"The fact that only five exhibits are uncontested suggests that the parties have not engaged in a good-faith effort to narrow their objections, and the Court cannot resolve objections to anywhere near 2,325 exhibits during the course of the trial."
The parties have submitted a multitude of objections to deposition designations, which encompass hundreds of pages of transcripts. This is unmanageable for the Court. The parties shall confer and file a revised and minimized list of objections by noon on Friday, January 30, 2026. With respect to the remaining objections, the parties shall file copies of the relevant pages of the transcripts, including any necessary context, with the portions to which Plaintiffs object highlighted in green and the portions to which any defendant objects highlighted in yellow. The parties shall write or type the basis for the objection (i.e., hearsay, 403, relevance) in the margin of the transcript. The Court will attempt to rule on the objections within a reasonable time before the testimony is needed. Accordingly, the parties shall provide the Court with a rough estimate of the date when each deposition will be presented at trial.
The parties have also submitted trial exhibits lists designating only five exhibits as uncontested and 2,325 exhibits as contested. The fact that only five exhibits are uncontested suggests that the parties have not engaged in a good-faith effort to narrow their objections, and the Court cannot resolve objections to anywhere near 2,325 exhibits during the course of the trial. The parties shall confer about their proposed exhibits and objections and file a revised list of uncontested and contested exhibits by Friday, February 6, 2026. Objections to either deposition testimony or exhibits that are without a good-faith legal basis may result in the imposition of attorneys' fees.
In a crucial appellate court oral argument, the Trump Administration admits that their position says the answer is "yes." The exchange highlights the dangers of judicial deference on judicial invocation of extraordinary emergency powers.
Yesterday, the en banc US Court of Appeals for the Fifth Circuit heard oral argument in W.M.M. v. Trump, a case challenging Trump's invocation of the Alien Enemies Act of 1798. The full Fifth Circuit - all 17 judges - were reviewing the panel decision in that case ruled that Trump's invocation of the AEA as a tool for detention and deportation of migrants is illegal, because illegal migration and drug trafficking and other activities of the Venezuelan drug gang Tren de Aragua do not qualify as a war, "invasion," or "predatory incursion." The AEA can only be used when one of these extraordinary conditions, or a threat thereof, exists.
Throughout the extensive litigation over the AEA, in this case and others, the Trump Administration has claimed the president deserves absolute deference when he claims that an "invasion" exists. The absurd implications of this position were highlighted in yesterday's argument, when Fifth Circuit Chief Judge Jennifer Elrod (appointed by George W. Bush) asked whether the president could invoke the AEA in response to the "British Invasion" of rock stars, like the Beatles. "What if," she asked "the [President's] proclamation said 'we're having a British invasion.' They're sending all these musicians over to corrupt young minds…. They're coming over and they're taking over all kinds of establishments." Could courts then rule the president's invocation of the AEA was illegal? In response, Justice Department lawyer Drew Ensign admitted the government's position would require courts to still defer to the president, and allow him to wield the extraordinary emergency powers that can only be triggered by an actual "invasion."
The ridiculous implications of this response highlight a point emphasized in an amicus brief in the case, which I coauthored in the case on behalf of the Brennan Center, the Cato Institute, and others: the government's position would convert an emergency power that can only be used in extreme circumstances into a blank check the president can invoke any time he wants. I actually used the "British Invasion" example in my earlier article "Immigration is Not Invasion," though I don't know if Judge Elrod got it from there, or (more likely) came up with the same idea on her own.
Letting the president claim an "invasion" exists whenever he wants would create a very dangerous situation. In the event of "invasion," the president could use the AEA to detain and deport even legal non-citizen immigrants, with relatively little due process. In addition, when there is an invasion, the Constitution gives the federal government the power to suspend the writ of habeas corpus, thereby enabling it to detain people - including US citizens - without due process. Such sweeping power would pose a grave threat to civil liberties. For their part, state governments would have the power to "engage in war" in response, even without federal authorization. The Constitution was ratified only a few years before the AEA was enacted in 1798, and there is every reason to believe the meaning of "invasion" in the two documents in the same.
If either the Constitution or the AEA gave the president to declare the existence of an "invasion" at will and thereby invoke sweeping emergency powers whenever he wants, that point would have been raised by opponents at the time. Indeed, opponents did raise a variety of constitutional and other objections to the Alien Friends Act of 1798, which - unlike the AEA - really did give the president the power to detain and deport any non-citizens "as he shall judge dangerous order certain to the peace and safety of the United States." James Madison, Thomas Jefferson, and many others, therefore condemned the Alien Friends Act as unconstitutional, and a threat to civil liberties. By contrast, they mostly accepted the AEA, because it could only be used against citizens of countries with which the US is at war, or which had perpetrated an invasion or predatory incursion. I go into this history in greater detail in Part III "Immigration is Not Invasion."
During the Fifth Circuit oral argument, Ensign suggested that the issue of unjustified invocations of the AEA should be left to the political process. Congress, for example, could act to constrain the president. This ignores the fact that Congress already acted by mandating that the AEA can only be invoked in times of war, invasion, or predatory incursion, or the threat thereof. Unlike with the Alien Friends Act, a mere presidential assertion that a relevant danger exists is not enough. Rather, an invasion or predatory incursion, must actually exist in reality, not merely in the president's unsupported assertions.
