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The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
Andrew McCarthy on the Hegseth Impeachment
A prominent conservative legal commentator explains why Hegseth should be convicted on at least some of the charges.
Yesterday, I wrote about why Secretary of Defense Pete Hegseth deserves to be impeached and convicted for his role in in starting an unconstitutional war and perpetrating over 200 cases of outright murder with the "drug boat" strikes. Today GOP Rep. Thomas Massie filed impeachment charges in the House of Representatives. Even if they don't pass in the narrowly Republican-controlled lame duck Congress, they will almost certainly do so in the incoming Democratic one. Meanwhile prominent conservative legal commentator, national security law expert and former federal prosecutor Andrew McCarthy has published an excellent overview of the charges in the National Review.
McCarthy is far to my right, and far more sympathetic to the War on Drugs (I myself believe it should be abolished). Thus, it's notable that he and I agree that Hegseth should be convicted for his role in the drug boat strikes, which McCarthy characterizes as "indefensible":
I do not believe there is any viable justification for the extrajudicial killings by military force of operators of suspected drug boats. Drug trafficking is a crime, not an act of war. Our law addresses it through trial and imprisonment, not the use of military force…. The administration has not proved that the boats were ferrying narcotics, much less that the drugs were headed to the United States. The president's designation of Venezuelan criminal gangs as foreign terrorist organizations, besides being legally dubious (drug dealing is not "terrorist activity" as defined in federal law), does not authorize the use of force (it instead makes material support to the organization a crime and helps the government cut off funding sources). While the unauthorized killings in the Caribbean and eastern Pacific have not drawn the level of public ire that the Iran war has, they are indefensible, and Hegseth has been their loudest, crudest champion.
As noted in my earlier post, this view is similar to that of John Yoo, well-known former Bush Administration official and leading conservative advocate of sweeping executive power over national security and foreign affairs.
McCarthy also argues Hegseth should be convicted on at least one other charge:
Similarly, I do not believe there is any defending Hegseth on the charge that he has abused command authority and violated constitutional separation-of-powers principles in trying to discipline and censure Senator Kelly, a retired Navy captain (who remains subject to the Uniform Code of Military Justice). Hegseth's actions, undoubtedly endorsed by the president, constituted unlawful command influence. More importantly, they abused executive power in an effort to muffle congressional criticism. The haughty Hegseth was playing a dangerous game here; if it has now come back to bite him, he has himself to blame.
This charge is less within my expertise than some of the others. But I agree with McCarthy here.
McCarthy also appears to recognize that the Iran War is illegal, but suggests that Hegseth does not deserve impeachment on this score, because he was just obeying Trump's orders and implementing his policy. He also notes (correctly) that previous presidents have gotten away with similar initiations of war without congressional authorization.
I disagree for reasons summarized in my previous post:
Obviously, the ultimate perpetrator of these illegal acts is not Hegseth, but Trump. The former was following the latter's illegal orders (though he likely also helped influence Trump to give those orders in the first place). But sanctioning officials for obeying illegal orders is still important. That's one of the lessons of the Nuremberg trials.
I would add that Hegseth wasn't just some low-level flunky merely obeying orders. He has had a major influence on policy, and was one of the key architects of both the Iran War and the boat strikes. OK, maybe he is a flunky; but not a low-level one. He bears far greater responsibility than, e.g., servicemembers at the bottom of the chain of command.
As also noted in my earlier post, it is indeed true that previous presidents, such as Barack Obama, have gotten away with starting illegal wars. Obama deserved to be impeached, as well. But that makes it all the more imperative to start enforcing this part of the Constitution more effectively. Moreover, the Iran War is much larger and has had far worse effects than any other illegal wars of the last several decades. Obama's illegal wars were much smaller, by comparison.
I will not say much about McCarthy's analysis of the other charges, except briefly on that focused on the removal of Venezuelan dictator Nicolas Maduro. McCarthy laments that Trump left the brutal socialist regime in power (minus Maduro), but suggests that the intervention might have been legally justified by the precedent of the 1989 US military action that removed and captured Panamanian strongman Manuel Noriega. I differ for reasons I outlined here:
Defenders of the legality of Trump's actions cite the 1989 invasion of Panama, which was undertaken in large part for the purpose of apprehending Panamian dictator Manuel Noriega; like Maduro, Noriega was charged with smuggling illegal drugs into the US. But the 1989 Panama precedent does not actually justify Trump's actions. On December 15, 1989 (five days before the US invasion), Noriega foolishly announced that Panama and the US were in a "state of war," thereby creating conflict between the two countries that did not exist in the Venezuela case. In addition, Panamanian forces had killed or wounded two US military personnel in the Panama Canal area, and detained other American citizens. Unlike Noriega in 1989, the Venezuelan regime did not declare war on the US or otherwise initiate a military conflict. Thus, congressional authorization is needed to make any US military intervention constitutional.
That said, I think the Maduro intervention charge is much weaker than the Iran War and boat strike charges. The Maduro action was on a much smaller scale, and has not had anything like the same horrific effects. The abusive prosecution charge is also more compelling than that focused on Maduro. Congress would do well to focus attention on the strongest charges and convict Hegseth on them.
S. Ct. Suspends District Court's Injunction Blocking Border Barrier Building
"There is no such thing as a 'constitutional' major-questions claim."
