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The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
Update on Canada's Two Secession Movements
Alberta secessionists lost a referendum by a large margin. Quebec secessionists are in better shape, but still facing an uphill struggle.
Back in June, I wrote a post about Canada's two active secession movements: one in Alberta and one in Quebec. Since then, there have been some important developments. Alberta secessionists suffered a major defeat. Quebec secessionists are in better shape, but the odds are still against them succeeding anytime soon. That said, both movements may well persist for a long time to come.
Yesterday, Alberta secessionists lost a referendum on secession by a massive 75-25 margin. Pollsters expected a blowout, but this margin is close to the outer edge of expectations. Moreover, the result may actually understate the true extent of opposition to secession in the province. As noted in my earlier post, the question put to the voters was not directly about secession, but rather on whether "the Government of Alberta [should] commence the legal process required under the Canadian Constitution to hold a binding provincial referendum on whether or not Alberta should separate from Canada." Essentially, it was a referendum on whether to hold another referendum. Some "yes" voters might have been confused about what it meant or wanted to hold a second referendum, while planning to vote "no."
United Conservative Party Alberta Premier Danielle Smith (who played a key role in arranging yesterday's vote, despite opposing secession herself) has pledged not to hold any further referenda on secession. She may well be happy to sideline an issue that divides her party (Alberta secessionists are overwhelmingly right-of-center UCP voters).
All of this is bleak news for Alberta secessionists. But it's too early to say their movement is dead. As noted in my previous post, secession movements often persist for many years, even in the face of defeats in referenda and other political setbacks. Scotland, Quebec, and Catalonia are all examples of this phenomenon. And some 25% of Alberta voters did express support for secession, despite opposition from the leaders of all major political parties. That's a minority, but far from an insignificant one.
Meanwhile, in Quebec, on October 5, the secessionist Parti Quebecois (PQ) won the provincial election. But they got only 28% of the vote (the lowest percentage for any winning party in the history of Canadian provincial elections). That translated to a "minority" government that has 59 seats in Quebec's National Assembly (the provincial legislature), 5 short of a majority. And, as discussed in my previous post, secession remains unpopular, with polls showing opposition by a margin of 2-1 or more. For much more detailed discussions of the Quebec election and its ramifications, see analyses by Canadian election/polling experts Eric Grenier and Philippe Fournier.
As Fournier emphasizes, PQ leader Paul St. Pierre Plamondon (known as "PSPP") remains committed to holding a secession referendum. But the minority nature of his governments makes it unclear whether the PQ can find the votes to enact legislation to hold one. The left-wing Quebec Solidaire party (which holds 9 seats) is also pro-independence. But they may not be willing to work with the PQ. In addition, PSPP has promised not to hold a referendum so long as Donald Trump remains president of the United States, claiming it would be too dangerous to do so while Trump continues his trade war with Canada and otherwise threatens the country. Unless Trump dies or gets impeached and removed (both relatively unlikely), he will remain in office until January 2029. Canadian minority governments generally don't last more than two years. So PSPP may not be in power long enough to outlast Trump.
While Quebec secessionists seem unlikely to prevail in the near future, the fact that they managed to return to power is still a sign of the movement's persistence. And they have survived referendum defeats in 1980 and 1995. Thus, the movement is likely to continue to be a thorn in the side of Canadian federal governments, perhaps for many years to come. It has demonstrated its staying power over many years, much more so than Alberta secessionists.
Many Canadians believe Trump's threats against their country have weakened secessionists in both Alberta and Quebec. PSPP's stance is just part of the evidence for this conclusion. Trump's trade war and threats to make Canada the "51st state" have bolstered national unity and made the Liberal Party government of Prime Minister Mark Carney much more popular than might otherwise be the case. Trump is making Canadian national unity - and the Canadian Liberal Party - great again! But for him, the Liberals would likely have lost last year's Canadian federal election to the Conservatives.
Perhaps, all along, Trump has been trying to help the Liberals and stymie secessionists. If that's the true objective of his Canada policy, then maybe it's not quite as evil and stupid as otherwise seems to be the case. On a more serious note, Trump's policies have illegally usurped congressional authority over trade, damaged our economy, and alienated a crucial ally - all for no good reason.
In my June post, I outlined reasons why I am more sympathetic to Alberta's secession movement (motivated by conservative economic ideology and grievances about federal fiscal transfers and energy policies), than Quebec's (motivated by Francophone ethno-nationalism). Although I think the Alberta movement has greater merit than Quebec's, for reasons also summarized in the earlier post, I remain skeptical that Alberta secession would accomplish more good than harm. I also explained why these movements may be of interest to many non-Canadians and why I (an American) comment on them them:
[T]hese events are… of interest to students of federalism and secession, and to anyone who cares about the future of America's northern neighbor and one of our most important allies. And history shows that secession movements often persist even after defeat in a referendum….