As a practical matter, the idea that Congress can curb improper invocations of the AEA after the fact, is extremely dubious. Doing so would require new legislation that the president could easily veto. And the veto could only be overridden by a 2/3 majority of both houses of Congress, which is almost impossible to achieve at a time when many of the president's fellow partisans in Congress are likely to back him no matter what. This is one of several reasons why Congress instead constrained the president in advance, by setting out conditions that must be met before he can invoke extreme emergency powers. The same is true for the Constitution. Before the writ of habeas corpus can be suspended, there must be an actual "invasion" or "rebellion," not merely an unsupported assertion that one is happening.
Even if Congress could act more easily, this still would not relieve the courts of their duty to interpret and apply the text of the AEA and the Constitution, and objectively assess the relevant facts in cases that come before them. They cannot simply defer to the unsupported assertions of one of the parties to the litigation.
In part V of my "Immigration is Not Invasion" article, I outline additional reasons why courts should not defer to executive branch assertions that an invasion exists, under either the AEA or the Constitution. Elsewhere in the article, I explain why textual and historical evidence overwhelmingly shows that illegal migration and drug smuggling do not qualify as an "invasion." Rather, as James Madison put it in addressing this very issue, "invasion is an operation of war." It requires a military attack. The same is true of "predatory incursion," albeit the latter can be a smaller attack than an invasion. Fordham University law Professor Andrew Kent reaches similar conclusions in his important recent article on the AEA.
I hope the Fifth Circuit - and, ultimately, the Supreme Court - recognizes that the AEA and the Constitution do not give the President a blank check to invoke sweeping emergency powers whenever he feels like it. A contrary decision would go against the text and original meaning, and would create a grave danger to the civil liberties of immigrants and native-born citizens alike.
UPDATE: My recent Dispatch article, "Not Everything is an Emergency," outlines more general reasons why courts should not defer to executive invocations of emergency powers, but rather should require the government to prove that the supposed emergency justifying the use of extraordinary powers actually exists.
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
New case: Last year, Portland, Me. police sent SWAT to apprehend a teen suspected of stealing cologne and shoes from a house party, even though the teen had no history of violence or anti-police animus. But then, bad to worse, SWAT officers jumped out on the wrong kid, handcuffing him at gunpoint and marching him around in front of schoolmates—even though they knew immediately they had the wrong guy (no tattoos, wrong hairstyle, etc. etc.). Click here to learn more.
New on the Short Circuit podcast: a punch up at a bachelorette party and the start of #12Months12Circuits. This time: Circuit the First.
The Herzogs, a prominent Jewish family, fled Hungary when Germany invaded in 1944. Their art collection was one of Europe's great private collections, including masterpieces by El Greco, Renoir, and Monet, but it was confiscated by the Nazis. The family scattered across the globe and began their eight-decade struggle to recover their art, much of which remains on exhibit in Hungarian museums (and some identified by tag as "From the Herzog Collection"). They're now on their fourth trip to the D.C. Circuit (after visits in 2013, 2017, and 2022), which delivers the bad news that U.S. courts lack jurisdiction over the family's claims.
Federal law penalizes "conscious, voluntary, and culpable" participation in a third party's terrorist activities, says the D.C. Circuit, which is bad news for these defendant companies alleged to have paid bribes to a Shiite militia in Iraq and to have supplied the militia with off-the-books medical supplies that were then sold on the black market, earning revenues that were used to harm Americans. Case undismissed. Read More
Less than a week after naming a new dean, the University of Arkansas Law School has rescinded the offer after state politicians raised concerns about her views on transgender athletes….
The appointee, Emily Suski, a legal scholar at the University of South Carolina, had been selected after a lengthy search, and the University of Arkansas's provost, Indrajeet Chaubey, had praised her work on medical partnerships to help low-income children when the choice was announced on Jan. 9. But on Wednesday, the school withdrew the appointment, saying that the decision was based on "feedback from key external stakeholders."
Members of the state legislature said the concerns were related to her signature on an amicus brief filed with the Supreme Court last year in support of transgender student athletes….
This led to considerable condemnation; the Association of American Law Schools, for instance, called it "a blatant violation of academic freedom, an alarming intrusion into university governance, and a threat to the legal profession in so far as political actors sought to penalize a lawyer for taking a legal position." My view, though, is somewhat different, for reasons that I think help illuminate some broader matters as well.
[1.] Let's begin with one modest hypothetical: Imagine that it came out that someone being considered as a possible dean at a California public law school had signed an amicus brief in opposition to allowing transgender student athletes to compete in women's sports (or in support of bans on surgical or pharmaceutical gender transitions for youths or something similar). Would we think that the candidate would be offered the position?
I would very much doubt it. And indeed if the candidate were rejected on these grounds, I think this would be a legitimate position for the decisionmakers (whether the university President, the UC Regents, or the legislators or governor pressuring the Regents) to take. Perhaps if this position were made public, many conservatives would be upset, much as many liberals are with regard to the Arkansas situation. But then too I would say: There's really not much justification for such upset.
The politically selected officials who directly or indirectly run the public university system are entitled to make sure that the leaders within that system share the officials' general worldview. Such leaders, including deans and not just university presidents, make all sorts of discretionary decisions, about programs and centers, curriculum, grading policy, admissions policy, and more.
