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The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
The Hegseth Impeachment is Far From Over
Republicans temporarily blocked it with a procedural maneuver. But it is highly likely to come back.
Today, House Republicans managed to block the impeachment of Secretary of Defense Pete Hegseth, by voting 211-204 to send it to a committee for further "study." But this fight is likely to be far from over.
The Republicans may be able to effectively bottle up the impeachment in committee for the rest of the current Congress (which ends on January 3, 2027). But it will almost certainly come back in the new Democratic-controlled Congress. With approximately 260 seats in the new House, the Democrats (virtually all of whom support impeachment) should easily be able to vote to impeach. At that point, it will be harder to get the necessary 11 or more Republican votes needed to secure the required 2/3 majority toconvict in the Senate(the Democrats will have 54 to 56 seats in the new Senate, depending on the outcome of still-incomplete vote counts in Alaska and Mississippi). But Hegseth will at least have to go through a trial focused on his role in the unconstitutional Iran War, and in the murder of over 200 people in "drug boat" strikes in the Caribbean and the Pacific, among other charges.
And, though it's a steep hill to climb, it is by no means impossible he might actually get convicted, as he is very unpopular on Capitol Hill (and elsewhere), and the evidence against him is strong. It is notable that House Republicans chose to use this procedural maneuver rather than just vote down the impeachment directly. It suggests they might not have had the votes to do the latter.
In previous posts, I explained in much more detail why Hegseth deserves to be impeached and convicted, and considered an excellent article on the subject by prominent conservative national security law expert Andrew McCarthy (who reaches similar conclusions).
It ain't over till it's over - and this one is far from that point.
Does the President's Removal Power Extend to the Voice of America?
The DC Circuit affirms an injunction barring the removal of VOA head Michael Abramowicz. Will the justices see the case the same way?
Trump v. Slaughter affirmed the President's presumptive power to remove principal officers (other than members of the Federal Reserve Board). But does this power also extend to inferior officers? And is it constitutional for Congress to effectively insulate some inferior officers from presidential removal?
Today, in Abramowitz v. Lake, the U.S. Court of Appeals for the D.C. Circuit affirmed a district court injunction barring the removal of Michael Abramowitz, the head of the Voice of America. In the process, it rejected the Department of Justice's arguments that the district court lacked jurisdiction to consider the case and held Congress may (as a practical matter) insulate inferior officers by presidential removal by vesting removal authority in the hands of an agency head that requires Senate confirmation.
Judge Pillard wrote for the panel, and was joined by Judges Srinivasan and Pan. Here is how she summarized the opinion.
Seeking to preserve the journalistic integrity of the news broadcasters within the U.S. Agency for Global Media, Congress empowered a separate agency, the International Broadcasting Advisory Board, with final authority over the hiring and firing of the broadcasters' heads-of-network. The leaders of the Agency for Global Media ignored that statute when they attempted unilaterally to fire Michael Abramowitz, the head of Voice of America. Abramowitz sued, and the district court permanently enjoined
the Agency for Global Media from removing Abramowitz without the International Broadcasting Advisory Board's approval.We affirm the injunction. The district court had jurisdiction to enforce the statutory requirements governing the Voice of America directorship. Those statutory requirements are consistent with Article II. And the district court had equitable power to enjoin defendants from effectuating the illegal termination.
While acknowledging that, as a general matter, Congress has channeled litigation concerning allegedly improper removal of government employees to the Merit Systems Protection Board under the Civil Service Reform Act, the panel concluded that this general rule does not apply to the VOA as "Congress gave no hint" that it sought to divest district courts of jurisdiction to hear cases such as this when it revised the statute governing VOA in 2021. The removal protection of the VOA head "is not a standard employment law," according to the D.C. Circuit, "but a durable barrier against any breach of the firewall protecting the journalistic integrity of Voice of America." Writes Judge Pillard: "Congress had no reason to channel Abramowitz's claim through the CSRA, and every reason not to."
On the merits, the panel concluded Congress lawfully insulated the head of the VOA--an inferior officer--from removal by the President by vesting authority to appoint and remove the head of VOA in the International Broadcasting Advisory Board (IBAB).
IBAB is a seven-member "separate independent agency," the members of which must be bipartisan and are subject to Senate confirmation. IBAB is the relevant department head, even though it does not directly supervise VOA, as that job is performed by the U.S. Agency for Global Media--an arrangement the panel concluded is lawful under Morrison v. Olson.