From a US perspective, I worry that a successful secession movement would make Canada a weaker and less effective ally. Unlike our current president, I think a strong Western alliance is essential….
Some might find it inappropriate for an American to comment on Canadian politics. I disagree. Canadians and other non-Americans often express views on US politics. And they have every right to do so. Political analysis should be judged on its substance, not on the background of the author. In addition,… Canadian secessionism potentially impacts the US in various ways, and raises broader issues about the morality of secession movements that Americans and others have reason to take an interest in…. I am a longtime academic expert on federalism and secession-related issues, and I know French, as well as English. Thus, I think have the necessary qualifications to write about these issues. Whether the commentary is any good or not, is for others to judge.
Liberty Justice Center Files First Lawsuit Challenging Trump's Section 338 Tariffs Against Canadian Imports
The tariffs are illegal for multiple different reasons.
Today, the Liberty Justice Center (LJC) filed Gellert Global Group Corp. v. Trump, the first lawsuit challenging President Donald Trump's massive Section 338 tariffs against a variety of Canadian imports. The case was filed in the US Court of International Trade (which has jurisdiction over tariff-related cases); Gellert Global Group is an importer of Canadian cheese subject to the tariffs. LJC is the same public interest group that I worked with on the case challenging Trump's earlier IEEPA tariffs, which ultimate resulted in their invalidation by the Supreme Court. I am not directly involved in the present case. But I support it and believe it deserves to prevail.
LJC has also filed cases challenging Trump's massive Section 122 and Section 301 tariffs. They have become America's premier public interest law group standing up for free trade and enforcing constitutional constraints on executive power over trade restrictions.
Section 338 was part of the infamous Smoot-Hawley tariff act of 1930, which gravely exacerbated the Great Depression. It has never been used before, likely because it was superseded by later laws.
I have previously written about why Trump's Section 338 tariffs are harmful and illegal. See my recent Montreal Economic Institute paper on this topic, and earlier pieces here, here, and here. To briefly summarize, the tariffs on Canada are illegal because 1) Section 338 has been superseded by later legislation, 2) even if Section 338 is still operative, Trump's tariffs do not meet its requirements because the Canadian actions they supposedly respond to do not "discriminate" against US goods, as the law requires, 3) Trump's tariffs do not "offset" the Canadian actions (as Section 338 also requires), but go far beyond that, 4) the administration's interpretation of Section 338 runs afoul of the "major questions" doctrine, and 5) if Section 338 is operative and does authorize the Trump actions, it would violate the constitutional nondelegation doctrine (which restricts delegation of legislative power to the executive).
The LJC complaint advances all five of these arguments. To prevail, they need win on only one. They also add a few more technical points that I will not try to cover here. LJC further seeks a class action certification for a class of all those importers subject to the Section 338 tariffs. If this succeeds, it would block all enforcement of Section 338 tariffs, not just those paid by Gellert.
This lawsuit does not directly challenge Trump's extension of the Section 338 action to categorically ban some Canadian imports, in addition to imposing tariffs. As far as I can tell, Gellert does not import goods subject to the ban (as opposed to the tariffs). However, as I explained here and here, the legality of the bans is dependent on that of the initial tariffs. In a recent Lawfare article, I outline the reasons why executive-imposed import bans are subject to most of the same legal constraints as executive-imposed tariffs.
Like the IEEPA, Section 122, and Section 301 tariffs, Trump's use of Section 338 is an attempt to convert a limited delegation of authority into a blank check enabling the president to impose tariffs whenever he wants. Courts should reject all of these power grabs.
I commend LJC for bringing this important case. And I hope and expect it may not be the last lawsuit challenging the Section 338 measures. Future cases might well challenge the import bans directly, as well as the tariffs.
New in SCOTUSBlog: "The separation and expansion of powers between Congress and the president"
Our final installment to track the changes in constitutional law.
SCOTUSBlog has published the final installment in our series on recent changes in constitutional law. This essay focuses on the separation of powers. It begins:
The late 1990s and early 2000s ushered in the Rehnquist federalism revolution, which appeared to place limits on Congress' powers and expand those of the states. Then came Sept. 11, 2001, and the global war on terror, which seemed poised to expand the president's powers. Yet, by 2008, Congress' powers seemed without meaningful limits and the president's efforts to expand his own powers had failed. And the separation of powers remained, well, separate. Nevertheless, the next two decades would vastly enlarge the president's powers as Congress' authority over the executive branch would be greatly diminished.