The legislators who, on behalf of the citizens of the state, allocate taxpayer money to the university are entitled to help choose university leaders whom they trust. And even if support or opposition for transgender students in athletics isn't directly relevant to the particular dean's role, it's fair for political leaders to view that position as a proxy (however imperfect) for the dean's overall ideological approach more broadly.
A politically conservative professor may be a great scholar, and a great leader in the abstract. But he may not be the leader that a liberal legislature or Board of Regents/Trustees would want to choose. Likewise, I think, as to a politically liberal professor in a conservative state.
From an Institute for Free Speech symposium on the 50th anniversary of Buckley, which I'll be cross-posting over the next couple of weeks; this is by David M. Primo, Ani and Mark Gabrellian Professor at the University of Rochester and the co-author of Campaign Finance and American Democracy: What the Public Really Thinks and Why It Matters (and an expert witness in numerous campaign finance cases):
In ruling campaign spending limits to be unconstitutional, the Buckley decision handed down by the U.S. Supreme Court in 1976 reshaped election law, affirming that First Amendment protections extended to the speech of political candidates. It also made clear that campaign contributions were protected by the First Amendment and that such restrictions could only be justified to prevent corruption or the "appearance of corruption." I am grateful to the Court for its defense of the First Amendment. Still, I have felt compelled throughout my career to ask: do contribution limits actually achieve these goals?
If you ask Americans, as I have, whether the campaign finance system is corrupt, around 80% say yes. Meanwhile, courts since Buckley have largely agreed that most contribution limits—except really tiny ones—are self-evidently helpful for reducing corruption and the appearance of corruption, thereby ensuring "that confidence in the system of representative Government is not to be eroded to a disastrous extent." Reformers have beaten the "restore trust in government" drum to justify campaign finance laws ever since.
As a social scientist, I think evidence matters. Just because the public or the courts say something is true doesn't make it so. Fortunately, 50 years on from Buckley, we have reams of data on attitudes toward government, and we can use that data to better understand the relationship between the appearance of corruption and contribution limits.
For our 2020 book Campaign Finance and American Democracy: What the Public Really Thinks and Why It Matters, Jeff Milyo (who has written a thought-provoking essay for this series) and I built a dataset of nearly 60,000 survey respondents over a 30-year period from 1987 to 2017. These individuals answered questions about trust and confidence in government, and we know a lot of other things about them: their ideology, party affiliation, age, education, and so on. Meanwhile, states vary in whether they have contribution limits and when they implemented them, making them what political scientists are fond of calling "laboratories of democracy."
From an Institute for Free Speech symposium on the 50th anniversary of Buckley, which I'll be cross-posting over the next couple of weeks; this is by Jeff Milyo, professor of economics and the Director of the Economic and Policy Analysis Research Center (EPARC) at the University of Missouri, and a Senior Fellow at the Cato Institute:
Concerns about money in politics bring into conflict the democratic ideals of liberty, equality, and justice enshrined in the U.S. Constitution. A free society will always exhibit inequalities of wealth and hence access to power and influence, thus imperiling the ideal of equal protection of the law. But efforts to regulate political activities, even setting aside potential hidden and nefarious motives, also violate the fundamental principles of free speech, association, and petitioning for redress of grievances (i.e., lobbying). Any democratic society must resolve this unfortunate tradeoff; American democracy does so in favor of liberty.
The U.S. Supreme Court decision in Buckley v. Valeo (1976) may be viewed through this lens. The Buckley decision makes clear that the government's interest in regulating politics is confined to policies that are narrowly tailored to address the actuality and appearance of quid pro quo corruption. As such, Buckley establishes bright lines for the kinds of regulation of political financing that may or may not pass Constitutional muster. For example, limits on the source and size of campaign contributions to candidates are permissible since they raise the specter of potential quid pro quo arrangements, but an outright prohibition on an individual's ability to support candidates or parties of their choosing goes well beyond what might be thought necessary to limit bribery and influence peddling. In contrast, limits on total spending by candidates for office are not directly related to preventing quid pro quo corruption between a contributor and candidate, so are not permissible.
There is also no anti-corruption rationale for limiting the amount of self-financing by candidates, since candidates cannot corrupt themselves. Similarly, as the Court noted in a later case, there is no anti-corruption rationale for limiting sources or amounts of financial support for speech on ballot initiatives; no amount of spending can change the wording of a ballot proposition, so no quid pro quo is possible via campaign financing of ballot measure campaigns.
These constraints on government regulation of political campaigns are straightforward implications of the anti-corruption rationale expressed in Buckley, but critics of the decision have muddied the waters by seeking to expand the concept of corruption to envelope "undue influence." This is definitely a more vague concept and not really amenable to bright line distinctions. Indeed, in thirty-plus years, I have never once heard anyone articulate a definition of "due influence." Instead, advocates of more regulation offer a modern miasma theory of corruption, whereby too much money and too much influence (most often by those who hold contrary views) constitute corruption.
In this final installment of our series on religious employment under Title VII, we address common objections to the textualist interpretation we describe in our BYU Law Review article. Each objection fails because it ignores Section 702's text or conflates statutory exemptions with constitutional doctrines. We conclude by expressing appreciation for Congress's handiwork—a statute that pursues equality and liberty together.
Racial Discrimination
Critics object that a textualist interpretation of Section 702 would open the door to racial discrimination. Not so.
