the Supreme Court has been from a liberal lower court.

However, during the prior four years, most of the Supreme Court's emergency docket cases came from my beloved Fifth Circuit. In several cases, the lower courts did not grant the progressive's favored ruling, and the Biden Administration took an emergency appeal. In Whole Woman's Health v. Jackson, for example, Chief Justice Roberts dissented, joined by Justices Breyer and Jackson, and complained that the motion to vacate the stays was made "without ordinary merits briefing and without oral argument." There are more such cases, all resolved without oral argument: Austin v. U.S. Navy Seals 1-26 (granting stay), NetChoice v. Paxton (vacating stay), United States v. Texas (granting stay), FDA v. Alliance for Hippocratic Medicine (granting stay), Danco Laboratories v. Alliance for Hippocratic Medicine (granting stay), and Garland v. Vanderstok (granting stay).

I don't recall complaints in these cases. It's as if the Court's progressives suddenly forgot their primary objections to the shadow docket. It's good to have five, or even six votes. Speaking of six votes, let's talk about Justice Kavanaugh.

The New York Attorney General field suit against Russ Vought, asserting that he has effectively shuttered the Consumer Finance Protection Bureau. Did AG James file suit in Albany? Of course not. There are a few Republican appointed judges there. Did she file in the District of Columbia, where she has a 100% chance of success before the en banc D.C. Circuit? No. Injunctive relief is far too important here. Instead, James chose the District of Oregon. And not in Portland. There are two Republican appointees there (one of whom blocked Trump's military deployment).

Instead, James chose the Eugene Division. I've been to Eugene, Oregon to speak at the University of Oregon. As fate would have it, I visited the city the day after the 2016 presidential election. I felt like I was walking through a wake.

In case you were curious, there are three judges assigned to the Eugene division. Judge Mustafa Kasubhai (Biden nominee), Chief Justice Michael McShane (Obama nominee), and Ann Aiken (Clinton nominee).

And which judge got the case? Judge Aiken! If that names sounds familiar, it should. She presided over the long-running Juliana litigation. A group of children argued that they had standing to challenge energy policy because of alleged effects from climate change. Co-blogger Jon Adler has chronicled Judge Aiken's follies over the years. Indeed, Aiken was reversed by the Ninth Circuit several times.

I don't want to ever hear any complaints over forum shopping, ever again. Liberals engage in forum shopping in Eugene. Conservative engage in forum shopping in Lubbock. Get over it. Fittingly, the University of Oregon is about to play Texas Tech in the College Football Playoffs. Wreck 'Em Raiders.

Update: AG James also challenged the new HHS transgender policy in the Eugene Division. Must be a favorite forum. This case drew Judge Kasubhai.

In an insightful recent post, economist Tarnell Brown explains why the economic effects of immigration restrictions are similar to those of racial discrimination and segregation. He builds on Nobel Prize winner Gary Becker's famous theory of discrimination and South African economist W.H. Hutt's classic critique of apartheid, The Economics of the Colour Bar:

Racism and immigration restrictions are often sold as hard-headed realism: protecting "our" jobs, "our" communities, "our" way of life. The sales pitch leans on a simple story—exclude the "wrong" people and the "right" people will prosper. Gary Becker and William Hutt both spent careers dismantling that story, and the empirical record has been quietly backing them up ever since. Once you translate prejudice into costs, discrimination looks less like realism and more like an especially expensive luxury good.

As Brown explains, Becker and Hutt's insights explain that racial discrimination and segregation are economically harmful because they force employers to forego more productive workers from the disfavored group in favor of less productive ones from the dominant group. That obviously harms the excluded group. But it also lowers economic growth and innovation, ultimately harming even most members of the more privileged group. Immigration restrictions have much the same effects:

If Becker's discriminator is willing to pay more for the same output, and Hutt's white unionist is willing to shrink the industry to protect his wage, immigration restrictionists are willing to shrink the labor force itself. The logic is familiar: fewer immigrants mean less competition for "our" jobs and higher wages for native workers. The empirical record looks more like a modern color bar.

Contemporary studies highlight three mechanisms.

· Slower labor force growth. Immigrants have been the main driver of U.S. labor force expansion for decades. Tightening legal channels and ramping up enforcement reduces the number of working-age adults, especially in sectors with high demand and few native applicants, depressing potential GDP growth.

· Sectoral bottlenecks. When immigration restrictions bite hardest in agriculture, caregiving, hospitality, and construction, employers either cut back output, automate, or simply cannot meet demand. The result is higher prices, delayed projects, and foregone economic activity—not some clean transfer of "jobs from them to us."

· Innovation and entrepreneurship. Immigrants are disproportionately represented among patent holders, startup founders, and STEM workers. Curtailing inflows therefore clips not just current output but future growth, by lowering the rate at which new products, firms, and technologies appear.