The Department of Justice argued this unconstitutionally constrains the President's removal power, but the court was unconvinced.
Wrote Pillard:
So long as the President has adequate control over the department head, and the department head can control the inferior officer (as is the case here), the President can transitively control the inferior officer. The department head's supervision "preserv[es] the chain of command in Article II." Braidwood, 606 U.S. at 754.
Yet the practical effect of the court's ruling is that there is nothing the President can do to replace the head of the VOA. Six of the seven IBAB seats are currently open (having been removed by President Trump in 2025). Thus the Board is inquorate, and lacks the ability to remove the head of the VOA (or do much else). And, should Congress refuse to confirm new IBAB members, the current VOA head will remain in place. The DC Circuit may conclude this arrangement formally leaves the President with "adequate control" over the Board, but what good is control over a department head that is incapable of acting?
I suspect the Administration will seek further review, ultimately in the Supreme Court. The question is whether it files a petition for certiorari right away, or first seeks rehearing en banc. While there is no likelihood the full D.C. Circuit will disturb the panel ruling, a petition for rehearing en banc might generate a dissent that could help attract the justices' attention. This case would also give the justices the opportunity to revisit Morrison v. Olson and say more about the extent to which inferior officers may (or may not) be insulated from presidential removal.
The Peaceful Second Amendment Revolution
How the right was restored from its nadir half a century ago
This speech was delivered during Wyoming Law Week at the University of Wyoming College of Law, October 13, 2026.
Ladies and gentlemen, cowboys and cowgirls, good evening.
The title of my presentation, "The Peaceful Second Amendment Revolution," is about a revolution in the original meaning of that word: a return to the original starting point, as when the earth completes a revolution around the sun.
The American Revolution began in that conservative sense. The Americans wanted the British to respect all their pre-existing rights, including the written right to arms from the 1689 English Bill of Rights.
Law Week is an appropriate time to reflect on the rule of law and the revolutionary role of lawyers, then and now.
Writing in 1789, after victory in the American Revolution, physician David Ramsay explained one reason for the Revolution: "The study of law was common and fashionable." David Ramsay, 1 A History of the American Revolution 29 (Lester H. Cohen ed., Liberty Fund, 1990) (1789). According to Ramsay:
"No order of men has, in all ages, been more favourable to liberty, than lawyers. When they are not won over to the service of government, they are formidable adversaries to it. Professionally taught the rights of human nature, they keenly and quickly perceive every attack made upon them. While others judge of bad principles by the actual grievances they occasion, lawyers discover them at a distance, and trace future mischiefs from gilded innovations."
Ramsay pointed out that half of the First Continental Congress, in 1774, were lawyers.
"Bred in the habits of public speaking, they made a distinguished figure in the meetings of the people, and were particularly able to explain to them the tendency of the late acts of parliament. Exerting their abilities and influence in the cause of their country, they were rewarded with its confidence."
We ought always feel gratitude to those lawyers, and other Americans, who defended and advanced natural rights during the American Revolution. Tonight is the story of how one of the rights which those lawyers and others had guaranteed in our Constitution was nearly obliterated during the last third of the twentieth century. And how the peaceful revolution that has restored the Second Amendment was the cooperative work of millions of Americans, especially lawyers, and among them, especially legal scholars.
Although the story does involve the recovery of the original meaning of Second Amendment, the story is also about living constitutionalism; the most important reason the right to keep and bear arms survived against the attempts to destroy it was that the right lives and thrives in the hearts and minds of the American people.
The U.S. Supreme Court decisions of District of Columbia v. Heller in 2008 and McDonald v. Chicago in 2010 were the opposite of cutting edge. Those decisions were lagging indicators. They were the long-term consequence of elections, of a generation of historical scholarship, and of the refusal of millions of ordinary people to accept that a right they had always exercised and cherished could be defined out of existence by unreasoned pronouncements.
President Trump's Defamation Claim Against BBC Can Go Forward
From today's decision by Judge Jeffrey Kuntz (S.D. Fla.) in Trump v. BBC:
In Trump v. CNN (S.D. Fla. 2023), aff'd (11th Cir. 2025), Judge Singhal concluded that "the complained of statements are opinion, not factually false statements, and therefore are not actionable." In Trump v. Dow Jones & Co., Inc. (S.D. Fla. 2026), Judge Gayles dismissed President Trump's claims that the Wall Street Journal failed to adequately investigate claims it reported.