Section 702 exempts a religious employer from Title VII only when it selects an employee "of a particular religion," a phrase that encompasses religious observances, practices, and beliefs. Adverse employment decisions for other reasons fall outside of Section 702. It follows that Section 702 permits discrimination only if differential treatment is founded in sincere religious observances, practices, or beliefs. And even critics of a textualist interpretation concede that racism is virtually unknown in modern American religious practice.
Bob Jones University v. United States is the best-known case of religiously motivated racism. There, the Supreme Court affirmed an IRS ruling withdrawing the University's tax-exempt status because of its ban on interracial dating and related policies. "Whatever may be the rationale for such private schools' policies, and however sincere the rationale may be, racial discrimination in education is contrary to public policy." But Bob Jones University involved tax-exempt status, not employment discrimination. If anything, it illustrates judicial intolerance for religiously motivated racial classifications.
It is highly unlikely that the Supreme Court would endorse Section 702 as a defense if a religious organization engaged in racial discrimination. Burwell v. Hobby Lobby Stores, Inc. noted that "[t]he Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal." If Title VII's bar on racial discrimination satisfies strict scrutiny, Section 702 surely does not exempt a religious organization that crosses the line.
LGBT Equality Claims
Detractors claim that a textualist interpretation of Section 702 allows discrimination against LGBT employees. That criticism misconceives Title VII as an unqualified guarantee of employment nondiscrimination for protected classes. It is not. As our article explains, "Protected classes are guaranteed equal employment opportunity insofar as the statute prescribes it." An LGBT claimant can no more demand that a religious employer disregard its religious employment standards than a small business employee can bring a viable Title VII claim despite the statute's 15-employer threshold.
On Wednesday, the Supreme Court heard oral argument in Trump v. Cook. The leading accusation in this case is that President Trump wanted some excuse to fire a Federal Reserve Board Governor, so he had his administration trump up charges based on mortgage fraud. (I've written about how Collins v. Yellen enabled Bill Pulte, the director of the FHFA, to investigate Cook.) On Thursday, Jack Smith testified before Congress about his service as special counsel. In a somewhat similar fashion, the leading allegation was that the Biden Administration wanted Trump to be indicted, so Merrick Garland retained Jack Smith to trump up some charges. I am sure people on the right would never view Cook in this fashion, and people on the left would never view Smith in this fashion, but the perceptions are there.
This topic was referenced, perhaps indirectly, during oral argument in Cook.
Justice Kavanaugh brought up Justice Scalia's Morrison v. Olson dissent. Kavanaugh, alluding to some amicus briefs, suggested that the mortgage fraud charges were simply a pretext to fire Cook.
JUSTICE KAVANAUGH: But that leads -I mean, that brief, that amicus brief, cites Justice Scalia's dissent in Morrison, which is always a good place to look for wisdom, and the --the concern that you're putting all these resources --because you can't say it's for policy, putting all these resources, let's find something, anything, about this person and --and --and --and then we're good. And, by the way, there's no judicial review, so we're really good. And there's no administrative process.
Justice Scalia's wise words are worth quoting:
As I observed earlier, in the nature of things this has to be done by finding lawyers who are willing to lay aside their current careers for an indeterminate amount of time, to take on a job that has no prospect of permanence and little prospect for promotion. One thing is certain, however: it involves investigating and perhaps prosecuting a particular individual. Can one imagine a less equitable manner of fulfilling the executive responsibility to investigate and prosecute? What would be the reaction if, in an area not covered by this statute, the Justice Department posted a public notice inviting applicants to assist in an investigation and possible prosecution of a certain prominent person? Does this not invite what Justice Jackson described as "picking the man and then searching the law books, or putting investigators to work, to pin some offense on him"?
In short, give me the man, and I'll find the crime.
Later in the argument, Paul Clement referred back to Justice Kavanaugh's invocation of the Morrison dissent:
MR. CLEMENT: And, I mean, Justice Kavanaugh alluded to the Morrison dissent and, you know, Justice Scalia creating this beautiful picture of some independent counsel with nothing to do but to find a crime on somebody. But, if all the independent counsel has to do is find gross negligence, then I don't think the independent counsel would need more than a couple of hours with most of us. I mean, that's such an elastic standard. And I just can't imagine that's consistent with all the trouble Congress went to to make this unique entity insulated from kind of the political pressures of the day.
I'm not sure the analogy between Trump's firing of Cook and Alexia Morrison's investigation of Ted Olson quite fits. For starters, the President has the power to remove principal officers, and Congress expressly empowered the President to do so if there is "cause." The independent counsel, on the other hand, was a constitutional aberration that has no grounding in history or tradition. But the differences go deeper. Scalia's objection was, to be sure, that motivated prosecutors can pin a crime on anyone. But the problem of the Independent Counsel, and I would add Jack Smith, is a complete lack of accountability. Though they exercised sweeping powers, they were not nominated by the President and confirmed by the Senate. Moreover, there were protections against their removal, which made it difficult for accountable officials to supervise them. By contrast, the President is duly elected, and is fully accountable. Trump has taken massive political hits for firing Cook, and threatening Powell. I don't think the analogy quite works.
Solicitor General Sauer pushed back against the insinuation that the President had some improper motivations in firing Cook. Sauer cited the presumption of regularity.
GENERAL SAUER: One of the strongest traditions in this Court's jurisprudence is the --the sort of presumption of regularity to the president's action. That has applied to this provision, I think, effectively for 112 years and it continues to do so.