Here is a chart that shows the shift in cases:
Here is our conclusion:
Up to the fourth edition of our casebook in 2022, constitutional law followed a somewhat predictable arc. To be sure, there were shifts to the left and to the right, but the doctrine could be explained by a coherent narrative: the New Deal settlement on federal power was untouchable; the court would offer only modest protections for federalism; the administrative state was beyond reproach; attempts to single out unpopular groups would be halted; "benign" racial classifications were permitted; and church and state were strictly separated. Now, each aspect of this narrative has been reconceived. The five years since that edition appeared have brought the most changes to constitutional law since the Warren court.
We began this series by observing that lawyers tend to internalize the constitutional law that existed when they attended law school. The same is true of law professors. Virtually all law professors today came of age in a time of stasis. They could safely assume that the trajectory of the Warren court would continue indefinitely. But the jurisprudence of the Burger and Rehnquist courts was primed for a reversal, just as the Warren court reversed so many precedents from before. Ultimately, the Roberts court continues to chip away at precedents from the 1970s and 1980s, even if the precedents from the 1960s and before remain.
Many of these professors have struggled to cope with sudden changes in the doctrine. Some have voiced their despair of teaching constitutional law at all. Unsurprisingly, their students also struggle to cope with these developments. This trend is regrettable. Our role as casebook editors, and constitutional law professors, is to guide students through the entire corpus of constitutional law, from the framing to the present day, without any nostalgia for, or bias against, times gone by.
This is my last planned post with SCOTUSBlog. I'm sure there will be more to come.
Did Oregon Man Who Shot the School Shooter Violate Oregon Law in Carrying Gun onto School Property?
I've seen some say yes as to that—as an objection to gun control laws, not as an objection to the man's actions—but I don't think it's quite right.
It's true that Oregon law generally criminalizes gun possession on school property, including by people with concealed carry licenses, if the school board adopts such a no-guns-allowed policy. And apparently the Bend school in which the shooting took place indeed has such a policy.
But Oregon law recognizes a so-called "choice of evils" defense, often called a "necessity" defense, that allows people to violate a wide range of laws if it's genuinely necessary in an emergency:
(1) Unless inconsistent with other provisions of chapter 743, Oregon Laws 1971, defining justifiable use of physical force, or with some other provision of law, conduct which would otherwise constitute an offense is justifiable and not criminal when:
(a) That conduct is necessary as an emergency measure to avoid an imminent public or private injury; and
(b) The threatened injury is of such gravity that, according to ordinary standards of intelligence and morality, the desirability and urgency of avoiding the injury clearly outweigh the desirability of avoiding the injury sought to be prevented by the statute defining the offense in issue.
(2) The necessity and justifiability of conduct under subsection (1) of this section shall not rest upon considerations pertaining only to the morality and advisability of the statute, either in its general application or with respect to its application to a particular class of cases arising thereunder.
Children May Proceed Pseudonymously; May Their Parents?
From L.R. v. Bd. of Ed. of Jennings School Dist., decided Wednesday by Judge Joshua Divine (E.D. Mo.):
L.R. and her mother, R.S., alleged that after an incident involving L.R.'s father at end-of-school pickup, employees of Jennings School District placed L.R. in an out-of-school virtual learning program that was inferior to regular schooling. According to their complaint, the district employees did not provide L.R. with an explanation of how her conduct justified the suspension, a timeline or consistent standards for returning to in-person classes, or an opportunity to be heard or appeal. Those shortcomings, they argued, violated L.R.'s rights to constitutional and statutory due process as well as a free public education.
Since then, the parties have reached a settlement…. As to the settlement, the Court intends to approve it provided that the plaintiffs file an amended complaint that discloses R.S.'s identity.
[R.S.] argues that disclosing her identity "will effectively disclose L.R.'s identity" too. True, the Federal Rules of Civil Procedure presumptively require anonymizing minors by their initials, but there is no similar requirement for parents. Compare Fed. R. Civ. P. 5.2(a)(3) (stating that filings must replace "the name of an individual known to be a minor" with "the minor's initials"), with id. 10(a) ("The title of the complaint must name all the parties."). Instead, Rule 10 creates a "strong presumption against allowing parties to use a pseudonym." A party may overcome that presumption "only in those limited circumstances where [the] need for anonymity outweighs countervailing interests in full disclosure."
Today in Supreme Court History: October 20, 1973
10/20/1973: The Saturday Night Massacre occurs.
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Second Amendment Roundup: Saving Lives at Silver Rail Elementary
After School District bans licensed pistols, license holder saves children.