From today's Supreme Court unsigned opinion in Mullin v. Friends of the Ruidosa Church (with Justice Jackson essentially dissenting):
Section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) grants the Secretary of Homeland Security broad authority to construct border barriers and roads "to deter illegal crossings in areas of high illegal entry into the United States." The same section expressly authorizes the Secretary "'to waive all legal requirements'" as "'necessary to ensure expeditious construction'" of those barriers and roads, and sharply limits judicial review of all claims arising from such waiver determinations. Specifically, the statute provides that "'[a] cause of action or claim may only be brought alleging a violation of the Constitution of the United States'" and courts "'shall not have jurisdiction'" over nonconstitutional claims. §102(c)(2)(A).
Earlier this year, the Secretary invoked Section 102's waiver authority to initiate a border-construction project at the U.S.–Mexico border, in a region that U.S. Customs and Border Protection has designated the "Big Bend Sector." The Secretary found that the Big Bend Sector "is an area of high illegal entry" requiring additional border barriers, and waived the application of a variety of environmental and conservation laws to facilitate expeditious construction.
Shortly thereafter, respondents—an individual river guide, an environmental nonprofit, and a nonprofit organization dedicated to preserving a historic church in Ruidosa, Texas—challenged those waiver determinations by filing suit in the U.S. District Court for the Western District of Texas. Respondents claimed, among other things, that the Secretary's waiver determinations "violat[ed] the major questions doctrine under the U.S. Constitution, Article I, Section 1." Although styled as constitutional, that claim simply alleged that the Secretary exceeded his statutory authority in issuing the waivers.
On October 2, 2026, the District Court entered a preliminary injunction blocking the Secretary's waivers and halting all associated construction. The District Court acknowledged that its jurisdiction was limited to constitutional claims. But it nonetheless concluded that respondents' "major questions doctrine claim" qualified because, in its view, the "major questions doctrine is a constitutional clear statement rule grounded in separation of powers." The court further held that respondents' "major questions doctrine claim" was likely to succeed on the merits because the Secretary lacked "'clear congressional authorization' to issue" the waivers. Because the Fifth Circuit lacks jurisdiction to hear this case, IIRIRA §102(c)(2)(C), the Solicitor General filed an application requesting either summary reversal or a stay of the District Court's preliminary injunction.
The Butler Didn't Do It
Todd Butler's bare Senate Judiciary Committee Questionnaire.
Todd Butler has now posted his questionnaire for the Senate Judiciary Committee. Here is the chronology Butler offers for his nomination:
On June 29, 2026, Senator Roger Wicker contacted me about a potential vacancy on the United States Court of Appeals for the Fifth Circuit. I spoke with Senator Cindy Hyde-Smith the following day. On July 1, 2026, an official from the White House Counsel's Office contacted me to arrange an interview. On July 13, 2026, I interviewed with officials from the White House Counsel's Office. Following my interview, I received periodic updates from Senator Wicker about the process. On October I, 2026, President Trump called to inform me that he planned to nominate me for a position on the United States Court of Appeals for the Fifth Circuit.
There is a very relevant date missing here. On September 28, 2026, Judge Southwick publicly announced that he would take senior status. Yet three months earlier, Senator Wicker contacted Butler about the potential vacancy.
As I said from the outset, the fix was in. There was some sort of deal involving Wicker, Southwick, and the White House. I'm sure this interview was pro forma. and doubt any other candidates were interviewed. Judge Southwick could have announced his intentions at any time in August or early September, but he waited until the last possible moment to jam up the process, and ensure Butler would not go down. I do hope at least one Senator asks Butler if he is aware of any communications in which Judge Southwick, directly or indirectly, conditioned his willingness to take senior status if Butler is the nominee.
As for the rest of the SJQ, let's just say Butler's pantry is bare. Or, the Butler didn't do it.
Butler went to law school between 2005 and 2008, but he wasn't a member of the Federalist Society. That makes sense, as he wrote critically of Justice Scalia, originalism, and the Second Amendment. He wasn't a member while he clerked. Indeed, he didn't become a member of the Federalist Society until 2016. I suspect lots of people joined before or after Trump's victory. It would help with career prospects. He has never held any leadership positions in FedSoc. But rest assured that he was active in the Inn of Court and the Mississippi Bar, holding several leadership positions.
Butler has extensive experience in employment law. In addition to the publications I flagged, Butler speaks and writes often about the EEOC, FLSA, and related topics of municipal law. His only professional exposure to constitutional law involves defendant local officials who are sued for violating First Amendment rights. After Olivier v. City of Brandon, his most significant case was as defense counsel in a wrongful death case. He taught at the Mississippi College of Law "periodic[ally]" between 2008 and 2016 but does not recall which semesters he taught. He also does not have copies of the syllabi.
Here is how Butler describes his pro bono work:
Over the course of my career, I have accepted pro bono clients, typically through the Mission First Legal Aid Clinic or the Mississippi Volunteers Lawyers Project. I have assisted with adoptions, child visitation matters, and other domestic issues. I also have provided pro bono services to a local church, including contract review and procedure drafting, in connection with the operation of a faith-based children's center. I advised a local pastor on a land acquisition that he is considering using for a fellowship facility. And I have volunteered, along with others at my law firm, at Stewpot Community Services, where we served meals to people experiencing homelessness.
There is no pro bono work that would remotely be associated with the conservative legal movement. And no, working for a church does not necessarily make a person conservative.
If I were to show you this questionnaire, without any knowledge of Mississippi politics, would you possibly think this was a viable record for the Fifth Circuit? No.