Those cases involved a news entity reporting on a story. Here, the news entity created the story. BBC admitted as much by confirming it had edited a video to make it appear as though President Trump made a statement he never made.
And it acknowledged it chose to release the video in a documentary only a week before the 2024 Presidential Election, at the time it would have the most impact. To make sure it was seen in Florida, BBC even emailed U.S. and Florida based commenters with instructions to on how to view the documentary.
Whether President Trump can prove these claims and establish he sustained damages at summary judgment or trial is left for another day. For now, after careful review, and being otherwise fully advised, BBC's Motion to Dismiss is denied [as to the defamation claim] ….
On October 28, 2024, one week before the 2024 Presidential Election, BBC broadcast a documentary titled "Trump: A Second Chance." In the Documentary, a twelve-second segment portrayed President Trump giving a speech to his supporters on January 6, 2021:
We're going to walk down to the Capitol and I'll be there with you. And we fight. We fight like hell and if you don't fight like hell, you're not going to have a country anymore.
This two sentence, twelve-second segment, represents the core of Trump's complaint. However, the issue with the statement is that Trump never said it. The above statement is actually two parts of a speech spliced together. Instead, the first remarks that Trump made were:
New in Civitas: "The Blue Tsunami Threatens To Drown Originalism"
"Going forward, the path of advancing the conservative legal movement requires a political reorientation."
My new essay in Civitas tries to make sense of how the midterm election affects the broader conservative legal movement. Here is the introduction:
President Donald Trump's surprise 2016 election saved Justice Antonin Scalia's seat and perhaps the Supreme Court. Over the ensuing decade, Trump appointed scores of originalist judges at all levels of the judiciary and led a political movement that supported originalist state court judges and attorneys general. But that movement came to a screeching halt with the 2026 midterm election. Indeed, the blue tsunami, largely a referendum on Trump, threatens to drown originalism. In deep red states, conservative judges were washed off the bench. Also swept from office were conservative governors who appoint judges and attorneys general who litigate in those courts. Given the large Democratic Senate majority and unfavorable maps for 2028 and 2030, a Republican Senate with the votes to confirm originalist judges may not return until 2033 at the earliest. An entire generation of talent will be wasted. A necessary condition for a successful legal movement is a successful political party. Legal conservatives need to carefully reconsider the political circumstances best suited to defend the Constitution.
The conservative legal movement has always existed in conjunction and disjunction with the broader conservative political movement. Certain long-term projects concerning the separation of powers and individual rights endure regardless of who is in office, but legal disputes arise with the exigencies of the day. The conservative legal movement will often, but not always, coalesce around current conservative political needs. Likewise, the conservative political movement will often, but not always, coalesce around the conservative legal movement. During two recent events, Justice Elena Kagan recognized this dichotomy. She observed that conservative members of the Supreme Court decide cases that are right "out of the playbook of the conservative legal movement," even as some of President Trump's policies suffer setbacks in the courts. Indeed, Trump has repeatedly expressed frustration that his appointees rule against him.
And here is the conclusion:
Many legal conservatives came to terms with voting for Trump in 2016 as a way to save the Supreme Court. Many more legal conservatives came around to Trump in 2020 based on his track record of appointing originalist judges--although I think that record is overstated. When Trump was on the ballot in 2024, some legal conservatives supported Trump for fear that Kamala Harris would pack the Supreme Court. But 2026 altered the calculus. Trump, and those candidates he endorsed, were routed in red states. Moreover, conservative judges and attorney generals were wiped from office. When the top of the ticket is no longer able to win elections, downballot judges and attorneys general do not stand a chance. Red states can only bleed for so long until they turn blue. A necessary condition for a successful legal movement is a political party that can produce viable candidates. Going forward, the path of advancing the conservative legal movement requires a political reorientation. The conservative legal movement can only survive if conservative lawyers are in public office to move the law. The blue tsunami cannot be allowed to drown originalism.