On October 15, I published a post arguing that true "sensitive places" where guns are banned must have armed protection. The same day, a murderer broke into a "gun-free-zone" school in Oregan and began shooting children and teachers. A dad of two girls at the school just happened to be driving by and grabbed his pistol, rushed into the school, and "neutralized" the killer with several shots. He was a concealed pistol licensee.
Silver Rail Elementary School is a public school in the Bend-La Pine Schools District with roughly 400 students, kindergarten through fifth grade, and approximately 40 staff members. It is located in Bend, Oregon. On October 15, a 16-year-old former special-needs student threw a shotgun over a fence outside the school and then scaled the fence. A passerby verbally confronted the teenager, who fired three shots at his truck. The driver called 911 at 12:59 p.m.
Kaylub Giamanco, a concealed pistol licensee, was also passing by when he saw the intruder shoot at the truck and then shoot the glass panes on two double doors to get inside the school. He reached for his .40-caliber pistol and rushed in through the same door. But the killer had already shot and killed three boys and a teacher and wounded another boy and a teacher. Another teacher threw a phone at the suspect, tackled him, and attempted to disarm him. As they struggled, Giamanco entered the room and shot the teen several times, killing him.
The killer fired as many as 15 rounds from a Maverick 88 12-gauge pump-action shotgun, which his mother had legally purchased. He had 44 more shotshells on his person and in his backpack. His devastation would have been far worse had not Giamanco intervened.
Besides a round in the chamber, the Maverick 88 shotgun holds either five or seven rounds in the magazine, depending on the model. Manufactured by Mossberg, the shotgun is typically used for protection and for hunting. It would not be an "assault weapon" under any of the laws that ban them, which exempt pump-action firearms.
Police arrived on the scene at 1:02 p.m. after being advised that the suspect had already been shot by a community member who had pursued the gunman. An armed citizen had ended the tragedy minutes before police could arrive. For the above, see ABC news account here.
Oregon Governor Tina Kotek reacted to the event as follows: "To the community member who heroically intervened to stop further loss of life: Your actions carry a heavy emotional burden, and I just want you to know that my thoughts are with you as well."
Just last year, Governor Kotek signed S.B. 243, the Community Safety Firearms Act, which her press release said "will help prevent mass shooting events in Oregon." "This matters to every parent dropping their kid off at school," in her words.
As revised by S.B. 243, Oregon law makes it a felony to possess a firearm in a public building, but if the building is a school, it is an affirmative defense that the person has a concealed handgun license, in which case it is a misdemeanor. ORS 166.370(1), (3)(g). However, a district school board "may adopt a policy providing that the affirmative defense … concerning persons licensed to carry a concealed handgun … does not apply to the possession of firearms on the grounds of the schools controlled by the board." ORS 166.377(1). A board that adopts the policy must "Post a clearly visible sign, at all normal points of entry to the school grounds subject to the policy…." Id.
The only effect of this policy is to criminalize a concealed handgun licensee from possession of a handgun at a school. It was already an offense for a member of the general public to possess a firearm at a school. Given that murder was already illegal, one would not expect a person intent on homicide to be dissuaded by a sign.
Only 25 of the 197 school districts in Oregon have adopted this policy, one of them being the Bend-La Pine School District. That policy prohibits school staff members, such as the teacher who threw her phone at the attacker, from being armed even if they are concealed pistol licensees.
It also means that the brave community member who entered the school and ended the carnage would have violated the law, but for a "choice-of-evils" justification defense. It was an emergency measure to avoid an imminent injury of such gravity that the desirability and urgency of avoiding the injury outweighed the desirability of avoiding the injury sought to be prevented by the statute defining the offense (ORS 161.200). Likewise, his use of deadly force was justified as the defense of third persons from what he reasonably believed to be the use of unlawful physical force (ORS 161.209). Those two provisions were held to warrant an adequate jury instruction in State v. Taylor (Ore. App. 1993), which was a self-defense case.
The lessons to be learned here are timeless. Thomas Jefferson and other of our Founders recognized the wisdom of Cesare Beccaria, who wrote in On Crimes and Punishments (1764):
The laws that forbid the carrying of arms … disarm those only who are neither inclined nor determined to commit crimes. Can it be supposed that those who have the courage to violate the most sacred laws of humanity … will respect the less important and arbitrary ones, which can be violated with ease and impunity…. Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man.
"The Court Requires Me to Warn You That I Pose a Risk of Stalking and Harassment to Intimate Partners"
From Judge Ted Stewart (D. Utah) in U.S. v. Wang, dated Sept. 9 but just docketed today:
Defendant objected to the condition that she notify any intimate partners "about the potential risk she poses" as vague. To avoid any vagueness, the Court imposed the following: "The court requires you to notify any intimate partners that you have been convicted of cyberstalking and pose a risk of stalking and harassment to intimate partners." The Court finds this condition is necessary to protect the public considering Defendant's history of cyberstalking and her relationships with her past victims.