Justice Cody Hiland Publicly Criticizes The President For Nominating Him To District Court Instead of Eighth Circuit
Apparently, the Arkansas Senators are blocking Judge Lee Rudofsky's nomination because Hiland didn't get the nomination.
We are coming into the endgame for President Trump's judicial nominees. Since the election, it seems the President has made (at least) two nominations to the federal bench in Texas: Justice James Sullivan of the Texas Supreme Court for the WDTX seat in Austin and OLC Head Elliot Gaiser for the NDTX seat in Dallas. I say "seems" because the President has not posted these nominations to Truth Social, as that makes it official. But the Senate Judiciary Committee has received questionnaires for both candidates. I have known both of these sharp legal minds for some time, and would welcome their addition to the bench. Will Sullivan and Gaiser get votes? I sure hope so. Over the next six weeks, Republican Senators will need to be motived to vote, while Democrat Senators will pull out every stop to leave these seats open. Plus, there is an entire line of other nominees who are still waiting for votes.
Beyond the district court nominees, there is the question of circuit court nominees. Judge Anna St. John's nomination to the Fifth Circuit and Judge Daniel Domenico's nomination to the Tenth Circuit are pending. They had their hearings some time ago, and should get through. Todd Butler has not even had his hearing yet, so he is down the pecking order. Then there is Judge Lee Rudofksy, a nominee to the Eighth Circuit, who had his hearing back in September. Yet, both of the Arkansas Senators are blocking Rudofsky's nomination. Why? They prefer Justice Cody Hiland, a member of the Arkansas Supreme Court.
There's a problem with Hiland. He has demonstrated absolutely terrible judgment which should permanently disqualify him from holding any public office.
In August, he decided to disclose to a room full of law students private communications between him and the White House Counsel. Worse, rather than teaching students about the value of grace, he promoted belligerence and vindictiveness. In short, the White House approached Hiland about a nomination to the Eighth Circuit. After the vetting process, the White House changed course, and offered Hiland a seat on the federal district court. Hiland refused, and told the White House Counsel to tell President Trump about it. He said all of this on a livestream. You can watch it here, starting around the 16:45 mark:
And I've transcribed the comments for those who prefer to read:
The second thing I want to talk about is you're going to have to learn to be resilient, and maybe this far in your career, maybe it's been easy for you. I don't know, but you're going to have to learn how to be knocked down and then get back up, and then also not to be intimidated. Resiliency is something that is going to carry with you the rest of your career. Now, I'm going to tell you a story that just happened to me because resilience matters even at this point in a career. So, you you want to hear a backstory on something? Nobody ever gets to hear backstories. I'm going to give you a backstory. So, about two months ago, I was contacted about being appointed by the president to the Eighth Circuit. Okay, I had senators who asked me to do it. Applied, went to the interview in front of a White House panel of eight Ivy League attorneys, did an interview, and then got a call. And the call said, "You know what? We're going to recommend that the president appoints you to the Eighth Circuit, and so they started a background check. The FBI goes out, and if you've ever served in these capacities, you know that there's a full field investigation that takes place. And select 12 or 13 agents just investigate you for about six weeks. And in this case, they ask them to finish it in two weeks because they wanted to get it done, and so the FBI went out and they talked to over 130 people about me and my life. And when Dean Crawford is talking about social media, you know that sort of thing matters, okay? Because they go back to the time that you're 18 and they talk to everybody you've ever leased from. They tell you they're going to talk to your girlfriends and everybody else. It's like taking a bath with a brillo pad. Okay, good decisions matter as you go along this course, and so it rocked along. And last Tuesday, I had a meeting. Last Wednesday, I had a meeting for three hours with the Department of Justice, finalizing my Senate Judiciary Committee questionnaire, and it was going to be sent in. And I was told to go home and to expect a phone call from the President of the United States, and to be offered the position. And so I went home and I charged my phone and I called my wife and I said, "You need to come home tonight's the night. We've been through two months of unbelievable minutia of a life that's quite frankly not that interesting. Okay, but I had to have it all, and we had prepared it. It was ready to it was ready to go. And I get a phone call from 202. For those of you don't know, that's Washington D.C. And the man on the other end of the line was not the president of the United States. It was White House Counsel, who, by the way, had recommended that we be chosen. And White House Counsel said the president would like to know if you would be interested in a federal district court position. Eastern District of Arkansas, and I said, "You mean Circuit, Eighth Circuit? No, no, no. Federal District Judge in the Eastern District of Arkansas." And so your mind starts going, "What in the world has happened? What am I hearing?" And so, being belligerent, and at times I said no. That is not a position that I'm interested in. And he came back with after a five second delay of you know not believing what I just said. He said, "So you want me to go back into the Oval Office and tell the President of the United States that you're rejecting an opportunity to be appointed to the federal bench, and I said, "Yes, that's exactly what I want you to tell the president of the United States." And so, you know, I tell that story to say this because I want to be honest. Because too many elected officials are just not transparent, and that happened to me last week. You know what? It's okay because I'd never dreamed of being on the Eighth Circuit. It had never been had come to my mind. But we had an expectation based on an FBI investigation, based on communication from those that make these decisions that it was done. And sometimes, guys, it's not done. Sometimes your expectations are not met. When you're a student here with these kind of people, this kind of quality, not everybody is going to make the top paper. Not everybody is going to make law review. Despite what your expectations may be there are times where your expectations are not going to be met, and it's going to happen for the rest of your life at times. And so, as you begin this career, start developing that resiliency.