The historical analogy to Hutt's South Africa is not rhetorical. The Chinese Exclusion Act of 1882, a classic piece of racially explicit labor protectionism, offers a clean test case. Recent research finds that areas that lost Chinese workers experienced dramatic declines in manufacturing—output down more than 60%, the number of establishments down 54–69%—as labor shortages rippled through the local economy. White workers were not "protected"; they were stranded in less dynamic labor markets with fewer opportunities and slower wage growth.

The modern U.S. has not reenacted Chinese Exclusion word-for-word, but the pattern is similar: a tightening of legal migration channels and aggressive enforcement campaigns in the name of "protecting" native workers. The Dallas Fed and others now warn that declining immigration will weigh on GDP growth for years, with little to show in terms of sustained wage gains for the least skilled natives. In Becker's terms, the country is paying more for the same work; in Hutt's terms, it is choosing a smaller pie so that a political coalition can claim symbolic victories.

I mad similar points - in a less sophisticated way - in a 2024 post on how mass deportations destroy more jobs for native-born Americans than they create:

The key theoretical point is that, while deporting immigrants often does create jobs for natives who directly compete with them, it destroys more elsewhere in the economy. For example, immigrant workers produce goods that are used by other enterprises, thereby creating jobs there. Immigrants start new businesses at higher rates than natives. That, in turn, creates new jobs for both natives and immigrants. And, of course, immigrant workers produce goods and services that greatly improve the options available to native-born consumers (thereby indirectly making them wealthier)….

One helpful way to think about the issue is to ask whether the twentieth-century expansion of job market opportunities for women and blacks helped white male workers, on net, or harmed them. Some white men likely were net losers. If you were a marginal white Major League Baseball player displaced by Jackie Robinson or other black baseball stars after MLB was integrated, it's possible that you would never find another job you liked as much as that one. But the vast majority of white men were almost certainly net beneficiaries by virtue of the fact that opening up opportunities for women and blacks greatly increased the overall wealth and productivity of society.

If, today, we barred women from the labor force, or restricted them to the kinds of jobs open to them a century ago, some male workers would benefit. For example, freed of competition from female academics, I might get a pay increase or become a professor at a higher-ranked school.

But, overall, men would be much poorer, by virtue of living in a far less productive and innovative society. And many men would lose jobs or suffer decreases in wages because their own productivity depends in part on goods and services produced by women. While I might have a more prestigious job, I would likely be poorer, overall, because I could no longer benefit from many of the goods, services, and innovations produced by female workers.

Similar consequences would occur if we were to reinstitute racial segregation, thereby severely restricting the job opportunities of black workers. While some whites would come out ahead, most would be net losers, as our economy becomes much less productive.

The key point to remember is that the economy - including the labor market - is not a zero-sum game. Men and women, blacks and whites - and immigrants and natives - can all prosper together, if only the government would let them.

Economic effects are not the only way in which immigration restrictions resemble racial segregation. The two policies are also both unjust by virtue of restricting freedom and opportunity based on morally arbitrary circumstances of ancestry and birth. I develop and defend that point in this article, and in Chapter 5 of my book Free to Move: Foot Voting, Migration, and Political Freedom.

From plaintiff's pro se filing in Afrasiabi v. Morgan, quoting a comment by commenter ReaderY to the post "Spy" vs. "Spy" (+ Piers Morgan, President Biden, and the Iranian Nuclear Weapons Program):

Plaintiff's Letter to Judge Brian Murphy Regarding the Negative Reaction of the Legal Community to the Order of Dismissal

I write this letter to bring to Your Honor's attention a sample of negative reactions in the legal community to the Order of dismissal of the complaint, entered on November 25, 2025.

This one from the Stanford Law School, correctly pointing out the huge and significant differences between a crime of moral turpitude, i.e., spying, and a FARA disclosure violation. In fact, Your Honor's own order admits to such a huge difference and, yet, papers over its own insight by dismissing the action any way, contrary to the spirit of American justice;--As I plan to submit my Motion For Reconsideration in the next several days, I hope that Your Honor puts this matter in proper perspective with respect to the likely damage to the image of a fair and impartial justice for time to come if this unfair decision, manifesting a clear error of law, is not modified. The above-said reaction (link below) is worth quoting at length:

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Over the last two days, there has been a massive wave of resignations and departures of scholars and staff from the Heritage Foundation, once one of the nation's most respected conservative think tanks. Those leaving include the leadership of Heritage's Meese Center for Legal and Judicial Studies, leading economic policy scholars, my former student and Volokh co-blogger Josh Blackman (editor of the Heritage Guide to the Constitution), and more. This wave of departures follows in the wake of others, such as that of Princeton Princeton professor and prominent conservative political theorist Robert George, who resigned from the Heritage Board last month. Many of the Heritage refugees have moved to Advancing American Freedom (AAF), an organization led by former Vice President Mike Pence.