School Districts' Negligence and Nuisance Claims Against Social Media Companies Rejected by California Court of Appeal
Some short excerpts from the long decision Thursday in Social Media Cases (San Diego Unified School Dist. v. Meta Platforms, Inc.) by California Court of Appeal Justice Anne Richardson, joined by Justices Elwood Lui and Stephen Goorvitch):
In recent years, various plaintiffs have brought numerous legal claims against social media companies. In this opinion, we address only two causes of action—negligence and public nuisance—in the context of the laws of California, Florida, Washington, and Rhode Island, brought by school districts…. Plaintiffs generally claimed Defendants created a "mental health crisis" among their students that harmed Plaintiffs by disrupting their educational mission, requiring them to spend more money and staff time to address student mental health and discipline, and causing students to vandalize their property….
We acknowledge the serious allegations of mental health harms experienced by many students and the impact of those harms on Plaintiffs' schools and student bodies…. [But the relevant precedents] establish that these plaintiffs cannot proceed under the legal theories and factual allegations they have pled….
Negligence Causes of Action …
Here, Plaintiffs allege they suffered three general kinds of harm: (1) "incur[ring] significant financial costs" to address the youth mental health crisis allegedly created by Defendants' platforms; (2) "frustrat[ion] [of their] pedagogical mission" in diverting staff time and resources from education to counter the disruptive effects of the crisis; and (3) property damage inflicted by students. In part V., we conclude Plaintiffs' allegations their missions were frustrated do not state a cognizable negligence claim, and in part VI., we conclude Defendants have immunity from liability arising from Plaintiffs' alleged property damage. {Plaintiffs do not allege Defendants directly damaged their property; instead, they allege Defendants' platforms influenced students to vandalize school property because the platforms showed them so-called "challenge videos," created by third parties, that encouraged vandalizing school property. The trial court determined [47 U.S.C. § 230] provided Defendants immunity from liability arising from the challenge videos. We agree.}
That leaves Plaintiffs with only alleged financial harms …. The crux of the negligence causes of action is the applicability of the so-called "economic loss rule." … "… In general, there is no recovery in tort for negligently inflicted 'purely economic losses,' meaning financial harm unaccompanied by physical or property damage" [even as to foreseeable economic losses -EV]…. "[A]ssume[ ] a defendant negligently causes an automobile accident that blocks a major traffic artery such as a bridge or tunnel. Although defendant would be liable for personal injuries and property damage suffered in such an accident, it is doubtful any court would allow recovery by the myriad of third parties who might claim economic losses because the bridge or tunnel was impassible." …
Public Nuisance Causes of Action
Disability Discrimination and Allegations of AI Use in Student's University of Michigan Course Papers
"[A]t this stage of the case, ... [plaintiff] plausibly pleads that [the university] discriminated against her by disregarding [her medial records] to find that she used AI when the writing style of the course papers could have resulted from her disabilities."
From Doe v. Regents of Univ. of Mich., decided yesterday by Judge Laurie J. Michelson (E.D. Mich.):
Plaintiff Jane Doe filed this lawsuit against the University of Michigan and several individual defendants after she was disciplined for her alleged use of AI to write course papers. Plaintiff, who has generalized anxiety disorder (GAD) and obsessive-compulsive disorder (OCD), maintains that the "tone, meticulous structure, [and] stylistic consistency" of her writing can be misinterpreted as AI. Unconvinced, Defendants sanctioned Plaintiff with disciplinary probation and required her to rewrite those course papers and write a reflective essay. After challenging that discipline without success, Plaintiff filed suit, asserting claims under the due process clause, the Americans with Disabilities Act (ADA), and the Rehabilitation Act (RA). …
This dispute unfolded last fall when Plaintiff was an undergraduate student in Great Books 191, a classical studies course at the University of Michigan. The class was taught by Theo Nash, the course's graduate student instructor, and Basil Duffalo, the lead instructor. According to Plaintiff, Nash made public "statements reflecting a predisposition to assume AI misuse by students and to treat AI-related concerns as a core academic 'values' issue."
The issues at the heart of this case started when Nash filed an academic misconduct accusation with the Office of Student Academic Affairs (OSAA), indicating he was "immediately suspicious" Plaintiff had used AI to write a course paper. Plaintiff denied that accusation, "explaining that [her] disability-related writing traits could be misinterpreted as AI and should not be treated as proof of misconduct."
Today in Supreme Court History: November 10, 1975
11/10/1975: Buckley v. Valeo argued.
Open Thread
What’s on your mind?
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.