Sauer returned to the presumption in a later exchange with Justice Kavanaugh:
GENERAL SAUER: And, again, I disagree with that. I think that the --that argument, that presumption [of regularity], when applied to the president, contradicts a very, very --two very strong strains in this Court's jurisprudence that go back to the founding.
Sauer made the point again, citing the cases from Martin v. Mott to Trump v. Hawaii:
GENERAL SAUER: This Court has since Martin against Mott, running all the way through Trump against United States, Trump against Hawaii, a whole host of decisions, accorded, consistently afforded the president the presumption of regularity in his action and consistently declined to probe a president's actions for, you know, their --for their subjective motivations. And so, in the hypothetical question that you pose, that hypothetical future president should also be afforded the very same sort of deference and --and -
A common theme of the Trump presidency is that Trump is not entitled to the presumption of regularity. It would be very dangerous if the Supreme Court gave any credence to this charge.
There was a related exchange between Justice Barrett and the Solicitor General. Barrett asked what's the big deal about a court-ordered hearing before firing Cook:
4:10 PM: University IT engineers continue to monitor updates from Microsoft. They reported initial progress but have acknowledged setback in the deployment of their remediation. Mail to M365 accounts continues to fail at this time.
1:27 PM: Users continue to experience delays sending and receiving email due to a widespread Microsoft 365 (M365) outage. University IT teams are actively monitoring the issue. Updates are provided on uit.stanford.edu as information becomes available. Thank you for your continued patience.
12:55 PM: Users may experience delays sending and receiving email due to a widespread Microsoft 365 (M365) outage impacting several M365 services. University IT teams are actively investigating the issue and will share updates as more information becomes available.
Plaintiff also objects to the Magistrate Judge's refusal to consider one of its sanctions requests (specifically, to resume Defendant's deposition under special conditions) because the request was presented in a footnote. Plaintiff characterizes this refusal as contrary to law, arguing that courts routinely consider unopposed arguments, even when raised in footnotes, and that Magistrate Judge Reinhart's reliance on Sony Music Ent. v. Vital Pharms., Inc. (S.D. Fla. 2022), was misplaced. This objection is overruled. While a court certainly can address a properly preserved argument made in a footnote, Plaintiff cites no Eleventh Circuit or Supreme Court precedent requiring consideration of such buried arguments. Magistrate Judge Reinhart did not clearly err in declining to consider that request, made in a footnote, in the context of Plaintiff's many other requests.
And here's a similar passage from Judge William Dimitrouleas's decision in Sony:
Plaintiffs also request summary judgment on over a dozen of Defendants' affirmative defenses in footnotes throughout their motion. As Defendants point out, addressing legal arguments in footnotes is an incorrect method to present substantive arguments on the merits or otherwise request relief from the Court. Connor v. Midland Credit Mgmt., Inc., No. 18-23023CIV, 2019 WL 717413, at *4, n. 1 (S.D. Fla. Feb. 20, 2019) (citing Mazzeo v. Nature's Bounty, Inc., No. 14-60580, 2014 WL 5846735, at *2 n.1 (S.D. Fla. Nov. 12, 2014) (not considering argument raised in a footnote); see also Mock v. Bell Helicopter Textron, Inc., 373 F. App'x 989, 992 (11th Cir. 2010) (deeming argument waived because it was raised only in a footnote)). Thus, the Court will not address Plaintiffs' request for summary judgment as to Defendants' affirmative defenses.
By some estimates, William Howard Taft weighed nearly 350 pounds at 5 foot, 11 inches. At the Sixth Circuit courthouse in Cincinatti, Taft's chair is on display. Is has the diameter of a barrel. In 1909, Taft was riding a horse at the Grand Canyon. The poor horse "appeared to be unequal to the President's bulk" and gave way. (It seems the horse broke an ankle or leg.) Chief Justice William Howard Taftalso wrote the most robust conception of presidential power in Myers v. United States.
This history brings me to the oral argument in Trump v. United States. There were extended discussions of what process is due when the President seeks to fire an FTC Governor "for cause."
Paul Clement, who represented Cook, used a very memorable phrase to describe the process afforded by President William Howard Taft:
JUSTICE THOMAS: With that said -with that said, what would the hearing look like and what would the review look like?
MR. CLEMENT: So I agree with General Sauer that the president would have a fair amount of discretion in how he or she wanted to fashion that hearing. I mean, one example we have historically is President Taft, and he sort of gave the removed officials the full Taft, and it was notice, opportunity for a hearing before an impartial tribunal that, you know, serendipitously included future-Justice Frankfurter, and then he --I mean, so that's kind of the maximum that the president could give. But we're not suggesting that you need to give the full Taft. The president would have a lot of flexibility on that.
The "Full Taft." What a perfect line. It wasn't a forced attempt at humor, as we've seen elsewhere. It was a very subtle way to describe what Taft did, and it was also memorable allusion to Taft's girth.
Clement leveled up, and invoked Roberts Rules of Order, a nod to another Justice!
MR. CLEMENT: And, look, I --I --I agree with General Sauer. This Court is not going to dictate, like, you know, here is Roberts Rules, you know, have at it. But I think this Court can do something useful, which is essentially to create an incentive for the executive to provide something that's a little bit more protective, a little bit closer to Taft than something incredibly informal. That's -JUSTICE
By the end of this term, Paul Clement will have argued nine or event ten cases--roughly twenty percent of the merits docket. I think this is a modern record for a lawyer not in the SG's office. (During OT 2023, SG Prelogar argued ten cases.)