The immediate cause of the exodus was Heritage President Kevin Roberts' defense of anti-Semitic "influencer" Tucker Carlson and his support of Nick Fuentes, an even more virulent anti-Semite. As it has become clear that Roberts refuses to break his ties with Carlson and unequivocally condemn right-wing anti-Semitism, and that the Heritage board won't remove Roberts, more and more people have left Heritage.

Perhaps more importantly, the Heritage scandal has served a kind of wakeup call to many conservative intellectuals who were previously inclined to ignore or minimize dangerous trends in the Trump-era political right. As I have previously noted, the rot at Heritage long predates the current scandal. I myself decided to forego any potential future collaboration with Heritage years ago, which is why I refused an invitation to contribute to the Heritage Guide when Josh invited me (I should have been fully honest about my reasons for refusing, at the time). I had been a college student intern at Heritage way back in 1994, when the organization was very different from what it is today.

It would have been better if those now leaving Heritage had recognized the organization's moral deterioration earlier. But better late than never! And I certainly understand that such a break is more psychologically painful for people who consider themselves conservatives and had longstanding close ties to the organization, than it was for me. I am a libertarian, not a conservative, and I have had only limited contact with Heritage since that long-ago internship.

There is, I hope, growing recognition that the problem here goes well beyond Kevin Roberts (though Roberts certainly deserves blame). In his resignation letter, Josh Blackman laments that Roberts "aligned the Heritage Foundation with the rising tide of antisemitism on the right," implying that the "tide" is a more general phenomenon. In a statement welcoming the former Heritage scholars to AAF, former VP Pence said "these people are coming our way [because]…. Heritage and some other voices and commentators have embraced big-government populism and have been willing to tolerate antisemitism."

I hope Josh, Pence, and other conservatives will come to recognize more fully that the root of the problem is the Trump-era shift of most of the American right towards ethno-nationalism. For reasons outlined in detail in my recent UnPopulist essay on this topic, nationalist movements are inherently prone to anti-Semitism and other forms of racial and ethnic bigotry. It is not surprising that anti-Semitism among MAGA conservatives has risen alongside nativism and bigotry towards other minority groups, such as Indian-Americans.

As I explained in the UnPopulist article, the only sure way to avoid this problem is to reject ethnic nationalism and instead recommit to the universalist principles of the American Founding, which the Heritage Foundation once claimed to stand for, but has more recently betrayed:

Conservatives who seek to curb the growth of antisemitism on the right must reject nationalism and recommit to the principles of the American Founding.

In his resignation statement from the Heritage board, Robert George urged Heritage to be guided by the principles of the Declaration of Independence, especially the idea "that each and every member of the human family, irrespective of race, ethnicity, religion, or anything else; … is 'created equal' and 'endowed by our Creator with certain unalienable rights….'"

In his General Orders to the Continental Army, issued on the occasion of the end of the Revolutionary War in 1783, George Washington stated that one of the reasons the United States was founded was to create "an Asylum for the poor and oppressed of all nations and religions." Other leading Founding Fathers—including James Madison and Thomas Jefferson—expressed similar sentiments.

Washington sounded a similar theme in his famous 1790 letter to the congregation of the Rhode Island Touro Synagogue, in which he avowed that the United States has "an enlarged and liberal policy," under which "All possess alike liberty of conscience and immunities of citizenship," and that the U.S. government "gives to bigotry no sanction, to persecution no assistance." America, he emphasized, went beyond "mere toleration" of Jews to granting them full equality. It could do so because American identity was based on universal liberal principles, not ethnic or religious particularism.

The United States has never been completely free of bigotry, including antisemitism, or fully lived up to its ideals. But it has never given up on these ideals either, as much of the right effectively wants it to do now. America has been relatively more free of such prejudices than many other nations, precisely because of its universalist roots. We have also been at our most successful when we reject zero-sum thinking, and instead recognize that the success of Jews, Indians, and other minorities and immigrant groups is beneficial to the majority, rather than harmful to it….

A conservative movement that recommits to the universal principles of the Founding need not abandon all its differences with the left, or with libertarians like me…. But we can unite in rejecting racial and ethnic bigotry.

For more on the dangers of nationalism, see my 2024 article, "The Case Against Nationalism," coauthored with Alex Nowrasteh.

From the Complaint in Bushart v. Perry County (W.D. Tenn.); as usual, note that these are just allegations, and I look forward to seeing any eventual court decision:

Larry Bushart spent 37 days behind bars simply for speaking his mind. It took a national uproar about his detention for Perry County officials to drop the charge against Mr. Bushart—a charge officials knew from the outset was unfounded.