I believe similar conditions are sometimes imposed as to sex offenders, but this is the first time I've seen something like this as to stalkers. (Note that, once a criminal defendant is convicted, the standard for evaluating probation conditions restricting or compelling speech becomes more much government-friendly than would be the case in the absence of such a conviction.) Here's the Justice Department's statement summarizing the case:
Supreme Court Will Hear Case on "Facially Neutral" Discrimination Against Asian Students in Admissions to Public Magnet Schools
The case arises as both right and left favor various forms of anti-Asian discrimination.
Today, the Supreme Court decided to hear Association for Education Fairness v. Montgomery County Board of Education, a challenge to "facially neutral" discrimination against Asian applicants to selective public magnet schools in Montgomery County, Maryland. The admissions criteria are, on their face, racially neutral. But evidence indicates they were likely adopted for the purpose of reducing the percentage of Asian students in entering classes. More specifically, the case addresses the issue of "[w]hether a plaintiff challenging a facially neutral admissions policy as racially discriminatory must establish that the targeted racial group suffered an aggregate disparate impact relative to its share of the applicant pool." This issue is increasingly important since the Supreme Court banned most explicit racial discrimination in college admissions (and, by extension, school admissions) in SFFA v. Harvard (2023).
The lower court ruled that, even if there is evidence that a facially neutral admissions policy was enacted for the specific purpose of reducing the number of admitted students from a specific racial or ethnic group, it must still be upheld so long as the percentage of admitted students from that group is as high or higher than the percentage of applicants from that group.
The case is similar to (and based on) Fourth Circuit decision in Coalition for TJ v. Fairfax County School Board, which the Supreme Court refused to take in 2024 (though three conservative justices indicated they did want to hear it) [my wife Alison was one of the attorneys representing the plaintiffs in that case]. The present case is also from the Fourth Circuit. In my view (see here and here), the earlier Fourth Circuit decision is badly wrong and would - if the same approach were adopted by the Supreme Court - license all kinds of invidious, unconstitutional discrimination against Asians and other minorities:
Longstanding Supreme Court precedent holds that evidence of unconstitutional motivation for "facially neutral" policies shifts the burden of proof to the government to show that they would have enacted the same policy even in the absence of illicit motives. If they fail to prove that, then the policy must be subjected to strict scrutiny, which it would be unlikely to survive. In the TJ case, the Fourth Circuit majority opinion by Judge Robert Bruce King holds that even the most blatant discriminatory motivations do not trigger strict scrutiny so long as the group being targeted for discrimination by "facially neutral" means is still represented in proportion to its percentage of the relevant population (or more). Under the new admissions policy, Asians were still 54% of accepted applicants (as compared to 73% under the old one). Since that is still higher than the Asian percentage of the applicant pool, evidence of discriminatory intent becomes irrelevant….
I and others have previously compared today's anti-Asian discrimination in selective educational institutions to discrimination against Jewish applicants in earlier eras. Under the Fourth Circuit's reasoning, old-time policies using facially neutral means to reduce the percentage of Jewish students at elite universities would be perfectly legal, so long as Jewish applicants were admitted in the same [or higher] percentages as other groups. And that would be true no matter how extensive the evidence that the new policy was motivated by anti-Semitic prejudices, or that Jewish applicants had to have stronger academic records to be admitted than those required of gentiles.
The same point applies to all kinds of discrimination against racial, ethnic, and religious minorities. So long as facially neutral means are used and the overall success rates of different groups are similar, this reasoning would allow even the most blatant discriminatorily motivated policies intended to reduce the participation of some groups for the benefit of others. There are many situations where members of some minority groups are "overrepresented" in educational institutions, government contracting, and elsewhere, relative to their percentage of the applicant pool or of the general population. Jews, Muslims, Asians, atheists, and Mormons are obvious examples of groups that fit that bill in a variety of educational and professional settings.
If a federal or state government adopted a seemingly neutral policy to try to reduce the percentage of blacks among professional football or basketball players, that too would pass muster, so long as the percentage of blacks in the the relevant pro sports leagues remained at least as high as the percentage of blacks among those seeking employment as players…. Progressives and others inclined to support today's decision should consider whether they are really willing to live with these troubling implications.
Since I wrote the above, the ideological valence of anti-Asian discrimination in education has shifted somewhat. For a long time, many left-wingers defended such discrimination (along with discrimination against white applicants) on the grounds that it is necessary to achieve "diversity" and compensate Blacks and Hispanics for the history of discrimination against those groups. Most conservatives condemned it because it violates principles of constitutional color-blindness.