Even where I disagree with Clement (which seems to be happening more and more of late), I still marvel at his advocacy skills. And on that point, it is a credit that Clement can argue cases on both sides of the aisle. Progressive litigators are less likely to take that path. I still have a hard time accepting with Neal Katyal's defense of the non-delegation doctrine in the tariffs case.
This post is my contribution to the Institute for Free Speech symposium on the 50th anniversary of Buckley v. Valeo, which is jointly published by IFS and the Volokh Conspiracy blog:
This year marks the fiftieth anniversary of Buckley v. Valeo, the 1976 ruling in which the Supreme Court held that federal laws limiting private parties' expenditures on campaign-related speech violate the First Amendment. Critics blame Buckley for a host of current problems in our political system, such as the disproportionate political influence of wealthy people and the spread of misinformation. Our current political situation does indeed have serious flaws. But a contrary decision would not have averted these developments and would have made things much worse in many respects.
Had the Court accepted the fashionable argument that "money isn't speech," that decision would have gravely imperiled freedom of speech and other constitutional rights. Similar dangers would have arisen if the Court had maintained the rule that campaign-related free speech rights do not apply to corporations, which was eventually rejected in in subsequent case of Citizens United v. Federal Election Commission (2010). Contrary decisions in these cases would also have exacerbated rather than ameliorated the problems of voter ignorance and misinformation. Nor would they have significantly reduced political inequality. A contrary decision would have exacerbated—rather than alleviated—the problems of voter ignorance and misinformation, while doing little to reduce political inequality.
Critics of Buckley, Citizens United, and other rulings protecting expenditures on campaign speech love to emphasize that "money isn't speech." That is true enough in a literal sense. But the exercise of almost every constitutional right depends on the use of resources for which monetary compensation is paid. Consider, for example, the right to use contraceptives upheld by the Supreme Court inGriswold v. Connecticut. Just as money isn't speech, money isn't contraception. But a law banning or severely restricting the use of money to purchase contraceptives would clearly violate the constitutional right upheld in Griswold. Otherwise, the government could effectively gut that right simply by barring or severely restricting the purchase of birth control devices.
The same is true of most other constitutional rights. For example, money isn't religion. But a law banning or restricting the use of money to fund religious institutions and services obviously violates the Free Exercise Clause of the First Amendment.
Moreover, the vindication of constitutional rights often requires the filing of lawsuits, which almost always cost money. A law barring the expenditure of funds on such litigation clearly violates the Constitution, even though supporters of such legislation could inveigh that "money isn't litigation."
Consider the Trump Administration's targeting of law firms that engage in constitutional litigation against his policies. Courts have repeatedly ruled against these efforts on First Amendment grounds. But under the "money isn't speech" approach, the administration could instead attack those firms and others on the basis that "money isn't litigation." Thus, litigation protecting constitutional rights could be gutted by laws or regulations barring or restricting the use of money to fund it.
In the Citizens United case, the Supreme Court rightly ruled that Buckley's principles apply to speech by corporations and unions, as well as to that by individuals. Critics argue that this was wrong because corporations are not people, but "state-created" entities whose rights the government can define as it sees fit.
If applied consistently, this logic would destroy freedom of the press. After all, most major media entities are corporations or owned by them. On this view, the government would be free to censor the New York Times, Fox News, CNN, and so on. The same applies to speech on social media sites organized as corporations or owned by them, such as Twitter/X, Facebook, Bluesky, and others.
The same reasoning applies not only to corporate free speech rights, but to all other constitutional rights exercised through the use of corporate resources. If "state-created" entities don't have free speech rights, they don't have any other constitutional rights either. The supposed power to define the rights of state-created entities cannot be limited to free speech rights. Thus, government would not be bound by the Fourth Amendment in searching corporate property (including employee offices). It could take corporate property without paying compensation because the Takings Clause of the Fifth Amendment would no longer apply. It could forbid religious services on corporate property (including that owned by churches which are organized as nonprofit corporations). And so on.
Moreover, corporations are not the only "state-created" entities out there. Universities, private schools, charities, religious institutions, political parties, partnerships, sole proprietorships, and many other private organizations all have official definitions under state and federal law. And all or most have special government-created privileges and obligations of various kinds. If corporations are state-created entities that can be denied constitutional rights, the same is true of a vast range of other private organizations.
Politicians could suppress opposition speech and activism by such groups by enacting laws or regulations denying them their legal organizational status unless they abjure speech disfavored by those in power. Even if you trust political leaders of your own preferred party with such power, I suspect you would not have similar confidence in those of the opposing party. My own view is that none of them can be trusted with it.
In recent years, some critics of Buckley and Citizens United have blamed these rulings for the rise of misinformation and exploitation of voter ignorance. They argue that wealthy people such as Trump and Twitter/X owner Elon Musk have exploited these decisions to spread lies and deceptions, influencing electoral outcomes. I agree that political ignorance and misinformation are serious problems, and I have spent much of my career analyzing these dangers. I also agree that Trump and his allies have extensively exploited voter ignorance, in the process, proving that ignorance is an even more serious problem than I previously believed (though the more general problem of voter ignorance long predates the rise of Trump).