Talking to law students is my profession. I can't imagine a judge making such a huge blunder. What lesson are these students taking away here? That you should be so stubborn about getting one position that you refuse another lifetime commission? That you should reveal private communications with the White House in which you admit you were "belligerent"? He is comparing not getting an Eighth Circuit appointment to not getting on law review? No wonder the White House didn't pick him. In my view, making a bad nomination is worse than making no nomination at all (see Butler). The Eighth Circuit is at a turning point. Judge Stras writes far too many dissents. One more vote could flip the circuit. Arkansas is but one state in the circuit. This stubbornness will spite the good people of those states.
Here's the bottom line. Senators pick Judges who are their friends. Those are the worst possible reasons to pick a judge. We need to reward the people who advance the rule of law, not those who are chummy with Senators. And yes, this applies to Todd Butler too. The Junior Senator from Mississippi told people to choose a different protein. Well, they should have chosen a different judge. But here we are.
Deference, the Insurrection Act, and Statutory History
A guest post by Prof. Joshua Braver.
I recently wrote about the Ninth Circuit's decision in Newsom v. Trump, which ruled that Trump's federalization of the California National Guard last year, was illegal. Previously I assessed the Supreme Court's ruling in the closely related case of Trump v. Illinois. Today, we have a guest post on these and related issues, by Professor Joshua Braver of the University of Wisconsin. Josh is one of the nation's leading experts on the law regulating domestic use of the armed forces, and my coauthor on two articles about exclusionary zoning (see here and here).
The Volokh Conspiracy and I are pleased to be able to feature his post on this extraordinarily important issue. It is cross-posted with the Just Security site. What follows below is written by Josh Braver, not me (Ilya Somin):
On October 23, in Newsom v. Trump, the Ninth Circuit struck down President Donald Trump's June 2025 federalization of the National Guard in Los Angeles. Although I agree with the result, I disagree with its reasoning on deference. The issue is whether courts should defer to the president, that is, give a president significant leeway in their assessment of the facts on the ground and whether those facts meet the statutory criteria for deploying the military. The Ninth Circuit decided to be, in its words, "highly deferential" in both its decision on Los Angeles and its decision on federalizing the Guard in Portland. That line of reasoning also influenced the Seventh Circuit's decision to give "great deference" in the Chicago case.
In adopting this "highly deferential" standard, the Ninth Circuit claimed to rely on the statutory history of domestic military deployment. But that history actually cuts in the opposite direction, against deference, as I discuss extensively in an article just published in the Emory Law Journal. The significance of that history extends beyond the recent decision in Newsom, which concerned the novel use of a little-known statute, 10 U.S.C. § 12406. The larger question is whether courts should defer to a president when they invoke the Insurrection Act, the main and most fearsome statute for domestic deployment of the military.
Legal commentators had previously recognized these stakes in the last significant decision on these domestic deployments. After the Supreme Court blocked the deployment of the Guard in Chicago last December, some called the decision a "pyrrhic victory;" as Jack Goldsmith put it, the Insurrection Act still "lie[s] in the wings." In Goldsmith's view, the Insurrection Act is "much more robust" than § 12406, and the "power authorized here is astounding," in large part because of the "greater claim to presidential deference" under the Insurrection Act. According to Goldsmith and co-author Bob Bauer, "The president will receive very significant deference from courts in his determination that an Insurrection Act predicate is satisfied." The Ninth Circuit's decision on deference only adds fuel to that blazing fire of deference for the Insurrection Act. That line of reasoning is, however, not well supported by the statutory history of the Insurrection Act.
Statutory History in Newsom
One of Congress's powers under Article I, Section 8 is to provide for "calling forth" the militia for domestic deployment. The most famous, broadest, and most well-used example of Congress exercising this power is the much-discussed Insurrection Act. But the 2025 deployments in Los Angeles, Portland, and Chicago concerned a heretofore obscure statute, 10 U.S.C. § 12406, which permits federalization of the National Guard in cases of (a) invasion, (b) rebellion, or (c) the president's inability, with the regular forces, to execute the laws of the United States. Newsom v. Trump dealt with the rebellion prong (which Ilya Somin discussed here), while the Supreme Court in Trump v. Illinois addressed the prong involving inability to execute the laws with regular forces.
But there is a specific question of deference. The baseline in statutory interpretation is no deference. Legislatures pass laws and then courts interpret them. When the executive exceeds a statute's authorization as interpreted by the judiciary, courts rule that the action is unlawful. That baseline can be displaced for various reasons. But the most straightforward reason is when the statutory text itself provides for deference, and this was the Ninth Circuit's focus.
Statutes may confer discretion on the president by using subjective terms, such as when a provision turns on what the president "judges," "considers," "deems," "determines," or "finds." For example, in Trump v. Hawaii, the Supreme Court concluded that the statute "exudes deference to the President" because the Immigration and Nationality Act, by its terms, authorizes the president to suspend the entry of aliens whenever he "finds" that their entry would be detrimental to the interests of the United States. As elaborated in my Emory Law Journal article, the text of the Insurrection Act confers deference in only one of the four conditions for its use, because it sometimes uses the term "considers" and sometimes does not.