During the second Trump Administration, however, right-wing nativists have increasingly defended discrimination against Asian immigrants on such ridiculous grounds as that they work too hard (thus making it too difficult for whites to compete with them), or even that they undermine the supposed value of racial "homogeneity." The political right actually has a long history of anti-Asian bigotry. But recently the problem has gotten much worse, after a period in which it was diminishing because conservatives (rightly) condemned such discrimination as a violation of color-blindness. The growing anti-Asian bigotry among right-wing nationalists is similar to and linked with their growing tendency towards anti-Semitism. Indeed, as many commentators have pointed out, the two prejudices are similar in many respects. Both Asians and Jews are condemned for supposedly working too hard, emphasizing academics too much relative to other activities, and supposedly dominating various business and intellectual fields.
The left-wing rationales for anti-Asian discrimination are little better than the right-wing ones. If you truly value diversity, it makes no sense to disfavor Asian applicants as a class. They add as much or more to diversity as any others. Indeed, as I have pointed out before, lumping all Asians in one category makes no sense, as this group includes a vast range of different ethnicities and cultures, covering more than half the world's population.
The compensatory justice rationale for anti-Asian discrimination collapses under the weight of the fact that many Asian groups have themselves faced extensive discrimination at various times in American history. Discrimination against Chinese and Japanese by federal and state governments has a long and sordid history, of which Japanese internment during World War II is just one particularly awful example.
It is important to recognize that "facially neutral" policies adopted for the specific purpose of excluding particular racial or ethnic groups differ from those that merely have an unintended disparate impact. The former are deliberate efforts to discriminate on the basis of race, whereas the latter are probably inevitable in a diverse society where groups differ from each other in various ways. For example, laws banning violent crime disproportionately affect any group which is, on average, younger than others, since young people (especially young men) have much higher crime rates than older ones.
The Constitution at least presumptively bars racial discrimination by government, whether motivated by left-wing objectives or right-wing ones. And such discrimination is forbidden even if cloaked in "facially neutral" garb. Otherwise, the government could easily discriminate against virtually any group simply by targeting some characteristic that correlates with group membership. Hopefully, the Supreme Court will recognize that and rule the right way in this case.
NOTE: The plaintiffs in this case are represented by the Pacific Legal Foundation, a public interest group that was my wife's employer until recently. As noted above, she helped represent the plaintiffs in a previous case (also litigated by PLF), on which the lower court ruling in this case was based. She is not one of the attorneys in this case, and is no longer with PLF.
Supreme Court Will Hear Necessary and Proper Clause Case on Federal Law Banning Home Distilleries
The case is likely to be the most important Necessary and Proper Clause case since 2012.
Today, the Supreme Court decided to review the case of Department of Justice v. McNutt, which challenges a federal law banning home distilleries. The key question in the case is whether the law in question is justified by the combination of the tax power and the Necessary and Proper Clause (which gives Congress the power to make laws "necessary and proper" for executing other powers granted to the federal government). This is likely to be most important Supreme Court Necessary and Proper Clause decision since at least NFIB v. Sebelius (2012), which ruled that a "proper" power permissible under the Clause is one that is "ancillary" to the implementation of an enumerated power; it cannot be a "great, substantive and independent" power. This case is likely to further clarify the meaning of "proper," perhaps by explicating in more detail what counts as a "great…and independent" power.
In the lower court decision in this case, the Fifth Circuit ruled that the law is not "proper" and even that it isn't "necessary." There is also a Sixth Circuit decision that went the other way, thereby creating a circuit split.
As explained in my earlier posts on the Fifth and Sixth Circuit decisions (linked above), I think this law is not "proper," and I hope the Supreme Court strikes it down. I summarize the reasons why in my post on the Fifth Circuit ruling:
The Fifth Circuit… concludes that the law in question exceeds Congress' authority under the Necessary and Proper Clause, which grants the power to makes laws "necessary and proper" for carrying into execution other federal powers. I think the court is right that the law in question is not "proper." The Supreme Court, in NFIB v. Sebelius(2012), ruled that a "proper" power permissible under the Clause is one that is "ancillary" to the implementation of an enumerated power. It cannot be a "great, substantive and independent" power. See my analysis in this article. The power claimed here is clearly "great and independent." As Judge [Edith] Jones notes, "[u]nder the government's logic, Congress may criminalize nearly any at-home conduct only because it has the possibility of concealing taxable activity."