On September 10, 2025, a gunman assassinated conservative commentator Charlie Kirk as he debated members of his audience at a Utah university. The attack dominated the national conversation. As many mourned Kirk, a passionate advocate for Second Amendment rights, others exercised their First Amendment rights by arguing his killing evidenced a need for stricter gun control measures. Some argued gun-rights advocates had downplayed gun violence in the past.

Ten days after Kirk's death, Larry Bushart—a 61-year-old retired law enforcement officer and a resident of Lexington, Tennessee—noticed a Facebook post promoting a candlelight vigil in nearby Perry County. Underneath it, he posted a series of political memes, the internet's version of political cartoons. One image (the "Meme") accurately quoted a statement President Donald Trump made after a January 2024 shooting at Perry High School in Perry, Iowa:

Defendant Perry County Sheriff Nick Weems understood Mr. Bushart's political message. He later acknowledged in a media interview that he and his deputies "knew" the Meme was not about Perry County High School in Tennessee, but about a 2024 shooting at a Perry High School in Iowa—a different school with a different name in a different state, some 695 miles away.

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From Scaer v. City of Nashua, decided today by First Circuit Judge Sandra Lynch, joined by Judges Gustavo Gelpí and Jeffrey Howard:

On City Hall Plaza, the government property outside of [Nashua] City Hall that is open to the public, there are four flagpoles of varying heights. Until 2017, Nashua exercised exclusive control over the flags flown on the poles, choosing to display only government flags such as the American flag and the New Hampshire state flag. The City continues to exercise such control over three of the flagpoles. In 2017, after the election of Mayor James W. Donchess, who has since been reelected to that position, Nashua created what it called the "Citizen Flag Pole" as to one of the poles. The City's website, under the headings "Citizen Flag Pole" and "Fly a Flag," provided a statement, which in total read:

A pole in front of City Hall is reserved for the citizens of Nashua to fly a flag in support of their cultural heritage, observe an anniversary or honor a special accomplishment. Any group wishing to fly a flag must provide the flag….

Appellants Stephen and Bethany Scaer have resided in Nashua for three decades. Beginning in 2017, Bethany submitted and received approval for several applications to use the Citizen Flag Pole, including for flying the Luther Rose flag in honor of the 500th anniversary of the Protestant Reformation, the Lutheran flag, and a flag commemorating the ratification of the Nineteenth Amendment. For each approved request, Bethany supplied and raised the flag herself and organized a small flag raising ceremony not attended by any City officials.

Nashua initially approved Bethany's application to fly a "Save Women's Sports" flag, which the Scaers raised on October 10, 2020. The Scaers explain that the flag expresses their belief "that women have inalienable rights based on their biological sex that governments have a duty to protect and that allowing biological males to compete against women in sports denies women their rights and the equality due them under both the U.S. Constitution and Title IX." One day after the flag's raising, and after the City received complaints that the flag was transphobic, Nashua reversed its approval, revoked permission, and removed the flag from the Citizen Flag Pole.

Bethany appealed the decision to Mayor Donchess, who denied the appeal. He explained in a public statement on October 14, 2020, that Bethany's flag "contain[ed] a discriminatory message toward the transgender community" and that "Nashua is a welcoming community, in which we embrace all people and the contributions of all are celebrated and valued." Nashua's Corporation Counsel sent a letter to Bethany's attorney on November 11, 2020, stating that the Save Women's Sports flag "was outside of the parameters established for use of the citizen flag pole" and that use of that pole was "government speech."

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From Thursday's N.Y. Appellate Division decision in Irizarry v. Zelaya (Judges Troy Webber, Ellen Gesmer, Lizbeth González, and John Higgitt) (see here for more details on the underlying election):

Plaintiff [Edward Irizarry] opposed defendant Betty Lugo in the June 2021 Democratic primary election for the office of Judge of the Civil Court of the City of New York…. Defendant Ariana Zelaya was a volunteer for the Lugo campaign.

Zelaya alleged that while standing on a public sidewalk in Manhattan, petitioning for Lugo, plaintiff "walked up to [Zelaya], stood very closely to her and aggressively grabbed the petition board from [Zelaya's] hands with force placing her in imminent fear of harm" and also "aggressively yelled at [Zelaya's] in a menacing and intimidating manner with the intent to cause intimidation, harm and fear." Zelaya initiated two actions against plaintiff, both of which were dismissed. Zelaya also filed a complaint with the police, which was dismissed as well.

Plaintiff commenced this action for defamation … based upon allegedly false statements, made in a campaign flyer and in tweets posted by Zelaya, accusing plaintiff of assaulting or harassing Zelaya and of abusing women more generally….

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