In contrast, there are no subjective discretion-conferring terms in 10 U.S.C. § 12406 that could be construed to confer deference on the president. Both in its recent opinion and in its earlier stay order, the Ninth Circuit acknowledged as much:
"Section 12406 does not include express language making the President the sole judge of whether a required exigency exists. Consequently, if we were considering the text of § 12406 alone, we might conclude that the President's exigency determination is subject to review like certain other factual findings that are preconditions for executive action under a statute." Read More
U. Colorado Regent-vs.-Regents Lawsuit, Cannabis, Race, and Legislative Immunity
From James v. Rennison, decided Friday by Judge Philip Brimmer (D. Colo.), plaintiff's allegations:
Regent Wanda James is an elected member of the University of Colorado Board of Regents …. Regent James is the second Black woman to be elected to the Board and is the only Black regent currently on the Board. Regent James is also a prominent Black cannabis owner and was the first Black owner of a cannabis dispensary in the United States. Regent James has used her position on the Board to advocate for communities of color.
In late 2024 and early 2025, the Colorado School of Public Health ("CSPH") developed a public health campaign called Tea on THC. The Tea on THC campaign included use of the following image:
Regent James used her position as a regent and as a private citizen to criticize the Tea on THC campaign, asserting that it invoked racist stereotypes. After Regent James criticized the Tea on THC campaign, the CSPH issued a public statement stating that it regretted any distress caused by the imagery used in the campaign and that it acknowledged its responsibility to reflect cultural awareness and sensitivity. In addition to criticizing the Tea on THC campaign, Regent James spoke publicly about the lack of Black leadership within the University of Colorado….
Plaintiffs Contesting Tren de Aragua Membership Claims / Alien Enemies Act Application Still Can't Sue Pseudonymously
From Judge James Wesley Hendrix (N.D. Tex.) Friday in W.M.M. v. Trump (for more on the earlier Fifth Circuit en banc decision, see here):
On March 14, 2025, the President invoked the Alien Enemies Act—a federal statute that permits the President to deport foreign nationals who are engaged in an "invasion or predatory incursion" against the United States—to detain and remove members of Tren de Aragua, a Venezuelan terrorist group that traffics drugs and engages in other criminal activity. The petitioners, on behalf of a proposed class of Venezuelan nationals detained under the President's Proclamation, brought a habeas action in this Court. The petitioners argue that (1) the Proclamation exceeds the President's authority under the Alien Enemies Act and (2) the detainees have not received sufficient notice to challenge their removal.
After trips to the Fifth Circuit and the U.S. Supreme Court, the matter is back before this Court…. [T]he petitioners seek leave for the proposed class representatives to proceed under pseudonyms. The Court denies that motion because the named petitioners have not substantiated their conclusory allegations with evidence that they will suffer harm if their identities are disclosed. The Fifth Circuit found the petitioners' allegations insufficient to support their request to use pseudonyms [though it] {denied the petitioners' motion "without prejudice to any future determination by the district court regarding whether to allow any new class representatives to proceed under pseudonyms"}, and the petitioners have not persuaded this Court to depart from the Fifth Circuit's sound analysis….
Federal Rule of Civil Procedure 10(a) "require[s] plaintiffs to disclose their names in the instrument they file to commence a lawsuit." "Public access to this information is more than a customary procedural formality; First Amendment guarantees are implicated when a court decides to restrict public scrutiny of judicial proceedings." … "Judicial records belong to the American people; they are public, not private, documents." … The Fifth Circuit thus recognizes a "strong presumption against party pseudonymity."
Today in Supreme Court History: November 9, 1942
11/9/1942: Wickard v. Filburn decided.
Open Thread
What’s on your mind?
Talarico's Christianity
Christian nationalism is bad but Christian socialism is good.
The media continues to fawn over Texas's new Senator-Elect, James Talarico. The New York Times draws a contrast between the traditional conservative evangelicalism and Talarico's progressive christianity.
Mr. Talarico, an eighth-generation Texan and onetime seminarian, understood all that. His own grandfather, once a Baptist preacher, found himself on the "moderate" side when conservatives took over the Southern Baptist Convention in the 1970s and '80s, a move masterminded in Texas. Mr. Talarico was raised in a church that has been known locally for its progressive activism for decades.
In a town hall hosted by CNN in October, a voter from his hometown of Round Rock, Texas, pressed him "Christian to Christian" about provocative past statements like "God is nonbinary."
"Do you believe that the Bible is the absolute source of truth and God's final authoritative word, even when our culture says otherwise?" she asked.
"Yes," Mr. Talarico answered.
For many, his rise was a reminder of the capacious borders of Christianity in the state.
"The loudest voices that people hear are these megachurches, and they think that's what we're all doing," said the Rev. Janet Maykus. She was raised in a progressive church in then-rural Lancaster, Texas, where she was taught that "faith is something particular to every person," rooted in justice and kindness rather than doctrine.
Ms. Maykus, 64, now leads the United Christian Church of Austin, a small mainline Protestant congregation in the capital.
When her congregation recites the Lord's Prayer, it's a "train wreck," she said fondly. Some people recite a version with gender-inclusive language; others tack on a few extra words here and there. In every service, Ms. Maykus also prays aloud for "our siblings in Christ who have lost their way to the lure of white Christian nationalism."
In recent months, she said, she has talked with multiple visitors to the church who said they had been inspired by Mr. Talarico to seek out a church like hers. She is baptizing a baby on Sunday.