I elaborated further in the post criticizing the Sixth Circuit decision:
[T]he Sixth Circuit is badly wrong to conclude that the law is "proper." As explained in my earlier post, the Supreme Court, in NFIB v. Sebelius (2012), ruled that a "proper" power permissible under the Clause is one that is "ancillary" to the implementation of an enumerated power. It cannot be a "great, substantive and independent" power. The power to ban any home-based activity that might serve as a substitute for taxable activity outside the home is clearly a "great and independent power." As Judge Edith Jones explains in the Fifth Circuit ruling, "[u]nder the government's logic, Congress may criminalize nearly any at-home conduct only because it has the possibility of concealing taxable activity."
The Sixth Circuit tries to address this point by claiming alcohol is somehow special….
This distinction between alcohol and all other commodities is totally arbitrary. The same reasoning could justify banning home production of anything else that is more easily taxed if produced outside the home. And there is a long history of home production of all kinds of other commodities taxed or severely regulated by the government, ranging from cigarettes to illegal drugs, to pornographic videos.
While Judge Edith Jones (author of the Fifth Circuit decision) is one of that circuit's most conservative judges, the ruling was also joined by liberal Obama appointee Judge James Graves. On the other hand, the Sixth Circuit decision was written by prominent conservative Judge Raymond Kethledge. We shall see if the Supreme Court also divides on this issue in a way that cuts across conventional ideological and jurisprudential lines.
As noted in my post on the Fifth Circuit case, I think Judge Jones is not persuasive in arguing that the home distillery ban isn't "necessary," as well as improper. That argument is unlikely to prevail under the Supreme Court's expansive definition of "necessary, " dating back to McCulloch v. Maryland (1819), where Chief Justice John Marshall famously ruled that "necessary" includes any measures that may be "useful" or "convenient" for implementing an enumerated power.
As also noted in my posts on the two lower court rulings, I think the government has a better argument that this law is authorized by the Supreme Court's badly misguide precedent on federal power under Commerce Clause (which grants Congress power to regulate interstate commerce). But the Supreme Court is apparently not going to review that issue. The question presented submitted to the Court in McNutt is limited to the Necessary and Proper Clause.
Beasts of the Law
A quiz about three animal-related figures of legal speech (all of which had been mentioned on this blog in years past). Fill in the blanks, and provide the explanation the courts offer:
- "A red ___ case."
- "Presumptions may be looked on as the __ of the law."
- "Judges are not like __."
Note that it's not enough that judges actually aren't like, say, eels; it has to be a preexisting legal phrase.
Give your answers in the comments. No fair peeking, Googling, or Clauding.
Four Justices Recuse From Petition By Publishing Companies And Court Grants New Case on Disparate Impact
Many lawyers billed a lot of hours to have a judge affirmed due to a lack of a quorum.
Sophisticated clients develop comprehensive strategies to get a cert petition granted. BMG Rights Management (US) LLC v. Cyril E. Vetter was one of those cases. The question presented concerned limitations on the reversion of copyrights. Paul Clement was retained to represent many of the leading media companies. The Parties to the Proceeding were:
Petitioners are BMG Rights Management (US) LLC; Capitol CMG, Inc. (Parent Company Stock Ticker: UMG); Essential Music Publishing LLC (Parent Company Stock Ticker: SONY); and Warner-Tamerlane Publishing Corp (Parent Company NASDAQ Stock Ticker: WMG).
The Plaintiffs secured top-side amicus brief from heavy-hitters including Paramount (represented by Lisa Blatt), the Motion Picture Association of America, the Recording Industry Association of America, and more. Everything was lined up for a cert grant. Alas, there would be no quorum.
Today's order includes this entry:
Because the Court lacks a quorum, 28 U. S. C. §1, and since the qualified Justices are of the opinion that the case cannot be heard and determined at the next Term of the Court, the judgment is affirmed under 28 U. S. C. §2109, which provides that under these circumstances "the court shall enter its order affirming the judgment of the court from which the case was brought for review with the same effect as upon affirmance by an equally divided court." Justice Sotomayor, Justice Gorsuch, Justice Barrett, and Justice Jackson took no part in the consideration or decision of this petition.
The lower court judgment survives, and it is hard to imagine another case with the same parties would trigger a different outcome.
What happened here? I have to imagine that these four Justices, who all have lucrative book deals, recused because of either the parties identified, or the issue presented. Curiously, Justice Alito, who is a new publisher, did not step aside.
Going forward, these and other publishing companies need to be aware that they likely do not have a quorum for a cert grant. However, they stand a good chance of having a favorable lower-court judgment affirmed by a quorum-less court.
I've often wondered whether it makes actual good business sense to give lucrative book deals to the Justices. Do they really ever earn back the advance or is it just an interest-free loan? Well, now that media companies may no longer be able to bring cases to the Supreme Court, that value proposition has become far more difficult.