But government restrictions on speech financed by wealthy people or corporations are not a good solution to these problems and would likely make them worse. Evidence from around the world shows that right-wing populist movements like Trump's, and the misinformation they promote, disproportionately draw their support from lesser-educated and poorer voters. That is a key reason why we increasingly have a "diploma gap" in US elections, and why the GOP is now the party that tends to benefit from higher voter turnout. Wealth and education are not the same, but the two are highly correlated. Some wealthy influencers and donors do indeed spread misinformation and bogus conspiracy theories. Musk is a prominent example. But, on average, affluence is inversely correlated with susceptibility to such tropes.
Regulations restricting the speech expenditures of wealthy and better-educated people will actually further empower the lesser-educated and more ignorant elements of the electorate, which are also the ones most susceptible to misinformation. Nor are such regulations likely to significantly impede the spread of that misinformation. Fundamentally, the demand for misinformation is a much more serious danger than the supply.
Even if individual wealthy people and corporations are limited in their ability to exploit that ignorance and bias, others will fill the void. Likely candidates include media organizations, social media "influencers," unscrupulous politicians (Trump is just a particularly egregious example), activist groups, and more.
In theory, the government could address this problem by comprehensively suppressing misinformation, regardless of the source. But in addition to virtually destroying freedom of speech, that practice would give the government nearly unconstrained power to suppress opposition. It is unlikely that government would use that power to target misinformation evenhandedly. Rather, it would likely weaponize it to crush opposition speech (whether misleading or not), while continuing to spread its own misinformation and lies. Historically, governments have themselves been major sources of misinformation and deception. A state with broad powers to censor can spread its lies more effectively than otherwise.
Finally, there is the argument that spending on campaign speech must be restricted because it is unjust that wealthy people might otherwise exercise greater political influence than others. Wealth can indeed be a source of political inequality. But it is far from the only such source, and by no means the most egregious.
Celebrities, skilled demagogues, "influencers," politicians, and others also have vastly more political influence than the average voter. When Trump first ran for president in 2016, he actually spent little of his own money. His success was in large part a result of his vast preexisting celebrity. Even a law professor who writes for a prominent blog—like the present author—may exercise much more influence than the average citizen, even if far less than a celebrity.
Many of these other sources of influence are far more unequally distributed than wealth. We have a lot fewer celebrities than people wealthy enough to pay for a television or online ad campaign.
Restricting campaign spending is likely to accentuate the potency of these other, more unequally distributed sources of influence. It will become more difficult for relatively unknown candidates to successfully challenge celebrities and incumbent politicians.
Nor is the influence arising from these other resources somehow better or more meritorious than that arising from wealth. Celebrity status, skill at demagoguery, and being an "influencer" are far from being correlated with merit, good judgment on policy issues, or even basic human decency. Again, Trump is just one particularly egregious example of the lack of correlation between the former list of traits and the latter.
Even if there were some objective way to determine how much influence a given person or group deserves to have over our political discourse, it is highly unlikely that real-world government would identify that rule and scrupulously implement it. Real-world politicians and bureaucrats are far more likely to use that power to strengthen their own hand against potential opposition. The case for freedom of speech rests on the proposition that the state cannot be trusted to make such determinations. As the Buckley Court rightly concluded, "[t]he concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment."
From Nuvola, LLC v. Wright, decided Nov. 21 by Hennepin County (Minn.) Judge Laurie Miller:
For the reasons the Court has outlined above, the Court finds Mr. Knaak's failure to check the legal authority cited in his brief and his reliance on non-existent case law in his advocacy before this Court raises a question as to whether he breached his duty of competence to Ms. Wright. The Court will refer Mr. Knaak to the Office of Lawyer's Professional Responsibility (OLPR) for appropriate action. Any mitigating factors proffered by Mr. Knaak, including his compliance with his obligation to educate other lawyers about this issue under this Order, may be relevant to a future ethics investigation and any subsequent recommendations by the OLPR, but the Court will not analyze them here as the Court does not make explicit findings on or enforce ethics rules.
The Court also finds troubling Mr. Braun's [i.e., opposing counsel's] failure to identify or bring the non-existent case citations to the Court's attention before the hearing on the motion to compel arbitration. TheCourt should not be left as the last line of defense against citations to fictional cases in briefs filed with the court.
While Mr. Braun did not create or rely on the fake citations, he also did not detect them. Instead, he admitted he did not review the cases cited by his opponent. If he had checked out the citations in the brief to which he was responding, he no doubt would have brought the issue to the Court's attention by the time of the motion hearing, and that would have allowed the Court to take the non-existence of the cited cases into consideration as it heard the argument on the merits of Defendant's motion to compel arbitration, instead of leaving the Court to discover that issue on its own, after the hearing was concluded.
The Court does not find Mr. Braun's conduct to be sanctionable, as he did not cite any non-existent cases to the Court. [Nonetheless], the Court reminds counsel that it is the obligation of counsel on both sides to respond to each other's arguments, including completing a basic cite-check of the cases cited by the other side.
From Wentworth v. Steinmetz, decided Nov. 12 by the Pa. Super. Ct. Judge Mary Jane Bowes, joined by Judges Victor Stabile and John Bender (see the full opinion for more):
Given the procedural posture of this case, we accept as true the following facts alleged in the Wentworths' complaint. The Wentworths purchased a residential property from Steinmetz …. After moving in, the Wentworths discovered under rugs in the basement a tile floor that incorporated both a swastika and what they perceived to be a Nazi eagle. The Wentworths claimed that they would not have purchased the home had they been aware of the Nazi symbols tiled into the floor, that they could not be expected to live in or sell the home in that condition, and that it would cost $30,000 to replace the floor. Accordingly, they maintained that Steinmetz was liable for compensatory and punitive damages due to his failure to disclose the defect….