The growth of progressive congregations like hers is exactly why Robert Jeffress, pastor of the politically influential church First Baptist Dallas, watched Mr. Talarico's ascent with alarm, he said in an interview this week.
"What James Talarico believes about the Bible and about Jesus, those beliefs don't disqualify him from being a senator, but they do disqualify him from being a Christian pastor, or even a Christian," Mr. Jeffress said, referring in part to Mr. Talarico's suggestion that Christianity is not the only religion that points to the truth.
Last Sunday, Mr. Jeffress said, he alluded to Mr. Talarico as he preached about the tower of Babel, warning how "false religion always mixes truth with error."
Mr. Jeffress's church, established in the 1860s, is one of many institutions that have long made Texas a major exporter of politically conservative Christianity.
Texas is where the folksy fundamentalist radio host W. Lee O'Daniel became governor in 1938, with a platform based on the Ten Commandments and low taxes. It's where W.A. Criswell, a predecessor of Mr. Jeffress, called the separation of church and state "the figment of some infidel's imagination" in 1984. And it's where Dan Patrick, the state's current lieutenant governor, described his socially conservative agenda as an expression of his Christian faith.
Second Amendment Roundup: Viramontes Is Not Moot
Cook County includes AK-47 rifles to be among “AR-15 platform weapons”
In the Viramontes v. Cook County case pending in the Supreme Court, Cook County has filed a Suggestion of Mootness in response to a Motion to Dismiss Petitioner Cutberto Viramontes from the case. The question presented in the case is: "Whether the Second and Fourteenth Amendments guarantee the right to possess AR-15 platform and similar semiautomatic rifles." Cook County argues that standing in the challenge is based on Mr. Viramontes' wish to obtain an AR-15 style rifle, but Christopher Khaya, the only other individual petitioner in the case, only wishes to obtain an AK-47 style rifle. Mr. Khaya, the argument goes, does not have standing to litigate the question presented because he did not state he wishes to obtain an AR-15.
Yet Cook County itself previously classified the AK-47 as within the general category "AR-15 platform weapons." The Brief for the Cook County Respondents states:
Specific firearms are outlawed under the Ordinance, including the "AK-47," "AR-15," "Bushmaster XM15," "Bushmaster Carbon 15," "Bushmaster MOE series," "ArmaLite M15," "Armalite M15-T," and "Olympic Arms PCR." [Cook County, Ill., Code of Ordinances] § 54-211(7) (hereafter AR-15 platform weapons).
The County uses the term "AR-15 platform weapons" throughout its Brief as a convenient shorthand to describe the types of rifles it bans. For instance, referring to how "the public increasingly purchased AR-15 platform weapons," in the next sentence it describes a shooting in which the perpetrator used "a semiautomatic AK-47 style rifle." Describing the features that tie such rifles together, the Brief states: "The Ordinance is limited to 'assault weapons' that are strictly defined as 'semiautomatic rifle[s]' able to accept a detachable large capacity magazine and one or more of certain military-style features, such as a folding or telescoping stock, a pistol grip without a stock, a barrel shroud, or a muzzle brake." (There is actually nothing specifically "military-style" about such features.)
In its Suggestion of Mootness, the County attempts to separate these common features by distinguishing the different model names and designs. Viramontes sought "to own a Smith and Wesson Military & Police AR-15 style semiautomatic rifle," while Khaya "wants an IMI [Industrial Military Industries] Galil semiautomatic rifle," which the petitioners themselves stated "is not an AR-15 style rifle but is largely based on the AK-47 design." But the question presented is not that narrow, instead referring generally to "AR-15 platform and similar semiautomatic rifles." To that, the County claims: "There are no record facts concerning whether the IMI Galil weapon operates similarly to an AR-15." For starters, how about the County's own Brief describing their common features to be that they are semiautomatic rifles, have the ability to accept a detachable magazine, and have a pistol grip, folding or telescoping stock, and a muzzle brake?
In sum, in its Brief, Cook County refers to "AK-47" rifles as encompassed in the general term "AR-15 platform weapons." Its denial of that in its Suggestion of Mootness cannot be regarded as well taken. Mr. Khaya has standing to litigate the question presented. There are also two association challengers who thereby also have standing.
In any event, as Cook County notes in its filing, Viramontes is consolidated with Grant v. Higgins, the challenge to Connecticut's prohibition on semiautomatic rifles, which is quite similar to that of Cook County. Therefore, regardless of what happens with Cook County's suggestion of mootness, the Grant case will be unaffected, and the Supreme Court is poised to decide this fundamental issue that lays at the heart of the Second Amendment.
Impeach Pete Hegseth
He deserves it for his role in starting an unconstitutional war and perpetrating over 200 murders.
Outgoing GOP Representative Thomas Massie is planning to introduce an impeachment resolution against Secretary of Defense Pete Hegseth. Soon-to-be Democratic Speaker of the House Hakeem Jeffries says he's a "hard yes" on the idea. That makes it very likely it will happen. If not now, then when Democrats take control of Congress in January, after their big win in the midterm election. Hegseth richly deserves it, and should be convicted on at least two major charges: his role in starting an unconstitutional war and over 200 cases of outright murder.
On September 15, Rep. Massie outlined eight articles of impeachment against Hegseth (see here for his more detailed description). The two most compelling are these:
Article I - Waging War in Contravention of the War Powers Resolution of 1973 Section 2(c): Charges Secretary Hegseth with waging the Iran war despite no declaration of war, statutory authorization, attack on the United States, or imminent threat. It establishes that the war was unlawful from its inception….