We've seen how significant Justice Alito's recusal was in Suncor. I think these media recusals may prove even more important to the business community. And while Justice Alito could divest those stocks, authors with book deals cannot cure the conflict.
Also in today's order is a cert grant in the racial preferences case from Montgomery County, Maryland. But the Court re-wrote the QP. Here is the Court's version:
The petition for a writ of certiorari is granted limited to the following question: Whether a plaintiff challenging a facially neutral admissions policy as racially discriminatory must establish that the targeted racial group suffered an aggregate disparate impact relative to its share of the applicant pool.
Here is the question framed in the petition:
Whether a plaintiff alleging that a school district implemented facially-neutral admissions criteria for a racially discriminatory purpose must show that the criteria produced a disparate impact on the targeted racial group before a court may consider evidence of discriminatory intent.
The Court dropped the reference to discriminatory intent and added a focus on "aggregate disparate impact." This case could now reflect an opportunity for the Trump Administration to advance its new policy concerning disparate impact.
"The AI Data Will Provide an Unrivaled View into the Mind of a Defendant …"
"whose [mental state] is itself the measure of Plaintiff’s [punitive] damages."
That's part of libel plaintiff's argument(filed last week) for subpoenaing defendant's AI queries in Fontainebleau Florida Hotel, LLC v. Botach; the defendant is popularly known as Rabbi Shmuley Boteach. From the introduction:
The Court asked whether Botach's communications with AI platforms fall within the scope of "damages" discovery permitted by ECF No. 261, and specifically how those materials relate to malice and the statutory cap on punitive damages. Precedent from the United States Supreme Court and Eleventh Circuit, as well as Florida law, answers that question directly.
Under Fla. Stat. § 768.73(1)(c), the cap on punitive damages lifts entirely where the fact finder determines that "the defendant had a specific intent to harm the claimant" at the time of the injury. As discussed below, legions of cases from trial courts to the Supreme Court hold that post-defamation conduct is probative of whether defamatory statements were made with intent to harm. Specific intent is therefore not background color to the damages trial or damages discovery. Discovery into Botach's intent to harm Plaintiff is damages discovery, and the AI materials are the most direct evidence of that intent.
Botach did not merely publish an errant falsehood on a blog or make a heated statement in a debate. He methodically engineered his attacks—drafting, refining, and iterating for painful effect through the most potent technologies known to humankind. The prompts and chats are his mental state reduced to writing, and they are probative of damages.
And from the defendant's response:
Civilians Using Guns to Defend Against Multiple Shootings
There were apparently at least a dozen such uses in the U.S. in 2025.
News accounts report that the Bend, Oregon school shooting Thursday was stopped in part by an armed civilian. From the N.Y. Times (Anna Griffin, Aaron West, Nicholas Bogel-Burroughs & Chelsia Rose Marcius):
A man in a red pickup truck was driving by and saw the teenager throw his shotgun over the fence and start to climb it, the police said. The driver "verbally confronted" the gunman, who paused to open fire at him, pelting the truck with shots….
Outside, Kaylub Giamanco, a father of two girls at the school, had seen the red pickup get shot while driving by on his lunch break. He swerved onto the sidewalk and ran inside.
He found the gunman wrestling with the teacher who tried to stop him and shot him several times with a .40-caliber handgun that had been legally secured in his truck, the police said. The suspect, who died, was carrying 44 more rounds of ammunition.
Readers might want to know: How often do civilians use guns to help stop shooters who pose ongoing threats to multiple people? (By "civilian," I mean here someone other than a police officer or a security guard; off-duty military members qualify for my purposes.)
Obviously, an exact count is hard to gather, and some cases will be ambiguous. Sometimes, it may not be clear whether the shooter was planning to keep attacking. Sometimes, it may not be clear, at least from press accounts, whether the defender succeeded in stopping the shooter (for instance, by scaring the shooter away). Sometimes a civilian and a security guard or a police officer might step in together. And sometimes news accounts may err. Any count is thus a judgment call, and also likely incomplete because not all incidents make the news.
Still, thanks to a Crime Prevention Research Center spreadsheet, I can say that in 2025 there appeared to have been at least a dozen such incidents. The CPRC report says there were 23; I went through the list, checked the linked news accounts, and tried to exclude ones that seemed just like one-on-one self-defense situations or matters where the defender seemed clearly unsuccessful. (One-on-one self-defense is of course worthy on its own, but it's not what I'm discussing here.) With those exclusions, and trying to be relatively conservative in what I counted, I ended up counting 12 to 14 such incidents in 2025, depending on how you evaluate some of the more ambiguous ones.
Today in Supreme Court History: October 19, 1789
10/19/1789: Chief Justice John Jay takes oath.
Open Thread
What’s on your mind?