{Steinmetz has denied creating the floor pattern in support of Nazism, citing the history of the swastika predating its use by the Nazis. See Steinmetz's brief at 8. The Wentworths acknowledge that the swastika is an ancient symbol that had been used around the world, but suggest that since it is here "styled in the fashion of that used by the Nazis," and accompanied by the German eagle, no reasonable person would believe that this is Native American or Buddhist imagery. In resolving this appeal, we view Steinmetz's subjective intent as irrelevant and accept the Wentworths' allegations that these are pro-Nazi emblems and would likely be viewed as such by guests to their home and prospective buyers.}
The Order raises the inference that his actions were targeted for their message; without the Order, there would have been a much stronger inference that he was prosecuted just for the illegal fire lighting (in violation of valid park safety regulations).
From Chief Judge James Boasberg's decision Tuesday in U.S. v. Carey (D.D.C.):
You cannot falsely shout fire in a crowded theater. What about lighting a fire in a crowded park? After President Donald Trump issued an executive order directing the Department of Justice to prosecute anyone who engages in the protected speech of burning the American flag, Defendant Jan Carey marched to Lafayette Park and burned a flag in protest.
He stands charged with violating park regulations that prohibit setting a fire outside a designated area or receptacle and lighting a fire that damages property or threatens public safety…. The Court holds that the regulations do indeed apply to Carey's flag burning, but it finds that he is entitled to proceed with a further inquiry into whether he is being prosecuted to punish him for his allegedly illegal actions or for his constitutionally protected speech….
The First Amendment protects burning the American flag. Texas v. Johnson (1989). Yet last August, President Trump issued an executive order decrying flag burning and announcing, "My Administration will … prosecute those who … otherwise violate our laws while desecrating this symbol of our country, to the fullest extent permissible under any available authority." The order noted that flag burning might violate several "content-neutral laws" that fight "harm unrelated to expression, … such as open burning restrictions … or destruction of property laws."
Outraged, Carey grabbed an American flag and headed to Lafayette Park, which sits right across from the White House. He laid the flag down on a brick path and, clutching a lighter in one hand and a megaphone in the other, declared that he had served in the Army for twenty years and "fought for every single one of your rights to express yourself …. There's a First Amendment right to burn the American flag. The [President] signed an executive order today saying that it was illegal to burn the American flag." Gesturing at the White House, Carey announced, "I'm burning this flag as a protest to that illegal fascist President that sits in that house." He then bent down and lit the flag on fire. Officers on the scene eventually extinguished the burning flag, leaving its charred remains and some scorched bricks underneath….
An excerpt from Judge Joshua Dunlap's opinion concurring in the denial of rehearing en banc yesterday in StandWithUs Center for Legal Justice v. MIT(from my research, just the third opinion he has written since joining the court in November):
This case touches on the intersection of the First Amendment and Title VI. As such, it presents difficult issues relating to the constitutional guarantee of freedom of speech and the scope of antidiscrimination laws—and it does so in the fraught context of hot-button geopolitical controversies and the insidious reality of antisemitism. In my view, the panel went further than it ought to have gone to resolve the present dispute; nevertheless, I do not believe that the arguments raised justify rehearing en banc. I write separately to briefly note my concerns and rationale for denying rehearing….
[A]ntidiscrimination law, of necessity, only provides a partial remedy for antisemitism because of our concomitant dedication to freedom of speech. Title VI provides that "[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." The First Amendment, however, prohibits government restrictions on speech based on its message, ideas, subject matter, or content, and provides "special protection" to speech relating to matters of public concern—even if it is outrageous. Title VI must therefore be applied with care for the constitutional problems that would arise if it were construed to suppress political speech. Cf. Honeyfund.com Inc. v. Governor (11th Cir. 2024); Saxe v. StateColl. Area Sch. Dist. (3d Cir. 2001); DeAngelis v. El Paso Mun. Police Officers Ass'n (5th Cir. 1995).
The panel addressed this tension by, first, concluding that Title VI does not require a university to "quash protected speech," and, second, concluding that the protesters' actions "did not render their speech antisemitic, much less unprotected." As to the first conclusion, the panel affirmed that speech on matters of public concern is specially protected under the First Amendment, including on college campuses. The panel reached the latter conclusion to avoid determining whether racist speech can be punished under Title VI without violating the First Amendment. I have some concerns with the panel's approach….
[M]y central concern … relates to the panel's determination that the speech alleged in this case was not even plausibly antisemitic…. The panel acknowledges the existence of an "ongoing debate as to the relationship between anti-Zionism and antisemitism—debate that our constitutional scheme resolves through discourse, not judicial fiat." But even as it makes this statement, the panel seems to impose just such a resolution by concluding that statements such as "Palestine will be free, from the river to the Sea!" and "There is only one solution! Intifada revolution!" were not—at least in the context of the facts alleged—antisemitic. But I find it at least plausible that, when made in the immediate aftermath of "the deadliest massacre of Jews since the Holocaust in a manner that reasonably appears to celebrate and glorify that same violence," such phrases support an "inference of animus towards Jews."