Article V - Extrajudicial Killings: Charges Secretary Hegseth with replacing maritime law enforcement with unauthorized lethal military targeting of suspected drug traffickers, resulting in at least 221 deaths. It also addresses denial of quarter, secondary strikes on survivors, failure to rescue shipwrecked persons, and the creation of artificial legal authorities for the campaign.
Massie's Article V is the single most damning, in my view. Hegseth is a principal architect of the Trump Administration's campaign of "drug boat" strikes in the Caribbean and the Pacific. It has now killed an estimated 244 people, virtually all of them civilians (Massie's September figure of 221 is now somewhat outdated).
I have previously written about why these strikes are illegal (see here and here). But don't take my word for it, or even that of other libertarian or left-liberal experts, like Brian Finucane. Take that of John Yoo, former Bush Administration official, and leading academic advocate of sweeping executive power over foreign policy and national security issues. If you illegally order the deliberate killing of civilians - especially outside the context of a war - that's outright murder. And that's exactly what Pete Hegseth has done.
This would be true even if those killed were all would-be drug dealers seeking to transport illegal drugs for sale in the US. I have previously explained why it is unjust and illegal to kill suspected drug dealers out of hand and why they are not the legal or moral equivalent of terrorists or enemy combatants in a war. As GOP Sen. Rand Paul pointed out when the drug boat strikes began, "The reason we have trials and we don't automatically assume guilt is what if we make a mistake and they happen to be people fleeing the Venezuelan dictator? … off our coast it isn't our policy just to blow people up … even the worst people in our country, they still get a trial." But, in fact, the evidence indicates most were not on their way to the US and many were not transporting drugs at all. Some, for example, were just fishermen.
The Constitution allows impeachment and removal of executive branch officials for "high crimes and misdemeanors." You don't have to be a lawyer or legal scholar to figure out that complicity in over 200 murders qualifies as a "high crime."
Hegseth is also a key architect of the disastrous Iran War. In previous writings, I have explained why that war is illegal, violating both the Constitution, and the War Powers Act of 1973. Such a war requires congressional authorization, and Trump and Hegseth did not even try to get it. The war's illegality is one of the main reasons for its failure to this point, as failure to secure the broad public support needed to get congressional authorization ensured Trump lacked staying power to continue the fight effectively after the initial strikes didn't achieve a quick, decisive victory.
Initiating and waging an illegal war isn't a violation of criminal law (though perhaps it should be). But massive non-criminal illegal acts and abuses of power are impeachable under the history and original meaning of the Impeachment Clause of the Constitution. On that point, see analyses by Gene Healy of the Reason Foundation (formerly at the Cato Institute), and prominent conservative legal scholars Michael Stokes Paulsen (here, here, and here), and Keith Whittington. There are few bigger illegal abuses of power than starting a massive unconstitutional war.
In fairness, Trump and Hegseth are not alone in starting illegal wars. Barack Obama did it, too, with his unconstitutional wars against Libya and ISIS (which, for those keeping score, I condemned at the time). Obama likely deserved to be impeached, as well. But the fact that he got away with this illegality is no reason to spare Hegseth. To the contrary, past laxness is all the more reason to reestablish deterrence to prevent future wrongdoing. Furthermore, Trump and Hegseth's illegal war is on a much larger scale than Obama's were, and has had far worse results.
The only potentially valid objection to impeaching Hegseth is that it might fail, and backfire politically. But the Iran War is highly unpopular, and therefore impeachment on that basis is unlikely to backfire. The politics of the boat strikes is more debatable. The administration will surely try to defend them by arguing the victims deserved it because they were trying to smuggle dangerous drugs. But that can be countered by presenting the extensive evidence demonstrating that many were not on their way to the US or even transporting drugs at all. Testimony from members of the bereaved families of the victims can help make that point, and influence public opinion against Hegseth and the administration.
Hegseth is unpopular on Capitol Hill, which makes it potentially possible to secure the needed 11 or more GOP senators' votes required for conviction (the Democrats are going to have 54-56 senators in the next Congress, depending on the results of still-ongoing vote counts in close races in Alaska and Mississippi). But even if he gets acquitted, the process of impeachment and trial can send a useful signal, and further publicize the administration's massive criminality and wrongdoing.
Obviously, the ultimate perpetrator of these illegal acts is not Hegseth, but Trump. The former was following the latter's illegal orders (though he likely also helped influence Trump to give those orders in the first place). But sanctioning officials for obeying illegal orders is still important. That's one of the lessons of the Nuremberg trials. And, hopefully, the time will come for Trump to face sanctions for his many illegal actions, as well. As with Hegseth, the only plausible argument against impeaching him is political, not legal or moral.
Massie's impeachment resolution also outlines several other charges against Hegseth. I think most of them have merit, but are less significant than those covered above. I will not attempt to assess these other charges here.
UPDATE: Back in 2020, I critiqued the "slippery slope" argument against impeaching presidents for abuses of power that aren't technically crimes. My points apply with even greater force to any such argument against impeaching appointed officials, like Hegseth. In their case, there is no argument they have some kind of popular mandate from the electorate.
Today in Supreme Court History: November 8, 1994
11/8/1994: U.S. v. Lopez argued.
Open Thread
What’s on your mind?
Court Allows Discovery as to Vindictive Prosecution Defense by Smartmatic's Parent Company
"It may well be that no fire will be discovered under all the smoke, but there is enough smoke here ... to warrant the unusual step of ... find[ing] out how this unusual prosecution came about."
From U.S. v. SGO Corp. Ltd., decided Tuesday by Judge Kathleen Williams (S.D. Fla.):
For a six-year period, the Government investigated SGO executives for their role in a money laundering and bribery scheme related to the May, 2016 Philippine elections. The investigation culminated in a six-count indictment ("First Indictment"), returned on August 8, 2024, which charged [executives of] SGO and Smartmatic … [with] conspiracy to violate the Foreign Corrupt Practices Act ("FCPA") (Count I); violations of the FCPA (Count II); conspiracy to commit money laundering (Count III); and international laundering of monetary instruments (Counts IV, V, and VI). The FCPA "prohibits officers of a domestic concern from making corrupt payments to a 'foreign official.'"
SGO was not charged. In fact, SGO had been cooperating with the Government since 2021, years before the First Indictment was returned. {Although the Parties may dispute the breadth and quality of SGO's efforts to cooperate, there is no question that SGO and the Government were engaged in discussions and the exchange of documents related to this matter.}
The original trial date was set for October 7, 2024 … [but was eventually reset for 2026]….
As the court notes, the Trump Administration was skeptical of FCPA prosecutions, deprioritized FCPA enforcement generally, and "elected to close FCPA investigations into multiple companies." But despite that, in October 2025, the government added SGO as a defendant in the case. SGO then moved to dismiss the superseding indictment, alleging vindictive and selective prosecution, and sought discovery in support of that motion, "premised on political events that have embroiled Smartmatic in the wake of the 2020 election":
Since that election, multiple high-profile individuals and organizations connected to then-Former President Donald Trump have alleged that Smartmatic, a subsidiary of SGO, interfered in the election…. President Trump has also reposted content blaming Smartmatic for interfering in United States and Venezuelan elections, calling Smartmatic "disgraceful" and expressing that those who "rigged" the 2020 election must pay. In response to the statements by President Trump's confederates, Smartmatic brought various defamation suits, which are largely ongoing. SGO contends that President Trump's personal animus against SGO and assertion of its rights against President Trump's confederates precipitated the filing of the Superseding Indictment….
The court lays out the demanding standard for defendants' attempts to get discovery related to allegations of vindictive or selective prosecution, but concludes that in this case the standard was met. A brief excerpt (for more, including citations to precedents to which the court analogizes this case, see the full opinion):
Prosecution Over Threat to American Federation of Teachers President Randi Weingarten Can Go Forward
From U.S. v. Spitzer (N.D. Ga.), filed by Magistrate Judge John Larkins on Oct. 9, and just affirmed Wednesday by Judge Eleanor Ross:
The indictment alleges that on July 23, 2024, Mr. Spitzer posted the following message on the website for the American Federation of Teachers, a labor union, regarding its president ("Individual #1"):
[Individual #1] is an ignorant incompetent cunt that should be worried for her safety. Fact that she is still alive. Liberal nazi deserves the bullet to head. Resign before she ends like what happened to trump at his speech. They won't miss fat bitch.
The indictment alleges that the post violated 18 U.S.C. § 875(c), which makes it a federal crime to transmit in interstate commerce any communication containing a threat to injure another person.
Mr. Spitzer argues that assuming the allegations in the indictment were true, it fails to state an offense because the posting was not a "true threat," or even a threat at all, and thus is protected by the First Amendment. As he sees it, the posting was simply political speech about a public figure and did not advocate the use of force or violence against Individual #1.
{In an effort to contextualize the posting, Mr. Spitzer points to an internet article in which Mike Pompeo, the former U.S. Secretary of State, described Individual #1 as "the most dangerous person in the world"; examples of "conservative politicians and commentators" criticizing her approach to school closures during the pandemic; and examples of Individual #1's own political statements. But these are not facts that the Court can consider at this juncture because they fall outside the four corners of the indictment.}
Arkansas Bar Official Allegedly Transferred Points from Some Bar Examinees to Others
From the Arkansas Supreme Court Thursday:
Evidence exists that Givens harvested points from a number of examinees' scores and then added them to other examinees' scores within the same test administration. Thus, she unilaterally elevated some examinees' scores to the minimum passing score of 270 or greater. Brech also identified at least one instance in which score alterations may have reduced an examinee's score-who otherwise would have passed-to a failing score. And in at least one instance, the individual who should have received the top score on the Arkansas Bar Examination had their score reduced thereby naming another examinee as the recipient of the highest score on the exam. If these allegations are true, these actions constitute an unprecedented breach of public trust.
The full statement from the court:
An internal review by Robert Brech, Executive Director of the Supreme Court of Arkansas's Office of Professional Conduct and Programs, has uncovered extensive irregularities involving the Court's Office of Professional Programs and the administration of the Arkansas Bar Examination. The matter was turned over to state and federal authorities.
As of today, the Prosecuting Attorney's Office for the Sixth Judicial District filed formal criminal charges against Nancie Givens for 65 counts of tampering with a public record under Arkansas Code Annotated section 5-54-121 in connection with the alleged altering of numerous Arkansas Bar Examination scores and the deletion of files purportedly intended to conceal that misconduct. The charges followed a criminal investigation initiated in April 2026 by the Arkansas State Police and the Federal Bureau of Investigation. As always, all defendants are presumed innocent until proven guilty in a court of law.
